Last v Lewis

1. [1]

   The plaintiff, Robyn Janet Last, commenced these proceedings by summons filed on 2 April 2020. Ms Last seeks an order for further provision for her maintenance, education and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) out of the estate of her late father, Leslie William Lewis, who died on 7 April 2019 at the age of 89 years, having left a will dated 31 January 2017.

2. [2]

   The defendant, Kevin John Lewis, is the executor of the deceased’s will under a grant of probate made by this Court on 29 July 2019. Mr Lewis is a son of the deceased.

3. [3]

   As a number of the people relevant to this case are members of the Lewis family I will, with no disrespect intended, refer to them by their first names after I have introduced them.

Issues raised by cross claim

1. [4]

   Kevin filed a cross claim on 29 October 2020. The relief claimed in the cross claim is as follows:

2. [5]

   The pleadings and particulars in the cross claim allege the existence of a Deed of Family Arrangement dated 18 September 2003 (the Deed), and the relevant terms of the Deed, being that Robyn’s parents agreed to transfer a residential property that I will call No 892 to Robyn for a price of $200,000, being an undervalue of $500,000. The amount of the undervalue was to be regarded as a gift in lieu of inheritance. The parents made wills to give effect to the terms of the Deed. The Deed, by clause 7(e)(i), contained, inter alia, a promise by Robyn not to seek to challenge the parents’ wills in any way.

3. [6]

   The cross claim then pleads:

4. [7]

   The cross claim alleges that, after 27 February 2004, Robyn, having taken independent advice in relation to the Deed from Champion Legal, and having given due consideration to that advice, executed the Deed.

5. [8]

   Then the cross claim alleges that, after 27 February 2004, No 892 was transferred to Robyn and Garry William Last, who is Robyn’s ex-husband, pursuant to the Deed.

6. [9]

   Then it is alleged that, on or about 18 February 2008, Robyn and Garry transferred No 892 to third party purchasers for $1,200,000, with all of the net proceeds being paid to Robyn.

7. [10]

   By her defence to the cross claim, Robyn admits that she signed the Deed. Robyn denies that the Deed is binding. Robyn then alleges:

8. [11]

   Further, Robyn alleges:

The Deed

1. [12]

   The first step in the determination of Robyn’s claim is to decide whether the Deed is binding upon her, and if it is, whether, upon its proper construction, the Deed has the effect that Robyn has purported to release her rights to make a family provision application. If it does, then she will be precluded from making her family provision application if the Court approves the release: Succession Act, s 95(1).

2. [13]

   It will be convenient, at the outset, to set out the terms of the Deed which the defendant by his cross claim seeks to enforce.

3. [14]

   The parties to the Deed were the deceased and his late wife, Edna Leonne Lewis. The other parties were their four children. They were the plaintiff and the defendant, and their siblings Debra Jane Heffernan and Bruce Leslie Lewis.

4. [15]

   As some of the properties that were the subject of the Deed are still owned by the parties to the Deed, I will refer to the properties by their street numbers. Three of the properties (No 2111, No 846, and No 892) are located in south-west Sydney and the fourth (No 17A) is located in the Illawarra.

5. [16]

   The terms of the Deed are:

6. [17]

   The Deed appears to have been signed by all the parties. Although it is dated 18 September 2003, the date “27/5/04” appears under the place where Robyn has signed the document.

Principles governing the effectiveness of the release

1. [18]

   As has been stated, Kevin seeks an order in his cross claim that the Court, under s 31 of the Family Provision Act 1982 (NSW) or s 95 of the Succession Act, approve the purported release in clause 7(e)(i) of the Deed of Robyn’s right to apply for a family provision order with respect to the deceased’s estate.

2. [19]

   Robyn appears to have pleaded that the Deed is voidable because her entry into the Deed was procured by undue influence and unconscionable conduct, and, though not stated in express terms, Robyn appears to have implied in her pleadings that the Deed was also procured as a result of duress.

3. [20]

   Although in her submissions Robyn clearly asserted that the Deed had been procured by the deceased's unconscionable and coercive conduct and that Robyn was subjected to undue influence, it may be that Robyn only made those claims in aid of her submission that the Court should not give its approval to the Deed. Robyn did not in any formal way seek an order that the Deed be set aside on any ground at common law or in equity by which the Deed may have been vitiated.

4. [21]

   If the Court were to find that the Deed is voidable by virtue of the presence of a vitiating factor, the effect of Robyn’s rescission would be that the Deed is avoided as from the beginning and the Court would make such orders as are necessary to give effect to that outcome: Alati v Kruger (1955) 94 CLR 216 at 224 (Dixon CJ, Webb, Kitto and Taylor JJ); [1955] HCA 64. The prima facie outcome would be that the interest in No 892 given to Robyn under clause 2(a) of the Deed would need to be returned to the estate of the deceased.

5. [22]

   However, at least two bars to Robyn’s right to rescind would have arisen in this case. The first is that, by selling No 892 to third-party purchasers and accepting the sale proceeds of that transaction, Robyn has elected to affirm the Deed in a manner inconsistent with the exercise of her right to rescind it: Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593 at 602 (Dixon CJ, Fullagar and Kitto JJ); [1954] HCA 39. The second, complementary with the first, is that the proprietary interest in No 892 has passed to bona fide third-party purchasers for value: White v Garden (1851) 10 CB 919 at 926; 136 ER 364 at 367 (Cresswell J); see Ruthol Pty Ltd v Mills [2003] NSWCA 56; (2003) 11 BPR 20,793 at [98] (Sheller JA, with whom Meagher JA and Cripps AJA agreed at [1] and [103] respectively). Intervening events have therefore made rescission impossible.

6. [23]

   In these circumstances, the effect of the Deed for the purposes of Robyn’s family provision application depends upon whether the Court will approve the release in the Deed.

7. [24]

   As noted, in his cross claim Kevin sought an order approving the release by reference to s 31 of the Family Provision Act in the alternative to s 95 of the Succession Act, ostensibly because the Succession Act was not in force at the time of the Deed’s execution. Section 95 of the Succession Act is nonetheless the applicable provision in this case because the deceased died on or after 1 March 2009: Succession Act, Sch 1 cl 11(1).

8. [25]

   Section 95 of the Succession Act provides:

9. [26]

   The section grants the Court the power to approve a release by a person of the person’s rights to apply for a family provision order. The power in s 95 is incidental to the exercise of the jurisdiction of the Court to make an order for further provision under s 59 of the Succession Act: Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [95] (Ward JA, as her Honour then was, with whom Meagher JA and Gleeson JA agreed at [1] and [229] respectively).

10. [27]

    Crucially, a release of rights to apply for a family provision order has effect only if it has been approved by the Court: Succession Act, s 95(1). An application to approve a release of rights is therefore not a mere formality. The Court must actively consider the terms on which the release has been agreed and the circumstances of the case. To that end, there must be sufficient material put before the Court to enable consideration of all the circumstances of the case: Robinson v Robinson at [97] (Ward JA).

11. [28]

    In terms of form, a release of rights to apply for a family provision order includes a reference to an instrument executed by the person that would be effective as a release of those rights if approved by the Court under s 95: Succession Act, s 95(5)(a) (emphasis added). A deed is an ‘instrument’ for the purposes of s 95: see Robinson v Robinson at [55], [100] (Ward JA); see also Boardman v Boardman [2012] NSWSC 1257; (2012) 10 ASTLR 138 at [37] (Lindsay J).

12. [29]

    In Kelly v Kelly [2019] NSWSC 994; (2019) 17 ASTLR 429, Hallen J set out a number of general principles concerning the application of s 95 of the Succession Act, which I respectfully adopt. I will set out only those principles that I consider to be most germane to the present case:

13. [30]

    His Honour's observations at [71] are of particular importance and nothing I say in these reasons is intended to derogate from the validity of those propositions.

14. [31]

    It is notable that the present is not a case of the type contemplated by a number of the principles stated by Hallen J; that is, a case in which the Court is asked to approve a release of rights to apply for a family provision order as part of a settlement agreement whereby family members who are parties to existing litigation and who have been able to consider evidence and receive professional legal advice wish to achieve finality in the distribution of the estate of a deceased person. The present case is one in which the deceased himself has brokered an agreement that is intended to govern the distribution of his estate long in advance of his death by transferring some of his property to some intended beneficiaries as an advance of their inheritance while leaving other beneficiaries to inherit under his will following his death.

15. [32]

    At [72(i)], Hallen J referred to the judgment of White J (as his Honour then was) in Dark v Dark [2016] NSWSC 1223, where his Honour said:

16. [33]

    It is in my view clear from the wording of some of the paragraphs in s 95(4) of the Succession Act that the Court, in deciding whether or not to approve a release, must take into account circumstances as they are at the time the decision is made as well as at the time when the agreement containing the release was made. Sub-paragraphs (a) and (b) begin "it is or was" and sub-par (c) contains the expression "are or were" when referring to circumstances that the Court should take into account (emphasis added). The use of the present tense is determinative. Consequently, it may be appropriate for the Court to decline to approve a release if the application for approval is made at some time after the agreement containing the release is made, even if the equivalent circumstances that existed at the time of the agreement would justify approving the release.

