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

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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

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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.

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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.

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(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].

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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

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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

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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:

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(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

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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

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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

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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

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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

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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

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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: rkako@wentworthchambers.com.au Ph: 02 9232 7750