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[2019] NSWSC 1571
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Koellner v Spicer [2019] NSWSC 1571 (14 November 2019)
Last Updated: 18 November 2019
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Supreme Court
New South Wales
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Case Name:
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Koellner v Spicer
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Medium Neutral Citation:
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Hearing Date(s):
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28 October 2019
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Date of Orders:
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14 November 2019
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Decision Date:
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14 November 2019
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Jurisdiction:
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Equity
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Before:
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Hallen J
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Decision:
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See Paragraphs [204]-[207]
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Catchwords:
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SUCCESSION – Family Provision – Claim by adult child of the
deceased for provision from the deceased’s estate under
Ch 3 of Succession
Act 2006 (NSW) – Small estate – No notional estate – Competing
claim of sole beneficiary named in Will – Clause in
deceased’s Will
setting out reasons for no provision being made for adult child – Whether
facts asserted in the Will
as to Plaintiff’s conduct are accurate –
Whether adequate and proper provision not made for the Plaintiff – Nature
and quantum of provision, if any, that ought to be made for the Plaintiff |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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R Atherton, “The Concept of Moral Duty in the Law of Family Provision
– a Gloss or Critical Understanding?” (1999)
5 Australian Journal of
Legal History
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Category:
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Principal judgment
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Parties:
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Daniel Koellner (Plaintiff)
Scott Spicer (Defendant)
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Representation:
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Counsel:
Mr K Morrissey (Plaintiff)
Ms R Kako
(Defendant)
Solicitors:
Turner Freeman Lawyers
(Plaintiff)
Mathey Solicitors (Defendant)
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File Number(s):
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2019/87097
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JUDGMENT
- HIS
HONOUR: These proceedings involve the estate of Erika Felse (“the
deceased”) and a claim for a family provision order, under
Chapter 3 of
the Succession Act 2006 (NSW) (“the Act”), made by her only,
now adult, child, Daniel Koellner (“the Plaintiff”). The Plaintiff
also
seeks an order for interest pursuant to s 100 of the Civil Procedure Act
2005 (NSW). At the commencement of the hearing, counsel for the Plaintiff
stated that the claim for interest was not pressed and that
interest was sought
pursuant to s 84A(3) of the Probate and Administration Act 1898 (NSW):
Tcpt, 28 October 2019, p 1(16-31).
- The
deceased died on 6 January 2019, leaving a Will dated 18 May 2018. This Court
granted Probate of that Will, on 6 May 2019, to
Scott Spicer (“the
Defendant”), a person with whom she was living in a de facto relationship
at the time of her death.
By her Will, she left the whole of her estate to the
Defendant. Had the Defendant failed to survive her, the deceased left her estate
to her brother, Tom Bauer, or, if he predeceased her, to his children in equal
shares.
- The
deceased explained her failure to provide for the Plaintiff in Clause 6 of the
Will, in the following terms:
“Having considered the extent of my estate and my responsibility to
provide for my son DANIEL FELSE, I have determined to make
no provision for him
as there has been no contact between the said Daniel Felse and me for many years
and there is no relationship
of love and affection between us. My responsibility
for his welfare ended many years ago, and I have no moral or legal duty towards
him and have made no promises to him in respect to my estate. In these
circumstances any gift to him would be contrary to the nature
of our
relationship...”
- The
Plaintiff disputed the assertions made in this Clause of the Will so it will be
necessary to return to his evidence later in these
reasons. He maintained that
the instructions for the Will were not provided by the deceased but by the
Defendant. He stated that
if the deceased had given the instructions for Clause
6, then she was not telling the truth about his contact with her: Tcpt, 28
October 2019, p 42(8-24).
- The
allegation that it was not the deceased who gave instructions for the Will, if
established, may be relevant to determining whether
the statements made in
Clause 6 are likely to be true or not. I shall return to this topic later in
these reasons.
Some formal matters not in dispute
- The
Plaintiff commenced the proceedings by Summons filed on 19 March 2019. The
proceedings were commenced within the time prescribed
by the Act (not later than
12 months after the date of the death of the deceased): s 58(2) of the Act.
- Section
57(1) of the Act provides that “eligible persons” may apply to the
Court for a family provision order. As a child
of the deceased, the Plaintiff is
an eligible person within s 57(1)(c) of the Act. The language of the subsection
is expressive of
the person’s status, regardless of age, as well as his,
or her, relationship to the deceased. It is not necessary that the
child be a
dependant at the time of the deceased’s death in order to be an eligible
person under this head of eligibility (as
dependency is not an element of the
definition of an “eligible person”).
- As
the deceased had dealt with all of her estate in her last Will, there is no
scope for the operation of the intestacy rules, with
the result that it is only
necessary, hereafter, to refer to the Will of the deceased.
- A
family provision order may be made in relation to property that is not part of
the deceased’s estate, but is designated as
“notional estate”
of the deceased by an order under Part 3.3 of the Act: s 63(5). In the
submissions made on behalf of
the Plaintiff, counsel
wrote:
“8. According to documents produced under subpoena, the
Defendant seems to have withdrawn approximately $40,000 from the
deceased’s CBA Access account from around the time she was admitted to
hospital after suffering a serious stroke on 25 July
2017.”
- (It
became clear, from the cross-examination of the Defendant, that the amount of
$40,000 was not a single amount withdrawn from the
deceased’s bank
account, but the approximate total of a number of different withdrawals, by the
Defendant, over a period of
time, from her account.)
- Be
that as it may, the written submissions did not go on to explain the basis of
the claim that the total amount, or any part of it,
could be designated as
notional estate of the deceased. Nor did the submissions refer to s 88 of the
Act, which provides that the
Court must not make a notional estate order unless
it is satisfied that (a) the deceased person left no estate, or (b) 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, or (c)
provision should not be made wholly out of the deceased person's estate because
there are other persons
entitled to apply for family provision orders or because
there are special circumstances.
- There
was no evidence that any of the subsections applied in the present case. At the
commencement of the hearing, during discussions
between Bench and Bar, counsel
agreed that there was no property that could be designated as notional estate:
Tcpt, 28 October 2019,
p 2(12-29). It follows that it is only necessary,
hereafter, to refer to the estate of the deceased. (Of course, it may be
necessary
to bear in mind any of the withdrawals acknowledged by the Defendant
to have been made for his own benefit as provision received
during the lifetime
of the deceased.)
- The
only eligible persons are the parties in the proceedings. Even though the
Defendant has not commenced proceedings under the Act,
he has given evidence of
the bases of his claim as the only beneficiary named in the Will of the
deceased, on the bounty of the deceased.
He has raised his financial
circumstances. He was cross-examined. The Act specifically provides that his
interests, as a beneficiary,
cannot be disregarded, even though he has not made
a claim: s 61. He is entitled to rely upon the terms of the deceased’s
Will
and his competing claim as a chosen object of the deceased’s
testamentary bounty.
Some background facts
- It
is next convenient to set out some facts that are either not in dispute or,
where stated, are facts in dispute. To the extent that
any of them are in
dispute, the facts stated should be regarded as the findings of the Court.
- The
deceased was born in June 1950 in Austria. She was one of three children, the
others being Linda Bauer, who was a witness in these
proceedings, and Tom Bauer,
who played no part in the proceedings. The family migrated to Australia in about
1958.
- She
married Stephen Felse, who is the father of the Plaintiff, in November 1976, and
remained married to him until his death in December
2002. Mr Felse left the
whole of his estate to the deceased. (Although this matter was raised with the
parties at the commencement
of the hearing, a copy of Mr Felse’s Will,
and/or the Probate of that Will, did not form part of the evidence read in the
proceedings.)
- Other
evidence revealed that Mr Felse’s estate consisted of a home at Albion
Park Rail (“the Albion Park Rail property”),
in New South Wales, the
value of which, at the date of his death, was not disclosed, and about $220,000.
The Plaintiff acknowledged
that he had received $20,000 from the estate of his
father. (The Plaintiff did not make any claim under the Family Provision Act
1982 (NSW) for a family provision order, in relation to the estate of his
father.)
- The
Plaintiff was born in January 1985. He is now almost 35 years old. He is single,
lives alone, and does not have any dependants.
In October 2013, he changed his
last name from “Felse” by Deed Poll. The reasons for doing so, and
the circumstances
in which he changed his name, were not the subject of his
written evidence. However, in answer to questions from the Bench, he stated
that
he had adopted his maternal grandmother’s maiden name “that linked
something to my German heritage” and that
he “kind of wanted a more
European sounding name”: Tcpt, 28 October 2019, p 51(17-32).
- Following
the death of her husband, the deceased made a Will on 1 May 2003. In that Will,
she appointed the Plaintiff as her sole
executor and trustee, and after the
payment of her debts, funeral and testamentary expenses, left the whole of the
residue of her
estate to him absolutely. However, this Will was revoked by the
deceased’s last Will, to which reference has already been made.
- The
deceased suffered a cerebrovascular accident, or a stroke (“a left sided
acute infarct in the left basal ganglia”)
in July 2017, following which
she sustained right sided weakness, with a right sided facial droop. She was in
and out of hospital
after that time.
- The
Defendant was born in December 1958, in the United Kingdom, and is now almost 61
years old. He was married, but the marriage ended
in about 1995. There were two
children of the marriage, each of whom is an adult. There was no evidence that
either child is dependent,
wholly or partly, upon the Defendant.
- The
Defendant, following completion of his Higher School Certificate, was employed
as a boilermaker from the age of 18 in the family
business. He worked in that
business between about 1975 and 2004. He had other jobs, between 2004 and 2008,
but appears not to have
worked in paid employment, since that time. It will be
necessary to refer to some of the evidence about his medical conditions later
in
these reasons.
- The
Defendant says that he was living in a de facto relationship with the deceased
from about March 2004 until her death in January
2019. It may be that the de
facto relationship commenced in about 2008, when the Defendant moved into the
Albion Park Rail property.
It may be that it commenced later. (The reason that
the date of the commencement of the de facto relationship is not entirely clear
is that in February 2019, the Department of Human Services determined that the
Defendant had been (with editorial corrections for
ease of reading) (Ex.
PB/244):
“paid more than you were entitled to and you need to pay the money
back.
...
As you were a member of a couple on 15 March 2011, you were entitled to the
partnered rate of payment of Disability Support Pension
from 09 August 2011 to
12 June 2018. You have, therefore, been overpaid $36,790.44. We are required to
recover this amount.”
- (Some
criticism was made of the Defendant in not disclosing the fact of the de facto
relationship to the Department of Human Services
until after the death of the
deceased: Tcpt, 28 October 2019, p 79(47) – p 80(27). Whilst I have borne
this omission in mind,
once it was disclosed, both the Defendant and the estate
of the deceased have been required to repay the amount of the overpayments,
made
as a result of the failure to disclose the existence of the relationship
earlier. This militates against making the omission
being unduly significant in
determining what provision that ought to be made for the Plaintiff.)
- In
any event, the date of the commencement of the de facto relationship is not
determinative, as, undoubtedly, it existed at the date
of the deceased’s
death and had existed for no less than 7 years, and probably a little longer.
Furthermore, in the Will of
the deceased, the Defendant was referred to as
“my spouse”.
- The
deceased made an Enduring Power of Attorney on 18 May 2018, in which she
appointed the Defendant as her sole Attorney. On the
same date, she appointed
him her Enduring Guardian: Ex. PA/Tab 2.