17. [34]

    Moreover, it follows from the wording of s 95(1) that an application may be made to the Court to revoke an approval that has been earlier given, so that an application for revocation may be made in conjunction with an application for further family provision even when there has been a prior approval.

18. [35]

    Section 95 of the Succession Act provides that a release by a person of the person's right to apply for a family provision order only has effect if it has been approved by the Court. That restriction raises the question of what is meant by a release of a person's right to apply for a family provision order.

19. [36]

    This issue is theoretically significant because, as Hallen J noted in Kelly v Kelly at [72], before the enactment of s 31 of the Family Provision Act, which has materially the same effect as s 95 of the Succession Act by which it was replaced, any contract that ousted the jurisdiction of the Court to make a family provision order under the precursor statute to the Family Provision Act was void: Lieberman v Morris (1944) 69 CLR 69 at 81, 83 (Latham CJ), 84, 86 (Rich J), 88 (McTiernan J), 93 (Williams J); [1944] HCA 13.

20. [37]

    As Hallen J also noted, by reference to Smith v Smith (No 3) (1986) 161 CLR 217 at 250 (Mason, Brennan and Deane JJ); [1986] HCA 36, the effect of s 31 of the Family Provision Act was to qualify the pre-existing prohibition against contracting out of certain statutory benefits, and that s 31 lay down a process for rendering effective an agreement to contract out.

21. [38]

    This change in the law gives rise to the possibility that there may be contracts that remain void because they are prohibited agreements to oust the jurisdiction of the Court, but that agreements to release a person's rights to apply for a family provision order that now come within the definition in s 95(5) of the Succession Act may be effective if they receive the approval of the Court under the section.

22. [39]

    It is not clear in this case whether Robyn claims that clause 7(e) of the Deed, or any part thereof, is not enforceable because it is not a release of Robyn's rights to apply for a family provision order that is capable of being made effective by reason that it has been approved by the Court. Robyn's submissions make the point in a couple of places that clause 7(e) does not use the expression "release". However, that proposition was made in a passing way in the context of setting out reasons why the Court should not give its approval to clause 7(e) of the Deed pursuant to s 95 of the Succession Act. Robyn has not developed an argument to that effect in detail. Kevin appears to have recognised in his submissions that the issue does theoretically arise, as he made submissions as to why clause 7(e) of the Deed did, at least in part, fall within the definition of the release of rights to apply for a family provision order.

23. [40]

    Section 95(5) of the Succession Act may not be a model of clarity as it combines an element of circularity ("release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for family provision order") with an obscurity ("an instrument… that would be effective as a release of those rights…").

24. [41]

    I think that the proper interpretation of s 95(5) of the Succession Act is in fact relatively straightforward in that the legislature has avoided the complexity and confusion that might flow from an attempt to define release by describing the forms of agreements that fall within the definition and instead has focused on the effect of an agreement. Simply, any agreement of whatever form that has the same legal effect as if it were an agreement to release a right to make an application for a family provision order will fall within the definition. Consequently, a covenant not to sue for a family provision order will be a release no less than an agreement that is a release in form.

25. [42]

    In case it be thought that there remains any difference in treatment under s 95 of the Succession Act between contractual releases in the strict sense and covenants not to sue for family provision relief, regard may be had to the reports of the Law Reform Commission that led to the inclusion of the precursor to s 95, that is s 31 of the Family Provision Act, being included in that legislation: see s 34(2)(b) of the Interpretation Act 1987 (NSW).

26. [43]

    The New South Wales Law Reform Commission's work on this issue began with its Working Paper on the Testator's Family Maintenance and Guardianship of Infants Act 1916 (Working Paper 12, October 1974). In par 17.1 of the Working Paper, the Law Reform Commission posed the question for consideration as follows (footnote omitted):

27. [44]

    The High Court decision referred to was Lieberman v Morris.

28. [45]

    The Law Reform Commission traced the history of the judicial consideration of the policy that was ultimately determined in Lieberman v Morris in par 17.2 in terms that show that public policy prohibited all attempts by persons to exclude themselves from the benefits of the legislation. The Law Reform Commission stated the conclusion in par 17.6 that, subject to "a condition that any agreement to waive rights under the Act should be sanctioned by the Court", a person should be able to "preclude himself from making an application for provision following death".

29. [46]

    The term of the deed that was the subject of consideration in Lieberman v Morris (at 70) was "a covenant … that in consideration of the celebration of the marriage and of the mutual agreements set forth in the deed [the claimant] would not, inter alia, make, institute or prosecute any claim of any kind against [the deceased’s] estate arising under or by virtue of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (NSW), or any similar legislation that might thereafter be enacted in substitution therefore in lieu thereof, or in addition thereto." The Law Reform Commission was therefore directing its attention to covenants not to sue for family provision relief.

30. [47]

    This approach was carried over by the New South Wales Law Reform Commission into its Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977): see pars 2.38.2-2.38.4.

31. [48]

    Section 95 of the Succession Act in its present form was inserted by s 3 of the Succession Amendment (Family Provision) Act 2008 (NSW), following the New South Wales Law Reform Commission's Report on Uniform Succession Laws: Family Provision (Report 110, May 2005). That report responded to the National Committee for Uniform Succession Laws’ Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997); and Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004). As the New South Wales Law Reform Commission said in par 4.19 in relation to the clause of the draft Bill that became s 95: "This provision allows potential applicants to contract out of any entitlement to family provision while the deceased is still alive. The contracting out is subject to court approval."

32. [49]

    Clause 7(e) of the Deed takes the form of a covenant not to sue, as each of the outcomes listed in pars (i) to (iii) can only be secured by Robyn engaging the jurisdiction of a court. Paragraph (i), if the expression "seek to challenge" is given its natural meaning, would encompass family provision applications as well as any probate application to challenge the validity of the wills, for example, on the basis of lack of testamentary capacity, lack of knowledge and approval, or undue influence. In the context of the provisions of the Deed as a whole, I am satisfied that clause 7(e)(i) of the Deed constitutes a promise by Robyn not to commence a family provision application that might cause the wills to operate other than in the terms in which they were written. That flows from the expression "challenge in any way". Paragraph (ii) is concerned with an action to avoid any transfers of property made by the parents pursuant to the Deed. Although clause 7(iii) is not engaged in the present case, its reference to Robyn not seeking to cause any properties transferred by the parents to become part of the notional estate of the parents after their death reinforces the conclusion that clause 7(e) extends to, but is not limited to, a promise by Robyn not to commence a family provision application in respect of the estate of the deceased.

33. [50]

    In my view, the promise by Robyn not to commence a family provision application against the estate of the deceased has, within the meaning of s 95 of the Succession Act, the same effect as if the language of clause 7(e) took the form of a release in favour of the deceased and his estate of Robyn's right to make a family provision application under section 59 of the Succession Act. Accordingly, s 95 of that Act is engaged, and clause 7(e) may be binding on Robyn, insofar as it applies to her right to bring a family provision application, provided that the Court approves the clause. It is not material that clause 7(e) of the Deed extends to actions that may be available to Robyn that go beyond the making of a family provision application.

Circumstances relevant to approval of the release

1. [51]

   I will now turn to deal with the circumstances relevant to the execution of the Deed and whether the Court should give its approval to that part of clause 7(e) that constituted a release of Robyn’s right to make an application for a family provision order out of the estate of the deceased.

2. [52]

   At some time before mid-June 2002, the deceased formed an intention to organise his affairs in the way that led to the execution of the Deed. The timing is established by the fact that three of the valuations that were annexed to the Deed were dated 14 June 2002 and the fourth was dated 12 June 2002. It appears that the deceased wanted to achieve at least three objectives. The deceased and Edna were concerned that they had inadequate funds for the balance of their retirement, and they wanted to raise money using some of the property that they owned. The deceased also wished to maintain No 2111 as his and Edna's residence for life. Finally, the deceased wished to make testamentary arrangements to provide for the early inheritance of some of his children while achieving a fair division of his and Edna's property between the four children. The deceased informed at least Robyn and Kevin of his proposal.

3. [53]

   The Deed was drafted by the deceased's solicitor, Mr Phillip Thompson. The deceased arranged for Kevin and his wife, Robyn and her husband Garry, and Debra and her husband Robert, to attend a meeting at Mr Thompson's office in Penrith on 18 September 2003. As Bruce was living in Queensland, he attended by telephone.

4. [54]

   There was some difference in recollection as between Robyn and Kevin as to whether there was only one meeting or whether the meeting took place on the one day in two separate parts of Mr Thompson's office. That difference does not appear to be material.

5. [55]

   Mr Thompson read through the provisions of the Deed early in the meeting.

6. [56]

   Robyn gave the following evidence of what happened at the meeting in par 48 of her 25 May 2020 affidavit:

7. [57]

   As will be seen, the evidence established that Bruce signed the Deed on some date after 18 September 2003. Robyn's expressed recollection that all the parties signed the Deed at the office of Mr Thompson was in error. There was, as shall be seen, a contest in the evidence as to whether Robyn received legal advice about the effect of the Deed.

