Plummer & Anor v Montgomery

Norma Mary Helen Plummer (the deceased) died on 3 June 2021. At the date of her death, she was almost 89 years old, having been born in September 1932. These reasons concern two claims made on her estate.

By one Summons filed on 7 February 2022, Sharon Dorothea Plummer, and Michelle Helen Hunt, each seeks a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (“the Act”) out of the deceased’s estate and notional estate. In her affidavit in support of the Summons, each Plaintiff deposed, respectively, that she was an eligible applicant for provision, on the basis that she “was, at any particular time, wholly or partly dependent on the deceased person, and is a grandchild of the deceased”: s 57(1)(e) of the Act. They both sought an order for their costs of the proceedings.

By the time the Court was provided with their written outline of submissions, dated 23 January 2023, it had been realised by each of the Plaintiffs that the description “is a grandchild of the deceased” was incorrect, since, in fact, each was a child of the person to whom the deceased had been married until his death. In other words, each was a person who would have been regarded as a stepchild of the deceased.

Despite this error, each Plaintiff was able to continue to maintain reliance on s 57(1)(e) of the Act, which sub-section also identifies, as a category of eligibility, a person who “was, at any particular time, wholly or partly dependent on the deceased person, and who was at that particular time, or at any other time, a member of the household of which the deceased person was a member”.

The Defendants named in the proceedings are Lisa Marion Montgomery and Stephen Joseph Simpson Montgomery, each of whom is a biological child of the deceased, and an executor and trustee named in her Will made on 23 April 2019. This Court granted Probate of that Will to both on 30 November 2021.

Hereafter, I shall refer to the parties, and other family members, after introduction, by her, or his, first name. I do so for clarity, and convenience, ease of reading, and without intending to convey undue familiarity or disrespect. I shall, on occasions, compendiously, where easier, refer to the parties as “the Plaintiffs” or “the Defendants”.

At the hearing, Mr B Gillies of counsel, instructed by Ms H Collins of Nevin Lenne Gross, Solicitors, of Wangaratta, Victoria, appeared for Sharon and Michelle. Mr G A Rich of counsel, instructed by Mr M McDonald of Malcolm McDonald & Co, appeared for Lisa and Stephen.

Due to the efforts of the legal representatives, the proceedings, which had been listed for 3 days, were able to be concluded in 2 days. This, hopefully, will save the parties some costs and disbursements. Despite the narrowing of issues, it remains necessary, in these reasons to have regard to matters in s 60(2) of the Act to determine the claims, including the relationship between the parties and the deceased.

The Plaintiffs made the application for the family provision order by Summons filed within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, in this case, it is not suggested that either seeks provision for education. The Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. I have already referred to the category of eligibility upon which each now relies. The language of the relevant sub-section is expressive of the person's status, as well as her, or his, relationship to the deceased.

There is also no age limit prescribed by the Act in the case of a claim by any eligible person. Of course, by the time the deceased died, both were, and had been, for many years, adults, and were not, then, dependent upon her. As will be read, each had very little to do with the deceased for some years prior to her death.

At the commencement of the hearing, there was a dispute about each of the elements that must be satisfied for each of the Plaintiffs to succeed in her claim for provision out of the estate of the deceased. However, during oral submissions, counsel for Lisa and Stephen, accepted, in my view, properly, that there was sufficient evidence to enable the Court to conclude that each of Sharon and Michelle is an eligible person within the meaning of that term in s 57(1)(e) the Act. That concession does not prevent a dissertation of the facts, as counsel submitted that those facts, including the nature of the relationship between each, with the deceased, is relevant to all the other issues in the case.

As will be read, each of Lisa, Stephen, and Emmy Susan Montgomery, a grandchild of the deceased (a daughter of Lisa) is a beneficiary named in the deceased’s Will. Whilst Lisa and Stephen are eligible persons, Emmy is not.

The deceased married David Montgomery, the father of Lisa and Stephen, on a date not disclosed in the evidence and they were divorced in about 1972. Counsel informed the Court that it was not known whether David remained alive, or was now dead, as the children had been estranged from him for many years.

Although David is the former spouse of the deceased and is an eligible person within s 57(1)(d) of the Act, and even though there is no evidence that notice of the application, and of the Court's power to disregard his interests, in the prescribed form, was served on him, in the manner and form prescribed by the regulations or rules of court, I propose to disregard his interests. Bearing in mind the circumstances of the case, including the date of his divorce from the deceased, the remarriage of the deceased and the length of that marriage, and the apparent lack of any contact for so many years prior to her death, I have determined that service of any such notice is unnecessary: s 61(2)(b) of the Act.

In the case of an applicant who, relevantly, falls within s 57(1)(e) of the Act, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application. I shall return to the meaning of this term later in these reasons.

It is only if the Court is satisfied that the person in whose favour the order is to be made is an eligible person, and that there are factors which warrant the making of the application, that the Court determines, at the time when the Court is considering the application, whether adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both: s 59 of the Act. As the deceased dealt with all her estate in her Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

None of the beneficiaries has made a claim for a family provision order. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I do not propose to disregard her, or his, interests in view of the evidence going to her, and his, contribution to the welfare of the deceased.

Only Lisa gave evidence of her financial and material circumstances. I shall refer to Lisa’s situation in life later in these reasons.

Emmy gave no evidence in the proceedings and did not appear at the hearing. Stephen, although a witness, gave no evidence of his financial and material circumstances. In those circumstances, the Court may assume that each of them does not wish her, or his, financial resources and financial needs, respectively, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ).

The Court is also entitled to infer that, as a beneficiary, Stephen and Emmy, respectively, has adequate resources upon which to live and that he, and she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

Yet, neither of the children, nor the grandchild, as a beneficiary named in the deceased’s Will, must prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor, in relation to the Will, does each have to explain the decision by the deceased to make the provision that she did for her, or him, respectively, in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). In this regard, his Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

A family provision order may be made in relation to property that is not part of the deceased’s estate but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There was no dispute that some money out of the estate had been distributed to Lisa ($2,210), to Stephen ($2,458), and to Lisa and Emmy ($27,880), making a total distributed estate of $32,540. The Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust: s 79 of the Act.

However, bearing in mind the value of the balance of the deceased’s estate, the Plaintiffs do not seek a notional estate order. (Section 88 of the Act provides that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances. Section 89(2) of the Act provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99 of the Act, to allow costs to be paid as ordered, or both.)

Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

As executors, Lisa and Stephen do not seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Section 60(2)(j) of the Act, permits “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person” to be considered by the Court. Of course, that sub-section provides just one of a number of matters to which the Court may have regard for the purpose of determining (a) whether the person in whose favour the order is sought to be made is an eligible person, and (b) whether to make a family provision order and the nature of any such order.

It was asserted by Sharon and Michelle that the deceased had made a Will prior to her last Will. On the first day of the hearing, a copy of a Will, which was made on 10 May 2016 (“the 2016 Will”) was tendered and was marked Ex. E.

If the 2016 Will was adverted to by Sharon and Michelle in the hope that its contents would reflect, at the time of its making, the recognition by the deceased, of a degree of testamentary duty owed by her towards each of them (Sreckovic v Sreckovic [2018] NSWSC 1597 at [55]), the hope of each was dashed. Neither was named as a beneficiary, or otherwise referred to. Only Stephen (as to 50 per cent of residue), Lisa (as to 25 per cent of residue) and Emmy (as to 25 per cent of residue) was, relevantly, named as a beneficiary. The deceased provided no explanation for omitting each of Sharon and Michelle from her testamentary bounty.

In her duly executed last Will, the subject of the grant of Probate, the deceased left her estate, after the payment of debts, funeral and testamentary expenses, to be divided in equal shares as tenants in common between “my son Stephen…”, “my daughter, Lisa…” and “my granddaughter, Emmy Susan Montgomery…”. Again, no provision was made for either Sharon or Michelle, and each was not referred to.