The estate of the
deceased
- In
the Inventory of Property, a copy of which was attached to, and placed inside,
the Probate document, the deceased’s estate
was disclosed as having an
estimated, or known, value of $551,119. The estate was said to consist of the
Albion Park Rail property
($535,000) and the proceeds of superannuation
($16,199). (I have omitted and shall continue to omit a reference to
cents.)
- The
deceased’s estate, at the date of hearing, was said to consist of the
Albion Park Rail property (which has not been sold)
and cash ($12,901) in the
trust account of the Defendant’s solicitors: Tcpt, 28 October 2019, p
3(29-39).
- A
copy of the plan of the house built on the Albion Park Rail property was
tendered as Ex. PC. It is a property with a land size of
562m²: Ex. A/Tab
1. The house built on the land comprises 3 bedrooms, a renovated bathroom and
toilet, a kitchen, dining room
and living room. There is a large backyard with a
shed.
- At
the commencement of the hearing, counsel indicated that there was no agreement
on the current value of the Albion Park Rail property,
although it was agreed
that its value may be between $430,000 and $460,000: Tcpt, 28 October 2019, p
3(24-27). They also agreed that
there was cash of $12,901.
- There
was no dispute that there were liabilities of the estate, comprising a debt owed
by the deceased to the Department of Human
Services ($76,516), being the debt
owed for the overpayment of benefits made to her, and also the legal costs and
disbursements of
the proceedings (to which I shall refer).
- Whilst
the Defendant stated that he wished to retain the Albion Park Rail property, in
which he has lived since 2008, the parties
agreed that if it were necessary to
sell it, the estimated costs and expenses of sale would be about $13,000: Tcpt,
28 October 2019,
p 5(8-23). In the event that the Plaintiff received an order
for provision, and an order for his costs, it was also accepted that
the Albion
Park Rail property must be sold.
- It
follows that the liabilities of the estate, other than the costs of the
proceedings, total $89,516. Assuming the value of the Albion
Park Rail property
is between $430,000 and $460,000, and that there is $12,901 in cash, the value
of the deceased’s estate,
before any costs of the proceedings are
deducted, will be between $353,385 and $383,385.
- As
will be read, the total of the costs of the parties is estimated to be $128,210.
It follows that if the estimates prove accurate,
that the value of the estate
out of which an order could be made will be between $225,000 and $255,000. It is
clearly an estate of
modest value.
The Costs of the
Proceedings
- Section
99(1) of the Act provides that the Court may order that the costs of proceedings
under Chapter 3, in relation to the estate
or notional estate of a deceased
person (including costs in connection with mediation), be paid out of the
estate, or notional estate,
or both, in such manner as the Court thinks fit. The
section confers a discretion in respect of costs that is no more confined than
the general costs discretion.
- Usually,
in calculating the value of the deceased's estate available from which a family
provision order may be made, the costs of
the proceedings should be considered
with circumspection. Unless the overall justice of the case requires some
different order to
be made, the applicant for a family provision order, if
successful, normally would be entitled to an order that her, or his, costs
and
disbursements, calculated on the ordinary basis, should be paid out of the
estate of the deceased; while the defendant, as the
person representing the
estate of the deceased, irrespective of the outcome of the family provision
proceedings, normally will be
entitled to an order that her, or his, costs,
calculated on the indemnity basis, should be paid out of the estate. The size of
the
deceased’s estate, and the conduct of a party, may justify a departure
from what is said to be the usual rule.
- As
Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at
[54]:
“In considering an amount by way of provision, it is appropriate also to
have regard to the diminution of the estate on account
of legal
costs.”
- However,
this statement does not mean that parties should assume, in all cases, that this
type of litigation can be pursued, safe
in the belief that all costs will be
paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199;
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness
v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times,
in the context of a claim for a family provision order, particularly in relation
to estates
with a small value.
- Ms
M Walsh, a partner in the firm of solicitors representing the Plaintiff in these
proceedings, in an affidavit sworn on 5 September
2019, disclosed that
“[i]n the event that the plaintiff’s summons is dismissed, the
plaintiff would not be required to
pay the legal representatives’
professional costs and disbursements. The plaintiff has entered an agreement of
the type referred
to in Part 4.3, Section 181 of the Legal Profession Uniform
Law 2014 (NSW).”
- (The
type of agreement referred to in s 181 is a “conditional costs
agreement” which provides that the payment of some
or all of the legal
costs and, in this case, the disbursements, is conditional on the successful
outcome of the matter to which those
costs relate.)
- Section
182 of the Legal Profession Uniform Law provides that a conditional costs
agreement may provide for the payment of an uplift fee.
- At
the commencement of the hearing, the Court was informed, without objection from
the Bar table by counsel for the Plaintiff, that
the conditional costs
agreement, and therefore, the calculation of the Plaintiff’s estimate of
costs and disbursements, had
included a term for an uplift fee, but that the
uplift fee was not being sought: Tcpt, 28 October 2019, p 7(48) – p
8(8).
- Counsel
for the Plaintiff also stated, from the Bar table, that the Plaintiff’s
costs and disbursements, calculated on the ordinary
basis, without any uplift
fee, were estimated to be $86,000. Those costs and disbursements, calculated on
the indemnity basis, without
any uplift fee, were estimated to be $103,000:
Tcpt, 28 October 2019, p 22(28-29).
- Although
the Court was informed that an affidavit from the Plaintiff’s solicitor
would be available later in the day, no affidavit
from the solicitor was
provided to the Court: Tcpt, 28 October 2019, p 8(15-18), p 22(39-44). However,
on 5 November 2019, an email
was sent to my Associate, from the solicitor for
the Plaintiff, attaching a copy of an electronically filed affidavit of Ms
Walsh,
sworn and filed on 4 November 2019. That affidavit stated the revised
estimate of the Plaintiff’s costs as follows:
“[m]y revised estimate of the plaintiff’s costs and disbursements on
the basis that the plaintiff will not be charged
an uplift, inclusive of Counsel
fees on an indemnity basis are $100,615.97.
...
I estimate the plaintiff’s costs and disbursements on the ordinary basis
to be $91,210.97.”
- (This
further revised estimate was about $5,000 more than the revised estimate given
to the Court at the hearing.)
- Mr
F T Mathey, the solicitor with the carriage of the matter on behalf of the
Defendant, in an affidavit made on 24 October 2019,
disclosed that the
Defendant’s costs and disbursements, up to and including the conclusion of
the proceedings, are $37,000.
No moneys have been paid on account of the
Defendant’s costs.
- The
Court, on many occasions, has emphasised the necessity for parties to bear in
mind the proportionality of costs, the importance
of making appropriate
settlement offers, and that if one wishes, or both wish, to adopt an approach
that may have the effect of reducing
the value of the estate, then they should
not proceed on the basis that all of the costs and disbursements will
necessarily be borne
by the estate: Geoghegan v Szelid [2011] NSWSC 1440
at [21]- [24].
- Furthermore,
s 60 of the Civil Procedure Act, which applies equally to a claim for a
family provision order, refers to "the object of resolving the issues between
the parties
in such a way that the cost to the parties is proportionate to the
importance and complexity of the subject-matter in dispute".
- In
Forsyth v Sinclair (No 2), it was said by the Court of Appeal (Neave and
Redlich JJA and Habersberger AJA) at [27]:
“We consider that it is a matter of concern that in many family provision
cases the amount available for distribution amongst
the competing beneficiaries
is significantly reduced by legal costs. Parties should not assume that
litigation can be pursued safe
in the belief that costs will always be paid out
of the estate. Every effort should be made to resolve the dispute before the
costs
get out of proportion. However, it takes two to settle a dispute and
unless sensible offers of settlement are made in a form which
can be referred to
subsequently, it is very difficult for the Court to allocate responsibility for
the dispute not settling. All
that can be done is to conclude that where costs
have been incurred unreasonably, as here, they must be borne personally.”
(Omitting citation)
- More
recently, Ward CJ in Eq has delivered reasons for judgment in Grant v
Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, in
which she wrote, at [172]-[174]:
“...There is an understandable concern that costs incurred in proceedings
of this kind not be disproportionate to the nature
of the proceedings and the
size of the estate (see for example the recognition by Basten JA in Page v
Page [2017] NSWCA 141 at [20], in the context of the family provision
jurisdiction, of the need not to encourage litigation where costs often reach a
high proportion
of the value of the estate; and his Honour’s concern
expressed in Harris v Harris [2018] NSWCA 334 ... (at [18]) that what his
Honour regarded as the Court’s ‘willingness to entertain
comparatively expensive litigation
of this sort” might well have
encouraged the pursuit of such claims). It is no secret that the Family
Provision List judge
pays close attention to the control of costs, particularly
in small estates, for that reason.
The present is yet again a case where, regrettably, the costs (which, I have to
say, are eye-watering in amount compared to the size
of the estate (even if
notional estate is taken into account) will inevitably have a significant impact
on the outcome of the proceedings.
I say this without criticism of Counsel
appearing at the hearing (who readily acknowledged the problem posed by the
level of costs
in this case and broadly accepted the inevitability of
cost-capping at the end of the day); and, without knowing what transpired
in the
attempts to resolve the case between the parties, it would be inappropriate to
level criticism at one or other of the parties
as to the position now facing all
of the parties in terms of costs. Nevertheless, there are certainly aspects of
the proceedings
which did not assist in the containment of costs (most notably,
the failure to serve the prescribed form of notice of the proceedings
on Julie
as an interested party).”
- The
Defendant submitted that the amount to be allowed for the Plaintiff’s
costs, if he were successful, should be capped. The
quantum of those costs, if
capped, was not adverted to in the submissions.
- Recently,
in Detheridge v Detheridge [2019] NSWSC 183, Slattery J wrote at
[174]-[177]:
“And it is well settled that the Court can make orders for capping costs
in family provision cases, based on the express powers
conferred under Uniform
Civil Procedure Rules 2005 (‘UCPR’), Pt 42.4(1) and the Civil
Procedure Act 2005: see Nudd v Mannix [2009] NSWCA 327
(‘Nudd’), (at [26] and [27]); and Baychek v Baychek [2010]
NSWSC 987 (‘Baychek’), (at [17]). The discretion to cap costs in
family provision cases is exercised in other jurisdictions: see,
for example,
Sweaney & Anor v Bailie [2017] QDC 295; Askew v Askew [2015]
NSWSC 192 (‘Askew’), (at 126); Sergi (bnf Solowiej) v Sergi
[2012] WASC 18 (at [51]); DW v RW (No 2) [2013] QDC 189; Cangia v
Cangia [2008] VSC 455.
Moreover Ball J noted in Baychek, (at [25]), some relevant considerations to the
exercise of cost capping jurisdiction as follows:
‘In fixing costs as a cap rather than as a
substitute for an assessment, it seems to me that the court should take into
account
the same matters that it takes into account in determining an
appropriate cap. That is, what the court must be satisfied of is that
the costs
are excessive having regard to matters such as the nature of the case, the size
of the estate and the amount that the costs
applicant has recovered and could
reasonably be expected to have recovered at the time proceedings were commenced.
If the court is
satisfied that the costs are excessive, then it will need to
determine what amount to fix. But, as I have said, the nature of that
enquiry
seems to me to be no different from an enquiry concerning what amount to fix as
a cap.’
This Division’s own practice notes recognize costs capping orders may
sometimes appropriately be made in family provision cases
- see Practice Note
No. SC Eq 7, which states:
‘24. Orders may be made capping the costs that may
be recovered by a party in circumstances including, but not limited to, cases
in
which the net distributable value of the estate (excluding costs of the
proceedings) is less than $500,000.’