8. [58]

   In Kevin's 29 June 2020 affidavit in response to Robyn's affidavit, he said the following concerning part of what transpired in the office of Mr Thompson:

9. [59]

   In cross-examination, Kevin agreed that the deceased said at the meeting [T 102.33]: "If you go and get legal advice or representation then this deal is off the table". However, Kevin denied that the deceased said that he would cut anyone out of his will who got legal advice [T 104.33]. Kevin said that he could recall Robyn saying [T 106.3]: "What do these promises in the deed mean?"

10. [60]

    Debra did not appear to have a clear recollection of what was said at the meeting but agreed that the deceased wanted the Deed to be accepted without any compromise, saying [T 129.41]: "that's the way my dad was".

11. [61]

    Robert's recollection appeared to be relatively clear in cross-examination [T 137.40-137.47]:

12. [62]

    The evidence shows that Robyn was particularly concerned with two matters in relation to No 892. One of them was that the deceased had permitted a substantial quantity of fill to be deposited on part of the property. That was apparently done without development approval from the local council. It was Robyn's position that the content of the fill had not been controlled and that it might contain contamination. The deceased had not obtained any certification from the council that the fill could remain on the property. Robyn said that she had made enquiries with council officers and had been led to believe that the council might issue an order requiring the fill to be removed, and she understood that the removal of the fill could cost in the order of $100,000.

13. [63]

    Kevin gave evidence that ultimately the issue of the fill was resolved by the council ordering the deceased to cover the fill with clean soil, and it did not require the fill to be removed, because there was no evidence it was contaminated. This evidence was given in the form of an assertion by Kevin, and it is not entirely clear what the outcome was or when the issue was resolved.

14. [64]

    The second issue that was of concern to Robyn at the time she was asked to execute the Deed was that the deceased had agreed in principle to lease part of No 892 to persons who wished to erect a substantial radio tower on the land. Robyn was concerned that a substantial proportion of the land would be rendered useless to her and would prevent her running animals on the land without expending a substantial amount of money in fencing off the area to be leased. Robyn was also concerned that the radio tower would be erected and operated too close to the house in which she and her family were living. Robyn was concerned with the possible effect of high-power radio signals being broadcast directly over the house. Her concern was increased by the fact that two of her sons, Malcolm and Nelson, suffered from epilepsy.

15. [65]

    While the evidence did not explain the enquiries made by Robyn in detail, it appears that Robyn made significant enquiries of publicly available sources to try to determine whether high energy radio broadcasts emanating from the proposed radio tower would be injurious to her family. I am satisfied that, whatever the true scientific position may have been, which is a matter not established by the evidence, Robyn was motivated by a high level of concern about the possible effect of the operation of the radio tower.

16. [66]

    On some date after the meeting, Robyn retained Jennifer Scott of Champion Legal to act for her. Ms Scott caused a caveat to be lodged against the title to No 892 on behalf of Robyn on about 27 February 2004. The caveat described the nature of Robyn's interest in No 892 as being "Purchaser and Tenant" by virtue of an undated transfer by reason of which: "The Caveator is the Transferee of the Land as well as an Unregistered Tenant of the Land."

17. [67]

    Annexure A to the caveat stated:

18. [68]

    The court book (pages 200 to 237) contains a number of documents, some of which may have been annexed to the caveat. It is not clear which documents were so annexed, and when and in what circumstances the documents came into Robyn's possession. The documents are:

19. [69]

    Robyn gave evidence in par 52 of her 25 May 2020 affidavit that on one occasion after the meeting Mr Thompson said to her: "You are not allowed to get legal advice or the agreement is not going ahead." She said that in November 2004 she attended Mr Thompson's office a second time, and during this meeting Mr Thompson said: "Sign the contract or leave the property. You could be evicted from the property if necessary." This evidence was only admitted as evidence of the statements made by Mr Thompson. Robyn said that she was very upset, she felt pressured, and she signed the Deed.

20. [70]

    Robyn's evidence was that she signed the Deed because she felt that she would be evicted from No 892 if she did not sign [T 70.7] and that she was under a great deal of pressure to sign [T 71.1 and 72.30].

21. [71]

    Kevin submitted in relation to this evidence that it is unlikely that Mr Thompson, as a solicitor, would have made these statements because it would have been unprofessional for him to do so, particularly if the statements were said to have been made after Mr Thompson was aware that Robyn had retained Ms Scott.

22. [72]

    The difficulty is that the evidence does not establish when the statements were said to have been made by Mr Thompson in relation to when he became aware that Robyn had retained her own solicitor.

23. [73]

    Furthermore, Mr Thompson was not called by Kevin to refute the evidence given by Robyn, and Mr Thompson's absence as a witness was not explained (there being evidence that Kevin was aware that Mr Thompson remained in legal practice about 12 months before the hearing took place).

24. [74]

    There was evidence of a later meeting between the deceased and Robyn that was attended by Robert, who was invited to attend by Robyn to be an independent witness about what was said. It is not possible on the evidence to make any clear findings about what happened at the meeting. It appears that Robyn wished to keep the prospect alive that she and Garry could buy No 892 for the price of $200,000, but she still remonstrated with the deceased about the effect of the unapproved fill having been dumped on the land and the proposal to lease part of the land for the purpose of the erection and operation of the radio tower.

25. [75]

    Exhibit D1 is the costs disclosure sent by Champion Legal to Garry and Robyn dated 27 May 2004 concerning their purchase of No 892 for the price of $200,000. The work the subject of the retainer was described as:

26. [76]

    The disclosure contains a detailed list of the work required of the solicitors, which generally takes the form of what appears to be a pro forma list of the work required in a conveyancing transaction. Item 1.1 stated:

27. [77]

    That is the closest that the disclosure went to stating that the solicitors would provide detailed advice concerning the operation of the proposed Deed. Even then, the statement is directed at the purchase and any mortgage.

28. [78]

    In cross-examination, Robyn stated that Ms Scott did not go through the deed of family arrangement [T 48.34 and 48.49-48.50] and that Ms Scott did not give her advice about the deed as to what it meant about what she was getting and what she was giving up (which in the words of the cross-examiner was) "challenging your parents' will at a later date" [T 49.6-49.11]. It appears, however, that Robyn did concede elsewhere in cross-examination that Ms Scott had advised her that if she wished to buy the property, she would not be able to challenge her parents' wills at any later time [T 48.14]. Robyn also accepted that it was her intention to purchase No 892 "hopefully without the radio tower" [T 48.29-48.31]. Robyn also said that she would have been satisfied with the transaction, including the Deed, if the radio tower issue had been sorted out and it had been proved that the dumping of the fill had been approved by the council [T 50.39-50.40].

29. [79]

    Robyn did not call Ms Scott to give evidence to confirm her claim that she received no detailed advice about the operation of clause 7(e) of the Deed. Robyn accepted that there was no reason why Ms Scott could not have given evidence in the proceedings [T 50.49].

30. [80]

    There is, however, no evidence that Robyn was given any legal advice about the possible consequences of clause 2 of the Deed insofar as it took effect as a sale inter vivos of No 892 by Robyn's parents to both Robyn and Garry as joint tenants for the sum of $200,000, in lieu of Robyn's inheritance of $500,000. The effect of this transaction was to make No 892 a matrimonial asset of both parties, although in a matrimonial property settlement dispute Robyn would have a ground for arguing that 5/7 of the value of the property should be treated as a contribution by her for the purposes of s 79(4) of the Family Law Act 1975 (Cth): see In the Marriage of Kessey (1994) 18 Fam LR 149 at 159-60 (Baker, Finn and McCall JJ); Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18 at [33]-[37] (Ainslie-Wallace and Aldridge JJ). Nonetheless, in any matrimonial property settlement negotiation the fact that No 892 was in the joint names of Robyn and Garry would, as a practical matter, reduce Robyn’s bargaining power.

31. [81]

    Although Robyn appeared to give her evidence conscientiously, it became apparent that her recollection was not always reliable. I have already noted that Robyn wrongly gave evidence that she signed the Deed in Mr Thompson's office, when in fact it was signed and witnessed in Ms Scott's office. Robyn initially gave evidence that she had not read her parents' wills that were annexed to the Deed but admitted in cross-examination that when she executed the Deed, she initialled the two wills [T 51.47]. Robyn then admitted that she read the wills [T 52.25], but she said that she did not recall going through the promises in clause 7(e) of the Deed with Ms Scott, although she accepted that she "could have" [T 52.28-53.6].

32. [82]

    On 20 May 2004, Robyn executed a withdrawal of the caveat.

33. [83]

    Exhibit D1 also included a letter from Champion Legal to Garry and Robyn dated 27 May 2004, which advised that the solicitors had sent to Mr Thompson the contract for the sale of land, as amended with the two leases annexed, the Deed and the withdrawal of caveat. The letter also contained some advice about Robyn's concern that the lessees may be able to apply to increase emissions and as to constraints over the use of No 892 as a result of the existence of the leases.

34. [84]

    The deceased's will, dated 18 September 2003, that was Annexure A to the Deed, was in the same terms as the deceased's final will dated 31 January 2017, save that the last will had changed the gift of No 17A so that instead of it being given equally to Kevin and Bruce, it was given to Kevin on the basis that Kevin would pay to Bruce half of its value. That change was made by agreement between Kevin, Bruce and the deceased, as Bruce could not make use of No 17A because of his residence in Queensland. The change is immaterial to the outcome of these proceedings.

