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Recent developments in Family Provision Litigation
KIDS, COFFEE, CASH, COWS, COSTS AND MORE!
A Paper Presented for the College of Law
24 March 2015
Ramena Kako, Barrister-at-Law, 13 Wentworth Selborne Chambers
Claims by Adult Children – DON’T EXPECT TO GET MONEY FOR A HOUSE!
Salmon v Osmond [2015] NSWCA 42 (Beazley P, McColl & Gleeson JA, 10 March 2015)
(At first instance: Peters v Salmon [2013] NSWSC 953; Peters v Salmon (No 2) [2013]
NSWSC 1071 – costs judgment)
1. The deceased died leaving assets which principally comprised five grazing properties
upon which he had conducted a cattle farming enterprise. The deceased was
survived by his wife, Esmae, and seven children. He made various provisions for his
wife and five of his seven children, Esmae and his son Michael being the principal
beneficiaries. Unlike the deceased’s other children, Michael had remained on the
deceased’s property throughout his life and his primary occupation had been
assisting with the farm, often for minimal remuneration.
2. The deceased explained in cl 11 of his will why he had particularly favoured Michael
which provided as follows:
“I DECLARE that if my Will shows a preference for my Son the
said MICHAEL AUGUSTINE SALMON then that is in consideration of him
continuing to assist me in my farming operations for many years, often for
very little reward, and in general allowing me to amass the assets which I
have during my lifetime AND I FURTHER DECLARE that further assistance
has been given by myself and my Wife the said ESMAE FRANCES
SALMON to our other children AND THAT they have benefited as close to
equal as possible in monetary value in the distribution of assets owned by me
during my lifetime.”
3. In the court below, Kerryn and Donna, two of the deceased’s daughters, brought
proceedings under the Succession Act 2006 (NSW), s 59, seeking additional
2
provision out of the deceased’s estate. Two other children also brought proceedings
but discontinued them prior to judgment.
4. Under the will, Donna was given a legacy of $10,000. As for Kerryn, the deceased
released a debt of $14,000 allegedly owed by her to him.
5. The primary judge, Ball J, dismissed Donna’s claim, but ordered additional provision
for Kerryn to that made under the will, in the form of a legacy of $200,000.
6. In a separate judgment on the issue of costs, he made findings that two offers of
compromise made by the appellants to Donna were not genuine offers of
compromise, and on that basis refused the appellants’ claim for indemnity costs
against Donna.
7. The executors of the will appealed against the order made in favour of Kerryn. They
contended that Ball J made a number of errors, including, principally: a failure to
have sufficient regard to the deceased’s testamentary wish to favour Michael over
the other children; a failure to properly take into account Esmae and Michael’s
competing claims in determining Kerryn’s provision; and an erroneous finding that
proper provision to Kerryn required ensuring that she had her own house. The
appellants also appealed as to costs, including by contending that the offers of
compromise made to Donna were genuine.
8. In a judgment by the President of the Court of Appeal (with whom Justices McColl
and Gleeson agreed), the Court held:
(a) A testator’s explanation of why he made certain dispositions is a relevant factor
in family provision cases, and the primary judge erred in not giving it appropriate
weight. However, the testator’s motives are not necessarily determinative of a claim
under s 59 if the court nonetheless finds that adequate provision has not been made.
[67]-[78]
(b) In deciding whether adequate provision has been made to a claimant under s
59, and, if not, what provision ought to be made, the court is to have regard to the
testator’s competing obligations to other claimants. However, contrary to the
appellant’s submissions, the primary judge did not fail to do so. [79]-[87]
(c) Provision made for Kerryn was disproportionately high in the context of
Michael’s competing claim on the estate. [101]-[106]
(d) The primary judge’s finding that it was “not obvious” that Michael would be
unable to pay out the legacy ordered without selling one of the grazing properties
3
was in error, notwithstanding the fact that precise evidence of Michael’s financial
state was not available. [89]-[95]
(e) The primary judge did not fail to have regard to, or make clear findings of fact
on, the issue of whether the farm would only remain viable if it continued to be
operated as an integrated operation involving all of the properties. [96]-[100]
(f) There is no general requirement that adequate provision, for the purposes of
s 59, requires ensuring that an adult child has her own home. The provision ordered
by the primary judge, which was related to Kerryn having her own home, was in
error. [107]-[112]
(g) As to the admission of additional evidence on appeal under the Supreme Court
Act 1970 (NSW), s 75A, the court exercised its discretion to admit the updating
evidence, which was relevant to determining the proper provision to be made, but
found that there were no special grounds as required to admit explanatory and
additional evidence which could have been led at trial. [120]-[123]; [144]
(h) Taking into account, inter alia, the testator’s wishes and the updated financial
positions of the parties, the appropriate provision to be made to Kerryn was a legacy
of $50,000 in addition to that provision already made for her under the will. [150]-
[161]
(i) A defendant’s offer of compromise offering to settle a claim on the basis that
judgment be entered for the defendant and each party pay their own costs may be a
genuine offer of compromise. In this case the trial judge erred in finding that such
offers made to Donna were not genuine. [163]-[168]
(j) Where a claim under the Family Provision Act is unsuccessful, there are
potentially different costs considerations from other forms of litigation. In family
provision cases, the overall justice of the case is the key factor. However, the overall
justice is not remote from the rule that costs follow the event, and in this case that
rule should apply. [170]-[176]
(k) Section 99 of the Succession Act does not apply to an appeal from a decision
on a claim brought under the Succession Act and, unless the court has good reason
to think some other result is more appropriate, costs of the appeal should follow the
event. [177]-[178]: Chapple v Wilcox [2014] NSWCA 392.
9. The Court upheld the appeal.
4
10. In determining whether provision should be made, the trial judge had made the
following critical factual findings.
11. First, in relation to Esmae and Michael:
(1) It was clearly appropriate for the deceased to put Esmae in the position where
she could continue to live in the family home for as long as she wished and to have
sufficient resources to enable her to do so.
(2) It was also clearly appropriate for the deceased to leave Esmae with sufficient
assets so that, if it became necessary for her to leave the family home, she would
have the resources to find appropriate alternative accommodation and to support
herself in that accommodation. (See Luciano v Rosenblum(1985) 2 NSWLR 65.)
(3) Although it may have been reasonable for Esmae to seek to secure her future by
transferring Swansea to Michael in the expectation that he will look after her, that
was not relevant to the adequacy of the provision made by the deceased for her.
Rather, it was relevant to Michael’s position.
(4) Michael had devoted a large part of his life to the farm, often for little reward, and
had provided invaluable assistance to his parents and to the deceased in particular.
(5) Michael’s future livelihood depended heavily on the farm income, although the
farming operation was not very profitable and indeed at times was marginal.
(6) A reduction in the size of the farm would exacerbate its marginal profitability.
(7) Although Michael and his family could live off the proceeds of the properties if
sold, that would be inconsistent with the deceased’s intentions.
12. In relation to Donna, his Honour, at [89], recognised:
(a) There were strong competing claims on the deceased’s bounty.
(b) Having regard to Donna’s financial circumstances, he was not satisfied that she
had been left without adequate provision for her proper maintenance and
advancement in life.
13. Thirdly, as to Kerryn, his honour found:
(a) Kerryn, like Donna, had a good relationship with the deceased and had assisted
on the farm when she was young.
(b) Kerryn, now split from her partner, had few assets of her own and faced a
difficult future.