As Rein J said of this Practice Note in Askew, (at [126]), although the value of
the estate is of particular relevance, estates of
over $500,000 may also be
subject to a costs capping order.”
- The
parties agreed that the Court could deal with how the burden of costs should be
borne. They agreed, also, that there were no documents
that would be relevant to
this issue, and whatever the result of the case, what might be regarded as the
usual order for costs could
be made.
- Subject
to hearing from counsel after these reasons for judgment are delivered, it seems
to me that the way in which the costs of
the Plaintiff should be dealt with is
to allow the parties an opportunity to reach agreement on the quantum of his
costs after these
reasons are published. If agreement cannot be reached, any
application for the capping of the Plaintiff’s costs can then be
made.
Regrettably, this may delay the completion of the final administration of the
estate and incur further costs. However, that
is in the hands of the parties and
their legal advisers.
- Even
though no specific application was made, I may be prepared to make a gross sum
costs order for the Defendant’s costs, calculated
on the indemnity basis,
of $37,000, to be paid out of the estate. In the circumstances of this case,
that estimate is extremely reasonable,
and, in my view, to make that order does
justice to both parties. The Court’s power to make such an order is found
in s 98(4)(c) of the Civil Procedure Act, which section provides that the
Court may, at any time before costs are referred for assessment, order that a
party to whom costs
are to be paid is entitled to a specified gross sum instead
of assessed costs. I shall wait until after these reasons, and after
hearing
submissions from counsel, before deciding whether to do so.
- Finally,
on this topic, it should be mentioned that every effort was given to the parties
to resolve their dispute, including permitting
a court annexed mediation
conducted by a Registrar of the Court, as well as conducting a judicial
settlement conference before me.
As there is no evidence that either party
served an Offer of Compromise, or a Calderbank offer, the Court cannot determine
whether
obstinacy and unreasonableness, by one or both parties, has contributed
to the failure to resolve the proceedings. It is most regrettable
that so much
by way of costs has been incurred.
The nature of the provision to
be made if the Plaintiff is successful
- It
may be helpful to next note the manner in which any provision may be made for
the Plaintiff.
- As
stated, there was a dispute about the current value of the deceased’s
estate, and, in particular, the value of the Albion
Park Rail property and also
the quantum of the Plaintiff’s costs. Following discussion, the parties
accepted that if the Plaintiff
were successful (it not being conceded that he
should be), the Court should make an order that will result in him receiving a
lump
sum, calculated as a percentage of the net value of the estate following
the sale of the Albion Park Rail property and the deduction
of the debts,
funeral and testamentary expenses of the estate, including those costs that are
ordered to be paid out of the estate:
Tcpt, 28 October 2019, p 4(17-37), p
23(42) – p 24(1).
- In
this way, the parties will benefit if the Albion Park Rail property is sold for
a price greater than has been estimated, and each
will be detrimentally affected
if it is sold for less than the estimate.
- McDougall
J, in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern
that “to make provision by way of a share, the value of which can only be
ascertained until after realisation
of all the estate’s assets, runs the
very real risk of under-providing (or over-providing) for [the
applicant’s] needs”.
Whilst this may be true, it seems to me that,
in some cases, to make a lump sum order will not be the most appropriate way of
determining
what is “proper” in all the circumstances of the case,
particularly in a case where the principal asset is real estate,
the value of
which is estimated, and in dispute, and which estimate, ultimately, may prove
inaccurate.
- It
cannot be forgotten that the actual value of the distributable estate out of
which an order may be made is a relevant consideration
in determining the
adequacy and propriety of the provision.
- Furthermore,
s 65(1) of the Act does not inhibit the Court as to the form of orders that can
be made. Section 65(2), which specifies the ways in which provision may be made,
includes, in s 65(2)(f), “in any other manner the Court thinks fit”,
thereby leaving unconstrained the Court’s power as to the nature of
the
order for provision that may be made.
- I
have made a similar order in a number of decisions including Zagame v
Zagame [2014] NSWSC 1302, Charlwood v Charlwood [2017] NSWSC 1033,
and more recently in Pilotto v Cosoleto; Papi & Papi v Cosoleto and
Cosoleto v Cosoleto [2019] NSWSC 1454, as has Rein J in Michael John
Askew v John Paul Askew [2015] NSWSC 192.
- As
stated, the estate essentially consists of the Albion Park Rail property, which
must be sold if the Plaintiff succeeds. The liabilities
to be deducted have been
identified (although they may change), and there may be further liabilities,
reasonably incurred, which
are not yet known. Furthermore, as stated above, at
the date of hearing, the Plaintiff’s costs of the proceedings, if ordered
to be paid, have not been formally assessed or agreed.
- I
am satisfied that the percentage method of determining the lump sum provision to
be made in favour of the Plaintiff, if an order
is to be made for his provision,
is an appropriate way to proceed. That the parties both agreed to this course of
determining the
quantum of the provision made for the Plaintiff is also an
important consideration.
Clause 6 of the deceased’s
Will
- I
have referred to Clause 6 of the deceased’s last Will already.
- The
relationship of each of the parties with the deceased is, of course, an
important consideration. As will be read, the Act specifically
provides for
consideration of “the character and conduct of the applicant” and
“the conduct of any other person”.
(Although the reference to
conduct does not expressly refer to the conduct of the deceased, “that
must be a relevant factor
in assessing the relationship of the deceased and any
other person”: Poletti v Jones [2015] NSWCA 107, per Basten JA, at
[25].)
- Section
100(2) of the Act provides that in any proceedings under Chapter 3, evidence of
a statement made by a deceased person is, subject to the
section, admissible as
evidence of any fact stated in it of which direct oral evidence by the deceased
person would, if the person
were able to give that evidence, be admissible. A
statement in the section “includes any representation of fact whether or
not in writing”: s 100(1).
- Sub-section
(5), (6), and (8) of s 100, provide:
"(5) Where a statement made by a deceased person during the person's lifetime
was contained in a document, the statement may be proved
by the production of
the document or, whether or not the document is still in existence, by leave of
the Court, by the production
of a copy of the document, or of the material part
of the document, authenticated in such manner as the Court may approve.
(6) Where, under this section, a person proposes to tender, or tenders, evidence
of a statement contained in a document, the Court
may require that any other
document relating to the statement be produced and, in default, may reject the
evidence or, if it has
been received, exclude it.
...
(8) In estimating the weight, if any, to be attached to evidence of a statement
tendered for admission or admitted under this section,
regard must be had to all
the circumstances from which any inference can reasonably be drawn as to the
accuracy or otherwise of the
statement, including:
(a) the recency, or otherwise, at the time when the deceased person made the
statement, of any relevant matter dealt with in the
statement, and
(b) the presence or absence of any incentive for the deceased person to conceal
or misrepresent any relevant matter in the statement.”
- Many
years before the inclusion of the section, Gibbs J had written in Hughes v
National Trustees Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979)
143 CLR 134, at 150; [1979] HCA 2:
“... in Australia for many years the courts have admitted evidence of
statements made by a testatrix explaining why she made
her will as she did. In
taking this course the courts have no doubt been influenced by a desire to be
informed of the reasons which
actuated the testatrix to make the dispositions
she had made, and by the consideration that in cases of this kind a claim is
made
against the estate of a person who is deceased and can no longer give
evidence in support of what she has done. It is doubtful whether,
in most cases,
such evidence is relevant, but usage justifies its reception. The question is
for what purpose it may be used, once
admitted. The balance of authority clearly
favours the view that it is admissible only to provide some evidence of the
reason why
the testatrix has disposed of her estate in a particular way, and
that it is not admissible to prove that what the testatrix said
or believed was
true: Re Jones [1921] NSWStRp 66; (1921) 21 SR (NSW) 693, at p 695; In re Smith
[1928] SAStRp 14; (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p
193; Re G. Hall, deceased [1930] NSWStRp 5; (1930) 30 SR (NSW) 165, at p 166; In re
Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; (1951) NZLR 135, at pp 140-141 (a
case decided before the amending legislation was enacted in New Zealand). This
view was accepted as correct by
Taylor J. in Pontifical Society for the
Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J.
dissented in the result in that case but there is nothing to suggest that his
opinion on this point
differed from that of the majority of the
Court.”
- In
the Will, the deceased appears to have weighed the testamentary claims upon her
in an apparently sensible way, and by considering
the principal persons who may
have had a claim on her bounty, being the Plaintiff and the Defendant. It
appears to be a case where
she did “expose to the world the delicate, and
perhaps indefinable, relations that exist[ed] within [her] family circle”
and where she “felt quite justified from [her] own standpoint in limiting
[her] family benefit, and for reasons which sufficiently
appealed to [her], but
which no one else could mentally measure or appreciate”: Nock v
Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.
- However,
whilst the Court will consider any explanations given by the deceased in the
Will, or elsewhere, for excluding a particular
person as a beneficiary, such
explanations do not relieve the Court from engaging in the enquiry required by
the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, per Ball J, at [27].
What an explanation by the deceased may do is cast light on the relationship
between her, or him, and that
person, at least from the deceased's
perspective.
- Where
the truth of the statements made by the deceased is admitted, or where the facts
asserted in the statements are corroborated
by other evidence, due weight should
be given to the statements. However, there are often difficulties faced by a
trial judge grappling
with evidence about disputed allegations that are
contained in such statements.
- I
have borne in mind that the Court must exercise caution in determining whether
to accept the statements of the deceased, and that,
if accepted, the Court must
carefully consider the weight to be attached to them. In Benham v Benham
[2004] NSWSC 416, Master McLaughlin made the point, at [81],
that:
“[T]he Court should not, however, overlook the fact that testators are
human. A statement by a testator (which, by definition,
cannot be tested under
cross-examination), although admissible in evidence, need not be accepted by the
Court unquestioningly or
uncritically.”
- As
I have written in other cases in relation to statements by the deceased, the
Court should also bear in mind what was said by the
Court of Appeal of New
Zealand in In re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; [1951] NZLR
135 at 141 (which passage was approved by the majority of the High Court in
Hughes v National Trustees Executors and Agency Company of Australasia
Ltd, at 152):
“If reasons are given by the testator reflecting on the character or
conduct of that child, the court must, in considering
the sufficiency or
otherwise of the reasons, endeavour to decide upon the truth or otherwise of the
allegations. But the testator
should not be allowed from the grave to condemn
the child and to impose upon that child the positive duty of disproving the
allegations
as an essential preliminary to prosecuting a claim. In our opinion,
the reasons given by a testator for excluding a child (or a widow)
go no further
than to concentrate attention on the question whether there is or has been
character or conduct operating to negative
the moral obligation that would
otherwise have lain upon the testator.”
- Thus,
a statement made by the deceased does not, necessarily, mean that it must be
accepted, unquestionably, as true. Such a statement
may be just as inaccurate,
or as unreliable, as a statement of a living witness, whether as the result of
mistake, or failure of
memory, or deliberate untruth: Worsley v Solomon
[2008] NSWSC 444, per McLaughlin AsJ, at [35]. Ultimately, allegations by the
deceased, given as a reason for the exclusion of an applicant from any
provision
out of her, or his, estate should not be accepted as precluding the making of a
family provision order merely because the
applicant fails to establish that the
allegations are false.