35. [85]

    The valuations of No 2111, No 846 and No 892 that were annexed to the Deed valued each of the properties at the same amount, being $700,000, even though their areas were respectively 6.657ha, 10.15ha and 7.808ha. Each valuation was stated as being "for stamp duty purposes" and no valuation rationale was given, particularly in respect of the same value being attributed to the different sized properties.

36. [86]

    Robyn said in par 15 of her 9 October 2020 affidavit in reply that the deceased said to her: "I told the valuer I wanted them all similar because of my family."

37. [87]

    Robyn's evidence was that there were marital issues between herself and Garry from the early 1980s, which included "his erratic, manipulative, volatile, and sometimes physically violent behaviour": par 30 of 25 May 2020 affidavit. Robyn said that Garry seemed normal and high functioning in most situations, particularly around relatives, including her parents. Robyn said that she did not feel comfortable talking about those issues with the deceased, and she spoke to her mother about the problems she was having. Robyn claimed that she received little sympathy from her mother and that she could not go to her parents for support about her matrimonial issues.

38. [88]

    The evidence satisfies me that Robyn's parents were aware, or ought to have been aware from their knowledge of the relationship between Robyn and Garry, that the marriage was precarious.

39. [89]

    In cross-examination, Kevin declined to accept that, at the time the Deed was executed, he was aware that Robyn and Garry had "a very rocky marriage", but he appeared to accept that he was aware that they had regular arguments, which Kevin described as "domestic incidents" [T 110.33].

40. [90]

    Debra was more forthcoming, saying that, by September 2003, the marriage "wasn't a happy one” [T 131.44]. Debra appeared to accept that she was worried that Robyn "appeared to be in some sort of abusive or aggressive relationship" and she said that she wondered why Robyn did not leave Garry [T 132.7-132.11]. Debra added: "Mum did offer – mum did suggest that she leaves Garry and that she could still stay on the farm…"

41. [91]

    Robyn separated from Garry in January 2005, and she left No 892 permanently to live elsewhere. Robyn and Garry were divorced in 2006 and a property settlement was entered into in 2007.

42. [92]

    Robyn and Garry agreed terms of settlement of the division of their matrimonial property, dated 21 November 2007, that were apparently filed before a Registrar of the Family Court of Australia at Parramatta. A simplified statement of the effect of the settlement is that a jointly owned property at Cranebrook was to be sold and the net proceeds used to pay the parties' mortgage debts and any balance remaining paid to Robyn. No 892 was to be sold and the net proceeds applied in a way such that a property owned by Robyn and Garry at St Marys could be transferred to Garry unencumbered. Robyn would receive the net balance of the sale price of No 892.

43. [93]

    The price received for the sale of No 892 in accordance with the matrimonial property settlement was $1,200,000 and Robyn's evidence was that she received "a bit over" $800,000 as a result of the property settlement [T 76.8].

44. [94]

    A letter from Robyn's family law solicitors to Garry's family law solicitors dated 28 September 2007 included the following statement:

45. [95]

    There was an issue at the hearing that was not completely resolved as to whether the sale of No 892 was inevitable as a result of the divorce between Robyn and Garry. I am satisfied on the evidence that Robyn did not have the financial capacity to retain No 892 as a result of her matrimonial property settlement with Garry. That conclusion appears to be supported by Robyn's solicitors' letter, and also the fact that, after repayment of the parties' mortgage debts, Robyn only retained an amount of somewhat more than $800,000 out of the sale price of $1,200,000, on the basis that Garry retained the St Marys property unencumbered.

46. [96]

    The sale of No 892 is significant because of an issue raised by Kevin that the sale of the property made the deceased very unhappy because he believed that he had an agreement with Robyn that she would not sell No 892 and would retain it during the deceased's lifetime as part of her and her children's inheritance. Robyn did not accept that she had an agreement to that effect with the deceased, but she acknowledged that she led the deceased to understand that she would retain the ownership of No 892 so long as that remained financially possible: Robyn's 9 October 2020 affidavit in reply at par 19.

Should the Court approve the Deed?

1. [97]

   The requirement that the deceased's children execute the Deed was a unilateral requirement developed by the deceased (and probably supported by Edna). Although the deceased's children other than Robyn apparently executed the deed relatively freely, its terms were not in any sense negotiated, and the proposal was put by the deceased on a take it or leave it basis.

2. [98]

   The purpose of the proposal was to raise funds for the deceased's and Edna's retirement by realising some of the value in No 846 and No 892 in a manner that, from the deceased's perspective, provided Robyn and Debra with an early inheritance, in terms that appeared to be reasonably fair as at the date of the Deed as between Robyn and Debra on the one hand and Kevin and Bruce on the other, whose inheritance would be deferred to the time of the death of the survivor of the deceased and Edna.

3. [99]

   The apparent fairness of the effect of the deed depended upon the accuracy of the valuations that were annexed to the Deed, which is a dubious proposition given the differences between the properties that were all valued at $700,000 and the absence of any valuation rationale in the valuations. Robyn did not, however, take issue with this apparent coincidence. Even assuming that the valuations were reasonably accurate, fairness of outcome depended upon Robyn and Debra being able to retain ownership of their respective properties until the time when Kevin and Bruce received their inheritances, or alternatively, Robyn and Debra being able to convert their ownership of the properties into assets whose values escalated in line with the properties to be inherited by Kevin and Bruce.

4. [100]

   The Deed was entered into at a time so far ahead of the likely dates of death of the deceased and Edna that the crystallisation of Robyn's and Debra's rights of inheritance at that date created the possibility that any apparent equality of inheritance would evaporate as a result of changes in circumstances between the date of the Deed and the date of the death of the survivor of the deceased and Edna. Further, the terms of the Deed had the effect that the deceased precluded himself from adjusting the distribution of his testamentary bounty in response to changes in the circumstances of his children after the date of the Deed. That is because any further provision that the deceased made in his will in favour of Robyn and Debra would involve a contravention of the deceased's covenants in the Deed to Kevin and Bruce.

5. [101]

   In this respect it is material that clause 7(e) of the Deed cannot be equated with a similar term contained in a settlement agreement negotiated at a mediation or otherwise during a family provision application after the death of the deceased, when the terms of the settlement may be agreed between the claimant and the executor, having regard to all circumstances known at that time.

6. [102]

   I am satisfied on the evidence that, during the 18 September 2003 meeting, the deceased conveyed an insistence that his children execute the Deed and that he exhibited significant emotional displeasure about Robyn's refusal to sign the Deed and her subsequent delay in doing so. That put Robyn in a position in which she had stood against the other members of her family and created a significant degree of emotional stress.

7. [103]

   I am also satisfied that the deceased told his children at the meeting that if they sought legal advice about whether they should sign the Deed the proposed deal would be off the table and a child resisting the execution of the deed would be at risk of being excluded from the deceased's and Edna's wills. Evidence to that effect was given by Robyn and Robert and that evidence was not in any substantial way challenged in cross-examination.

8. [104]

   Although Mr Thompson apparently read out the terms of the Deed at the 18 September 2003 meeting, he acted only for the deceased and Edna and did not advise or act in the interests of the children.

9. [105]

   I accept Robyn's evidence that she held genuine fears that No 892 had been contaminated by uncontrolled fill that may in the future have been required by the council to be removed at substantial cost, and that she also feared that the proposed radio tower would cause injury to her family by reason of high-power radio transmissions. It was not in the circumstances unreasonable for Robyn to have those fears, even though the evidence in the proceedings has not established whether or to what extent the fears were warranted. On balance, it appears that the issue of the fill on No 892 was ultimately resolved with the agreement of the council in a manner that did not involve substantial expense. It is unlikely that the relevant regulatory authorities would have permitted the radio tower to be constructed and operated in a manner that would create substantial danger of injury to persons living in the vicinity. The real significance of these circumstances is that they caused Robyn genuine fear, uncertainty and anxiety that limited Robyn's psychological capacity to assess the advantages and disadvantages of executing the Deed in a calm and rational way. That is demonstrated by Robyn's resistance to the execution of the Deed for about six months, her retention of Ms Scott to provide advice, and her lodgment of the caveat against the title to No 892.

10. [106]

    I accept that Robyn also had a genuine fear that she and her family would be evicted from No 892 if she did not ultimately sign the Deed. Her initial refusal to sign the Deed placed the deceased in the position where he had bound himself to the terms of the Deed with his other children, but at the least Robyn's refusal to execute the Deed gave rise to doubts about its validity and created a risk that the deceased and Edna would become involved in litigation.

11. [107]

    Although Mr Thompson was not called to give evidence, and his absence as a witness was not explained, I have sufficient doubt about Robyn's recollection of what Mr Thompson may have said to her such that I do not make a finding that Mr Thompson said to Robyn directly that she would be evicted if she did not sign the Deed, particularly at any time when Mr Thompson was aware that Robyn was represented by Ms Scott.