However, the deceased left a document, also dated 23 April 2019, which was headed “TESTAMENTARY DOCUMENT TO BE INCORPORATED IN THE WILL…”. The evidence was not objected to and no limitation on its use was sought. Although it is lengthy, I set out the whole of the signed written statement, verbatim:

The deceased lived for two years after making her last Will and the written statement. During the period that she did, neither Sharon nor Michelle had any interaction with her. Indeed, the contact of each with the deceased, after the death of their father, was non-existent.

I shall return to the specific responses made by each of Sharon and Michelle to the matters alleged in the deceased’s document. In broad summary, each denied the conduct complained of by the deceased.

A statement made by the deceased “includes any representation of fact whether or not in writing”: s 100(1) of the Act.

Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

Sub-section (5), (6), and (8) of s 100 of the Act, provide:

It should be remembered, that whilst statements made by the deceased are admissible pursuant to s 100(2) of the Act, the Court is not required to accept, unquestioningly, the truth, or accuracy, of the statements, particularly if they are denied by an applicant, or where there is other evidence that casts doubt upon their accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that her, or his, view is misconceived. Unfortunately, the truth, or accuracy, of the statements made cannot be tested by cross-examination of the deceased. Thus, the statements, like any other evidence, must be subject to a degree of consideration and scrutiny and the Court must carefully consider the weight to be attached to them.

That this is so, is clear as s 100(9) of the Act, where evidence of a statement of a deceased person is admitted under this section, specifically permits evidence to be given for the purpose of destroying, or supporting, the credibility of the deceased (subject to s 100(11) of the Act which is not applicable in this case).

Also, s 100(10) of the Act permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made, at any time, by the deceased.

However, the contents of the statement will reveal evidence of the subjective attitude or beliefs of the deceased. The fact that she, or he, entertained the expressed opinion or belief may afford the Court warrant for examining the totality of the other evidence in order to form an opinion whether that evidence does support the expressed attitudes or beliefs: Hughes v National Trustees, Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at [7] (Barwick CJ).

Such an explanation by the deceased may also cast light on the relationship between her, or him, and the persons referred to, at least from the deceased's perspective. The explanation is not, necessarily, conclusive. Yet, where the truth of the explanation made by the deceased is admitted, or where the facts asserted in the explanation are corroborated by other evidence, due weight should be given to the explanation as evidence of his, or her, subjective reasons. Ultimately, however, the weight to be attached to the explanation will depend upon the specific circumstances of the case.

In Hughes v National Trustees, Executors & Agency Company of Australasia Ltd, at [18], Gibbs J wrote:

I have also borne in mind that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was written by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141; [1950] NZGazLawRp 121 (which passage was approved by the majority in Hughes v National Trustees, Executors & Agency Company of Australasia Ltd at [7]):

Whilst the Court will consider any explanation given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanation does not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27] (Ball J). Having regard to evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, "does not mean that such evidence, whether by will, or in another form, suddenly takes on some higher status": In Re Marsella; Marsella v Wareham [2018] VSC 312 at [77] (McMillan J).

In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

His Honour added, at [86]:

Here, the deceased expressed her resentment towards, and stated that there had been friction with, Sharon, Michelle, and Gail. It seems that whilst she was not bound to, she endeavoured “to expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle” and that she “felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate”: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, at 527 (Isaacs J).

During submissions, the matters asserted in the sub-paragraphs (a), (b), (f), and the first two sentences of (e), were accepted as not in dispute. As will be read, I am satisfied, in relation to (g), that Gail, on behalf of herself and her siblings, sought advice about making a claim for provision out of the estate of their father, the deceased’s husband, from Slater & Gordon, solicitors. As to (c), (d), the balance of (e), I have given them little weight as the sub-stratum of facts to support what is written was not elucidated in the evidence. In relation to (h), I have treated the assertion as going to the mental state of the deceased.

I shall remember the deceased’s advantage in knowing the relevant facts that informed the decision made to make no provision for each of the Plaintiffs and her ability to judge those facts. I shall also remember the operation of the principle that some respect needs to be shown to the responsible judgment of a will-maker who is shown to have considered the claims on her estate. But I shall also weigh the reasons given in the testamentary statement, with the other evidence, remembering that the deceased has not been cross-examined and that the statement was made by her, as a person deeply interested. In doing so, I shall consider the veracity of her statements by reference to the objective facts proved independently of the evidence and also otherwise, by considering the credibility of the persons identified who gave evidence.

Ultimately, the weight of the deceased's statement must depend upon all the evidence, including whether there is evidence, which is accepted, that speaks against its truth. As was written by Campbell JA (Giles JA and Handley AJA agreeing) in Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359, at [80], it should be remembered:

On 14 December 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what follows from the Agreed Schedule, dated 19 January 2023, provided to the Court, which, at the commencement of the hearing, was marked, without objection, Ex JS1, and from discussions with counsel during the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

The deceased’s estate, at the date of death, comprised real property located at Glenbrook, NSW (“the Glenbrook property”) ($1,200,000), monies in the bank ($11,300) and a car ($2,000). The gross estimated value of the deceased’s estate, then, was $1,213,300.

The deceased’s estate, at the date of the Joint Schedule, comprised the net proceeds of sale of the Glenbrook property (after the payment of agent’s commission legal costs and “usual outgoings on sale”), being $1,163,834, and monies in the bank ($6,638). From this sum, the distributions referred to earlier were made ($32,540) and $6,402 (part of the estate’s administration costs) was paid, leaving a distributable estate (without any deduction for unpaid administration costs and the costs of the proceedings) of $1,131,530. If the unpaid administration costs are paid, the value of the estate, subject to any order for costs to be paid out of the estate, out of which orders for provision will be made, will be $1,125,140.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

The Plaintiffs’ costs, calculated on the indemnity basis, up to the conclusion of the hearing, were estimated to be $88,835 and, calculated on the ordinary basis, to be $81,000 (in each case, exclusive of GST, and based upon a hearing of three days duration). Disbursements of $2,333 have been paid by them. (If they were to succeed, and if a costs order in their favour were made, they may receive back some of the amount paid.)

The Defendants’ costs, calculated on the indemnity basis, were estimated to be $109,341 (inclusive of GST and based upon a hearing of three days duration).

Because the hearing was concluded in two, rather than three, days, the Court was informed by counsel, from the Bar table, that the Plaintiffs’ costs would be calculated on the ordinary basis, to be $80,000 (inclusive of GST) and that the Defendants’ costs, calculated on the indemnity basis, were estimated to be $100,000 (inclusive of GST).

Using the costs estimates as a guide, and assuming the usual order for costs is made, the total amount of the costs of the proceedings will be $180,000. It follows that the estate out of which any order for provision could be made is estimated to be $945,140.

Other judges, and I, have repeated many times in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Although, initially, counsel agreed, and both submitted, that the Court should not determine, as part of these written reasons, how the costs of the proceedings should be borne, and said that there were “potentially” documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne, during submissions, they agreed that the usual orders for costs should be made. Thus, if successful, the Plaintiffs’ costs calculated on the ordinary basis, should be paid out of the estate, but if unsuccessful, they should be ordered to pay the Defendants’ costs, calculated on the ordinary basis. To the extent that they did not recover their costs from the Plaintiffs, the Defendants’ costs, calculated on the indemnity basis, should be paid out of the deceased’s estate.

There were three children of the marriage of the deceased and David, being Susan, who was born in October 1953; Lisa, who was born in May 1956 and who is currently 66 years of age; and Stephen, who was born in November 1959 and who is currently 63 years of age. (Susan predeceased the deceased, having died in about 2004, without issue.)

John (also known as Jack) Lewis Plummer and Janet Burfield were married in about 1959. There were three children of the marriage, being Gail Maree Forrest, who was born in August 1958, and who is now 64 years old; Michelle, who was born in March 1961, and who is now 61 years old; and Sharon, who was born in August 1967, and who is now 65 years old.