5
(c) If Kerryn and Mr Long agreed to an equal division of property, Kerryn would
have total assets of $225,000.
(d) If she purchased Mr Long’s interest in the unit she would have to pay him
$125,555.
(e) If Kerryn borrowed to purchase Mr Long’s share in the unit at an interest rate of
6.5 per cent over 13 years (that is, until age 70), her weekly mortgage payments
would be $716 per week.
(f) Unless some provision was made for Kerryn, there seemed little prospect that
she would be able to buy the unit where she lives.
(g) In those circumstances, the provision made for her in the deceased’s will was
inadequate.
14. Having made that determination, his Honour, at [91], turned to the question as to
what provision, if any, would be appropriate to be made for Kerryn. His Honour
determined that the appropriate provision:
“… would be a sufficient sum of money to enable her to buy out [Mr Long’s]
interest in the unit and to reduce the mortgage to a level where she could
expect to repay it by the time she reaches the age of 65.”
15. His Honour reasoned that that would leave her in a position where, on retirement,
she would own a unit, have a modest amount of superannuation and any pension to
which she might be entitled. In order to achieve that, his Honour considered that
appropriate provision would be a sum of $200,000. The mathematical calculation
underlying that assessment was that provision of a sum of $200,000 would leave
Kerryn with a mortgage of approximately $124,000. His Honour assumed an interest
rate of 6.5 per cent and continuing weekly mortgage repayments of $400 per week.
On those assumptions, the mortgage would be repaid in full in eight years.
16. His Honour determined that that provision should come out of Michael’s share of the
estate. His Honour acknowledged, at [92], that that might mean Michael would have
to sell one of the properties and that that may undermine the farm’s viability. His
Honour considered, however, that it was not obvious that Michael could not raise the
funds necessary to pay Kerryn the sum of $200,000 without selling one of the
properties. [In this regard the Court of Appeal upheld the appellant’s contention that
his honour erred in finding that it was not ‘obvious’ that Michael could not raise the
funds].
6
17. His Honour also stated that it was not obvious that the farm would be unviable if one
of the properties was sold. In this regard, his Honour considered it relevant that,
under the terms of the deceased’s will, had Esmae predeceased the deceased,
Ganmurrra would have been left to Kerryn and his other son Luke.
18. The Court of Appeal admitted further updating evidence as to the financial
circumstances of Michael, Kerryn and the values of the farming properties. It
considered that Michael had demonstrated that his financial circumstances were
such that he could not afford to repay any loan secured over the properties in order to
pay Kerryn her legacy.
19. As to the deceased’s reasons in the will, the Court of Appeal said at [69]:
“Courts have long accepted that a deceased’s statements explaining the
reasons for a particular testamentary disposition are admissible as evidence
of the deceased’s motive or knowledge and accordingly are a relevant
consideration in the Court’s determination under s 59: Hughes v National
Trustees, Executors and Agency Company of Australasia Limited [1979] HCA
2; 143 CLR 134 at 149-153 per Gibbs J (with whom Mason and Aickin JJ
agreed).”
20. The Court reinforced that it is not the court’s function to rewrite the will, citing from
Hughes’ case (at 146, per Gibbs J):
“It has long been established that in exercising the power given by a section
such as s 91, the court is not entitled to re-write the will of a testator in
accordance with its own ideas of fairness or justice. According to the classical
statement in Bosch v Perpetual Trustee Co:
‘… in every case the court must place itself in the position of the
testator and consider what he ought to have done in all the
circumstances of the case, treating the testator for that purpose as a
wise and just, rather than a fond and foolish, husband or father.’”
In such a case:
“There are no rigid rules; the question whether adequate provision has been
made for the proper maintenance and support of the [claimant] must depend
on all the circumstances - that is, on all the facts that existed at the date of the
death of the testator, whether the testator knew of them or not, and all the
7
eventualities that might at that date reasonably have been foreseen by a
testator who knew the facts.”
21. At [75] the Court of Appeal said:
“Although Hughes was concerned with a claim by an adult son, the same
observations apply to any claimant, including an adult daughter (although the
positions of a dependent widow and of infant children are treated with special
regard). In short, the court must have regard to the relevant circumstances,
including the matters to which s 60 directs attention, so as to determine
whether the claimant was left without adequate provision for that person’s
proper maintenance and support.”
22. It held that whilst the deceased’s wishes are not determinative, a court determining
whether an eligible person has been left without adequate provision for support and
maintenance is required to have regard to the testator’s wishes although not bound
by them if it otherwise determines that a claimant has been left without adequate
provision and support and that provision ought to be made.
23. The Court of Appeal found that the provision ordered by his Honour altered the
disposition of the estate to such an extent that the deceased’s wish that, of his
children, Michael be the principal beneficiary, was not given appropriate weight.
24. It found that Michael had a strong competing financial circumstances and the judge
erred in making provision for Kerryn to ensure she had her own home. Given
Michael’s competing circumstances and his contribution to the farm as opposed to
Kerryn, the provision for Kerryn was disproportionate to the amount provided to
Michael under the Will, and in light of the costs of the proceedings. The Court of
Appeal reduced the provision made for Kerryn from $200,000 to $50,000.
COSTS
Offers of compromise
25. The appellants also challenged the primary judge’s determination that the offers of
compromise made by the appellants to Donna on two occasions (January 2013 and
May 2013) were not genuine compromises such as to entitle them to a favourable
costs order.
26. The offers of compromise were made pursuant to UCPR 20.26(3). The offers were
in identical terms save for the date of acceptance. Each offered to settle Donna’s
8
claim on the basis that judgment be entered for the appellants and an order that
each of Donna and the appellants pay their own costs of the proceedings insofar as
the proceedings concerned Donna.
27. After the conclusion of the first instance proceedings, the appellants sought an order
for indemnity costs from the date of one or other of the offers pursuant to UCPR,
r 42.15A.
28. The relevant rules of court are as follows:
“20.26 Making of offer
(1) In any proceedings, any party may, by notice in writing, make an offer to any
other party to compromise any claim in the proceedings, either in whole or in part, on
specified terms.
(2) An offer under this rule:
…
(c) must not include an amount for costs and must not be expressed to be
inclusive of costs …
…
(3) An offer under this rule may propose:
(a) a judgment in favour of the defendant:
(i) with no order as to costs, or
(ii) despite subrule (2) (c), with a term of the offer that the defendant
will pay to the plaintiff a specified sum in respect of the plaintiff’s costs,
or
(b) that the costs as agreed or assessed up to the time the offer was made
will be paid by the offeror, or
(c) that the costs as agreed or assessed on the ordinary basis or on the
indemnity basis will be met out of a specified estate, notional estate or fund
identified in the offer.
(4) If the offeror makes an offer before the offeree has been given such particulars
of the offeror’s claim, and copies or originals of such documents available to the
offeror, as are necessary to enable the offeree to fully consider the offer, the offeree
may, within 14 days of receiving the offer, give notice to the offeror that:
9
(a) the offeree is unable to assess the reasonableness of the offer because of
the lack of particulars or documents, and
(b) in the event that rule 42.14 applies to the proceedings, the offeree will
seek an order of the court under rule 42.14 (2).
…
42.15A Where offer not accepted and judgment no less favourable to defendant
(1) This rule applies if the offer is made by the defendant, but not accepted by the
plaintiff, and the defendant obtains an order or judgment on the claim no less
favourable to the defendant than the terms of the offer.