12. [108]

    I have explained above my view that the apparent equality of treatment of the children by the terms of the Deed would only lead to an equality of outcome if Robyn was able to maintain her joint ownership of No 892 to the date of the death of the survivor of the deceased and Edna. As the deceased caused the Deed to contain a term that No 892 would be transferred to Robyn and Garry jointly, that introduced a risk that Robyn would not be able to maintain joint ownership of No 892 for the requisite period, or exchange No 892 for assets of comparable value, by reason of the breakdown in Robyn's marriage to Garry and the consequent need to divide the matrimonial property between the parties to the marriage.

13. [109]

    The risk of that happening was, in my view, very real at the date the Deed was proposed by the deceased and the date it was executed by Robyn, as at that time the future of the marriage was precarious. That risk manifested in the parties to the marriage separating in 2005, divorcing in 2006, and entering into a matrimonial property settlement in 2007 that led to the sale of No 892. From that sale Robyn received the whole of the net proceeds after the deduction from the price of the amount necessary to clear the parties' mortgage debts and leave Garry with sole title to the St Marys property.

14. [110]

    I infer on the evidence that the deceased and Edna were aware of the real circumstances of the marriage between Robyn and Garry, and if contrary to that finding they were not so aware, they must have closed their eyes to the significance of the facts known to them.

15. [111]

    In those circumstances, the deceased's requirement that Robyn agree to No 892 being transferred into the joint names of Robyn and Garry did not have proper regard to the risk involved to Robyn being able to enjoy her accelerated inheritance. That was a real risk even though on the evidence Robyn did not object to the title to No 892 being transferred into her name jointly with Garry. It is likely that Robyn at that stage had not faced the real risk that her marriage would break down and that there would be consequences in respect of her ability to retain ownership of No 892.

16. [112]

    The point of these observations is that I am satisfied that Robyn did not receive any independent legal advice concerning the risks involved in her early inheritance being placed in her and Garry's names jointly, given the circumstances of their marriage.

17. [113]

    I am satisfied on the evidence that Robyn received some advice from Ms Scott about the effect of the Deed, even though that issue was peripheral to the reason why Ms Scott was retained by Robyn. Ms Scott was primarily retained to deal with the issues that arose in relation to the placement of the uncontrolled fill on No 892 and the significance of the proposed lease of part of No 892 for the erection and operation of the radio tower. The caveat was evidently lodged by Ms Scott on behalf of Robyn as a device to influence the outcome in relation to the two issues that were of concern to Robyn.

18. [114]

    I am satisfied that, from her own reading of the terms of the Deed and from such advice as was given to her by Ms Scott, Robyn understood at least in a general way that if the Deed was effective her inheritance would be limited to the receipt jointly with Garry of a property with an apparent value of $700,000 in return for the payment of a price of $200,000. It was not in any real way suggested to Robyn in cross-examination that her understanding of the effect of clause 7(e) went any further or was more sophisticated than the understanding that I have found Robyn to have had.

19. [115]

    There is no suggestion in the evidence that Robyn received any detailed explanation of the way Pt 2 of the Family Provision Act operated, including s 31 of that Act. Nor is there any evidence that Robyn received advice about the prudence of accepting her early inheritance in the form of the transfer of No 892 into her name jointly with Garry given the possible consequences of a breakdown in their marriage.

20. [116]

    I am satisfied that Robyn executed the Deed with knowledge of its immediate effect and that she did so voluntarily in the sense that she made her own choice as to whether to execute the Deed or not. However, I am also satisfied that Robyn executed the deed under considerable emotional and financial pressure and in fear that she really had no choice if she wished to retain No 892 as her family home, to get the early inheritance, and to avoid the risk that she and her family would be evicted from the property if she thwarted the achievement of the deceased’s intentions.

21. [117]

    I am satisfied that the Court should not give its approval to clause 7(e) of the Deed insofar as the provision would prevent Robyn from making the present application for a family provision order. That is primarily because it seems to be clear that Robyn did not enter into the Deed of her own free will and only did so under considerable pressure from the deceased. That meant that Robyn did not give due consideration to the advantages and disadvantages to her in entering into the Deed.

22. [118]

    To a considerable degree, it may be said that the agreement to make the release contained in the Deed was at the time to the financial advantage of Robyn for the purposes of s 95(4)(a). That is because she acquired the title to No 892 for a price of $200,000 when the property had a value of in the order of $700,000. However, the fact that she acquired the title at the time that she did as a joint tenant with Garry put her at considerable risk of not being able to retain her interest in No 892 because of a matrimonial division of property. The joint interest granted to Garry at least improved his position in the process of determining the division of property that was appropriate. These risks materialised relatively quickly.

23. [119]

    It was not in my view prudent for Robyn to have entered into the Deed for the purposes of s 95(4)(b) because of the same risk that Robyn would not be able to retain ownership of No 892 on a long-term basis. Further, the release had the effect of preventing Robyn gaining any further benefit from the estate of her parents, even if her subsequent experience gave her a greater call on the bounty of her parents than her siblings. It has also not been shown that the fact that uncontrolled fill had been dumped on No 892, and that there was an agreement to lease part of the property for the purpose of the erection and use of the radio tower, had any significant effect on the prudence of Robyn entering into the Deed.

24. [120]

    There is scope for argument whether the provisions of the Deed were fair and reasonable at the time it was made for the purposes of s 95(4)(c). There was a significant attempt at fairness because of the nominal equality in value of the gifts that would be made to each sibling. It may be argued whether it was an advantage for Robyn and Debra to get their inheritances early or a disadvantage because they were put at risk of not being able to retain the properties transferred to them until the death of the survivor of their parents. As Debra has apparently been able to retain her interest in No 846 with Robert, history has shown that the Deed was capable of having a fair and reasonable outcome. I am therefore of the view that the consideration in s 95(4)(c) is of little weight in Robyn’s favour.

25. [121]

    However, I am not satisfied that, before Robyn executed the Deed, she had taken independent advice in relation to the release that was sufficient for the purposes of s 95(4)(d). As I have explained above, it is probable that Robyn received some advice from Ms Scott about the direct effect of clause 7(e) of the Deed, but the evidence does not satisfy me that Robyn sought and received thorough advice on the consequences of her executing the Deed, particularly in respect of the possible consequences of the transfer of No 892 into her name jointly with Garry in relation to the possible effect of any marital breakdown. Consequently, Robyn was not able to give due consideration to any such advice.

26. [122]

    I have decided that the Court should not approve the release in clause 7(e) of the Deed based upon the circumstances as they existed at the date of the Deed. As the risk that Robyn would not be able to maintain her interest in No 892 because of the dissolution of her marriage to Garry, as well as a risk that her health would further deteriorate, have both been realised, the circumstances that exist at the present strengthen the case for the Court to decline its approval of the release.

27. [123]

    It is therefore necessary for the Court to consider whether Robyn has established her claim for an appropriate family provision order on the evidence.

Principles relevant to the making of a family provision order

1. [124]

   Section 59 of the Succession Act grants the Court the power to make an order for further provision out of the estate of a deceased person in favour of an eligible person where the Court is satisfied that the will of the deceased person has not made adequate provision for the proper maintenance, education or advancement in life of the applicant: see s 59(1)(c). Having made the evaluative determination that adequate provision has not been made for the applicant, the Court’s discretion to make such order for provision as the Court thinks ought to be made is enlivened: see s 59(2).

2. [125]

   The core principles governing the Court’s family provision jurisdiction, both generally and in the context of an application by an adult child, were recently stated by the Court of Appeal in Bassett v Bassett [2021] NSWCA 320 at [78]-[88] and I respectfully adopt that statement:

3. [126]

   As I wrote recently in Kitteridge v Kitteridge [2022] NSWSC 193, there is a due level of respect to be accorded to the deceased’s testamentary intentions as expressed in his or her last will, but:

4. [127]

   Although I have found that the Court ought not to give its approval to the Deed, the fact that Robyn executed the Deed remains a relevant piece of evidence in determining the question of adequate provision. Mason CJ, Deane and McHugh JJ explained why this is so in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 207-8; [1994] HCA 40 (footnotes omitted):

5. [128]

   The final observation made in this extract is important in this case. Although Robyn ultimately agreed to execute the Deed, she did so under pressure and with reservations about the fairness of its terms. It will be necessary to weigh the significance of the Deed carefully in considering whether adequate provision has been made for Robyn in the deceased’s will.

Circumstances relevant to adequacy of provision

1. [129]

   I will begin by identifying a number of issues that were dealt with by the parties' witnesses at some length in the evidence, but which do not appear to call for detailed consideration in the light of the parties' final submissions.

2. [130]

   There was considerable dispute in the evidence in relation to:

3. [131]

   As a general matter, notwithstanding that the evidence contained many assertions and counter-assertions by the witnesses relevant to these issues, the evidence did not take the form of testimonial evidence of specific events observed by the witnesses. The evidence tended to take the form of the witnesses' subjective beliefs stated without any extensive basis. The evidence was generally a summary of the witnesses' impressions of events covering a considerable period long in the past. I accept that this was less so in relation to the evidence of specific incidences that were alleged concerning Robyn's conduct at the times of the deaths of her parents. Even then, there was considerable scope for differences of recollection, depending upon context and the perceptions of the participants.

4. [132]

   As Kunc J said in Pavlis v Pavlis [2021] NSWSC 1117 at [167], citing an earlier observation of my own:

5. [133]

   Forensically, it is not feasible for the Court to make proper and reliable findings concerning the truth of the controversial claims made on behalf of the parties in respect of the issues listed above.