- In
relation to Clause 6 of the deceased’s last Will, the Plaintiff denied
that there had been no contact between the deceased
and him for many years,
stating in cross-examination that the statement was “untrue”: Tcpt,
28 October 2019, p 42(13-16).
The Court must bear in mind that his response is
that of a person who is deeply interested in the result of the case.
- There
was some evidence about the circumstances in which the Will came to be prepared
and signed. This evidence came, principally,
from the contents of a letter dated
20 August 2019, addressed to Mathey Solicitors, seeking particulars and the
letter, dated 26
August 2019, in response.
- The
letter requesting the particulars was in the following
terms:
“We refer to the abovementioned matter and to your email advising that you
have no Will file in respect of Erika Felse
We are instructed to request that the solicitor that drafted the Will of Erika
Felse dated 18 May 2018 answer the following questions
pursuant to the U.K.
decision of Larke v Nugus [2000] WTLR103, the principles of which are now
embodied in a Practice Note of the Law Society of the United Kingdom.
(a) How long did you know the deceased?
(b) Who introduced you to her?
(c) The date instructions were received.
(d) From whom [sic] were the instructions received?
(e) Whether contemporaneous notes of all meetings of telephone calls were made
and retained by you?
(f) Where were the instructions were taken and who else was present?
(g) How the instructions were expressed?
(h) If capacity was in doubt, what indication the deceased gave you that she
knew she was making a will?
(i) What indication she gave you that she knew the nature and extent of her
assets?
(j) What indication she gave you that she knew the identity of the persons who
had a claim on her bounty?
(k) Whether she exhibited any signs of confusion, loss of memory or ill health
effecting [sic] her mental faculties?
(l) Whether someone close to her said something concerning her mental
health?
(m) Whether, and to what extent her earlier wills were discussed, and what
attempts were made to discuss departures from any earlier
will of hers, and what
reasons she gave for making such departures?
(n) How the provisions of the will were explained to her?
(o) Other than the attesting witnesses, who else was present at the execution of
the will.
(p) Where when and how did execution take place?
(q) Who paid your costs?
(r) Who retained the original will and who was provided with copies of it?
The purpose of this request, and indeed the principle underlying the decision in
Larke v Nugus and the Practice Note, is to prevent costs being incurred
on futile litigation, so there is an onus on you to reply within a reasonable
period.”
- (The
reference to Larke v Nugus is a reference to the decision of the English
Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR
1033. It is not necessary to refer to that decision, but it has been referred
to, in detail, by Lindsay J, in Re Estates Brooker-Pain and Soulos [2019]
NSWSC 671, at [82]-[88].)
- The
letter from the solicitors, in response, was in the following terms:
“We refer to your letter dated 20 August 2019 in the above matter.
We are instructed to respond as follows:
(a) The deceased was not previously known to Tara Mathey;
(b) Scott Spicer contacted Tara Mathey to attend Erika at the hospital;
(c) 18 May 2018;
(d) Scott Spice provided instructions over the phone and Erika confirmed
instructions in person on the same date;
(e) No;
(f) Over the phone and in person. The people present were Tara Mathey, Karina
Gardner (witness), Scott Spice and Erika Felse;
(g) Verbally;
(h) – (j) Capacity was not in doubt;
(k) No;
(l) No;
(m) Earlier will was not discussed;
(n) Provision of Erika’s will were read aloud to her by Tara Mathey and
explained verbally;
(o) Scott Spicer;
(p) At Wollongong Hospital on 18 May 2018;
(q) Erika Felse;
(r) Our firm retained the original will and copies were posted to Erika at her
home address.”
- Counsel
for the Plaintiff criticised the response, submitting that its author was not
the solicitor who saw, and took instructions
from, the deceased. However,
bearing in mind the seriousness of the request for information, and the fact
that the response was signed
by the principal of the firm of solicitors, I infer
that the author of the letter would have sought the necessary information from
the solicitor who had taken the deceased’s instructions, and who is
described as a “Senior Associate”. It is unsurprising
that the
letter in response was signed by the principal of the firm of solicitors.
- The
statement made in the response, that the deceased “confirmed instructions
in person on the same date” and that “the
[P]rovision of
Erika’s Will were read aloud to her by Tara Mathey and explained
verbally”, taken with the deceased’s
execution of the Will,
satisfies me that she knew and understood its terms and considered the contents
of Clause 6 of the Will to
reflect her testamentary intentions.
- It
is next necessary to consider the evidence of the Plaintiff on this topic. He
did not dispute that he did not live with the deceased
after about July 2011. At
that time, he moved into campus accommodation at the University of Wollongong.
He admitted that he did
not tell the deceased his address: Tcpt, 28 October
2019, p 26(1-14). Even when he moved off campus, to his current accommodation,
in 2015, he did not did not tell the deceased his address: Tcpt, 28 October
2019, p 26(25-37).
- In
cross-examination, the Plaintiff said he “did give my mobile number to my
mother” but also said he “never”
called the deceased on her
mobile phone number. He could not remember the deceased’s mobile phone
number. When questioned by
counsel for the Defendant, he responded that he did
telephone the deceased on her landline telephone number. He admitted that he
did
not telephone her very frequently in the period before 2017 and after 2011:
Tcpt, 28 October 2019, p 51(12) – p 51(15).
No phone records going to this
assertion were tendered in evidence: Tcpt, 28 October 2019, p 26(43) – p
27(17), p 32(34-47).
- In
his first affidavit, the Plaintiff stated that after he moved out of the Albion
Park Rail home, he visited the deceased “a
number of times each
year”, although from about 2015, “my visits to Erika became less
frequent”. He maintained
that “Erika and I still had a good
relationship. There was no issue between us.” In his affidavit in reply,
sworn in
June 2019, the Plaintiff stated that he visited the deceased in the
morning when the Defendant was not there.
- The
Plaintiff admitted that he did not see the deceased from soon after she suffered
a stroke in 2017 until January 2019. He acknowledged
that he had found out that
she suffered a stroke because the Defendant had telephoned him. He also
acknowledged, in his oral evidence,
that he did not telephone the deceased after
she suffered the stroke and made no attempts to contact the Defendant to find
out about
her state of health: Tcpt, 28 October 2019, p 30(32-36). He admitted
that to do so would have been appropriate and would possibly
enable her
“to know that you were showing an interest in her medical
condition”: Tcpt, 28 October 2019, p 50(38) –
p 50(44).
- In
answer to questions from the Bench, the Plaintiff gave the following evidence
(Tcpt, 28 October 2019, p 35(40) – p 36(24):
Q. Mr Koellner can you tell me, doing the best you can, on how many occasions
between 2011 and I think your evidence is you never
went there after 2017, is
that right?
A. That’s - after the stroke, yes, until January of this year.
Q. Between 2011, that is when you moved out of the home and the time she had a
stroke, on how many occasions do you say you visited
your mother at her home in
Albion Park Rail?
A. Between 2011 and 2017?
Q. Yes?
A. So, roughly six or so times - probably to give a rough number, possibly 30
times in total.
Q. Thirty times, in six years you visited her on five occasions a year on
average, is that what you’re saying?
A. Yes.
Q. When was her birthday?
A. 20 June.
Q. But you cannot recollect any occasion when you actually visited her on her
birthday?
A. No, even while I was still living there, we simply did not celebrate
birthdays. It just wasn’t a done thing.
Q. What about Christmas or other special occasions? I’ve asked you about
this, I’m trying to understand your evidence.
You say five times a year on
average, which is 30 times over the six year period. I’d just like to know
when you visited her,
that’s once every two and a half months or
thereabouts?
A. Mm.
Q. Surely you remember the times of the year you visited her?
A. Well see the, the - I - it was - my visits weren’t really for any
special occasion. It was just like a general thing, just
going down there to the
house.
- The
Plaintiff gave evidence that he told his doctor about having visited the
deceased. He also gave evidence that the doctor’s
records had been
produced to, and inspected by, his solicitors. However, no such medical records
were tendered.
- I
shall refer to the medical record, a copy of which is annexed to the
Plaintiff’s affidavit in which there is a reference that
the
Plaintiff’s “background history indicated severe family
dysfunction...”. The nature of the family dysfunction
was not disclosed in
this, or in the other medical reports that formed part of the Plaintiff’s
evidence, or otherwise in his
written evidence.
- Linda
Bauer, the deceased’s sister, made an affidavit on 2 July 2019, and was
cross-examined. She gave evidence about her observations
of the deceased, both
before, and after, the deceased suffered the stroke. Her evidence related
principally to conversations said
to have occurred about the Defendant. Her only
evidence about the deceased’s conversations about the Plaintiff
was:
“Erika was very proud of Danny, she mentioned a few times when I asked
about Danny, that he was doing a double degree. Her
mood changed to happy when
we would talk about him, her eyes would light up.”
- Ms
Bauer gave no evidence about any conversation with the deceased in which the
deceased referred to visits to her home by the Plaintiff,
except one, which
conversation had occurred when the deceased was in hospital.
- The
Defendant says that he met the Plaintiff a few years after meeting the deceased.
Of course, they were both living in the Albion
Park Rail property between 2008
and 2011. He says that “Erika never really spoke to me about her
relationship with the Plaintiff,
however, for the three years or so that were
lived together, I did not witness the Plaintiff and Erika to have a close
relationship”.
He went on to state:
“38. After the Plaintiff moved out, I did not see him
visit Erika once, although it is possible he may have visited when
I was not at
home. However, Erika never once mentioned to me that the Plaintiff had come and
visited her.
39. As far as I am aware, Erika did not go and visit the
Plaintiff either.
40. I did not witness or hear Erika speaking on the phone to
the Plaintiff. As far as I am aware, after he moved out, the Plaintiff
and Erika
hardly spoke to or saw each other.
41. The Plaintiff did not spend Christmas, birthdays,
Mother’s Day or other special days with Erika and I.
...
47. In or about July 2017 Erika suffered a severe stroke. I
called an ambulance which came and took her to Wollongong Hospital.
48. I called the Plaintiff that night to let him know what had
happened.
49. I went up to Wollongong Hospital the next morning to see
Erika. I recall that the Plaintiff turned up at the Hospital at some
point
during that first day to visit Erika. He only stayed for a short period of
time.
50. Erika remained in Wollongong Hospital for about 6
months.
51. I visited Erika every day while she remained I Wollongong
Hospital.
52. After seeing the Plaintiff at the hospital on the first
day, I saw him only two or three times after this for the whole time
Erika was
in hospital.
...
63. I did not witness the Plaintiff visit Erika once in those
last few weeks leading up to her passing.
64. Erika did not mention or ask about the Plaintiff at
all.
65. I do not believe that the Plaintiff saw Erika in the last
12 months of her life.”
- Merryn
Donna Martin, who swore an affidavit on 23 September 2019, which affidavit was
filed in Court on 28 October 2019, and who was
not cross-examined, gave the
following evidence:
“12. In the time that I knew Erika, she only mentioned
her son once to me as she was providing me with advice on my own
personal
matters.
13. Erika had told me that she had no relationship or
involvement with her son and that she had tried to reach out to him once
but was
heartbroken when he did not respond.
14. When I was visiting Scott and Erika regularly to help them
I had never met Erika’s son or known of him to have been
visiting.”
- The
statements said to have been made by the deceased to Ms Martin confirm the
contents of Clause 6 of the deceased’s Will.
There is no reason not to
accept Ms Martin’s evidence.