(2) Unless the court orders otherwise:
(a) the defendant is entitled to an order against the plaintiff for the
defendant’s costs in respect of the claim, to be assessed on the ordinary
basis, up to the time from which the defendant becomes entitled to costs under
paragraph (b), and
(b) the defendant is entitled to an order against the plaintiff for the
defendant’s costs in respect of the claim, assessed on an indemnity basis:
(i) if the offer was made before the first day of the trial, as from the
beginning of the day following the day on which the offer was made,
and
(ii) if the offer was made on or after the first day of the trial, as from 11
am on the day following the day on which the offer was made.”
29. At [166-167] the President said:
“One matter that is relevant in determining whether an offer of compromise
contains a genuine compromise is the time at which the offer is made. The
respondents filed their summons seeking orders for provision out of the estate
on 3 April 2012. The affidavit evidence was completed by 30 October 2012.
By that time, substantial costs would have been incurred both by the
appellants and Donna. In the ordinary course, a judgment for a party would
result in a costs order in favour of that party: the Civil Procedure Act
2005 (NSW), s 98 and UCPR, r 42.1. As the affidavit evidence was complete
at the time the first offer was made, the parties were in a position to assess
the likelihood of success of their claims on the whole of the evidence. The
10
rules make specific provision for a defendant (here the appellants) to make an
offer to a plaintiff that judgment be entered for the defendant but that each
party pay their own costs: UCPR, r 20.26(3). In the case of an offer in those
terms, the compromise is in respect of costs. Were it otherwise, the prima
facie effect of an offer under r 20.26(3) would never, or hardly ever, succeed.
It may be that where a defendant makes an offer at such an early point in the
proceedings, where few costs have been incurred and the likely prospects
cannot be adequately assessed, a plaintiff will be successful in having an
order made other than that specified in UCPR, r 42.15A. However, as I have
explained, this is not that case. In my opinion, with respect to his Honour, I
consider that he erred in making an order for costs in respect of Donna’s
claim other than that for which UCPR, r 42.15A provides. I see no reason why
the appellants should not have indemnity costs based on the first offer of
compromise.”
30. Pursuant to the Civil Procedure Act 2005, s 98, costs are in the discretion of the
court. Section 98 is subject to any other Act and the UCPR. UCPR, r 42.1 provides,
relevantly, that costs follow the event, unless the court considers some other order
ought to be made.
31. The Civil Procedure Act, s 98 is subject to the Succession Act, s 99, which provides:
99 Costs
(1) The Court may order that the costs of proceedings under this Chapter 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.”
32. The President said at [172] –[174]:
“As is implicit in s 99, family provision claims raise different issues with respect to
costs which set them apart from other forms of litigation. As such, there are
potentially different considerations from the ‘usual case’ where a claim under
the Family Provision Act is unsuccessful: McCusker v Rutter [2010] NSWCA 318
at [33] per Young JA.
In Singer v Berghouse, Gaudron J noted, at [6], that:
“Family provision cases stand apart from cases in which costs follow
the event … costs in family provision cases generally depend on the
11
overall justice of the case. It is not uncommon, in the case of
unsuccessful applications, for no order to be made as to costs,
particularly if it would have a detrimental effect on the applicant's
financial position. And there may even be circumstances in which it is
appropriate for an unsuccessful party to have his or her costs paid out
of the estate.” (citations omitted)
Nonetheless, the “overall justice of the case” referred to by Gaudron J is “not
remote from costs following the event”: Jvancich v Kennedy (No 2) [2004]
NSWCA 397. The only difference is that family provision cases call for
additional “liberality and discrimination” in considering whether to exercise the
discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at
[138]-[139].”
33. Even though the Court of Appeal concluded that provision in the sum of $50,000
ought to be made in Kerryn’s favour, that was a much smaller sum than she had
sought in her claim, either by way of transfer of property or the payment of a money
sum. In those circumstances, Kerryn was ordered to bear her own costs of the
proceedings at first instance.
Costs of the appeal
34. It has been held that s 99 does not apply to an appeal from a decision on a claim
brought under the Succession Act: Chapple v Wilcox at [146] per Barrett JA. Rather,
s 98 of the Civil Procedure Act and the provisions of the UCPR apply of their own
force to the appeal. In Chapple v Wilcox, Barrett JA further noted, at [147], that
unless the appeal court has good reason to think that some other result is more
appropriate, costs should follow the event.
35. As the appellants were successful on the appeal in a substantial way, the Court of
Appeal ordered that the appellants should have their costs of the appeal and that
those costs should be borne by Kerryn as to 90 per cent and by Donna as to 10 per
cent “to reflect the substantial proportion of the appeal being concerned with issues
that related only to Kerryn’s position.”
Claim by adult sons
Brand & Brand [2015] NSWSC 52 – Pembroke J – 11 February 2015
12
36. The plaintiffs were two adult sons of the Deceased and half-brothers. The net estate
and notional estate was $634,540.11. By his Will, the Deceased divided his estate
into thirds. He gave a legacy of one-third to his nephew and the remaining two-thirds
were directed to be used to discharge a mortgage over his first wife’s property and
the balance to be divided equally between his two sons, three of his nephews and his
niece. Accordingly, each son was entitled to approximately $61,000 under the Will.
37. His Honour found the Deceased had been disappointed by his sons because neither
had made a financial success of their lives. There was really no evidence of any
sound, justifiable or rational ground for ignoring his sons’ moral claims on his estate,
especially given the difficult lives they had experienced and their circumstances at the
date of death of their father.
38. One son was aged 51, married and the father of six children. He was living in housing
commission and renting and employed on a casual basis. His wife was a homemaker
and cared for the children. She received about $400 a month in income and the
household received the Family Tax Benefit for the children. This son did have about
$91,000 in superannuation, which was his primary asset. He suffered from injuries to
his back and his work capacity was limited. He suffered from epilepsy. After his father
became ill, this son and his two children moved in with the Deceased at his home.
They lived together for about four years. The son assisted the father with maintaining
and improving the Deceased’s property and they had a good relationship. He sought
further provision from the estate of up to $350,000 to enable him to buy his own home
and have a fund for future needs.
39. Stephen was the elder son of the Deceased and aged 63 years at the hearing. He
worked two days a week as a volunteer in a charity and was on Newstart Allowance.
His wife received a Carer’s Pension. He had suffered a stroke and was on medication
for some medical ailments. He did not own any property and he and his wife were
renting. They also had a dependent granddaughter live with them.
40. His father had paid for private school fees and the Judge considered he had had a
dysfunctional childhood and was a disappointment to his father. His parents had
divorced when he was young and was the go-between. He had also made some
unwise financial decisions as an adult and lost a property he had purchased and lost
his superannuation in trying to save the property. At the time of the hearing, he and his
wife had cash of $110,000, a demountable home in a caravan park ($45,000) which
13
they had purchased for their daughter and two cars. He sought provision out of the
estate to enable him to buy his own home.
41. The other beneficiaries in the Will would not suffer any hardship if the Will was altered.
The Defendant himself was quite wealthy. The Judge ordered that the net balance of
the estate remaining after payment of the Plaintiffs’ costs on an ordinary basis and the
Defendant’s costs on indemnity basis be paid to Peter as to 60% and to Stephen as to
40%.
Oakes & Oakes [2014] NSWSC 1312 – Pembroke J
42. This was a claim by a divorced former daughter-in-law of the Deceased. Her claim
was made as a member of a household, partly dependent on the Deceased – section
57(1)(e) Succession Act 2006.