6. [134]

   Moreover, there was no significant cross-examination of the witnesses in respect of their evidence going to these issues. Nothing was said of them in Robyn's counsel's written opening or his final oral address. Kevin's counsel's closing submissions merely commented in respect of the issue whether Robyn contributed to the estate or welfare of the deceased at [58(j)]: "The plaintiff made no such contributions, except on occasion working in the kiosk and the horse riding on weekends with her mother." Counsel added in relation to the question of Robyn's character and conduct at [59(c)]: "The plaintiff's conduct towards the deceased was not commendable." This approach provides little assistance to the Court in resolving the factual disputes that are contained in the evidence.

7. [135]

   There are more substantive reasons that justify the Court in avoiding the complexities that would be involved in trying to resolve these disputes in detail. First, there would be little purpose in the Court attempting to make findings about the relative contributions of Robyn and her siblings to the businesses operated by the deceased before the date of the Deed. By the terms of the deed, the deceased from his own perspective tried to treat Robyn equally with her siblings. If that was the position adopted by the deceased on 18 September 2003, there will be little profit in the Court exploring whether Robyn made equal contributions to her siblings before that date.

8. [136]

   In relation to the issue of whether or not Robyn maintained a loving personal relationship with the deceased after 18 September 2003 that was the equal of her siblings, the fact of her separation and divorce from Garry, the apparent need to sell No 892, the consequent requirement that Robyn then reside at a location that was remote from the deceased's home, and the apparent disappointment that the deceased may have experienced as a result of the sale of No 892, have intervened to make a comparison of the personal relationships maintained by the siblings with the deceased a complex and difficult one. As Debra was able to retain No 846, she remained living in the vicinity of the deceased's home. Kevin was able to maintain his long-standing relationship with the deceased. Bruce moved to Queensland at a relatively early time. Furthermore, there is no consistency in the evidence as to the frequency with which Robyn engaged with her parents. Bruce [T 118.15] and Debra [T 134.19], both of whom were called to give evidence for Kevin, gave evidence of Robyn attending family gatherings that suggested those attendances were significantly more frequent than Kevin claimed. The most significant point is, however, that whether or not Robyn's understanding was objectively justified, I accept that she came to understand after her divorce and her sale of No 892 that the affection displayed to her by the deceased and the other members of her family had substantially diminished.

9. [137]

   Finally, I would hesitate to make definite findings concerning Robyn's conduct at the time of the deaths of her mother and the deceased given the emotions that the witnesses must have been experiencing at the time and the possibility that even apparently inappropriate conduct by Robyn was influenced by her reactions to the impending deaths of her parents.

The deceased’s last will and the net distributable estate

1. [138]

   The deceased’s last will of 31 January 2017 made the following gifts:

2. [139]

   The evidence of the net distributable estate of the deceased is summarised in Attachment A to Kevin's closing submissions. The primary assets in the estate are No 2111, which was valued by the court-appointed expert at $6,750,000 as at 5 July 2021, and No 17A, which was given an estimate of $1,000,000.

3. [140]

   Additionally, at the time the attachment was prepared, the estate had cash of $45,559.97. The effect of the deceased’s last will is that the deceased provided for Robyn in the form of a one-quarter share of this amount of cash.

4. [141]

   The estate had estimated total liabilities of $290,500 to cover the agent's commission and selling costs for both properties, as well as estate taxation, liabilities and costs. The net value of the estate for any allowance for legal costs is therefore estimated at $7,505,059.97.

5. [142]

   The evidence of Robyn's costs was on the indemnity basis at $188,446, for which Attachment A makes an allowance of 60% for the purpose of estimating Robyn's costs on the ordinary basis. On that basis, which may not be sufficiently generous, the estimate of Robyn's costs was $113,067.60.

6. [143]

   The evidence was that Kevin's legal costs on the indemnity basis was $169,450.

7. [144]

   The total costs that would be payable out of the deceased's estate if Robyn succeeds in obtaining an order for further family provision and her costs was therefore $282,517.60 if Kevin’s estimate of the costs recoverable by Robyn is correct.

8. [145]

   When the total costs of the proceedings are deducted from the total net estate (rather than added as in Attachment A) the net distributable estate is $7,222,542.37.

9. [146]

   Robyn obtained three real estate agent appraisals for No 17A in June 2021. Averaging the values stated in the appraisals would give a value for the property between $1,263,333 and $1,336,333. It is therefore possible that the true total net estate may have a value in the order of $7,500,000. The evidence does not enable the Court to make a precise finding on this subject.

10. [147]

    If the Court dismisses Robyn’s claim and orders her to pay Kevin’s costs, then the net distributable estate will be a little les than $7,222,542.37, given that Kevin will not be able to recover all of his costs from Robyn if she is ordered to pay his costs on the ordinary basis. Kevin would therefore receive approximately $4,100,000, Bruce approximately $3,100,000, and Robyn and Debra nominal gifts of the residual cash. The gifts to Kevin and Bruce should have equal value in practical terms once Kevin’s agreement to pay half the value of No 17A to Bruce is taken into account.

Robyn’s financial position

1. [148]

   In Robyn's 13 July 2021 affidavit updating her financial position, her assets and liabilities were then stated to be:

2. [149]

   Robyn’s total liabilities were $15,731.

3. [150]

   As I understand the evidence, Robyn used her share of the proceeds of sale of No 892 to purchase a house at Bringelly in 2008 that she moved into in December 2011. The price of the Bringelly property was about $740,000 according to Robyn. She later sold that house and in January 2017 she purchased and moved into her present home in Cordeaux Heights. The sale price of the Bringelly property was $1,960,000. The settlement sheet for the transaction (part of Exhibit D3) showed that the major payments out of the price were $789,070.66 to the Commonwealth Bank of Australia Ltd, $608,337.74 to Teachers Mutual Bank Ltd, and $383,094.45 to Robyn. The settlement sheet for the purchase of the Cordeaux Heights property (also part of Exhibit D3) showed that the price payable was $880,000. This settlement sheet showed that, on settlement, a bank cheque in favour of Commonwealth Bank of Australia Ltd for $789,070.66 was required. That is the same amount that was payable out of the proceeds of sale of the Bringelly property.

4. [151]

   In my view there is not enough information in the documents contained in Exhibit D3 to adequately understand the meaning of these transactions.

5. [152]

   Exhibit D3 also contained a settlement sheet for the sale by Robyn of a property in Queensland for $272,000 that took place on 22 June 2017. Robyn received $264,073.11 from the sale. Robyn gave evidence that she lost over $100,000 on the sale of this property [T 78.31].

6. [153]

   Robyn was cross-examined about her purchase and sale of these properties [T 77.3-81.23]. The result of the cross-examination is not entirely clear, possibly in part because Robyn was only given the documents that became Exhibit D3 shortly before her cross-examination, and she did not have time to consider their significance. With due respect to counsel, the questions that were asked may not have been entirely clear. At [T 77.47] there was a suggestion that Robyn mortgaged the Bringelly property to both the Commonwealth Bank and Teachers Mutual Bank. Robyn replied that she took out loans with Suncorp and Bank of Queensland to renovate the Bringelly property in conjunction with using some of her savings. Counsel then appeared to suggest at [T 78.6] that the $789,070.66 payable to the Commonwealth Bank and that $608,337.74 payable to Teachers Mutual Bank from the sale proceeds of the Bringelly property represented the repayment in borrowings in those amounts by Robyn. As Robyn had given evidence that she used $200,000 to renovate the Bringelly property, Counsel asked [T 78.6]: “So, what about the other, well, 789 and 608 is about 1.3, 1.4, so what happened to the other $1.2 million?”. Robyn was evidently confused by the question and did not give evidence that clearly explained the transactions.

7. [154]

   Robyn ultimately said at [T 79.38-79.40] that the $789,070.66 was money used to pay the price for the Cordeaux Heights property. I think that is probably correct, although ultimately the evidence was left in a state of confusion.

8. [155]

   This confusion in the evidence does not cause me to find that Robyn has understated the value of her assets. I am satisfied that the cause of the confusion was the fact that Robyn was not given the time to give evidence-in-chief in response to the documents in Exhibit D3 after due consideration based upon her financial records.

9. [156]

   Robyn’s evidence was that as of 25 May 2020 her income from her superannuation pension was approximately $40,000 net per year and her expenses were $40,256.70. Robyn did not provide further evidence on this subject in her 13 July 2021 updating affidavit.

Robyn’s medical history and prognosis

1. [157]

   At the time of the hearing, Robyn was aged 65 years. Robyn gave evidence in her initial substantive affidavit affirmed on 25 May 2020 of her medical history. That evidence was somewhat repetitive. I have tried to limit the amount of repetition in the following record of Robyn’s medical history.

2. [158]

   Robyn said that from about 5 years of age she began experiencing painful and debilitating inflammation in her feet and legs for 3 to 4 days at a time. They became swollen and covered with an erythematosus rash.