By Transfer dated 1 October 1971, the deceased purchased, in her sole name, a property situated at Blacktown (“the Locke Street property”) for $23,000 (Ex. B).

Jack and Janet separated in about 1973. The separation and the divorce between them were said to be “not amicable”: Affidavit, Gail Forrest, 31 May 2022 at par 5. Although the precise details are not known, there were contested family law proceedings between them.

Following his separation from Janet, Jack moved in with the deceased. They were married to each other in 1978 and remained married until his death, 38 years later, in April 2016.

I shall return to the evidence given by Sharon, Michelle, and Gail about having contact with Jack and the deceased following the separation of their parents. Whilst the evidence of the regularity of their visits, was in dispute, I am satisfied that Sharon and Michelle visited Jack, by consensual arrangements made between their parents, and from about 1977, until about the time she reached the age when she could make her own decision, would visit usually, although not always, on alternate weekends and during part of the school holidays.

There was some dispute over the date that Jack and the deceased moved from the Locke Street property to the house situated at Orchard Hills, a suburb of western Sydney. Counsel for the Plaintiffs submitted that this occurred in 1989, though this date did not appear in any affidavit evidence. Later during oral submissions, counsel then referred to a Transfer dated 19 February 1987 relating to the sale of the Locke Street property. Lisa also gave evidence that the move occurred in 1987: Affidavit, Lisa Marion Montgomery, 10 March 2022 at par 5. Stephen agreed, providing, more specifically, a date of February 1987 for the sale of the Locke Street property, noting that they moved to the Orchard Hills property two months afterwards: Affidavit, Stephen Joseph Simpson Montgomery, 22 April 2022 at par 7. I am satisfied that the deceased and Jack moved in 1987.

Emmy was born in 1994.

Jack and the deceased sold the Orchard Hills property some time before 1999, and each was said to have received about $400,000 from the proceeds of sale.

By Transfer dated 31 May 1999, a copy of which Transfer was Ex. C, the deceased and Jack purchased, as joint tenants, a property situated at Olive Street, Glenbrook (“the Glenbrook property”), for $399,000. There was evidence that each of Jack and the deceased contributed $200,000 to the purchase price of the Glenbrook property (which was close to where Sharon and her family then lived). Sharon and Byron were present at the purchase: Affidavit, Sharon Dorothea Plummer, 3 February 2022 at par 7.11.

It was the Glenbrook property that passed by survivorship to the deceased upon Jack’s death. A copy of the Notice of Death, apparently lodged on 1 June 2015, was Ex. D. The net proceeds of sale of the Glenbrook property formed almost all of the deceased’s estate.

As stated, there was no dispute that from about 2005, Jack suffered diminishing health or that in about 2011, or 2012, he required care and was moved into the Buckland Nursing Home, High Dependency Ward.

Jack left a Will that was referred to in the affidavit evidence. I shall return to the evidence about the location, and the failure to disclose, a copy of this Will until the first day of the hearing, when I turn to the credibility of each of the witnesses. It was only during the hearing, that an incomplete copy of the Will was tendered (Ex. A) in Sharon’s and Michelle’s case.

Jack’s Will appointed the deceased as the sole executrix and trustee and, provided she survived, the deceased left to her upon trust “to divide it as to 94% thereof for my wife and 2% to each of my three children”. If the deceased predeceased Jack, then the whole of the estate was divided equally among “those of my children and my wife’s children who survive me and attain their majority”.

It can be seen that in Jack’s Will, the provision made for each of his children, in the event that the deceased survived him, was extremely small.

As stated, the copy of Jack’s Will that was tendered was incomplete and the date it was made was not shown. However, Jack’s address was disclosed on the Will as being in Locke Street, Blacktown. I am able to infer, therefore, that this Will was made before 1987.

Neither Sharon nor Michelle received any provision out of Jack’s estate, as his only property was jointly held with, and it passed by survivorship to, the deceased. As stated, there was a tiny amount of cash ($578).

Following Jack’s death, the deceased went to the Bank with Gail to confirm the amount of cash.

Janet died in August 2016.

In addition to each of the parties, each of whom was cross-examined, there were three witnesses required to attend for cross-examination. Two deponents, whose affidavits were read, were not cross-examined. I shall deal with the evidence of these witnesses and my impression of those who were cross-examined.

Overall, I formed the impression that each of Sharon and Michelle was a witness whose evidence was impacted by her own self-interest and a feeling of entitlement caused by the failure to receive any provision out of the estate of her father. It is clear that the deceased’s view of her relationship with each of the Plaintiffs was very different to the view seemingly held by each of them. Much of the evidence relied upon was based on her own evidence and/or the evidence of her siblings.

I found Lisa, whilst a little defensive at times, to be a witness who was endeavouring to give truthful evidence to the best of her recollection. There can be no doubt that she has a significant competing moral claim on the bounty of the deceased, a matter which was unchallenged. I found Stephen to be the most forthright witness, whose evidence I accept without hesitation.

The first witness to be cross-examined was Sharon.

Sharon swore four affidavits in the proceedings: the first, sworn on 3 February 2022, comprising 39 paragraphs, spanning 10 pages; the second, which was in reply, sworn on 23 March 2022, comprising 20 paragraphs, spanning 4 pages; the third, sworn on 31 May 2022, comprising 3 paragraphs, spanning 3 pages; and the fourth, sworn on 7 December 2022, comprising 21 paragraphs, spanning 4 pages. She said that she had read her affidavits carefully and had satisfied herself that the statements made were true and correct.

Sharon, like each of Michelle and Gail, was a witness who I thought was rather hesitant in giving her evidence, it seemed for fear of saying something that would not assist her case. She, too, was, at times, a little defensive. At other times, I found her evidence to be untrue.

By way of example, when cross-examined about her statement that she was a person “who is a grandchild of the deceased person…”, it being put that the statement was not true, her first response was “I don’t recollect it said ‘grandchild’. I read it as I am not the grandchild.”

How it was possible to understand what had been written in that way was not explained. Sharon then said that she thought it had been changed in her “main affidavit”, which, of course, it had not been. Bearing in mind that the paragraph was read as part of her first affidavit, and the matter was raised at the commencement of the hearing with her counsel, who stated that it had been “a typographical error” (Tcpt, 31 January 2023, p 1(24)), the obvious error in her affidavit should have been acknowledged without demur.

Sharon stated that, following the separation of her parents in 1973, from the ages of 8 to 16 years, she, along with Gail and Michelle, resided with Jack and the deceased every second weekend and during half of the school holidays, purportedly in accordance with family law orders. She stated that an application had been made to the Family Court to request production of the court records but was rejected for a lack of proper interest demonstrated by a third party.

When it was put to her that orders had not been sought by Jack, or made, until 1977, again she did not accept the obvious inconsistency with her affidavit, stating “I’m sure these cases take a few years to go through”. Then, after agreeing that the orders had not been sought, or made, until 1977, she stated “Well, that was confirmation of what we were previously doing”: Tcpt, 31 January 2023, p 38(39).

Sharon also said that she thought that there had been some understanding between her parents. She persisted with speculation on this topic, saying in cross-examination at Tcpt, 31 January 2023, pp 38(50)–39(6); 39(43)–39(49):

Sharon maintained that her statement was not an assumption “as I was there”, whilst shortly thereafter conceding it had been “a guess”. Even later, she accepted that it may not have “necessarily” been every alternate weekend: Tcpt, 31 January 2023, p 45(38).

Sharon agreed in cross-examination that her mother had remained her primary carer: Tcpt, 31 January 2023, p 41(27) and that it was Jack who made a financial contribution by way of maintenance, paying for “my braces, paid for clothing, shelter and other necessities that I needed when I was with him”: Tcpt, 31 January 2023, p 41(22-23). Indeed, it was Jack, who provided her with a horse. (Of course, this does not mean that Sharon was not also partly dependent upon the deceased.)