- Overall,
I am satisfied that Clause 6 of the deceased’s Will is, for the most part,
accurate. Yet, I accept that there was some,
albeit extremely limited, contact,
between the Plaintiff and the deceased between 2011 and 2017, and then virtually
no contact after
the deceased suffered her stroke in July 2017. Prior to that
time, their relationship does not appear to have been very close or
loving.
- I
am of the view that the Plaintiff exaggerated the amount of his contact with the
deceased between 2011 and 2017. I do not accept
that during this period he
visited her at the Albion Park Rail property on about 30 occasions, as he stated
in cross-examination.
- However,
the Plaintiff gave evidence that because of his medical condition, to which I
shall next refer, he was unable to have regular
contact with the deceased.
Whilst it is clear that his medical condition may explain some of his behaviour,
it does not explain,
entirely, his lack of contact with, and apparent lack of
interest in, the deceased, after she suffered her stroke in July 2017.
- In
answer to questions from counsel for the Defendant, in relation to the
Plaintiff’s contact with the deceased following her
stroke in July 2017,
the Plaintiff gave the following evidence, at Tcpt, 28 October 2019, p
41(1-43):
“Q. Between 2017 and when your mum died in January this year, you never
went and saw her at Port Kembla, you knew she was there,
right?
A. Yes.
...
Q. You could have gone to Port Kembla Hospital and checked with the nurses about
your mother, whether she was still there or not?
A. I suppose I could have.
Q. Yes, there's no reason why you couldn't have gone, you just chose not to?
A. At that time I - I, I just couldn't do it.
Q. You couldn't bring yourself to go and see her at home, go past the house,
knock on the door, see if she's home?
A. I guess that's correct.
Q. And you couldn't bring yourself to send her a card, a get well card perhaps,
whilst in hospital?
A. Well, I, I, I guess.
Q. Sorry, you guess you could have done it or you couldn't have done it, sent
her a card?
A. It's - well, it's something that I don't normally do anyway, because that's
not the kind of thing that I do, but I'm not sure
how to answer your question,
that's, that's something I could have done.
Q. Could you have rung the hospital and asked to speak to your mother at
Shellharbour?
A. Speak to my mother?
Q. Yes.
A. My mother couldn't - could barely speak. That wouldn't be possible.
Q. But you could have rung and asked to speak to your mother. She could hear
you, couldn't she? Hear your voice?
A. She would have been able to hear my voice, yes.
Q. When your mum says in her will, that she made 2018, that she's had no contact
with you for years, she was telling the truth, wasn't
she?
A. I dispute that.”
- The
Plaintiff gave one other reason for his failure to contact the deceased by
telephone was that he did not want to speak with the
Defendant. I do not accept
that this provides an adequate reason for his lack of telephone contact with
her. In this regard, it is
to be remembered that it was the Defendant who had
telephoned the Plaintiff to tell him of the deceased’s
stroke.
The Plaintiff’s medical condition
- As
there is really no dispute about the Plaintiff’s medical condition, it is
necessary, next, to set out the evidence about
that condition.
- In
the first report dated 27 August 2015, from Dr Robyn A C Young, who is described
as a “Psychiatric Medical Officer”,
the Plaintiff is described as
having “not gained employment due to major general and social anxiety
disorders with poor communication
and social skills”. The report goes on
to state:
“When first seen, Daniel presented as anxious, with shuffling gait, poor
eye contact and delayed, brief responses to questions
or discussion (no
psychotic thought disorder). His background history indicated severe family
dysfunction, with lifelong emotional
deprivation, social isolation and
unrelieved bullying through high school. He had gained HSC (low score, 2002) and
a TAFE diploma,
IT Support (2005), but anxiety and poor communication skills had
severely impaired social development/networking abilities and employment
opportunities. He spent most time at home, alone – occupancy limited to
one room; no social network. His father had died suddenly,
six years earlier, at
home, with Daniel present. He had no history of violence, alcohol, drug or
gambling problems, police charges
or medical reports.
The history and presentation (eg difficulties with social relationships,
problems with communication, narrow interests and comorbid
anxiety/depression)
indicated a diagnosis of Autism Spectrum Disorder (ASD) without intellectual
impairment – DSM 5 299.00
(F84.0). Severity Level 1, “Requiring
Support”. Clinical Psychologist, Ross Backen, Connexions, reviewed/agreed
with
diagnosis.
Daniel commenced one-hour weekly appointments designed to reduce anxiety,
improve social skills and self-esteem, and set appropriate
goals for independent
living (including occupation and lifestyle). This approach included
psycho-education, psychotherapies (Brain-Based,
Cognitive Behaviour and
Acceptance/Commitment), anxiety-reduction exercises (Mindfulness), Circadian
Rhythm sleep patterns, and time
management. He attended regularly and showed
interest and ability in academic studies. He; gained UOW Entrance, July 2010
(subject
average 84%) and began BA Philosophy, July 2010 on an Austudy grant. He
attended additional counselling sessions with senior psychologists
at the
Student Support Service (George McGulski and Dr Jocelyn Harper – current
manager) and moved into Weroona residential
College, July 2011. He achieved
outstanding results (e.g. Deans Merit Awards 2011/12/13/14; Deans Scholar 2014)
and gained tutor
respect. He made significant progress with verbal exchanges and
facial expression in familiar settings. However, apart from casework
and casual
interactions with fellow college students, he remained socially isolated,
uninvolved with campus activities, sensitive
to changes in routine and prone to
continuing anxiety and depressed moods.”
- Another
report, dated 27 January 2016, from Dr Young, reveals that her clinical contact
with him started in January 2009; that he
has “no family and no social
support network ... Daniel has revealed excessive fear of travel other than from
home to appointments
with me or to Essential Personnel”.
- There
is also a report dated 11 February 2016, from Professor Tony Atwood, who, with
Dr Young, saw the Plaintiff on that date. The
report
provides:
“Daniel has had a very unusual developmental history with quite
considerable adversity during his childhood. These experiences
have obviously
had a very detrimental psychological effect on Daniel but there has also been a
question has to whether he has the
profile of abilities of an Autism Spectrum
Disorder. Having met Daniel, I can confirm that he does indeed have an Autism
Spectrum
Disorder – Level 1 (Asperger’s syndrome). This is
invaluable information in explaining his profile of abilities which
is a
combination of an Autism Spectrum Disorder and adversity throughout childhood. I
am actually amazed at how well Daniel is considering
the challenges that he
faces.
...
The first priority is in terms of his significant clinical depression and
chronic anxiety disorders. Unfortunately, medication has
not proved effective
for his depression and anxiety. Therefore, he suffers greatly from significant
mental illness.
Daniel also has an Autism Spectrum Disorder – Level 1, and although he is
a person of considerable intellectual ability, he
has very significant social
and emotional challenges in his daily life.
There is an additional dimension of impaired executive functions which has an
impact on his daily living skills. He also lacks a
social and family network for
support and guidance. Thus, he has a very unusual profile of abilities,
challenges and circumstances.
My clinical opinion is that these combine to
create sufficient characteristics for him to need and benefit from a temporary
Disability
Support Pension. This is needed to help Daniel gradually recover from
his depression to restore the energy that he will need for
eventual successful
employment. My clinical opinion is that he has great potential for successful
employment but at this stage, there
needs to be a focus on professional support
and guidance. It is my opinion that at this stage, even part-time employment
would have
a significant detrimental effect on his mental health.
Daniel has shown his intellectual ability by completing a degree in philosophy.
This proves his intellectual ability but is in an
area of specialisation not
associated with a particular career path. I think the next challenge for him is
in terms of developing
his social skills which will obviously be necessary for
successful employment. Unfortunately, where he lives, there are no social
skills
programs that would be relevant for his diagnoses but I intend to pass on to Dr
Robyn Young, strategies to help young adults
with Asperger’s syndrome, not
only in the treatment of depression, the primary concern, but also strategies to
develop his
social skills.
...
During the appointment, we also explored the positive qualities of Daniel and we
recognise that he is a very intelligent person but
also his personality includes
someone who is resilient, brave, determined, at times has great wisdom, is very
observant, with a great
sense of humour and is an articulate person that has
many qualities from which society will benefit.”
- There
is also a report dated 7 April 2016 from the Australian Government Department of
Human Services, described as “Health
Professional Advisory Unit Opinion
– 4431”, which relevantly states:
“It is stated the customer is inflexible to routine changes. He
demonstrates decompensation when faced with a problems such
navigating changes
in his enrolment or changes in his rental situation in the absence of support
(b).
It would seem that the customer demonstrate a lacks the capacity for planning
within the context of his own needs and requires a
substantial amount of support
for routine tasks such as grocery shopping, attending essential appointments,
and where this is absent
would typically display avoidance until the activity
(c).
It is stated the customer demonstrates a long history of social isolation and
avoidance, has no support network, and lacks the capacity
to read social cues
and develop friendships and relationships. He shows a background of being unable
to engage in more than casual
interactions and throughout university accessed
additional student support in addition that which has been provided on a weekly
basis
by Dr Young. He is inflexible to changes and is at risk of decompensation
with suicide (d). To some degree this would also seem to
relate to deficits in
self-awareness.”
- There
were no recent medical reports relied upon by the Plaintiff. However, in his
affidavit of 16 October 2019, he referred to the
death of Dr Young in July 2018,
and, subsequently, having had “counselling” with Olga Lavelle,
having “recently
commenced seeing a new GP, Dr Frank Goderie at Woonona
who has referred me to a new psychologist, Mr Gareth Quinlan”. There
was
no evidence from either Dr Goderie or Mr Quinlan.
- Despite
the lack of more recent medical evidence, I am satisfied that the Plaintiff does
continue to suffer from the medical conditions,
and disabilities, referred to.
It was not submitted that he did not continue to suffer from those conditions or
disabilities.
Claim for a Family Provision Order – the
Statutory Scheme
- I
shall next discuss the statutory scheme and what I have described as general
principles. I have discussed these matters in many
cases.
- Section
59(1) of the Act confers jurisdiction on the Court to make a family provision
order in relation to the estate of a deceased
person if, relevantly, the Court
is satisfied as to matters, namely that:
- (a) The
applicant, the person in whose favour the order may be made, is an eligible
person; and
- (b) At the time
when the Court is considering the application, adequate provision for the proper
maintenance, education or advancement
in life of the applicant has not been made
by the Will of the deceased.
- Only
if satisfied of each of those matters, can the Court then make such order for
provision out of the estate of the deceased person
as the Court thinks ought to
be made for the maintenance, education or advancement in life of the eligible
person, having regard
to the facts known to the Court at the time the order is
made.
- Relevantly,
other than by reference to the provision made by the Will of the deceased, s
59(1)(c) of the Act leaves undefined the
norm by which the Court must determine
whether the provision, if any, is inadequate for an applicant’s proper
maintenance,
education and advancement in life. The question would appear to be
answered by an evaluation that takes the Court to the provision
made for the
applicant in the Will of the deceased, on the one hand, and to the requirement
for maintenance or advancement in life
of the applicant on the other. No
criteria are prescribed in the Act as to the circumstances that do, or do not,
constitute inadequate
provision for the proper maintenance or advancement in
life of the applicant.
- The
question whether the deceased has made adequate provision for an applicant is a
question of objective fact, the determination
of which involves an evaluative
judgment (Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210-211; [1994] HCA
40; White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
- “Provision”
is not defined by the Act, but it was noted in Diver v Neal (2009) 2
ASTLR 89; [2009] NSWCA 54, at [34], that the term “covers the many forms
of support and assistance which one individual can give to another. That support
and assistance will vary over the course of the person’s
lifetime”.