43. This was regarded as an “unusual” family provision claim because a divorced former
daughter-in-law is not someone who would ordinarily be considered a natural object of
the Deceased’s benevolence and entitled to a share in his estate. However, the Judge
did find that she was an eligible person and was entitled to an order for provision.
44. The Deceased, by his Will, left a substantial rural property to his only son for life and
after his life, to his four grandchildren and the plaintiff. He also gave legacies of
$100,000 each to his daughter and step-daughters from his first wife and second wife.
The value of the assets at the date of death was about $3.65 million. The property was
leased and earning an annual rent of about $108,000 to which the life tenant was
entitled. The residuary estate was left to the only child of the Deceased’s marriage to
his second wife.
45. The issue was whether the plaintiff was a member of the Deceased’s household. His
Honour found that she was and although it was a state of affairs “that continued
indefinitely” it did subsist at least in the period 1978 to 1979.
46. His Honour said that:
“The notion of a “household” is not the same of a notion of a “house”. The
latter is a fixed and objective concept. The former is flexible, variable and to
some extent immanent. Among other things, living in the same household,
some element of frequency of contact, some element of mutual support and
14
some element of community of resources. It is perfectly possible to have one
household and two properties” at [3].
47. The Plaintiff had met the Deceased and commenced employment for him and his wife
as a young girl at a family run business. She met their son in 1977 and commenced a
relationship. The Deceased provided her with accommodation and from 1978 they
started living together in the Deceased’s house. Accommodation was provided for
them by the Deceased in the house that formed part of the motel complex. They later
married in 1981 and divorced in 2011. His Honour referred to Justice Hallen’s
decision in Doshen v Pedifich [2013] NSWSC 1507 at paras [66] – [67] where his
Honour cited with approval a passage from Churchill v Roachi [2002] EWHC 3230
(which Justice Pembroke), adopted, as a definition of “living in the same household”
where it was said:
It seems to me to have elements of permanence, to involve a consideration of
the frequency and intimacy of contract , to contain an element of mutual
support, to apply some consideration of a degree of voluntary restraint upon
personal freedom which each party undertakes, and to involve an element of
community of resources.
48. The Plaintiff and her ex-husband had been living together at the motel in a dwelling
that was divided into two flats. The dwelling was freestanding but situated directly next
to and within the grounds of the motel. They shared the same laundry facilities as the
motel. As they did not have a kitchen for the first 12 months of their occupation, most
of their meals took place in the motel. The Deceased and his wife lived at the motel
in accommodation above the reception area. It was about 10 metres away from the
dwelling where the Plaintiff and the Deceased’s son lived. They often had breakfast
and dinner together. After about 12 months, the Plaintiff and the son moved into the
dwelling flat which had a kitchenette where they made some meals, but continued to
have meals with the Deceased and his wife. The Plaintiff gave evidence that she
cleaned the residence where the Deceased and his wife lived out of respect for the
assistance which they had given her. The Plaintiff acted as an older sister to the
young daughter of the Deceased and assisted her and her mother by taking meals to
her, bathing her and brushing her hair. Sometimes the child would sleep in the flat with
the Plaintiff and her then husband. His Honour considered the four adults and child
lived in a relationship of shared resources and common community at [10]. All these
factors indicated to His Honour that the requirement that the Plaintiff be a member of
15
the Deceased’s household at some time was satisfied in the period between 1978 and
1979.
49. His Honour found there was another period where the evidence suggested there was a
further household relationship which occurred, at a rural property. Several times a
year the Plaintiff and the husband would go to that property during harvest season and
would commence harvesting and preparing the land from about 1979 until about 1985.
The house on the property had three bedrooms and the family would stay there. The
Deceased had his own room in that house. His Honour found the household was a
shared community. The Plaintiff’s job was predominantly to look after the house,
wash, clean, cook and prepare all the meals for the household while the men would
attend to farm work. She was not remunerated for her work. They had their meals
together when convenient. His Honour found they lived at the farm for the common
purpose of conducting essential farming operations during those times of the year
when it was necessary to do so.
50. The Plaintiff had four children with the Deceased’s son.
51. The Plaintiff had received some money from her parents which she used as a deposit
on a home for herself and her ex-husband, where she had lived in for several years. In
1991 the Deceased approached them with a proposal to sell his three rural properties
and buy a larger property. The Deceased had a general intention that this property
would be their family home too.
52. Whilst His Honour reminded himself that there are reasons to be cautious about
uncorroborated evidence of representations made long ago by a now Deceased
person, His Honour considered the course of conduct in 1978 to 1991 supported the
likelihood that the Deceased made a number of the statements of which the Plaintiff
gave evidence to the effect that he wished to set them up with a property which could
be their family home on a permanent and ongoing basis.
53. After the property was purchased, the Plaintiff and her then husband moved into the
homestead and continued to occupy it together until they separated in about 2009.
Even after separation and divorce the Plaintiff continued to live there for a short period
of about three months. For 22 years, the Plaintiff was allowed to live at that property
with her children, initially with the consent of the Deceased and after his death, with the
consent of his trustees.
16
54. At the request of the Deceased, the Plaintiff had agreed to sell the property she had
purchased using her parents’ money as a deposit as he had requested that she sell the
house and invest the money in his property in which they were living. His Honour
accepted that the net proceeds of the sale of that property had been made available for
the benefit of the Deceased in order to reduce his borrowings on his property. He had
told her it would be an investment in her future. His Honour considered the
Deceased, by allowing his daughter-in-law to continue to reside on the property,
despite her divorce from his son, gave an indication of the obligation felt by him
towards her. In particular, the Deceased had leased out his property but excluded
from the demise the lot on which the house was located where the Plaintiff lived with
her children, grandchildren and her children’s partners.
55. His Honour considered that this decision reflected some recognition that it was
appropriate to provide for the Plaintiff’s accommodation and that of her children
notwithstanding the separation and the departure of her husband. His Honour found
that the Plaintiff was effectively dependent on the Deceased until he died.
56. The Plaintiff was the divorced, former daughter-in-law, who was married to his only son
for 34 years. For at least 20 of those years, if not more, accommodation was provided
to her by the Deceased. The provision of accommodation alone may constitute
dependency: Petrohilos v Hunter (1991) 25 NSWLR 343. In this case, His Honour
found that dependency was more broad ranging. His Honour also found there were
factors warranting the making of the application. The Plaintiff had spent most of her
adult life living or working in a tri-partite relationship with the Deceased and her ex-
husband. The Deceased provided the farming property on which the family home was
situated for the Plaintiff and her children for at least 20 years. To some extent, he
allowed the Plaintiff and her ex-husband to share the farming operations and receive
some income from them. It was a relationship of dependence and financial control.
57. The Plaintiff had made substantial physical and financial contributions to the
Deceased’s property and the business. She had invested emotional capital in the
property and assumed she would eventually acquire it or a substantial part of it. She
raised four of the Deceased’s grandchildren on the property.
58. At the time of the hearing, the Plaintiff was on Centrelink benefits and working on a
casual basis as a cleaner. She had credit debts and no assets. She received nothing
by way of a property settlement on her divorce and did not have the resources to
pursue her ex-husband.
17
59. His Honour found the Plaintiff had emerged from a 30 year marriage with nothing
except the burden of children and grandchildren. She was also in remission from a
previous bout of cancer.
60. His Honour did stress that in most cases where a spouse has become divorced from
the son or daughter the testator, there is unlikely to be a sound basis for making a
family provision order however His Honour regarded this to be a special case but not
that it justified a generous award.