At age 16, Sharon left school and went to live with Michelle and Michelle’s then-husband. Then, she lived with a friend in Penrith, before, at the age of 20, moving back in with Jack, the deceased, and two of the deceased’s children. She stated that Lisa usually stayed in her room, and she did not see her often: Affidavit, Sharon Dorothea Plummer, 23 March 2022 at pars 23-24.

At the age of 23, Sharon moved to Cremorne, but said she often visited Jack and the deceased. She kept a horse at their property and rode it regularly. She claimed that she had spent a lot of time with the deceased and that they often ate together, since Jack worked at his hardware store seven days a week: Affidavit, Sharon Dorothea Plummer, 3 February 2022 at par 7.9. Importantly, in this part of her evidence, she did not mention the deceased.

Between the ages of about 24 to 30, Sharon travelled around the world. She gave evidence that she had left some of her belongings at the Orchard Hills property. In cross-examination, she stated that she had kept in contact with Jack and the deceased during this time by sending them postcards and ‘[ringing them] up’: Tcpt, 31 January 2023, p 47(2-5). There was no corroboration of this evidence.

Whilst living in Glenbrook, Sharon said she continued to see Jack and the deceased. I accept the evidence given by Sharon, on this topic, which was corroborated by her partner, Byron, who was not cross-examined. The deceased would come to visit Sharon and help her with her child.

Sharon gave evidence that she had moved out of New South Wales about 22 years ago. I take the date to have been in about 2001. After she moved to Mount Beauty in Victoria, she did not visit the Glenbrook property for many years, she said due to the geographical distance and her competing business and family responsibilities. However, Jack, without the deceased, would drive down to visit Sharon and her family for Christmas and birthdays: Affidavit, Sharon Dorothea Plummer, 23 March 2022.

After Jack fell and hit his head in 2010, Sharon stated that the deceased told the hospital that he could not return home to live with her, as she could not care for him. Subsequently, Jack was placed into aged care in 2011, while the deceased continued to live in the Glenbrook property. Sharon would visit John in care, staying with Gail. There was no evidence that she visited the deceased during these visits to Sydney.

The deceased attended Jack’s 80th birthday party, which Sharon organised. Sharon, and her sister, organised Jack’s funeral.

Sharon acknowledged that her relationship with the deceased ‘became more difficult’ after Jack’s death, although she said that she continued to send Christmas cards: Affidavit, Sharon Dorothea Plummer, 3 February 2022 at par 7.18. She did not elaborate on the reasons it became more difficult, or how those difficulties manifested themselves in their relationship. Nor was there corroboration of her statement about sending Christmas cards, which I tend to think was somewhat unlikely, bearing in mind other evidence.

In cross-examination, Sharon elaborated that she did not visit the deceased, or make any efforts to keep in contact with her after Jack’s death in 2015. Indeed, even if she saw the deceased when driving by to visit Gail, she did not stop to talk. I tend to the view that the lack of any meaningful contact between them occurred well before 2015.

Sharon stated that she contributed to the deceased’s estate by assisting the deceased, and by working at her father’s shop. She claimed that she helped them prior to her move to Victoria. She did not elaborate upon the work that she did to assist the deceased. I am of the view any work that she did was likely to have been minimal.

In a later affidavit, Sharon exhibited photographs of family gatherings, which she said supported her evidence regarding her relationship with the deceased: Affidavit, Sharon Dorothea Plummer, 31 May 2022 at par 3. None of these reveals particularly close contact between them or demonstrates a close relationship.

In regard to the statements made by the deceased in the testamentary document dated 23 April 2019, Sharon denied any ‘intolerable behaviour’ or ‘breaches of hospital protocol’; she denied requesting Fegebank Legal to change any documents into the names of her and her sisters; denied causing the deceased anxiety during Jack’s stay in aged care, stating that the deceased was rarely present when she had visited; she denied that Gail told the deceased they had instructed Slater & Gordon to ‘go for the home’, stating that they only sought advice on their father’s estate and took no further action; and denied any ‘constant malicious behaviour’, stating that she ‘always believed that [she] had a warm relationship with [the deceased]’: Affidavit, Sharon Dorothea Plummer, 3 February 2022 at par 34.

During cross-examination, Sharon, initially stated that she knew Gail had requested a copy of Jack’s Will from the deceased, but Sharon had only seen a photograph of the copy Will that had been provided, although Gail had told her what was in it. She indicated that she was aware that Gail had sought advice from Slater & Gordon on Jack’s Will, of which she was aware, and that someone from that firm had contacted her subsequently via phone and email: Tcpt, 31 January 2023, p 44. None of the email correspondence was produced.

If Sharon was seeking to distance herself from what Gail had done, I do not accept her evidence. I am satisfied that what Gail had done was well known to Sharon and was done with her acquiescence and support. That being so, I am also satisfied that her denial of Gail’s conduct was an untrue denial.

Importantly, and perhaps, tellingly, Sharon gave little evidence of the nature of her relationship with the deceased, other than during the time of her pregnancy. There were very few details of what the deceased had done for her when she had stayed with the deceased and Jack.

Overall, I did not form the impression that the relationship between Sharon and the deceased was close or loving. She failed to involve herself in the deceased’s life, even remotely, or on the occasions when she visited Jack in Sydney, after 2011, and perhaps, more importantly, after Jack’s death. Even when she saw the deceased, she did not engage with her. This reveals much about the nature, and strength, of their relationship.

Sharon gave evidence of her financial circumstances in her first affidavit, sworn 3 February 2022, and in a further supplementary affidavit, sworn 7 November 2022. She stated that the takeaway food business which she operates in partnership is currently operating at a loss, due to COVID-related closures and flood-related road closures. She asserted that the Mount Beauty property, jointly owned with Byron, has also sustained damage from age and heavy rains, and requires significant repairs, at an estimated total cost of $40,495.

Sharon has annual expenses of $94,380, ($7,865 per month): Affidavit, Sharon Dorothea Plummer, 3 February 2022 at par 13. Her assets and liabilities were set out as follows:

Sharon also gave evidence of her medical needs. She indicated that she has anxiety, shingles, and neuralgia, and that she is taking hormone replacement therapy. Additionally, Byron is currently undergoing cancer treatment and requires regular review, while her son has a heart condition caused by long COVID and is living with Sharon due to fatigue and depression: Affidavit, Sharon Dorothea Plummer, 7 December 2022 at pars 19-21. A copy of a letter from Sharon’s treating doctor was exhibited in support of this evidence: Affidavit, Helen Maria Collins, 23 January 2023 at par 3.

Sharon stated that, in both 2021 and 2022, she did not earn over the tax-free threshold and did not need to submit a tax return. Her business is currently operating at a loss, due to COVID-related closures and flood-related road closures, and she does not draw any wages from the business. She receives a parenting benefit of $440 per fortnight from Centrelink for her son, which will end in June 2023. She indicated that she is not eligible for any disaster relief payments.

Byron, with whom Sharon is cohabiting, is the only other person liable to provide financial support to Sharon. He has $10,000 in superannuation and holds the Mount Beauty property jointly with Sharon.

Sharon was not asked any questions about her evidence of financial circumstances and needs.

Michelle swore 4 affidavits in the proceedings: the first, sworn on 4 February 2022, comprising 34 paragraphs, spanning 9 pages; the second, which was in reply, sworn on 18 March 2022, comprising 12 paragraphs, spanning 4 pages; the third, sworn on 30 May 2022, comprising 3 paragraphs, spanning 2 pages; and the fourth, sworn on 7 December 2022, comprising 17 paragraphs, spanning 4 pages.

Michelle stated that between the ages of 12 and 16, she had also stayed with Jack and the deceased on every second weekend and half of the school holidays, after her parents separated. She believed this was in accordance with family law orders but agreed in cross-examination that it was an assumption on her part, as the orders had not been made until 1977: Tcpt, 31 January 2023, p 54. She maintained however, that she “was taken as a child, picked up by my father from the home I lived in and taken to his house for visitation”.