3. [159]

   During her childhood, over several years up to her early teens, Robyn also suffered dental issues, including inflammation and infections. Due to abscesses she had to have several teeth removed and her jaw excised. At the age of 14 Robyn suffered inflammation and malalignment of her spine, making it very painful for her to move. She underwent intense chiropractic treatment over two years, which continued with other therapies later on. Robyn said that she had been advised by medical practitioners that the dental issues, the leg flareups and the inflamed spine and many other symptoms and syndromes were caused by her medical condition.

4. [160]

   Kevin objected to the evidence given by Robyn concerning the technical medical causes of the disabilities from which she suffered.

5. [161]

   Robyn was, however, able to give evidence in accordance with s 100(3) of the Succession Act that, when she first began having flareups, the deceased said to her: "It looks like the Lewis allergy".

6. [162]

   Robyn gave extensive evidence in her initial substantive affidavit of her medical ailments during her teenage and later years. She said that during her teenage years she continued to suffer from the symptoms that she had in childhood as well as inflammation and nodule swellings along her spine which continued into her early 20s. She underwent intense chiropractic treatment at first and then regular chiropractic treatment into her 20s. She said that she still undergoes intermittent therapeutic massages.

7. [163]

   During her 20s, Robyn became hypersensitive to the contraceptive pill, especially to oestrogen which started to cause sugar level problems, including diabetes and overall weakness. Robyn had a urticarial rash, which is similar to measles, and which was extremely itchy and burning on her hands, feet, buttocks, elbows, ears and face. That continued into her 40s.

8. [164]

   Robyn said she was tested for Familial Mediterranean Fever (FMF) in 2005 and found to have it in the form of a rare M694del mutation. She said that this condition causes her to suffer from fever, abdominal pain, chest pain, achy swollen joints, a red rash on her legs, and feet and muscle aches.

9. [165]

   Robyn said that she had had four miscarriages and all four of her children were delivered via caesarean section. As a result, she underwent a tubal ligation at age 31. She underwent a hysterectomy at age 38 due to ongoing blood loss caused by inflammation of vascular vessels from the endometrium into the myometrium.

10. [166]

    Robyn said that in her early to mid-30s she was diagnosed with anti-phospholipid syndrome, anti-cardiolipids (sticky platelets), high ANA (antinuclear antibodies titres into the thousands). She saw Dr Graydon Howe at Westmead who is a rheumatologist and he diagnosed her with SLE (Systemic Lupus Erythrometosis). Robyn was consequently put on high doses of prednisone (corticosteroid) and Plaquenil (hydroxychloroquine) for at least six years. Robyn said that she was advised to reduce and come off the prednisone. On advice from specialists, she started alternative therapies including large doses of evening primrose oil, fish oils, flaxseed, glucosamine and chondroitin, calcium and vitamin D.

11. [167]

    At age 36, Robyn had inflammation of the large bowel and her appendix was removed.

12. [168]

    At age 42, Robyn's gallbladder was removed due to inflammation, but she had no stones. Robyn said that she still suffers from periods of inflammation of the bile ducts.

13. [169]

    Robyn said that in her 40s, she had bladder infections and inflammation which led to her undergoing cauterisation and ablation of her bladder. In her late 40s she suffered from menopause-like symptoms. She underwent tests which revealed low levels of DHEAS, testosterone, oestrogen and progesterone. That was indicative of an autoimmune disease and adrenal gland deficiency. Robyn takes hormone replacement medication for her hormone levels and to keep bone and muscle mass for strength and mobility.

14. [170]

    In her 50s, Robyn was diagnosed with irritable bowel syndrome (IBS) and gastro-oesophageal reflux disease (GORD), which has affected her absorption of most essential nutrients over time, and which also necessitates her in trialling foods and supplements. Robyn said that she has the gluten sensitive gene, and she is lactose intolerant. She said that she still suffers from IBS and GORD. She follows the advice of a dietician and takes prescribed medication to reduce stomach acid. At this stage other medications which she has trialled for IBS have not been effective and Robyn is to undergo further testing, including endoscopy, gastroscopy and colonoscopy.

15. [171]

    Robyn said that when she was 61 years old, she had cataract replacement surgery on both of her eyes to relieve glaucoma in her left eye. She undergoes regular eye checks. Robyn wears reading glasses and special glasses for travelling at night.

16. [172]

    Robyn said that she has been diagnosed with osteopenia. At this stage, the treatment is to take calcium, vitamin D3 and K2 supplements and to perform exercises to reduce bone loss. Robyn has check-ups to test bone deterioration. She has severe osteopenia in her hips and knees. Robyn is very concerned that she will have to undergo knee and hip replacements in the future.

17. [173]

    Robyn said that she has been diagnosed with moderate diverticulitis. Presently she treats this with diet, antibiotics, and occasionally anti-inflammatory pain relief and she also uses a product called Ambrotose which costs $200 per month. A medication called Colchisine is used for gout and arthritis, but she cannot take it due to having severe gastrointestinal side effects. Robyn said that the advice of her doctor is to take over-the-counter preparations and prednisone which does not always provide relief.

18. [174]

    Robyn said that she suffers from fatigue, varying degrees of pain from arthralgia, myalgia, erysipelas and occasional fevers. Cold virus symptoms are prolonged and can last up to 6 weeks caused by an over-reaction of the immune system with pharyngitis, asthma-like symptoms, sinusitis, coughing, and a recent thickening of the echo texture in the midline of her liver which could be amyloidosis. The medical opinion of some specialists and doctors is that these can all be attributed to FMF.

19. [175]

    Robyn said that she suffers from spondyloarthropathies which are chronic diseases of the joints, including arthritis, spondylosis, ankylosing spondylosis and spondylolisthesis.

20. [176]

    Robyn said that she suffers from a degenerative disc disease, discovertebral disease, spinal stenosis, and hypertrophic degenerative facet disease. She continues to suffer from extreme lower back pain. She also has upper middle back pain and restricted neck movements. She has recurring acute sharp pain, numbness and pins and needles in her right leg due to sciatica. She has frequent partial numbness, tingling and stiffness in her left leg. Frequently, Robyn has difficulties being able to stand up from a sitting position, to turn and bend her body and to walk distances of 10m or more.

21. [177]

    Occasionally Robyn suffers from carpal tunnel syndrome in her right arm. She receives injections for that condition and still gets inflammation in her elbow and wrist. Robyn said that she suffers from retrolisthesis and levoconvex scoliosis.

22. [178]

    Robyn has balance problems, vertigo, and tinnitus with some hearing loss.

23. [179]

    Robyn said that she continues periodically to suffer from pharyngitis of the throat and lungs.

24. [180]

    Robyn said that she has been diagnosed with supraventricular tachycardia, which is being monitored with regular check-ups.

25. [181]

    Finally, Robyn said that she has been diagnosed with a spastic bowel.

26. [182]

    Kevin did not respond to Robyn's evidence concerning her childhood ailments, but he said in cross-examination that he was not aware of any ailments that she had when she was young and growing up through her teenage years [T 116.38]. He acknowledged that Robyn claimed that she had a multiplicity of ailments in her adult life but said that he did not believe that Robyn had any such illnesses [T 116.46].

27. [183]

    Robyn tendered a limited amount of documentary evidence concerning her medical condition and ailments that appear to be a collection of documents that Robyn has received and retained over recent years. The documents do not comprehensively deal with the ailments of which Robyn gave oral evidence.

28. [184]

    In the circumstances, the only practicable approach is to review the documents and make appropriate observations on aspects of the evidence that have present significance. The following summary of the written medical evidence is incomplete as I have had to be selective and much of the information is unintelligible to a lay person. I have omitted a number of historical reports.

29. [185]

    The state of the evidence relevant to Robyn’s medical condition and prognosis makes it difficult for the Court to make reliable findings of fact. The evidence that is most relevant is that which concerns Robyn’s present medical condition and her prognosis, rather than the history of the ailments from which she has suffered in the past. The question is whether, at this time, adequate provision has not been made by the deceased in his will for the maintenance of Robyn’s health and related needs. This is a case in which Robyn’s claim would have been significantly improved by expert medical evidence that explained the medical significance of the ailments from which Robyn currently suffers, the likely future consequences of those ailments, and the likely medical responses that will become necessary. While many aspects of the evidence that has been tendered are reasonably meaningful to a lay person such as a judge, many other aspects are effectively unintelligible. Robyn has given evidence that she has at one time or another suffered from medical conditions with technical names. Even though the Court may be prepared to accept that Robyn has been advised by medical experts that she has suffered from those conditions, the Court could not assess the significance of those medical conditions without making enquiries beyond its expertise. The Court also cannot make its own judgment about the probable future course of the ailments from which Robyn suffers or the likely costs of treatment and the costs of other arrangements that may become necessary to ameliorate the effect of future illness.

30. [186]

    Nonetheless, the evidence given by Robyn and those parts of the documentary medical evidence that are meaningful on their face justify a finding that Robyn suffers, and is likely to continue to suffer, a greater than ordinary level of debilitating illness, and that Robyn’s illnesses are likely to progress, particularly in a way that causes her substantial discomfort and impinges on her mobility. There is a significant likelihood that Robyn will incur substantial expense in the future in respect of medical treatment and the need to acquire special implements to enable her to compensate for her disabilities.

Robyn’s future expenditure requirements

1. [187]

   Robyn retired in January 2018 after having taken 12 months’ leave from work due to medical issues in January 2017.