61. His Honour ordered that the Plaintiff receive a right of residence for 18 months in the
Deceased’s property, made orders designating distributed residuary estate as notional
estate and made an order for provisions for the Plaintiff of $100,000 from the notional
estate, granted her an equitable charge over the property to secure the payment to her
of $31,000 to represent her contributions to the purchase price of the property of the
Deceased, and ordered that her costs be paid from the notional estate on the ordinary
basis.
Raiola v Raiola [2014] NSWSC 967 – Black J, 22 July 2014
62. The Applicants were two adult children of the Deceased (a son and daughter). The
Defendant was a sole executor and beneficiary under the Will and the younger son of
the Deceased. The major asset of the estate was a house valued at about $855,000
which was encumbered. Estate liabilities (including costs of the proceedings) were
about $400,000 so the net value was between $360,000 - $450,000.
63. The daughter lived in Italy in a separate apartment in a house owned by her husband
from whom she was separated but not divorced. She had initially sought $270,000 to
enable her to buy a unit in Italy and attend to some medical needs and a fund for
extingencies. In cross-examination she conceded she did not wish to purchase a unit
but wished to renovate an existing property she owned, next to the property owned by
her husband. Her revised claim for provision was $200,000. She had not had contact
with her father for about 21 years.
64. She was 61 years of age with limited schooling, had no formal qualifications, had one
son and was working part-time in sales. She attempted to lay blame on the Deceased
for the lack of contact by saying the Deceased had whipped her from the age of 10 and
verbally abused her which caused her to leave Australia. However the beneficiary’s
evidence was that she had eloped with her husband to Italy and he did not see any
violence afflicted upon her by the Deceased. The allegation of physical abuse made
18
by her against the Deceased was considered to be a very serious one, made in
circumstances where the Deceased could no longer contradict it. The Judge was
critical of the fact that she had alleged her husband had witnessed one occasion of
physical abuse and although she was still on friendly terms with him, he had not given
evidence that might corroborate the allegation of abuse made against the Deceased
and His Honour inferred that his evidence would not have assisted her.
65. Her evidence was that despite the estrangement, she attended her father when he fell
ill and provided comfort to him.
66. The Deceased had given reasons for excluding his daughter in his Will which were:
(a) I have not heard from her in 21 years;
(b) She does not know if I am still alive;
(c) She has lost all contact with me; and
(d) She has not, for many years, respected me as her father.
67. The daughter submitted the statements were incorrect, at least at the time of the
Deceased’s death where she had attended him in hospital before he died, and that the
question of whether she respected her father was intertwined with the way her father
treated her. His Honour said that he had to give weight to the statements as indicating
the depth of the estrangement between them, at least at the time the Will was
executed, whilst accepting the evidence that she did visit him in hospital prior to his
death in Italy.
68. The solicitor who acted for the Deceased in preparing the Will gave clear evidence of
the Deceased having explained to her why he wished to leave his estate to his younger
son rather than to the daughter who he had not seen for years. The younger son had
looked after for him for 10 years and cared for him when he was sick.
69. It was submitted by the estate that no provision should be made for her because she
had not made a full and frank disclosure of her circumstances and a Court could not be
satisfied as to her true position. An order for her provision would force a sale of the
property in which the Defendant lived and would deprive him of accommodation, and it
would not be appropriate to make such an order where there was no appreciable
advantage conferred on the Plaintiff, particularly in light of the small size of the estate,
the Plaintiff’s poor relationship with the Deceased and his strong competing claim.
19
70. The beneficiary had assets in his own right to the order of about $500,000. He had no
dependents. His Honour referred to the importance of Plaintiff to give adequate
evidence of her position so the Court can determine whether the Applicant was left at
the testator’s death without adequate provision for her maintenance, educational
advancement in life. His Honour observed that it is impossible for the Court to
conclude that an applicant has been left without adequate provision when there is an
absence of evidence about the Plaintiff’s income and expenditure. Where an
applicant is living with a spouse or partner, the obligation to give full and frank details
of the applicant’s financial and material circumstances extends also to the
circumstances of such spouse or partner. The applicant is obliged to place the
information before the Court; Foy & Foy [2008] NSWSC 1305.
71. His Honour also observed that neither the Court nor the Defendant should be required
to embark upon the search for information which the Plaintiff has an obligation to
provide frankly and voluntarily in support of a claim. If the choice is made not to inform
the Court of the details of the finances of the spouse with whom the applicant is living,
then the Court is entitled to draw appropriate interferences from that omission. His
Honour accepted that the approach might have lesser weight where the applicant and
the spouse are separated and not on good terms, but the Plaintiff in this case had
accepted that she was on good terms with her husband and their finances were
intermixed insofar as she had received rental payments from him.
72. In the present case, there was no satisfactory evidence as to the financial position of
her husband. Her claim was dismissed.
73. The claim by the other son was for approximately $52,000. Part of that claim was for a
legacy for about $20,000, being the amount of expenditure for his travel to Italy at the
Deceased’s request to assist the Deceased, and to reimburse him for the Deceased’s
funeral expenses which he paid. The son was 54 years old. He held qualifications
and was operating an accounting practice and had substantial business interests. He
gave evidence that his relationship with the Deceased had deteriorated after his
marriage in 1986, when the Deceased had not accepted his wife who was not Italian.
He gave evidence that he and his wife were verbally abused by the Deceased when
they were living with him in Haberfield. The Judge accepted that the son had
subsequently attempted to strengthen his relationship with his father in 1991, but that
attempt had also failed. His evidence was not withstanding the difficulties in his
relationship, he continued to invite the Deceased to family functions and the like.
20
74. In 2007, following a failed investment, the Plaintiff had approached the Deceased for
financial assistance and his evidence was the Deceased said he would assist however
that assistance was ultimately not required. His relationship with the Deceased further
deteriorated thereafter.
75. The Plaintiff had property holdings and income and submitted that he was self-
employed, his earnings fluctuate. It was also submitted he had large expenses and
significant debt arising from his property holdings. His wife had interests in several
joint assets and had a significant income. His income was sufficient to provide a
comfortable lifestyle for him and his family. He submitted he had made substantial and
significant contributions both financially and otherwise to the estate. His evidence was
he had given the Deceased 50% of his wages from the age of 21 until he married (a
period of about 5 years). This was disputed. His evidence was he worked with the
Deceased in an antique shop and was not paid for his share in that business. He had
also provide a loan to the Defendant to assist him to acquire the property which was
ultimately sold for a profit and then was applied to reduce the Deceased’s mortgage.
His Honour accepted this was a significant contribution to the Deceased’s welfare.
76. The Deceased had in his Will provided his reasons for making no provision for his son
which included a lack of respect for his father, for many years he had not come to his
house or visited him or telephoned him for his birthday, he had not contacted him to
see how he was feeling despite his health problems and if there was any telephone
contact it was initiated by the Deceased, that the Plaintiff had an interest in a property
in Italy which was obtained after death of his wife and which the Deceased had kept up
the maintenance and paid all the costs for the property whilst his son had refused to
reimburse him for these expenses and had only paid a portion of them, his son had
done very well financially in his lifetime and did not need his assistance, on Father’s
Day he was in hospital and his son came to visit him and only brought him a can of
coke as a gift, he needed an operation and asked his son if he could pay $1,500 for it
and his son declined and said, “Do not call me for money”, when his first wife died, her
coffin needed replacing and he asked his son to help him with that cost of 2,000 Euro
but the son said, “I will not pay for that”, he had asked his son for financial assistance
to help him but he had refused and at times he was left with no electricity or telephone
as he could not afford to upkeep the expenses and in December 2008 he had an
argument with his son as he wanted to use his home as security for him to purchase a
commercial property. The Deceased had not agreed and his son became very bitter
21
towards him and swore at him and then sent him a text message where he repeated
the explicit language.