Her initial denial of her evidence that the visits had started in 1971 was wrong. It clearly was wrong because other evidence reveals that Jack and Janet did not separate until 1973. She later accepted that the “dates [were] out” and that “It's hard to recall the specific years.” (No such difficulty had been expressed in her affidavits.)

She could not recall the address of the house of the deceased and Jack, though she stated that it was not the Locke Street property. She described going on holidays together with the deceased’s sister, her husband, and their children: Affidavit, Michelle Helen Hunt, 18 March 2022 at par 5.

She lived full-time with Jack and the deceased from the ages of 16-17, working in Jack’s shop on the weekends for a year. She stated that she had contributed to the deceased’s estate by working in John’s hardware store.

She did not give evidence of having had to pay board or other household expenses. Although she then moved back in with her mother upon getting her first job at the age of 17, she stated that she continued to visit Jack and the deceased. She did not recall living with the deceased’s children: Affidavit, Michelle Helen Hunt, 18 March 2022 at par 9.

As with Sharon, there was virtually no detail provided by Michelle about her relationship with the deceased during the years that she said she stayed with the deceased and Jack.

In 2002, Michelle moved to Myrtleford in north-east Victoria, but attended regular family gatherings for birthdays and Christmas at Jack’s and the deceased’s home, describing these events as a “very amicable family situation”: Affidavit, Michelle Helen Hunt, 4 February 2022 at par 7.13.

Michelle asserted that Jack and the deceased continued to attend events such as Michelle’s wedding and her children’s birthdays. She indicated that she stayed in contact with the deceased, even after moving to Victoria. However, in cross-examination, she stated that her contact with the deceased was limited after Jack entered aged care, as she lived in Victoria and worked seven days a week.

Again, somewhat tellingly, Michelle said that on her family trips to NSW, she would visit her father and her sister, and “stop and see” the deceased. She provided no details of what occurred at any of these visits or how often the visits had occurred. She agreed that she did not visit the deceased at her house, and that she did not see the deceased, from at least 2012 onwards, until Jack’s funeral: Tcpt, 31 January 2023, pp 57-60, which was the last time she saw the deceased. She acknowledged that she did not see the deceased when she visited Jack at the nursing home and did not visit the deceased whilst in Sydney at her home. She asserted that it was “just sort of a day, two day visit, straight up and back”.

Yet, she maintained in cross-examination that it did not mean “you don't have a relationship” and that there were “no bad intentions”. She maintained that the limited contact arose only from the geographical distance between them, and her work and family commitments: Tcpt, 31 January 2023, pp 56-58.

I am satisfied that Michelle had virtually no contact with the deceased after about 2006, being the year in which she bought her business: Tcpt, 31 January 2023, pp 59-60. Any contact was as a result of the deceased being present when Michelle visited Jack.

The following question and answer reflect the inability of Michelle to be completely open and frank with the Court:

There was no suggestion that, even if she did not see the deceased, she had otherwise tried to keep in contact with her by telephone, cards, or letters. Whilst there may have been ‘no bad intentions’, that she did not see, or it seems, speak to the deceased very much, in the years after 2012 and then after Jack’s death, for example, to find out how the deceased was coping, reveals the lack of closeness in the relationship.

Michelle exhibited photographs showing the deceased in attendance at Michelle’s wedding: Affidavit, Michelle Helen Hunt, 30 May 2022 at par 3. However, the wedding had occurred in 1981.

Michelle claimed that Jack had told her that, upon his, or on the deceased’s death, any assets would be shared equally among all of the children of John and the deceased: Affidavit, Michelle Helen Hunt, 4 February 2022 at par 7.14.

I found Michelle’s evidence regarding Gail having approached Slater & Gordon difficult to accept. The suggestion that the solicitors had simply “just asked a question”, that she and her sisters had “made an email and a phone call to get advice” is implausible. No emails were produced and if the advice given was in writing, it, also, was not produced.

In regard to the statements made by the deceased in her testamentary document dated 23 April 2019, Michelle stated that she was working 7 days a week while her father was in aged care, but that she nonetheless visited ‘once or twice’ and made many phone calls. The deceased was not present during these visits or calls. Michelle also stated that the deceased did not make any complaints about her conduct, and that they had ‘cordial relations’ at this time: Affidavit, Michelle Helen Hunt, 4 February 2022 at par 29.

Michelle’s usage of the word “cordial” to describe her relationship with the deceased hardly depicts a close and loving relationship. I do not accept that their relationship was warm or friendly. As with Sharon’s relationship with the deceased, I am also satisfied that Michelle’s relationship was neither close nor loving.

Whilst there is evidence that Jack had visited both of his children in Victoria, there is also evidence that the deceased did not. One might have thought that had there been a close and loving relationship with each of Sharon and Michelle, the deceased would have done so. Both maintained that the deceased did not come because she did not like to travel. It is difficult to accept that this was her only reason for not doing so.

Michelle gave evidence of her financial circumstances in her first affidavit, sworn 4 February 2022, and in her further supplementary affidavit, sworn 7 December 2022. Her 2021/2022 taxable income was assessed at $15,971, but she maintained it had been reduced further since the tax return was lodged. She stated that she was currently receiving $110 per week from working at a pizza shop, and $20 per week from her self-employed laundromat business, and that she was currently unemployed. She has total yearly expenses of $24,672, or $2,056 per month: Affidavit, Michelle Helen Hunt, 4 February 2022 at par 13. She explained that she had withdrawn $10,000 from superannuation in February 2022 to meet the surplus of expenditure.

Michelle indicated that she was not cohabiting with another person, and that no other person was liable to support her.

She was not asked any questions about her financial circumstances and needs.

It is clear, from all of the evidence, that neither Sharon nor Michelle was being maintained by the deceased prior to her death. Nor it would seem had either been maintained by Jack for many years prior to his death.

Gail also gave evidence and was cross-examined. She, of course, did not make a claim for a family provision order.

Gail corroborated that her parents had separated in 1973 when she was 15 years old. She acknowledged that their separation and divorce had not been amicable. She was unsure where Jack lived initially after the separation. She thought that he may have moved into the Emu Plains property: Affidavit, Gail Forrest, 31 May 2022 at par 6.

After the separation, Gail continued to live with her mother, Janet, but visited her father, Jack, regularly: Affidavit, Gail Forrest, 31 May 2022 at pars 4-5. Perhaps surprisingly, even though she was only 16 years old at the time of their separation, she was not part of any arrangement to go on alternate weekends or during school holidays to have contact with Jack.

She left school after completing Year 10 in 1974, and later found employment. She moved out of Janet’s house in 1976 when she was 18 years old and rented her own accommodation. At the time, Jack and the deceased lived at Blacktown: Affidavit, Gail Forrest, 31 May 2022 at pars 8-10.

Gail recalled that she would travel to Blacktown to spend every Christmas with Jack and the deceased. Sharon and Michelle were younger than her, and so they spent more time with them. Gail recalled that she worked full-time at Jack’s shop in 1977 for two years. She stated that the deceased had done the business paperwork and accounts when it was required.

Gail had asserted in her affidavit that Sharon and Michelle went to the home of Jack and the deceased “every second weekend”. In cross-examination, she admitted that she could not say that it was every second weekend “But they went on weekends”.

Gail recalled that she would regularly visit the family home at Orchard Hills after Jack had finished building it. He and the deceased would look after Gail’s son on occasion. One example of such an occasion was when Gail attended a wedding.

Gail claimed that the deceased would cook meals, wash clothes and care for Michelle and Sharon: Affidavit, Gail Forrest, 31 May 2022 at par 16. How she knew this was not explained particularly in light of her apparently relatively infrequent visits.