- The
word “adequate” connotes something different from the word
“proper”. “Adequate” is concerned
with the quantum,
described by Rosalind Atherton in “The Concept of Moral Duty in the Law of
Family Provision – a Gloss
or Critical Understanding?” (1999) 5 Aust
J Leg Hist 5, 10, as reached upon “a purely economic and objective
basis”, whereas “proper” prescribes the standard of
the
maintenance, education and advancement in life: Devereaux-Warnes v Hall (No
3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which
seems to invite more subjective criteria.
- In
Pontifical Society for the Propagation of the Faith v Scales (1962) 107
CLR 9; [1962] HCA 19, Dixon CJ, at [19], 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.”
- In
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at
502:
“...the words ‘adequate’ and ‘proper’ are always
relative. There are no fixed standards, and the court
is left to form opinions
upon the basis of its own general knowledge and experience of current social
conditions and standards.”
- In
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114],
Callinan and Heydon JJ wrote:
“...the use of the word ‘proper’... implies something beyond
mere dollars and cents. Its use, it seems to us, invites
consideration of all
the relevant surrounding circumstances and would entitle a court to have regard
to a promise of a kind which
was made here... 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.”
- White
J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85
NSWLR 253; [2013] NSWSC 522, wrote, at [123]:
“The question of what level of maintenance or advancement in life is
‘proper’ depends on all of the circumstances
of the case including
‘the applicant’s financial position, the size and nature of the
deceased’s estate, the totality
of the relationship between the applicant
and the deceased, and the relationship between the deceased and other persons
who have
legitimate claims upon his or her bounty’ (Singer v
Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210).”
- Whether
the disposition of the deceased’s estate is not such as to make adequate
provision for the proper maintenance, education
or advancement in life of the
applicant will always, as a practical matter, involve an evaluation of the
provision, if any, made
for the applicant on the one hand, and the
applicant’s “needs” that cannot be met from her, or his, own
resources
on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This
statement is not intended to suggest that an applicant’s
“needs”, when compared with the provision
made for him or her, out
of the estate, should be the dominant consideration. The existence, or absence,
of “needs” which
an applicant cannot meet from her or his own
resources will always be highly relevant, and quite often decisive, as 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 her or his proper maintenance, education and advancement in life:
Singer v Berghouse at 227; Bkassini v Sarkis [2017] NSWSC 1487,
per Robb J, at [296]-[297].
- In
Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA
wrote:
"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 per Gaudron J at 227.
'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 per Bryson J at 10-11.
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, involve 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 per Kirby P at 575.
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 his or her proper maintenance, etc. See Singer per Gaudron J at 227.
Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3
VR 803 per Ormiston J at 816 [38], 820 [47]."
- However,
as will be read, s 60 of the Act invites the Court to have regard to various
matters, including, but not limited to, financial
need: s 60(2)(d). If the Court
does so, as will also be read, one of the purposes for which that is done is for
determining “the
nature of any [family provision] order”: s 60(1)(b)
of the Act.
- No
doubt, this has prompted White J (as his Honour then was) to write, in Sam
Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of
late Edmond Wadih Wardy, developer and Ch 3 of
the Succession Act 2006
& Anor [2014] NSWSC 473 at [147], that "the need a claimant must
demonstrate is a need for 'proper' maintenance, education and advancement in
life", but that does
not mean that "adequate provision for proper maintenance
and advancement in life implies no more than provision for the necessities
of
life, irrespective of the size of the estate and the effect, if any, of an order
for provision on others". Respectfully, I agree.
- Of
course, “need” is a relative concept: de Angelis v de Angelis
[2003] VSC 432 at [45]. It is different from “want” and does not
simply mean “demand” or “desire”. The latent difference
between the words was stated by Lord Neuberger of Abbotsbury (the former
President of the Supreme Court of the United Kingdom), in
the House of Lords
decision, R (on the application of M) v Slough Borough Council [2008] 1
WLR 1808; [2008] UKHL 52 at [54]:
“‘Need’ is a more flexible word than it might first appear.
‘In need of’ plainly means more than merely
‘want’, but
it falls far short of ‘cannot survive
without’.”
- In
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41],
David J added:
“‘Need’ is not so synonymous with ‘want’ such that
the two are interchangeable.”
- However,
no narrow view of what is encompassed by the concept of “need” is to
be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J commented that
“[I]t does not seem possible to give a complete or exhaustive statement of
the concept”.
- As
Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the
question of the adequacy of the provision made by the deceased “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
inquiry is not confined
only to the material circumstances of the applicant. It
is a broader concept, which requires consideration of matters necessary to
guard
against unforeseen contingencies. The whole of the context must be
examined.
- If
the Court is satisfied that, at the time when the Court is considering the
application, adequate provision for the proper maintenance,
education or
advancement in life of the applicant has not been made by the Will of the
deceased, it determines whether to make an
order for provision and what
provision ought to be made.
- Section
60 of the Act provides:
“(1) The Court may have regard to the matters set out in subsection (2)
for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the
applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such
order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applicant and the deceased
person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the
deceased person to the applicant, to any other person
in respect of whom an
application has been made for a family provision order or to any beneficiary of
the deceased person’s
estate,
(c) the nature and extent of the deceased person’s estate (including any
property that is, or could be, designated as notional
estate of the deceased
person) and of any liabilities or charges to which the estate is subject, as in
existence when the application
is being considered,
(d) the financial resources (including earning capacity) and financial needs,
both present and future, of the applicant, of any other
person in respect of
whom an application has been made for a family provision order or of any
beneficiary of the deceased person’s
estate,
(e) if the applicant is cohabiting with another person - the financial
circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other
person in respect of whom an application has been
made for a family provision
order or any beneficiary of the deceased person’s estate that is in
existence when the application
is being considered or that may reasonably be
anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the
acquisition, conservation and improvement of the estate
of the deceased person
or to the welfare of the deceased person or the deceased person’s family,
whether made before or after
the deceased person’s death, for which
adequate consideration (not including any pension or other benefit) was not
received,
by the applicant,
(i) any provision made for the applicant by the deceased person, either during
the deceased person’s lifetime or made from
the deceased person’s
estate,
(j) any evidence of the testamentary intentions of the deceased person,
including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the
deceased person before the deceased person’s
death and, if the Court
considers it relevant, the extent to which and the basis on which the deceased
person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the
death of the deceased person,
(n) the conduct of any other person before and after the date of the death of
the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in
existence at the time of the deceased person’s death
or at the time the
application is being considered.”
- It
can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA
in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as
“a multifactorial list”, and by Lindsay J in Verzar v Verzar
[2012] NSWSC 1380 at [123], as “a valuable prompt” to which the
Court may have regard, together with “any other matter the court considers
relevant”, for the purpose of determining whether the applicant is an
“eligible person”, whether a family provision
order should be made,
and if so, the nature of any such order.
- In
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, at [7],
Basten JA wrote:
“Section 60 of the Succession Act spells out the matters which the
court may have regard to in determining whether the claimant ‘is an
eligible person’
and whether to make a family provision order: s 60(1).
Most of the factors listed in s 60(2) will be irrelevant in relation to whether
the applicant is an eligible person, a matter largely dependent upon the
language of s 57. The matters set out must be available considerations in
relation to both limbs of s 59(1) dealing with a family provision order, namely
par (b) and par (c). Section 60 provides no assistance in relation to the
different considerations which may arise in respect of each paragraph of s
59(1). The factors are also relevant to the determination of the ‘nature
of any such order’, which presumably includes the discretionary
element to
be found in s 59(2): s 60(1)(b).”
- The
section does not prioritise the catalogue of matters that may be taken into
account. No matter is more, or less, important than
any other. The weight of
each of the matters specified in the section, which may be taken into account,
will depend upon the facts
of the particular case. There is no mandatory command
to take into account any of the matters enumerated. None of the matters listed
are, necessarily, of decisive significance, and none differentiate, in their
application, between classes of eligible person. Similarly,
there is no
distinction based on gender. The sub-section makes clear, since other matters
may be taken into account, that the jurisdiction
is not exclusively
needs-based.
- Furthermore,
the section also does not say how the matters listed are to be used to determine
the matters identified in s 60(1). Considering each of the relevant matters does
not prescribe a particular result, and whilst there is likely to be a
substantial overlap
in the matters that the Court may take into account when
determining the answers to what is posed in s 60(1), those matters are not
identical.
- A
reference to some of the matters in s 60(2) not only permits, but requires, a
comparison to be made between the respective positions of the applicant and any
other eligible
person, as well as of any beneficiary, whilst others do not.
Importantly, also, many of the matters in sub-section (2), of themselves,
are
incapable of providing an answer to the questions posed in s 60(1).
- Leaving
aside the question of eligibility, the matters referred to in s 60(2) may be
considered on “the discretionary question”, namely whether to make
an order and the nature of that order. Importantly,
under s 60(2), attention is
drawn to matters that may have existed at the deceased’s death, or
subsequently.
- The
Court should, and does, give considerable weight to the deceased’s wishes
in recognition of the better position in which
he was placed. Of course, 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: Slack v Rogan; Palffy v Rogan at
[127].
- In
Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant
legislation did not confer new rights of succession and did not create legal
rights
of inheritance. Rather, his Honour explained:
“It preserved freedom of testamentary disposition, but subjected that
freedom to a new qualification.”
- In
Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted
that:
“Freedom of testamentary disposition remains a prominent feature of the
Australian legal system. Its significance is both practical
and symbolic and
should not be underestimated.”
- As
has recently been written by White JA in Sgro v Thompson [2017] NSWCA
326, 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.”
- This
passage confirms that the Act is to be applied according to its terms, and is
not confined by notions of reluctance to interfere
with freedom of testation. As
was stated by Brereton JA in Steinmetz v Shannon, at
[97]:
“The statutory family provision jurisdiction is not to be exercised on the
footing that it must be approached with great caution
because of its intrusion
on testamentary freedom. Rather, the statute is to be given full operation
according to its terms, notwithstanding
that it encroaches on testamentary
freedom.”
Some Additional Principles
- Accepting
that no two cases will be exactly alike, there are some general principles that
may be stated. Whilst most of these principles
were stated in the context of the
former Act, they are equally apt in a claim brought pursuant to the Act. Other
judges, and I, have
repeated them in many cases under the Act.
- The
Court’s discretion in making an order is not untrammelled, or to be
exercised according to idiosyncratic notions of what
is thought to be fair, or
in such a way as to transgress, unnecessarily, upon the deceased’s freedom
of testation: Pontifical Society for the Propagation of the Faith v
Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per
Nettle J, at [63].
- Bryson
J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour
to achieve “an overall fair” division of the deceased’s
estate.
It is not part of the Court’s function to achieve some kind of
equity between the various claimants.
- As
Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at
[5]:
“Fairness and equality are not touchstones for relief under the
Succession Act.”
- In
Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although
dissenting in his determination of the case, observed that the Court did not
have a mandate to re-work
a Will according to its own notions of fairness. His
Honour added:
“There is, in my opinion, no reason for thinking that justice is better
served by the application of abstract principles of
fairness than by acceptance
of the judgment of a competent testator whose knowledge of the virtues and
failings of the members of
his family equips him for the responsibility of
disposing of his estate in far better measure than can be afforded to a Court by
a few pages of affidavits sworn after his death and which only too frequently
provide but an incomplete and shallow reflection of
family relations and
characteristics. All this is, of course, subject to the proviso that an order
may be made if it appears that
the testator has failed to discharge a
duty to make provision for the maintenance, education or advancement of
his widow or children. But it must appear, firstly, that such
a duty existed
and, secondly, that it has not been discharged.”