77. The beneficiary gave evidence that when his father had an operation, he had told him
not to let his other son know of the operation and that he did not want his son at the
funeral and did not want his son “to grow fat with my money” after his death.
78. The Plaintiff accepted in cross-examination that he had no need for provision although
he claimed to have a claim for reimbursement for the expenses incurred in travelling to
Italy and for payment of the funeral. There was also evidence that the Plaintiff had had
an interest in a unit in Italy which he inherited from his late mother, and which the
Deceased managed to transfer, somewhat fraudulently, that interest to his other son
without the consent of the Plaintiff.
79. His Honour considered that the question of whether the Deceased made proper
provision for him had to be determined by reference of the size of the estate and the
competing needs of the other Plaintiff and the beneficiary, who were in a substantially
difficult financial position than he. His Honour dismissed the proceedings.
80. In a separate costs judgment (Raiola v Raiola [2014] NSWSC 1172), the eldest son
was ordered to pay the Defendant’s costs referrable to his claim. In relation to the
daughter’s claim, the Court made no order as to her costs because His Honour
considered the case was reasonably bought and “borderline” in its prospects although
ultimately weakened by the gaps in her evidence and her former husband’s financial
position. An order for costs would have had a real adverse impact on her financial
position. The Court attributed half of the costs of the proceedings to the son’s claim
and ordered that he pay 50% of the Defendant’s costs of the proceedings as agreed or
assessed, but stayed the order for 14 days for any further submissions for a variation
of that order.
81. See also Chapple v Wilcox [2014] NSWCA 392 on costs.
Underwood v Gaudron [2014] NSWSC 1055 – Hallen J, 7 August 2014
82. This was a claim by an adult daughter of the Deceased. No provision was made for
the Plaintiff and an explanation was given in her Will. There was a period of
estrangement of 20 years and a small estate which had been distributed and the
proceedings were not commenced within time. The issues included whether sufficient
cause was shown for an extension of time and whether the distributed estate should be
22
designated notional estate and whether there were special circumstances to warrant a
notional estate order.
83. The Defendant was a former High Court Judge, Mary Gaudron. This was a claim by
her sister. The Deceased, their mother, left a Will to whom a grant of administration
was made to Mary and her other sister. There were five children of the marriage, one
who predeceased the Deceased. The estate comprised a home unit and cash at bank
totalling $350,000. The bulk of the estate was left to Mary and Katherine. [The
reasons given by the Deceased in her Will as to why she made no provision for the
Plaintiff, “Margaret”, was that she had not had contact with her since 1990 and the
relationship had broken down and had no more obligation to see to her welfare. In
addition, the Deceased made no provision for her son, Paul, with whom she had no
contact from 1998 until “recently”. Over the years, she had lent him thousands of
dollars which he never repaid and in 1998 he received a large compensation payment
and she did not consider she had have any more obligation to see to his welfare.
84. The property was sold in 2011 and the estate was distributed. A payment of about
$80,000 was made to Paul out of Mary’s share of the estate to settle any possible
claim he had, although not actually made by him.
85. The beneficiaries did not wish to disclose their financial circumstances in the
proceedings although despite this, His Honour did refer to Ms Gaudron’s assets.
86. The Judge took into account that the Deceased had, in 1987, commenced legal
proceedings in the Supreme Court against the Plaintiff seeking possession of her own
home unit and an order that her daughter be restrained from entering a property
without the Deceased’s prior invitation. The Deceased has sworn an affidavit in
support of those proceedings where she indicated that her daughter, who was then
aged 38, had occupied the premises with her for approximately two years and never
paid rent or an occupation fee though she had requested her to leave the house but
failed to do so. Since requesting her daughter to leave her house, the Deceased had
not lived in her premises as she feared for her safety and peace. She had deposed
that since July 1986 there had been a number of arguments during which the
Defendant had screamed at her and used abusive language and on 26 January 1987,
her daughter threw a half jug of coffee over her. At the time the Deceased was aged
69 and was deprived of the use and enjoyment of her home.
23
87. The Plaintiff had sworn an Affidavit in those proceedings where she did not deny
having screamed at her mother or thrown a half jug of coffee at her but contended that
the incidents occurred due to provocation on the mother’s behalf.
88. During cross-examination about these incidents, the Plaintiff had first said she did not
recall the incident of the jug of coffee but then later said that it “might have occurred, I
just don’t have a full recollection of it.” She later conceded, “it was not hot coffee”.
After she vacated the unit the Plaintiff travelled to the far north coast of New South
Wales and then to Queensland where she has lived since. Her evidence was that she
had tried to contact her mother after she moved out of the unit and before she left
Sydney but was met “with a brick wall”. She said that she went to see the Deceased
four or five times and tried to contact her by phone but was unsuccessful in her
attempts.
89. In 1990 the Plaintiff started using the name Helen instead of Margaret and then she
changed her surname from Gaudron to Audron because she was so upset by what her
mother had done and it was a part of her starting a new life.
90. From 1990 the Plaintiff had nothing more to do with the Deceased. She accepted she
had not sent any Christmas cards or birthday cards. When she married her husband,
Mr Underwood, she did not inform the Deceased of her marriage or invite her to it.
91. She had not told her mother that she had started to use the name Helen or that she
had adopted her husband’s last name following their marriage, nor did she tell the
Deceased where she was living or provide her with any information to enable contact
to be made with her.
92. The Deceased however continued to live in the home unit and have the same number
until shortly before her death. The Plaintiff was also estranged from her own daughter.
93. His Honour was satisfied that it was the Plaintiff who chose to place distance between
herself and the Deceased. There was no evidence that the Deceased took any steps
to locate her daughter for 20 years or that she sought any information from any other
person of their knowledge of her daughter. The Deceased did not directly know where
her daughter was living because her daughter had not told her intentionally. Nor did
the Deceased know directly that she had changed both her names before and after
marriage as her daughter had not told hers. In this sense, it was not surprising to the
Court that the Deceased did not make contact with her daughter. There was also no
24
evidence of any real financial or other contribution made by the Plaintiff to her mother
or her mother’s estate.
94. On the issue of delay, the Plaintiff’s evidence was she had not been informed of the
Deceased’s death and did not know about it. She said she found out about her death
when she did an internet search for her mother’s name and then gave instructions to
her solicitors to contact her sisters and set about obtaining an exemplification of the
letters of administration herself. It appeared that she conducted the internet search
following discussions with her solicitor concerning other legal matters during which her
solicitor mentioned she should attempt to amend her estrangement with her mother.
She instructed her solicitors to write to her sisters and indicated they had firm
instructions that as she had been disinherited she would seek to make a claim on the
estate and they should take formal notice of her claim and not distribute the assets of
the estate. The Defendants relied upon section 92 of the Probate and Administration
Act 1898 as having made a distribution only after publication of a relevant notice of
intended distribution and having not received notice of any claim by their client. They
advised the estate was fully distributed and there were no funds available to meet any
claim. There was no response to that letter from the Plaintiff’s solicitor.