According to Gail, Jack and the deceased moved to 105 Olivet Street Glenbrook in 1999 and shared the purchase price equally. However, Gail’s understanding was that Jack and the deceased each had their own separate bank accounts: Affidavit, Gail Forrest, 31 May 2022 at pars 22-24. How she knew this was not explained either.

Gail recalled that the deceased’s children, being older than Sharon and Michelle, were not around much when Gail visited, but they would attend Christmas gatherings: Affidavit, Gail Forrest, 31 May 2022 at pars 32-33.

Gail claimed that she maintained a good relationship with the deceased after Gail’s sisters moved to Victoria because she was physically closer. Gail would make arrangements on the phone with the deceased for Jack’s care: Affidavit, Gail Forrest, 31 May 2022 at pars 34, 35, 37. Gail also claimed that she met the deceased to work together while Jack was in care but observed no anxiety from the deceased about what she or her sisters were doing. This evidence is hard to accept when one reads the deceased’s statements. Of course, there was no way either corroborating the evidence on this topic.

All the family members were present at John’s 80th birthday party.

Gail agreed that she went to the bank in Penrith with the deceased to close John’s bank account, but claimed it was upon the deceased’s insistence, and that they had lunch together afterwards: Affidavit, Gail Forrest, 31 May 2022 at pars 56-57. She provided no reason why the deceased would have insisted upon this being done. It is far more likely that the insistence was on Gail’s part, since she wished to see a lawyer to obtain advice about her, Sharon’s and Michelle’s rights.

Gail stated that she had requested a copy of Jack’s Will from the deceased; she had received it; had then contacted Slater and Gordon; and had then discussed it with her sisters. Gail denied discussing with the deceased the advice which she had received from Slater & Gordon: Affidavit, Gail Forest, 31 May 2022 at par 58. She could not say how the deceased came to know of this information, bearing in mind that she, Sharon and Michelle were the only persons, other than the solicitors, who had known about advice being sought.

(I should mention that Gail had not produced any copy of Jack’s Will prior to doing so in re-examination.)

In cross-examination, Gail asserted that the deceased may have believed she and her sisters were attempting to obtain the jointly held property because Slater & Gordon had contacted the deceased. However, she denied instructing Slater & Gordon to do so: Tcpt, 31 January 2023, pp 67-68. This evidence is implausible. That solicitors would contact the executor without specific instructions to do so from their client, which Gail said had not been given, seems highly unlikely. Also, bearing in mind that the only valuable property out of which any provision could be made was the jointly held real estate, the deceased may very well have concluded from what Gail had said, that her home was at risk. It is highly unlikely that the solicitors would have discussed the matter orally with the deceased.

The relationship of jointly held property and notional estate is obvious and I infer that Gail is likely to have been given advice about this topic in circumstances where she was seeking advice about a claim upon Jack’s estate. I think it more likely that it was Gail who said words to the effect of what had been written by the deceased.

I have not forgotten that Gail is not a party but a witness. However, it is highly likely that she kept each of Sharon and Michelle fully informed of what she was doing. In my view, what was done by Gail, was with the knowledge and acquiescence of each of the Plaintiffs.

In relation to the events involving Slater & Gordon, there was no evidence of any attempts by Sharon or Michelle, or Gail on their behalf, to obtain any documents contained in a file that might be in existence and no contemporaneous solicitors’ correspondence was produced by any of them.

Byron Travis De Geest is Sharon’s de-facto partner. He was not cross-examined.

Byron first met the deceased when he arrived in Australia with Sharon from New Zealand in about 1998. He recalled that the deceased and Jack moved into a house at Glenbrook, which was near where he and Sharon were staying at the time. The deceased and Jack would visit them regularly.

Byron recalled that the deceased would come and check on Sharon during her pregnancy. The deceased and Sharon would go out to cafes together. Of course, this was in the early 2000’s.

Byron acknowledged that he and Sharon spent less time with the deceased and Jack after they moved from Sydney to Victoria. He recalled that Jack bought a bus and would drive it to Mount Beauty to visit him and Sharon, without the deceased. Byron and Sharon would visit Sydney once or twice a year to see Jack, the deceased and Gail. Jack occasionally came back to Mount Beauty with him and Sharon: Affidavit, Byron Travis De Geest, 31 May 2022 at pars 17-19.

According to Byron, after Jack started to suffer from dementia, the deceased would sometimes ring him and Sharon to get them to come to visit. During this period, there were many phone calls between the deceased, Sharon, and her sisters to discuss Jack’s health and make the necessary arrangements for his care.

After Jack died, the deceased asked him and Sharon to retrieve Sharon and Jack’s possessions from the Glenbrook property.

Byron recalled that at Jack’s funeral, the deceased gave him and Sharon a hug. This was the last time Byron saw the deceased. There is no reason not to accept Byron’s evidence as he was not cross-examined. It is telling, however, that he gave no evidence of any continued contact with the deceased after Jack’s death. It supports the conclusion that the relationship between Sharon and the deceased was not close.

Jeanette Janosch was a friend of Michelle’s since they were five years old. They went to school together, and sometimes went on holidays together. They also went to family gatherings together.

Jeanette visited the Orchard Hills and Glenbrook properties with Michelle and had many morning teas with Jack, as well as with the deceased.

Jeanette was aware that Michelle stayed with Jack, on alternate weekends and during school holidays. Jeanette herself stayed with Michelle at Janet’s home on the other weekends.

Jeanette also worked at the hardware store owned by Jack.

Jeanette claimed that the deceased provided parenting to Michelle just like a stepmother would. She said that the deceased would cook food, organise balloons and host parties for special events, such as birthdays. The deceased also welcomed Michelle’s and Sharon’s friends to the home. Yet, in cross-examination, Jeanette agreed that it was Janet who had provided Michelle with clothes, money, and care. By way of example, she knew that it was Janet who packed Michelle’s suitcase of clothes and other necessities for her stays with Jack and the deceased. She also agreed that she had not been at the home of the deceased and Jack during these visits, other than “on a pushbike”: Tcpt, 31 January 2023, p 77(7). I had the impression that her evidence was based more on what she had been told than her observations of the interaction between Michelle and the deceased. In my view, her evidence does not provide a great deal of corroboration of the case advanced by Michelle.

Deborah Jane Kilby has been a friend of Sharon’s since Sharon was 12 years old. She was not cross-examined.

Deborah met Sharon at school, and they attended Penrith High School together from first form. She would sometimes visit Sharon at the Orchard Hills property because she also had a horse kept there. She said that Sharon had her own bedroom and would leave her ‘best possessions’, school items and clothes there. When Deborah visited the Orchard Hills property, Michelle was also present.

Deborah claimed that the deceased often came to sports events to support Sharon, sometimes without Sharon’s father, Jack. She also said that the deceased and Jack would do ‘interesting things’ with their kids, such as taking Sharon to the snow.

Deborah believed that the deceased and Jack had bought two horses for Sharon. One of those horses was for Sharon, the other was for her friend.

Deborah recalled that Sharon lived with the deceased and Jack for at least 12 months in 1987.

According to Deborah, the deceased and Sharon shared a close relationship. The deceased would look out for Sharon’s safety by ensuring that she always wore a helmet when riding a horse. The deceased would also make lunch when Deborah visited or stayed over. The deceased prepared all the food in the house.

There is no reason to not accept Deborah’s evidence, although I do remember that she was giving evidence of events that had been looked through a child’s eyes. It is also important to note that her evidence related to events many years before the death of the deceased.

Sandra Parr was a friend of Sharon’s since they were 12 years old. Both attended Penrith High School. She had been asked to recollect the events about 45 years after those events had occurred and acknowledged that “anybody’s recollection would be faded”.

Sandra recalled that, at the time, Sharon lived with her mother during the week, and her father every second weekend and on school holidays: Affidavit, Sandra Parr, 31 May 2022 at par 7.

Sandra spent time with Sharon, Jack and the deceased at the Orchard Hills property. Along with Sharon, Sandra would spend time exercising Sharon’s horse.