2. [188]

   Robyn is concerned that she will require admission to a nursing home in the future like the deceased. If she has to draw down on her superannuation to meet medical, renovation, maintenance or in-home care expenses, then her income will be severely reduced, and she will not be able to meet her usual expenses.

3. [189]

   Robyn said that she had conducted research into the costs of care services. The basic cost of a level 4 in-home care package is approximately $55,000 per year. Robyn estimated that she will need $600,000 to pay for in-home care in the future.

4. [190]

   Robyn is concerned that, due to her medical issues and ongoing changes in symptoms, she will lose her mobility and function. Robyn listed a considerable number of modifications to her home and property that may be required in the future. Robyn gave broad estimates of some but not all the costs that she would face. She estimated the cost of replacing the back decking, roofing and back stairs would be $80,000. Non-slip polishing and refurbishing of wooden floorboards would cost $30,000. Installing side metal paling gates for easy access to the property, with easy catches and locks, would cost $10,000. Installing fencing along the top of a retaining wall would cost $8,000. Safety lights, sensor lights and downlights would cost $3,000. A new water system including tank and pump would cost $12,000. A teak outdoor setting would cost $7,000. Robyn estimated the total cost of the modifications that she believes she will need to make to her home at $300,000.

5. [191]

   Robyn gave a separate list of repairs and renovations that she said would need to be made to her home because it is 30 years old and has not undergone repairs or renovations since it was built. The total estimated cost for the 10 items listed was $149,500.

6. [192]

   Robyn said that all her home appliances were over 10 years old and the estimated cost of replacing them was approximately $10,000.

7. [193]

   Robyn currently cannot afford an internet connection and estimates the cost of a reliable NBN internet connection would be $1,680 per year.

8. [194]

   Robyn fears that her home is not secure, and she wants to install an alarm system with ongoing service. The estimated cost is approximately $338 to install and then $953 per year thereafter.

9. [195]

   Robyn said that she will require assistance with maintenance and cleaning, including pest inspection and control, which she estimated will cost approximately $4,000 per year.

10. [196]

    Robyn has two dogs, for which she pays pet insurance, but she is still out of pocket for various veterinary bills and expenses. She said that she requires a lump sum of $50,000 for possible veterinary bills in case her dogs require surgery or treatment, as well as cleaning and grooming if Robyn is unable to do it.

11. [197]

    Robyn said that she has private health insurance, but her out-of-pocket medical costs cause her household expenses to exceed her income. She said that she requires a fund of $200,000 for exigencies.

12. [198]

    Robyn said that her teeth are in poor condition and she suffers pain and sensitivity. Robyn said that she will require dental implants on the top and bottom rows of her teeth which she estimates will cost $40,000.

13. [199]

    Robyn will require orthopaedic shoes, which will cost her approximately $225 per year.

14. [200]

    Robyn's evidence was that she needs a new motor vehicle such as a campervan. She needs that type of motor vehicle because it is easier for her to climb in and out of. Due to the height, Robyn struggles to be able to get into and out of regular height motor vehicles. Robyn estimated that a vehicle of this type would cost $90,000 to $135,000.

15. [201]

    Finally, Robyn gave evidence of the medical ailments from which her children suffer and said that it may be necessary for her to provide accommodation for her son, Nelson. Modification to her home to build a two-bedroom granny flat would cost about $160,000, and the construction of a one-room studio under her house would require about $80,000.

16. [202]

    Robyn tendered a home access occupational therapy report dated 6 May 2020 that made relatively limited recommendations concerning modifications to Robyn's home as follows:

17. [203]

    It is obvious that the modifications to Robyn’s home that are recommended in the occupational therapy report are much more modest than the modifications and other work that Robyn said in her own evidence would be required in the future. I would not rule out, however, the possibility that much of the work foreshadowed by Robyn will become necessary, given that her home was built 30 years ago and has not received regular maintenance.

Bruce’s financial position

1. [204]

   Bruce gave evidence that he is a director of, and 50% shareholder in, a company whose name suggests it provides safety training. Bruce lives in rented premises. His company supplies him with a fully maintained motor vehicle and pays for his petrol, mobile telephone and cleaning expenses. Bruce’s gross weekly salary is $1,935. His expenses are $1,472.

2. [205]

   As of 6 July 2021, Bruce had assets of $776,745, which included a bank account of $55,875 and superannuation of $372,620.

3. [206]

   As at that date, Bruce's total liabilities were $315,419.

Kevin’s financial position

1. [207]

   As of 22 June 2021, the total weekly income of Kevin and his wife was approximately $2,450, having reduced from $2,750 as of 29 June 2020.

2. [208]

   Kevin and his wife have two investment properties from which they are entitled to receive a gross weekly rental of $965. As at 22 June 2021, they had reduced the rent they were charging on their investment property in Queensland by the sum of $50 per week to give COVID-19 relief to the tenants.

3. [209]

   Also, as of 22 June 2021, Kevin's wife had lost her job as a part-time cook and did not then have any income from employment.

4. [210]

   As of 22 June 2021, the home owned by Kevin and his wife had a value of $1,200,000 and was unencumbered. They had two investment properties with values of $700,000 and $560,000 that were mortgaged to secured debts of $282,000 and $318,000 respectively. Their assets had a total value of $2,720,000 and their liabilities were $600,000.

Consideration

1. [211]

   The present case is unusual because the Court has to deal with the significance of the Deed and the early inheritance that Robyn received when it evaluates the adequacy of the provision made in favour of Robyn in the deceased’s will. The deceased attempted to divide his estate equally between his four children, although he did so in a way that would not necessarily achieve equality of result. On the one hand, Robyn and Debra were given their inheritances early so that they enjoyed an immediate benefit that would continue throughout the deceased’s lifetime provided that their life circumstances enabled them to retain the properties transferred to them early, or otherwise retain the value of those properties. As I have already observed, Debra realised the advantages of this arrangement, but Robyn did not. On the other hand, Kevin and Bruce were made to wait until deceased’s death to receive their inheritances, which denied them the enjoyment of their inheritances during the deceased’s life. As it seems clear that the deceased intended to retain No 2111 and No 17A during his lifetime, Kevin and Bruce were reasonably assured of inheriting those properties between them under the deceased’s will.

2. [212]

   It is also a consideration that, even though the risk that Robyn would not be able to retain the benefit of her early inheritance eventuated relatively quickly, the fact that No 892 was added to the matrimonial property to be divided between Robyn and Garry following their divorce had the effect that Robyn was probably much better off after No 892 had been sold than she would have been for the balance of the deceased’s life if she had not received her inheritance early under the Deed.

3. [213]

   I have set out above in some detail the substantial costs that Robyn claimed in her evidence she would have to incur in the future. I am satisfied that Robyn will probably incur substantial additional costs in the improvement and modification of her home and to meet her medical needs, but the evidence by no means justifies the Court in making an order for additional family provision in favour of Robyn that would meet all or substantially all those costs. Such an order would not properly reflect the advantage received by Robyn from her early inheritance and would be unfair to Kevin and Bruce who have had to wait for theirs.

4. [214]

   As I have explained, the medical evidence only permits the Court to find that Robyn is likely to incur somewhat greater than average costs to meet her future medical needs. Robyn’s home is a relatively modest one, and if she is required to expend a substantial proportion of her superannuation fund to meet the contingencies of life, that is likely to cause her to have an inadequate fund to meet future needs.

5. [215]

   In final submissions, Robyn appeared to moderate her claim by asking the Court to make a family provision order of a lump sum of between $375,000 and $425,000 to provide a fund to assist Robyn to deal with future contingencies. I consider that this moderation of the claim was realistic to reflect the effect of the evidence and would not impose an undue burden on Kevin and Bruce.

6. [216]

   I am satisfied in the circumstances considered above, in particular Robyn’s medical prognosis and her future needs, that the deceased, having attempted to but having failed to achieve equality of distribution of his estate between his children, but having nonetheless given to Robyn her inheritance early, has not made adequate provision by his will for Robyn’s proper maintenance, education or advancement in life. In the exercise of my discretion under s 59(2) the Succession Act, I consider that provision of a fund should be made out of the deceased’s estate for the purpose of assisting Robyn to meet the contingencies of life.

7. [217]

   As Robyn will have to meet the shortfall in the legal costs that she has incurred as a result of only receiving her costs on the ordinary basis out of the deceased’s estate, I will make an order that Robyn receive a lump sum of $425,000. I will also make the usual costs order, although I will give the parties leave to apply within 14 days by notice to my Associate if they seek any special costs order.

Orders

1. [218]

   The Court:

   1. (1)

      Dismisses the cross claimant’s cross claim.

   2. (2)

      Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in clause 5 of the Will dated 31 January 2017 of the deceased, the plaintiff receive, by way of provision, a lump sum of $425,000, out of the estate of the deceased.

   3. (3)

      Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 15th day from the date of the making of these orders until the date of payment in full.

   4. (4)

      Orders that the provision made for the plaintiff be provided out of the residuary estate of the deceased.

   5. (5)

      Orders that the plaintiff’s costs and disbursements of the proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased.

   6. (6)

      Orders that the defendant’s costs and disbursements, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.