95. A Summons was filed in 2013, almost two years later. The claim was made about 2
years and 2 months out of time. She gave evidence in cross-examination that the
solicitor had told her that since the estate had been distributed that that was “the end of
the story”. In her affidavit her evidence had been inconsistent with this regard. The
daughters had asserted that they would be prejudiced if an extension of time was
granted because they had both spent the money that was distributed. His Honour
dismissed the claim and ordered that each party bear their costs.
Skarica v Toska [2014] NSWSC 34 – Linsday J, 14 February 2014
96. This was a claim by a person asserting eligibility by reason of having been living in a
close personal relationship with the Deceased at the time of death. The Deceased had
a 2/3rd interest in a property in which she lived, Surry Hills worth about $550,000.
97. By her Will, she gave six legacies to two sisters and her nieces and nephews and the
remainder of her estate was left to her “very poor sister”. All the beneficiaries lived in
Croatia.
98. The Deceased, in her Will, expressly referred to the Plaintiff and described him as her
“boyfriend”. She stated that she did not wish to make any further provision to her
25
boyfriend because she had already given him 1/3rd of her property at Surry Hills. The
Judge considered the Deceased and the Plaintiff had an “unusual relationship”. The
Deceased had purchased the property alone in her own name. Eleven years after that
she deliberately transferred to the Plaintiff, a one-third share as tenant in common.
The Judge considered that the statement in the Will made in 2007 worked against the
Plaintiff because it provided some evidence that the Deceased felt some motivation to
explain in her Will why she had made no testamentary provision for him. It also
worked for the Plaintiff, as it marked the Plaintiff out as someone important in her life
and who, in her contemplation, may have had a reasonable expectation of inheritance
from her estate.
99. The Deceased generally lived alone and the two had never appeared to have lived
together in a conventional single household. Shortly before her death, the Plaintiff
unilaterally surrendered his housing commission tenancy and moved into her property
as His Honour found “intent upon acting out the old adage that “possession is nine-
tenths of the law” yet maintained a separate residence nearby. They had commenced
a relationship in 1975.
100. The Plaintiff had initially made his claim as a de facto partner but that fell away during
the course of the hearing because it could not survive his evidence at cross-
examination when he conceded their relationship was like, “brother and sister” and that
he was “a friend” of the Deceased who, for a few years, helped her with care and
sometimes stayed in the same house as she.
101. In re-examination, he confirmed the sibling analogy and embraced the labels
“boyfriend and girlfriend”.
102. What emerged from the evidence was a personal relationship between the Plaintiff and
the Deceased which was geographically proximate, familial and characterised by a
special friendship, albeit sometimes volatile, attended to by the provision of support,
care and attention by one to the other. There had been contested proceedings in the
Guardianship Tribunal who had accepted the Plaintiff’s evidence that he was the
Deceased’s friend and carer.
103. The Court considered the definition of “close personal relationship” in section 3 of the
Succession Act.
26
104. At the time of her death, the Deceased was living in a nursing home. Despite this, and
despite her hospitalisation, the Court found they were relevantly “living together” at the
Surry Hills property at the time of her death.
105. She had shared her home with the Plaintiff and he had stayed there, albeit not
continuously.
106. The expression “living together” has a dimension that focuses on the quality of a
relationship rather than the physical proximity: Hayes v Marquis [2008] NSWCA 10 at
para [75]-[83]. His Honour found this dimension to have existed because of a special
familial, albeit sometimes stormy friendship between them. Before she died, he was
anxious to see her but she relented. However when she died, the Defendants, who
were her friends, turned to him in making arrangements for the funeral and he was
there at [43].. His Honour found the Plaintiff and the Deceased each provided each
other with domestic support and care. His Honour found that they provided support
and care for each other in pursuit of domestic arrangements as opposed for fee or for
reward. The fact that sometime before her death, the Plaintiff had received a Carer’s
Allowance from Centrelink, did not require finding that he had provided “support and
personal care for fee and/or reward”. His Honour did not consider that that changed
the private relationship into a business relationship. He was found to have been an
eligible person and the Court then had to consider whether there were factors
warranting an application for relief.
107. His Honour considered there were factors warranting, namely given the close nature
and length of duration of the relationship, he continued to care for her, he was in
receipt of an aged pension and had savings of about $63,000 and a one-third interest
in the Surry Hills property. He did have a need for provision. The fact that he had a
need for accommodation was not the Deceased’s fault but rather he had made a
conscious decision to surrender his housing commission lease.
108. Evidence was adduced that he had use of the Deceased’s money which had to be
accounted to the estate. After this was taken into account, the Judge ordered
provision be made to the Plaintiff of a lump sum of $76,400 ($125,000 less by way of
set-off, $48,600 for which he was liable to account to the estate,). This legacy, in
combination with his share in the Surry Hills property valued at about $275,000 was
considered to leave him with adequate provision from the estate. An order was made
for his costs on the ordinary basis to be paid out of the estate and orders for the
appointment of trustees for sale in respect of the Surry Hills property were also made.
27
Milewski v Holben [2014] NSWSC 388 – Lindsay J, 26 March 2014
109. This was a claim by a former wife of the Deceased in which His Honour found there
were factors warranting making of the claim and made an order for a provision of a
legacy of $200,000 plus costs.
110. The claim was filed about five months out of time. The Defendant was his widow and
the mother of his two children, aged 11 and 15 (his second family). The estate was
large, about $11 million. The estate had been distributed by the time of the hearing.
The Plaintiff had been married to the Deceased for about seven years. It ended in
1995. They married in America and divorced upon the application of the Deceased in
which in the divorce application he had identified February 1993 as the date of their
separation. The Plaintiff was reluctant to divorce and had not nominated a formal date
of separation. In these proceedings she did call it into question. The Court found that
the Deceased had made some statements to her that he would look after her and had
encouraged her to believe that it was possible they would reunite. Eventually she
gave up these hopes following his marriage to the Defendant. She made no
application for a property settlement and allowed the Deceased to pursue his business
and personal affairs without distraction of her claims upon him. She received no other
benefits from him. The Will made provision for his second family by way of
testamentary trusts, so that his second wife was required to bring a family provision
claim to acquire accommodation outright. The Plaintiff and the Deceased had
remained in contact after the divorce, albeit irregularly. In the course of his business
travels, he stayed with the Plaintiff and together they had visited her family and he had
referred to her by pet names long established.
111. They last met personally in about May 2008 where they shared a hotel room for three
nights in Florida. The Deceased married his second wife in October 2009. He had told
the Plaintiff of his foreshadowed marriage to the Defendant and later in 2011 he told of
his diagnosis of cancer. On each occasion he had assured her that he would work out
a way of making some financial provision for her. Her evidence of such assurance was
corroborated in the proceedings by evidence given by her father and her sister who
were all cross-examined by video link.
112. Her explanation for the delay in bringing a claim was that she did not discover the
possibility that she could apply for a family provision order until, in the course of the
Defendant’s own application, she was served with a formal notice of entitlement to
make a claim. Further, she resided in another jurisdiction and the difficulties with
28
cross-jurisdictional litigation was sufficient to explain her delay. The Defendant could
not point to any material prejudice to prevent an order for an extension of time.
113. On considering whether there were factors warranting the making of the application,
the Court was mindful of some of the factors weighing against that, namely the
relatively short duration of the marriage, about three years or so, the length of time
between their divorce and his death, the decreasing frequency of their contact between
the time of their divorce and his death, particularly after he married his second wife, the
lack of any regular contact between the Plaintiff, the Deceased and their extended
families and the absence of contact between the Plaintiff and the Deceased after his
disclosure to her of his terminal illness.