Sandra recalled that from when Sharon was a teenager, between the ages of 12 to 18, the deceased cooked and looked after Sharon. The deceased also looked after Sandra and Sharon when Sandra visited the Orchard Hills property. However, she also stated that she “actually didn’t stay with Sharon at her father's property”. Later she said that she had meant that she did not sleep there.

According to Sandra, after she left school, she did not see much of the deceased. Sandra mainly saw Jack when he visited Sharon. This evidence, which was not challenged, is also telling.

Again, there is no reason not to accept the thrust of the evidence given. However, as with the evidence of the other witnesses, Sandra was talking of a period over 30 years before the deceased’s death.

There was no evidence given by any witness called on behalf of Sharon and Michelle, other than Byron, of observations of the relationship with the deceased when Sharon and Michelle were adults.

I turn next to the evidence of Lisa and Stephen.

Lisa swore 4 affidavits in the proceedings: the first, an administrator’s affidavit, sworn on 10 March 2022, comprising 9 paragraphs, spanning 3 pages; the second, also sworn on 10 March 2022, comprising 7 paragraphs, spanning 6 pages; the third, also sworn 10 March 2022, comprising 4 paragraphs, spanning 2 pages; and the fourth, sworn 19 August 2022, comprising 10 paragraphs, spanning 3 pages.

Following the divorce of her father, David, and the deceased, in 1972, Lisa stated that she resided at the Locke Street property with her father and Stephen, until 1977. She denied that Michelle regularly visited the house, which was nearby, where the deceased and Jack resided.

Lisa resided in Lismore during the period of 1977 to 1983, before moving back to the Locke Street property to live with Jack and the deceased. As stated, she gave evidence that the Locke Street property was sold in 1987: Tcpt, 1 February 2023, p 100(13).

When the deceased and Jack moved to the Orchard Hills property, Lisa continued to reside with them, until she returned to Lismore in 1989.

In 1994, Lisa gave birth to her daughter, Emmy, and once again returned to the Orchard Hills property with Emmy to live with Jack and the deceased. During this time, Lisa indicated that the deceased was ‘deeply impacted’ by the diagnosis of cancer, and eventual death, of her sister Susan.

Lisa and Emmy returned to Lismore in 1996 but stayed with the deceased and Jack during school holidays and Christmas. This continued after the deceased and Jack moved to the Glenbrook property in 1999, between about 1996 to 2010.

In 2010, Lisa and Emmy moved back into the Glenbrook property to live with the deceased. Lisa gave evidence that she assisted the deceased in caring for Jack, after he was diagnosed with dementia and neuropathy, until he was admitted into aged care. She continued to reside at the Glenbrook property until its sale on 13 August 2022: Affidavit, Stephen Joseph Simpson Montgomery, 5 October 2022 at pars 7-10.

The deceased was diagnosed with bowel cancer and breast cancer in 2015, and bladder cancer in 2021. Lisa gave evidence that she acted as the carer of the deceased through the course of her illnesses.

Lisa denied that Michelle made regular appearances at family gatherings with the deceased and John, or that Sharon often visited and stayed for meals. She stated that Sharon stayed with the deceased and John for approximately three months when she was 20 but conceded that it may have been longer during cross-examination: Tcpt, 1 February 2023, p 99(2-25).

Lisa asserted that she contributed to household expenses while she was living with the deceased and Jack: Affidavit, Lisa Marion Montgomery, 10 March 2022 at par 7.15. This was not the subject of any challenge.

In her affidavit sworn 19 August 2022, Lisa gave evidence of her financial circumstances. Due to unsuitability for employment as assessed by Centrelink, Lisa has been receiving Centrelink benefits since 2011. While they were living together, the deceased provided for Lisa’s needs that were not covered by the Centrelink payments. Lisa stated she had no savings or superannuation, but, when the occupant of the Glenbrook property, was liable to pay Council rates, presently suspended pending the sale of the property; water rates, at $200 per quarter; electricity, at $300 per quarter; and household insurance, at $180 per month. She further indicated personal expenses of her mobile phone, at $30 per month; internet, at $80 per month; household food and other items, at $80 per week; transport, at $50 per fortnight; and haircuts, at $35 per quarter. She acknowledged that the expenses relating to the Glenbrook property had ceased upon its sale.

Lisa stated that she experienced the medical conditions of hypertension and chronic anxiety, both conditions for which she took medication. She exhibited a letter from her treating doctor in support of this: Affidavit, Lisa Marion Montgomery, 19 August 2022 at par 5.

I found Lisa to be a witness who was endeavouring to assist the court and is a witness, the broad thrust of whose evidence I accept where it conflicts with the evidence of Sharon and Michelle.

Stephen swore 2 affidavits in the proceedings: the first, sworn 22 April 2022, comprising 11 paragraphs, spanning 4 pages; and the second, sworn 5 October 2022, comprising 15 paragraphs, spanning 4 pages.

As also stated, Stephen gave evidence that he resided at the Locke Street property with David and Lisa from 1971 to 1975, and with David only in 1976. In cross-examination, he indicated that he believed his mother moved out of the property in 1973 or 1974, and that, during this period, there were no visits from John or any of Gail, Sharon, or Michelle.

From 1977 to 1983, Stephen resided with the deceased and Jack at the Locke Street property. He denied any visits from Sharon or Michelle during this period: Tcpt, 1 February 2023, p 102.

He gave evidence that the Locke Street property was sold in February 1987: Tcpt, 1 February 2023, p 103. In cross-examination, Stephen was confident that the year Sharon resided at the Orchard Hills property was 1989, and not 1987, as he remembered having a conversation with Sharon about Tiananmen Square: Tcpt, 1 February 2023, p 103.

Stephen lived in the United Kingdom for part of 1984, before returning to the Locke Street property in November 1984. When the deceased and Jack moved to the Orchard Hills property, he moved with them, and they continued to live together until 1990.

He denied Sharon’s evidence of staying with the deceased and John every second weekend, and of often eating together, stating that he never observed this, nor did the deceased mention it to him. He also denied that Michelle stayed with the deceased and John on alternate weekends and school holidays. However, he agreed that Sharon resided at Orchard Hills for a few months in 1989 and would ride her horse there on some weekends: Affidavit, Stephen Joseph Simpson Montgomery, 22 April 2022 at pars 8-11.

I have no hesitation in accepting Stephen’s evidence. Of all of the witnesses, I found him to be the most straightforward and transparently honest. By way of example, he accepted, immediately, that it ‘could’ve been possible’ that Sharon had lived with the deceased and Jack for about 12 months in 1989. Where there is any conflict between his evidence and the evidence of either Sharon or Michelle, I accept his evidence.

Counsel for the Plaintiffs submitted that Sharon and Michelle met the eligibility threshold pursuant to s 57(1)(e)(ii). It was not in dispute that Sharon and Michelle was each a member of the household of which the deceased was a member. As stated, it was also accepted that as minors, each was likely to have been partly dependent on Jack and the deceased for accommodation, food, clothing, and emotional support, when staying with them.

Counsel pointed to the comments of Hope AJA, Sheller and Clark JJA in Petrohilos v Hunter (1995) 25 NSWLR at 34-347 to argue that ‘provision by the mother to her children living with her of the services essential for their wellbeing… [makes] them partly dependent upon her.’

In support of making an order for family provision, counsel emphasised the fact that Sharon and Michelle received no benefit from their father’s estate, as it had passed by survivorship to the deceased. He noted that Jack made a significant contribution to the deceased’s estate by paying half of the purchase price of the principal asset, the Glenbrook property. He further pointed to Jack’s Will, which, by way of substitutionary gift, shared his estate equally among his three children and two stepchildren in the case that the deceased predeceased him, as evidence of his obligations to all parties.

He went on to submit that the deceased was ‘their step-parent with whom they had a close relationship,’ and any estrangement between the deceased and Sharon and Michelle was only the result of the natural separation between a parent and an adult child, particularly as both of them moved interstate.