- Dixon
CJ, in Pontifical Society for the Propagation of the Faith v Scales, at
19, commented upon the consideration that was to be given to the
deceased’s wishes:
“The words 'proper maintenance and support', although they must be treated
as elastic, cannot be pressed beyond their fair
meaning. The Court is given not
only a discretion as to the nature and amount of the provision it directs, but,
what is even more
important, a discretion as to making a provision at all. 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.”
- Of
course, in considering the question, the nature and content of what is adequate
provision for the proper maintenance, education
and advancement in life of an
applicant, is not fixed or static. Rather, it is a flexible concept, the measure
of which should be
adapted to conform with what is considered to be right and
proper according to contemporary accepted community standards: Pontifical
Society for the Propagation of the Faith v Scales at 19; Walker v
Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v
Sekers; Sekers v Sekers [2010] NSWSC 59.
- In
all cases under the Act, what is adequate and proper provision is necessarily
fact specific: Sgro v Thompson, per White JA, at [67].
- The
size of the estate is a consideration in determining an application for
provision. However, its size does not justify the Court
re-writing the
deceased’s Will in accordance with its own ideas of justice and fairness:
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v
Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
- The
role of the Court is not “to address wounded feelings or salve the pain of
disappointed expectations” that the applicant
might feel: Heyward v
Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
- In
Foley v Ellis, at [88], Sackville AJA noted that Singer v
Berghouse:
“... strongly suggests that the Court cannot consider the propriety and
adequacy (or inadequacy) of any testamentary provision
for an applicant in
isolation from the resources and needs of other claimants on the
deceased’s bounty. These claimants include
other beneficiaries entitled to
a share of the deceased’s estate, whether or not they themselves have made
a claim under the
Family Provision Act”.
Claim by
an adult child
- I
have, in many cases, referred to some general principles in relation to a claim
by adult child of the deceased. I repeat the principles
that I have set
out:
- (a) The
relationship between parent and child changes when the child attains adulthood.
However, a child does not cease to be a natural
recipient of parental ties,
affection or support, as the bonds of childhood are relaxed.
- (b) It is
impossible to describe, in terms of universal application, the moral obligation,
or community expectation, of a parent in
respect of an adult child. It can be
said that, “ordinarily, the community expects parents to raise and educate
their children
to the very best of their ability while they remain children;
probably to assist them with a tertiary education, where that is feasible;
where
funds allow, to provide them with a start in life, such as a deposit on a home,
although it might well take a different form.
The community does not expect a
parent, in ordinary circumstances, to provide an unencumbered house, or to set
his, or her, child
up in a position where she or he can acquire a house
unencumbered, although in a particular case, where assets permit and the
relationship
between the parties is such as to justify it, there might be such
an obligation”: Taylor v Farrugia [2009] NSWSC 801, at [57];
McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452,
at [121]; Salmon v Osmond [2015] NSWCA 42, at [109].
- (c) Generally,
also, “the community does not expect a parent to look after his or her
children for the rest of [the child’s
life] and into retirement,
especially when there is someone else, such as a spouse, who has a prime
obligation to do so. Plainly, if an adult child remains a dependent of a
parent, the community usually expects the parent to make
provision to fulfil
that ongoing dependency after death. But 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”: Taylor v Farrugia, at [58].
- (d) There is no
need for an applicant adult child to show some special need or some special
claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR
532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v
Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58].
- (e) 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 are
relevant:
Marks v Marks [2003] WASCA 297, at [43]. In addition, if the
applicant is unable to earn, or has a limited means of earning, an income, this
could give rise to
an increased call on the estate of the deceased: Christie
v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at
[17].
- (f) The
applicant has the onus of satisfying the Court, on the balance of probabilities,
of the justification for the claim: Hughes v National Trustees, Executors and
Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at
149.
- A
very similar statement of these principles, which I set out in Bowditch v NSW
Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in
Chapple v Wilcox at [21] and at [65]-[67]; and was referred to, with no
apparent disapproval (although in that appeal there was no challenge to the
correctness of those principles), in Smith v Johnson [2015] NSWCA 297,
at [62].
Qualifications on “Principles”
- As
long ago as 1980, in White v Barron, at 440, Stephen J
wrote:
“[T]his jurisdiction is pre-eminently one in which the trial judge's
exercise of discretion should not be unduly confined by
judge-made rules of
purportedly general application.”
- As
I have stated in many cases (see, for example, Bowditch v NSW Trustee and
Guardian), I do not intend what I have described as “principles”
or “general principles” to be elevated into rules
of law,
propositions of universal application, or rigid formulae. Nor do I wish to
suggest that the jurisdiction should be unduly
confined, or the discretion
should be constrained, by statements of principle found in dicta in other
decisions, or by preconceptions
and predispositions. Decisions of the past do
not, and cannot, put any fetters on the discretionary power, which is left
largely
unfettered. I do not intend what is provided as a guide to be turned
into a tyrant.
- It
is necessary for the Court, in each case, after having had regard to the matters
that the Act requires it to consider, to determine
what is adequate and proper
in all the circumstances of the particular case. In addition, in each case, a
close consideration of
the facts is necessary in order to determine whether the
basis for a family provision order has been established. Every case is different
and must be decided on its own facts. Cases involve different classes of
eligible person, different factual circumstances, and different
competing claims
by others upon the estate of the deceased.
- As
Lindsay J wrote in Verzar v Verzar, at
[131]:
“Whatever guidance one might draw from analogous cases all analogies, and
any guidelines drawn from a pattern of similar cases,
must yield to the text of
the legislation, the duty of the Court to apply that text to the particular
circumstances, and the totality
of material circumstances, of each case.
Preconceptions and predispositions, comforting though they may be, can be the
source of
inadequate consideration of the jurisdiction to be exercised:
Bladwell v Davis [2004] NSWCA 170 at [12] and
[18]-[19].”
- The
importance of the qualifications to which I have referred have been stressed in
Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at
[66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; Yee v
Yee [2017] NSWCA 305, at [172]; and, recently, Steinmetz v Shannon
[2019] NSWCA 114, per White JA, at [37]. They must be remembered.
- But,
as Brereton JA also wrote, in Steinmetz v Shannon, at
[106]-[108]:
“As this Court pointed out in Burke v Burke, such observations are
not rules of law, but guidelines that may give assistance and provide guidance
that are not to be elevated
to rules of law. That does not mean that they are
without importance and significance, because, as Basten JA explained in
Chapple v Wilcox:
[19] ...the real provenance of the
‘principles’ is that they constitute a reflection of community
values, being a factual
matter, but one as to which reasoned findings of judges
with experience in these matters may well provide valuable
guidance
Similarly, Barrett JA explained:
[67] ... [they] provide a useful touchstone that may be
applied with circumspection by judges called upon to ascertain and apply "the
feeling and judgment of fair and reasonable members of the community" in cases
of the present kind.
Such guidelines also provide the additional benefit of affording a certain
amount of consistency in decision-making, and indication
of expectations and
advice to litigants. Without such guidelines, decision-making and advising in
this field becomes a morass of
idiosyncratic decisions devoid of any
consistency.”
- (In
relation to Steinmetz v Shannon, I should mention that an application for
special leave to appeal the Court of Appeal decision, made to the High Court,
was dismissed
upon the basis that “the appeal proposed by the applicant
would enjoy insufficient prospects of success to warrant the grant
of special
leave”: Shannon & Anor v Steinmetz [2019] HCASL 332 (16 October
2019).)
- In
addition, the formulation of principles, whilst not intended to "constitute a
fetter upon the discretion not intended by the legislature",
may assist in
avoiding arbitrariness and may serve the need for consistency that is an
essential aspect of the exercise of judicial
power under the
Act.
Additional Facts
- I
next set out some facts, by reference to s 60(2) of the Act. Where necessary, I
shall express the conclusions to which I have come
in relation to areas of
dispute between the parties. I have taken this course, not “to dwell on
particular matters as if they
were, in themselves, determinant of the broad
judgments required to be made under s 59”: Verzar v Verzar, at
[124], but in order to complete the recitation of facts that will assist me to
determine the questions that must be
answered.
(a) any family or other relationship
between the applicant and the deceased person, including the
nature and duration of the relationship
- The
Plaintiff is the child of the deceased. As has been referred to earlier in these
reasons, there was a period of little contact
between the Plaintiff and the
deceased from at least 2011 until the deceased’s death. I have concluded
that their relationship
was not a particularly close one.
- However,
as Sackville AJA noted in Foley v Ellis [2008] NSWCA 288, at
[102]:
“Care should be taken, however, not to oversimplify the complex and
nuanced relationships within a family by yielding to the
temptation to condemn
categorically the behaviour of one party or the other. Events viewed years later
through the cold prism of
a courtroom may give a different impression than when
the events are set in the context of the raw emotions experienced at the
time.”
- I
also bear in mind in this regard, the Plaintiff’s medical conditions and
the fact, as Basten JA recognised in Andrew v Andrew (2012) 81 NSWLR 656;
[2012] NSWCA 308, at [39], that “indifference, irritation or even outright
hostility are also "natural" characteristics of some family
relationships”.
(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
- In
written submissions, counsel for the Plaintiff wrote that the “primary
obligation [of the deceased] is to her only child,
the Plaintiff”. I do
not accept this submission. Whilst I am of the view that she did have some
obligation or responsibility
to make provision for the Plaintiff, she also had
an obligation or responsibility to make provision for the Defendant. Certainly,
as the sole beneficiary named in her last Will, the deceased recognised her
obligation, or responsibility, to the
Defendant.
(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
- As
discussed earlier in these reasons, the value of the estate out of which an
order could be made, taking into account the costs
of the proceedings, will be
in the order of $225,000 and $255,000. It is a modest
estate.
(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
- In
his updating affidavit made on 16 October 2019, the Plaintiff outlined his
financial resources as follows: his assets comprise
of $16,400 in savings, and
his net monthly income is $2,321 (being an amount he receives by way of the
Disability Support Pension).
He has a balance of $654 in superannuation. His
monthly expenses total $2,288, and include rent, electricity and gas, clothing,
telephone
and internet, food, medical expenses, chemist expenses, hobbies and
personal items/incidentals.
- He
is currently unemployed although he gave evidence of his tertiary education and
his hopes of obtaining employment. I am satisfied
that he does have some earning
capacity.
- In
written submissions, counsel for the Plaintiff identified the Plaintiff’s
financial needs as totalling $200,000, consisting
of: "a sum to be used towards
providing him with some security of accommodation, including rent, bonds, and
other related accommodation
expenses; to repay the H.E.L.P. debt; towards the
cost of health services; [and] towards superannuation”.
- In
his oral submissions, counsel for the Plaintiff was a little more realistic. He
submitted that proper and adequate provision for
the Plaintiff would be a sum of
$120,000, and an additional $20,000 to assist repaying the Plaintiff’s
H.E.L.P. debt –
that is, provision totalling $140,000: Tcpt, 28 October
2019, p 96(49) – p 97(4).