114. The Judge was persuaded that they moved on with separate lives after their divorce.
Although the Deceased was able to move on more quickly, the Plaintiff had taken a
longer time to settle into a new pattern of life than he. The Judge considered the
ongoing nature of the relationship between them and the promises of provision he had
made for her and did not consider it appropriate to discount her application for relief by
finding that she and the Deceased had each “moved on” as she appeared to never
have entirely have done so. The provision for her welfare was unfinished business
requiring the Deceased’s attention.
115. What was relevant for the Court was that the Deceased had made no provision by way
of capital or income for the Plaintiff at any time. Had there been a family law
settlement, that fact was likely to have been fatal to the prospects of the Plaintiff’s
case. The factors warranting included that no fault could be attributed to either of the
party for the short marriage or its determination, there was an absence of a family law
settlement, there was an ongoing and close relationship after the divorce, there was a
pattern of promises of future provision for the Plaintiff voluntarily made by the
Deceased over the years that followed their divorce, the size of the Deceased’s estate
at the time of his death was sufficient to provide for his widow and his children, there
was a fund available for designation of notional estate is (a term deposit of $1.6 M),
and the Plaintiff had moderated her claim to seek a legacy of about $230,000 plus
costs, and her circumstances were such she had a legitimate need for assistance.
She owned a modest home in need of repair and subject to a mortgage, had modest
superannuation entitlements and a working class lifestyle. She did not have the
security of either marriage or substantial financial resources. Her claim for provision in
her Affidavit was described as a “wish list” and included a need for better
accommodation in terms of a new home in a safer district and furnishings, mortgage
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relief, funding of education expenses, new car, health care costs, income and
retirement income, and a supplementary contingency fund.
116. Senior Counsel for the Defendant had urged that if an order was to be made for
provision, it should be no more than $40,000 to $50,000 by way of a legacy.
117. An order for provision was made in the sum of $200,000 for her advancement. She
was also awarded her costs out of the notional estate on the ordinary basis.
Fraser v Simmonds [2014] NSWSC 654 – Kunc J, 22 May 2014
118. This was an application by an adult grandson of the Deceased. Provision was made
for him in his grandmother’s Will of $10,000. She had also made provision for her
children and some other grandchildren, friends and neighbours and charities.
119. The total value of the estate was about $680,000 and an order for provision was made
in addition to the $10,000 gifted under the Will in the sum of $56,500 plus his costs on
the ordinary basis assessed as a lump sum of $75,790. An order was also made that
the Defendant’s costs of and incidental to the proceedings be paid out of the estate on
an indemnity basis assessed as a lump sum of $58,903.
120. The Plaintiff was 44 years at the time of the hearing. When he was born, his mother
had been a single mother and had never disclosed the identity of his father. After his
birth, the Plaintiff and his mother lived with the Deceased in her property until his
mother remarried. At the time of the hearing, the Plaintiff and his mother were living in
the Deceased’s Queensland property. Whilst growing up he had retained a close
relationship with his grandmother and had lived with her in her Auburn property when
he was 14 until 19 due to a rift with his mother. His mother was of limited means and
at various times his grandmother had paid for his education, tennis lessons, driving
lessons and dental work. She also cooked and cleaned for him and provided him with
clothing. She did everything for him that a parent would. At 19, the Plaintiff
commenced a Bachelor of Commerce Degree at university. The Deceased paid for
both his on-campus and private accommodation and other university expenses. She
gave him other amounts of money for particular needs, including $3,500 towards the
cost of surgery. He worked as an accountant until 2001 with the ATO when he a
voluntary redundancy. He was undertaking a Masters of Business Administration at
the time of the hearing and had begun a law degree. He had been a student since
2009 and planned to enter the workforce in 2019 or 2020 upon completion of his
studies and improvements to his health.
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121. His evidence was he maintained a warm and close relationship with his grandmother
up until 2000. The Deceased was disappointed with his decision to leave the ATO.
His evidence was he had not told his grandmother the real reason why he left the ATO
which was he was a victim of workplace bullying.
122. After 2000, the Plaintiff did not see his grandmother again, having moved to the Gold
Coast. He was physically unwell. They maintained a relationship via the telephone..
123. The Judge made an order for further provision to help him reduce some debts (but not
necessarily his HECS debt) and fund surgery and a small fund. The circumstances of
some of the competing beneficiaries were also taken into account.
Chapple v Wilcox [2014] NSWCA 392 (Basten, Barrett and Gleeson JJA) 18 November
2014 – Claim by Adult Grandson
124. The applicant was an adult grandson of the deceased, who left his estate to his only
child (the applicant's mother). The estate consisted principally of the deceased's
interest in a grazing enterprise part owned by the sole beneficiary.
125. The trial judge (Pembroke J) made an order for the plaintiff’s provision in the sum of
$387,000 comprised as an immediate payment of $107,000 and seven annual
payments of $40,000 commencing after two years. His honour found that the
grandson had the training and skills to earn $100,000 per year but preferring instead
to make a subsistence living by operating a tree lopping business. He had no assets
and owed $107,000 to the Australian Taxation Office.
126. His father had recently won $1.3 million gambling and expressed some willingness to
give him some financial support. There had been limited contact between the
respondent and the deceased since early 1993. Mrs Wilcox, the deceased's only
child, had devoted a large part of her life to his pastoral business of which she was a
part owner. She assisted her father in both business and personal matters, assumed
sole responsibility for him in his old age and was a caring and dutiful daughter. The
pastoral business was "borderline viable". There was no practical scope to raise
money by selling off part of the land and the limited borrowing capacity that did exist
needed to be devoted to the financial requirements of the enterprise itself.
127. On the basis of these facts, the primary found that community standards and
expectations required that provision be made for the respondent out of the estate.
The primary judge also ordered that the respondent's costs be paid out of the estate.
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128. On appeal, the Court of Appeal set aside Pembroke J’s decision and dismissed the
grandson’s claim. It held there had been a failure by the trial judge to articulate any
cogent basis for departing from the testator's scheme of benefaction in favour of his
only child and that the Court’s evaluative judgment had miscarried . The principles
relevant to family provision claims by grandchildren were discussed. Namely, when
determining whether "community standards" indicate that provision ought to be made
for a grandchild pursuant to Chapter 3 of the Succession Act 2006 (NSW), guidance
may be taken from the following matters enumerated by Hallen J's in Bowditch v
NSW Trustee and Guardian [2012] NSWSC 275 at [133]:
(a) Generally, a grandparent does not have a responsibility to make provision
for a grandchild.
(b) That responsibility is not enlivened because a grandparent contributes to a
grandchild's education or bestows considerable largesse on him or her.
(c) Something more than the existence of normal family relations and
affections is required.
(d) The conferral of particular care and affection by a grandchild and his or
her legitimate expectations of inheritance may be relevant to determining
whether such an obligation exists.
129. The Court of Appeal also enunciated some principles as to costs of unsuccessful
plaintiffs and emphasised that the principle that costs follow the event is generally
applicable in family provision litigation and unsuccessful applicants should not expect
that, as a general rule, the costs discretion will be applied so as to exempt them from
liability for costs.
128. The grandson was ordered to pay the estate’s costs of the appeal.
Ramena Kako Barrister 13 Wentworth Selborne Chambers www.13wentworthselbornechambers.com.au E: [email protected] Ph: 02 9232 7750