- The
Defendant also identified his financial resources. In his affidavit made 25 June
2019, he identified the balance of his superannuation
as $73,207. However, by
affidavit made on 25 October 2019, the Defendant confirmed he had been granted
access, and subsequently used,
$10,000 from his superannuation account for vet
fees, tree lopping services, water and council rates, bills, and living
expenses,
and indicated he had lent a friend $1,000. This, naturally, leaves a
balance of $63,207. Also in his affidavit made 22 October 2019,
and in written
submissions by his counsel, it was confirmed the Defendant is, or intends to,
use his superannuation to reduce his
Centrelink debt.
- In
his affidavit made 22 October 2019, the Defendant identified the following,
other, financial resources: a motor vehicle (estimated
to have a value of
$4,000); furniture (estimated to have a value of $2,000), and funds in an IMB
bank account ($2,000). The Defendant’s
financial resources, including the
superannuation, totals $71,207.
- Also
in his affidavit made 22 October 2019, the Defendant identified his liabilities
as totalling $34,699, consisting of a Centrelink
debt. (This debt had also been
referred to in his affidavit made 25 June 2019). In his affidavit made 25 June
2019, the Defendant
confirmed his Centrelink debts were “currently being
deducted from my Disability Support Pension”, which, deducting the
debt,
totals $783 per fortnight (as at 22 October 2019, the date on which the
Defendant made his most recent affidavit). This is
the Defendant’s only
source of income, as he is unemployed.
- The
Defendant states that his monthly expenditure totals $1,825 consisting of
electricity, water, council rates, groceries, motor
vehicle insurance, petrol,
telephone, internet, medication, entertainment, home insurance, paper delivery,
lawn maintenance, and
dog food and care.
- In
relation to the withdrawals from the deceased’s bank account, which
withdrawals totalled about $40,000, the Defendant did
not dispute that he had
made the withdrawals. He suggested that the deceased knew of the withdrawals
and, in any event, half of the
money in the account, was his. He also suggested
that some of the withdrawals were made to repay debts that she owed to him.
- It
is difficult to know whether the evidence in this regard is correct. However, I
shall bear in mind that the Defendant received
these amounts out of the bank
account.
(e) if the applicant is cohabiting with
another person-the financial circumstances of the other person
- The
Plaintiff is not cohabiting with any other
person.
(f) any physical, intellectual or mental
disability of the applicant, any other person in respect of whom an application
has been
made for a family provision order or any beneficiary of the deceased
person’s estate that is in existence when the application
is being
considered or that may reasonably be anticipated
- The
Plaintiff’s medical condition has been outlined earlier in these
reasons.
- In
his affidavit made on 29 April 2019, the Defendant gave the following evidence
in relation to his health issues: he has a long-term
back injury which causes
him significant pain, and he is no longer able to work; he is required to take
regular nerve medication
to relieve the pain in his back; he has “a heart
problem” and is required to take blood thinners and blood pressure
medication;
he is “taking four different medications daily at the
moment” and his doctor has advised he “may soon need to start
taking
another medication as well”.
- In
his updating affidavit made 22 October 2019, the Defendant elaborated in respect
of the nature and extent of his medical needs,
annexing a copy report of Dr
Verman Dela Cruz. These conditions were also summarised in written submissions
by counsel for the Defendant:
“[the Defendant] has significant medical
issues (multilevel moderate to severe degenerative spondylosis of the lumbar
spine
and disc protrusions with spinal canal stenosis and narrowing on L4/L5 and
Ld/S1 with compression of L4/L5 nerve roots, osteoarthritis
of both hands and
knees, limited mobility (walking distance limited to 50 metres), pain in both
legs, from which he will not improve
and for which he takes multiple medications
and may require surgery)”.
(g) the age of
the applicant when the application is being considered
- The
Applicant was born in January 1985, and is almost 35 years
old.
(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
- Subject
to one matter, I am satisfied that the Plaintiff did not contribute, in any
material way, to the estate of the deceased, financially
or otherwise. In his
reply affidavit made 24 June 2019, at par 12, he indicated that when he was
living with her, and when requested,
he would give the deceased “around
$150.00 at a time” when the deceased asked him to contribute to household
bills. No
further evidence was given in relation to this, and I do not think
much turns on it.
- I
am also satisfied that he did not contribute to the welfare of the deceased,
before the deceased’s death in the years from
2011.
(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
- As
has been discussed earlier in these reasons, the Plaintiff was dependent on the
deceased until around 2011, when he moved out of
her home. The deceased did not
make any provision for him otherwise.
(j) any
evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person
- As
has been discussed earlier in these reasons, the deceased did not make any
provision, in her Will, for the Plaintiff. In Clause
6 of that Will, she
expressly indicated her reasoning for her wish to not make provision for the
Plaintiff in her Will.
- However,
in the 2003 Will, she had left the whole of her estate to
him.
(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
- The
Plaintiff was not being maintained by the deceased before her
death.
(l) whether any other person is liable to
support the applicant
- There
is no other person liable to support the
Plaintiff.
(m) the character and conduct of the
applicant before and after the date of the death of the deceased person
- The
details of the Plaintiff’s conduct after he left the home of the deceased,
and the nature and quality of their contact with
each other prior to the
deceased’s death, has been discussed earlier in these
reasons.
(n) the conduct of any other person before and after the
date of the death of the deceased person
- It
is not necessary to discuss, in detail, the character and conduct of the
Defendant as he is the sole chosen object of the deceased’s
bounty. There
was some criticism of his conduct, such as (in broad terms) the quality of his
relationship with, and behaviour towards,
the deceased. I have considered the
evidence of Ms Bauer in this regard. However, I am satisfied that the Defendant
contributed to
the welfare of the deceased by caring for her, particularly in
the period when she returned home from hospital, following her stroke
in July
2017, and between her subsequent hospitalisations. After her death, the
Defendant played a substantial role in arranging,
and paying for, the
deceased’s funeral. This evidence was, largely,
unchallenged.
(o) any relevant Aboriginal or
Torres Strait Islander customary law
- This
is not applicable.
(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
- The
only other matter that I consider to be relevant is that the Plaintiff made no
application for a family provision order in respect
of his father’s
estate. Whilst I do not suggest that any such application would have been
successful, it is clear that the
major asset held in the deceased’s estate
at the date of her death came to her from the Plaintiff’s father. It is
not
suggested that the Defendant made any contribution to its
acquisition.
Determination
- Having
established eligibility and that his application was made within the time
prescribed by the Act, the Court must determine whether,
at the time the Court
is considering the application, adequate provision for the proper maintenance or
advancement in life, of the
Plaintiff, has not been made by the Will of the
deceased. In this regard, advancement in life may be seen as provision that will
improve and enhance the material situation of the Plaintiff, particularly in his
younger years.
- What
is written below should be read as a continuation of what has been written
above. In addition, I have regarded the factual matters
referred to earlier, so
far as they are relevant, to the circumstances set out below.
- Claims
for a family provision order present particular difficulties where the estate is
modest and where there are several competing
claims upon the bounty of the
deceased. Any provision made by the Court in favour of an applicant must, in
this class of case, be
made at the expense of the beneficiary who has had to
defend the claims and who is the chosen object of the deceased's bounty.
- As
is obvious, there was no provision in the deceased's Will made for the
Plaintiff. However, this does not, automatically, mean that
he will have
satisfied what has been said to be the jurisdictional threshold. A person may
fail to satisfy the description of being
“left without adequate
provision” even though no, or little, provision is made for them in the
deceased’s Will.
- Judged
by quantum, and looked at through the prism of the financial circumstances and
the needs of the Plaintiff, I am satisfied that
adequate provision for his
proper maintenance, education or advancement in life has not been made by the
last Will of the deceased.
The test established by s 59 of the Act has regard
not only to what is “adequate” by reference to the applicant’s
needs, but also to what is “proper” in all the circumstances of the
case.
- The
Court is required to make, and I have made, an assessment of the financial
position of the applicant, the size and nature of the
deceased’s estate,
the relationship between the Plaintiff and the deceased, and the competing claim
of the Defendant, as the
only other person who has a legitimate claim upon her
bounty, and the circumstances and needs of both the Plaintiff and the Defendant:
see, for example, McCosker v McCosker, at 571-572; Singer v
Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and
Tobin v Ezekiel [2012] NSWCA 285, at [70]. I also take into account that
the deceased made a previous Will, in 2003, in which the Plaintiff was the sole
beneficiary.
- Having
considered the matters I am required to consider, the Plaintiff has satisfied
the Court that he has been left without adequate
provision for his proper
maintenance, education and advancement in life. I am also satisfied that an
order for provision for the
Plaintiff should be made. The Plaintiff is not in a
strong financial position, he has a debt that is not insignificant, when
compared
to his income, and bearing in mind his age, he needs a capital sum for
exigencies of life for his proper maintenance and advancement
in life.
- The
more difficult question then arises, namely what provision “ought to be
made for her, or his, maintenance, education or
advancement in life”,
having regard to the facts known to the Court. This involves “an
instinctive synthesis that takes
into account all the relevant factors and gives
them due weight”: Grey v Harrison [1997] 2 VR 359, at 367. It is
not a scientific, or arithmetic, exercise and it is often difficult to
articulate the factors which contribute to
that “instinctive
synthesis”. However, similar considerations as are set out above often
arise.
- In
coming to the conclusion on the quantum of the provision to be made for him, the
deceased’s entitlement to testamentary freedom
is, of course, important
and I have given weight to this in reaching my conclusions.
- Importantly,
it is also clear that what is regarded as “proper” will depend,
amongst other things, upon the nature and
duration of the applicant’s
relationship with the deceased. That relationship, particularly after 2011, does
require some restraint
on the amplitude of provision to be made for him.
- Having
considered the matters I am required to consider, and remembering that what is
“proper” requires an evaluative
judgment that has regard to all
relevant circumstances, not merely financial circumstances, I am satisfied that
a capital sum for
exigencies of life should be made.
- In
my view, the Plaintiff should receive a capital sum that equates to 35 per cent
of the net value of the estate. Using the current
estimates as a guide, this
would provide a lump sum of between about $78,000 and about $89,000 (although
this is calculated by way
of estimate only). That lump sum will enable him to
pay his debt and provide him with an amount for exigencies of life. In this way,
his material situation will be improved.
- Needless
to say, the Defendant’s share of the estate will bear the burden of the
provision made for the Plaintiff. Of course,
the Defendant will still receive a
lump sum that equates to 65 per cent of the net value of the estate. On the
current estimates,
this would be between about $146,000 and about $166,000
(although this is only calculated by way of estimate). This share of the
estate
will provide him with a capital sum and should provide a small amount of
additional income. Needless to say, the Albion Park
Rail property should be put
on the market for sale as soon as reasonably possible.
- Interest
should not be payable on the lump sum if it is paid within 7 days of completion
of the sale of the Albion Park Rail property.
If it is not paid then, interest
at the rate prescribed in the Probate and Administration Act 1898 (NSW),
on unpaid legacies should be paid, calculated from that date until it is paid.
As the only beneficiary who can cause the payment
of the legacy to be made is
the Defendant, if interest is payable, it should be paid out of his share of the
estate.
- I
shall allow the parties a period of 7 days to provide short minutes of order
that reflect these reasons. They should also agree
upon the precise manner in
which the “net value of the estate” will be calculated. If possible,
they should agree on
the quantum of costs. I shall stand the proceedings over
for mention on a date to be arranged at the time these reasons are delivered.
If
agreement is unable to be reached, I shall list the costs, and any other,
argument, for a short hearing. If I am provided with
short minutes of order that
have been agreed and that deal with all matters, I shall deal with the matter in
Chambers.
**********
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