During oral submissions, he conceded that after 2015 there was no real contact with the deceased. However, he maintained that the deceased was involved in their lives for a significant period of 30 years, highlighting the assistance the deceased gave to Sharon during Sharon’s pregnancy.

Counsel framed the allegations of misconduct expressed in the deceased’s testamentary document as a ‘festering’ due to no contact, rather than genuinely problematic issues in the relationship, pointing out the fact that the complaints were not raised in the deceased’s penultimate will, which had been made after Jack’s death. (Neither Sharon nor Michelle were beneficiaries under the penultimate will.)

Counsel submitted that Sharon and Michelle had financial need for provision, taking into consideration their low income and ongoing medical conditions, including diabetes. He conceded that some of the debts would be halved as they were jointly held, and that the deceased did not necessarily have an obligation to take on particular liabilities, such as a mortgage, but nonetheless argued that ‘a sum of money would be a relief for those debts as any parent would wish for a child’: Tcpt, 1 February 2023, p 120(23).

The highest contribution to the deceased’s estate or welfare that counsel could put was the assistance Sharon and Michelle gave during the time of Jack’s death, in organising his funeral.

Counsel put it that Sharon and Michelle were natural objects of testamentary recognition because there was a reasonably long period of reasonable closeness, highlighting the fact that cohabitation occurred during formative years. He suggested that, since the relationship was similar to that of a parent and child, they became natural objects as step-children.

Initially, counsel sought provision of a lump sum of $150,000 each as adequate and proper, but, during oral submissions, revised the quantum to $75,000 each.

Counsel for the Defendants accepted that Sharon and Michelle were members of the household for the purposes of eligibility, but initially disputed whether they were dependent on the deceased. He submitted that their parents, Jack and Janet, remained their primary caregivers, with full responsibility over financial, material, and care-related matters. He maintained that the highest the involvement between Sharon, and Michelle, with the deceased went was that the deceased was kind and hospitable during access visits, but that the primary relationship remained between Sharon and Michelle and Jack. However, during oral submissions, counsel seemed to accept that partial dependency had also been established on the facts.

Counsel denied any financial, legal or moral obligations on the part of the deceased to provide for Sharon and Michelle. It was pointed out that there was no suggestion the deceased fulfilled a quasi-parental role, despite the use of the jointly-owned property by Sharon and Michelle, and the completion of some household tasks, such as washing clothes and cooking meals, for Sharon and Michelle.

Counsel emphasised the ‘very plain, very clear’ testamentary intentions expressed by the deceased in the written statement included with the Will, arguing that they should be given full consideration and weight. He submitted that the document was not a recognition of testamentary obligation, but rather the opposite, as a concern arising from the alleged previous threat to challenge Jack’s will and take the house from the deceased.

He also drew attention to the fact that there was little evidence of a relationship between the deceased and Sharon and Michelle while they were teenagers and resident in the deceased’s household. Though there was some relationship between the deceased and Sharon during Sharon’s pregnancy, counsel submitted that, for at least the past twenty years, there was virtually no contact or relationship. Counsel advanced the submission that this signalled that it was a relationship of ‘no significance whatsoever’ to Sharon and Michelle, and likely to the deceased as well. The substance of his submissions was that none of them, provided to the other close companionship at any time during their joint lives.

When questioned on a sum for provision, if the primary case of dismissal was rejected, counsel submitted a lump sum of 2%, or $20,000, congruent with the provision made by Jack under his Will for each of his children.

As the deceased did not adopt Sharon, or Michelle, neither falls within s 57(1)(c) of the Act, namely “a child of the deceased person”. The Act does not include a stepchild as an eligible person by virtue of the relationship alone. Indeed, there is no definition of "stepchild" in the Act. Whilst a child of the deceased person is specifically included as an eligible person, a stepchild does not fall within the ordinary meaning of the term "child".

(Other Australian States and Territories have a distinct category that gives a stepchild standing to bring a family provision claim: Succession Act 1981 (Qld) ss 40, 40A, 41(1); Family Provision Act 1969 (ACT) ss 7(1)(d), 7(2); Family Provision Act 1970 (NT) ss 7(1)(d), 7(2)(b); Inheritance (Family Provision) Act 1972 (SA) s 6(g); Family Provision Act 1972 (WA) s 4(1), 7(1)(ea)-(eb); and Administration and Probate Act 1958 (Vic) ss 90 and 91(4)(c). However, for example, in Victoria, there are limitations, the stepchild being under the age of 18 years; or (ii) a full-time student aged between 18 years and 25 years; or (iii) with a disability.)

The dictionary meaning of "step" is a prefix indicating connection between members of a family by the remarriage of a parent: The Macquarie Dictionary (4th Ed., 2005).

In R v Cook; Ex parte C (1985) 156 CLR 249 at 262; [1985] HCA 47, Deane J, in dissent, explained:

His Honour added at 263:

Recently, in Brown v Brown [2022] NSWSC 1393, Henry J dealt with the issue in relation to a stepchild at [227], writing:

It was admitted, on the second day of the hearing, that each of Sharon and Michelle is an eligible person within the meaning of that term in s 57(1)(e) of the Act. For this reason, it is unnecessary to say anything more about eligibility.

Then, because eligibility is no longer in dispute, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b) of the Act).

In Graziani v Graziani (Supreme Court (NSW), 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren under the former Act, wrote, at [8] – [10]:

In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

In Chisak v Presot [2021] NSWSC 597, I wrote on this topic at [335]-[342]:

I should note that in Page v Page (2017) 16 ASTLR 331 at 339-340; [2017] NSWCA 141, Leeming JA stated, at [38], that:

As stated in Spata v Tumino [2018] NSWCA 17, by Payne JA, at [72]:

In Sun v Chapman [2022] NSWCA 132, at [119] (White JA, Leeming JA and Brereton JA agreeing) referred to Re Fulop (1987) 8 NSWLR 679 with apparent approval.

There are some cases that refer to the position of a stepchild who had received nothing from the estate of her, or his, natural parent, which estate had passed to the surviving spouse, the step-parent. Although the cases, in other states, do not speak in terms of factors warranting the making of the application, the principle appears to be similar.

For example, in Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423. Keane JA (with whom de Jersey CJ and McPherson JA agreed) at [40] wrote:

Yet, a relevant matter is likely to be the nature of the relationship between each applicant and the deceased. It may be very important to determine whether there were (or are) features of the relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the applicant? In other words, can it be said that she or he is a person for whom a wise and just will-maker in the position of the deceased would consider herself, or himself, as having some obligation to provide?

In Spata v Tumino at [97], it was noted that an applicant “must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant…”

As stated above, the final issues to be determined relate to whether adequate and proper provision has been made for the applicants, and if not, whether any provision should be made for each. To justify an order for provision under the Act, the Court must be affirmatively satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased. If that is established, the Court is empowered to order such provision out of the estate as the court “thinks ought to be made” for the identified purposes.

There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

I have set out the relevant general principles on this aspect recently in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [416]-[456]. I do not propose to repeat all of the principles that I stated in that case.

I note, however, that since that decision, the Court of Appeal delivered reasons in Bassett v Bassett [2021] NSWCA 320 at [171] describing the following statement as a “useful summary” of the approach to be taken:

Because of the evidence of the Plaintiff to which I have referred, it is also necessary to refer to some other general principles.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education or advancement in life of an applicant: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [95] – [96] (Brereton JA, with whom Simpson AJA generally agreed).

In Cooper v Dungan (1976) 50 ALJR 539 at 542, Stephen J, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19.

In McCosker v McCosker (1957) 97 CLR 566 at 580; [1957] HCA 82, Kitto J (in dissent but in a passage referred to with apparent approval by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [24]), referred to the necessity of restraint where he could not be satisfied that he understood “… the whole situation so well that I could deal with the estate more justly than the testator dealt with it …”

In Cooper v Atkin [2020] NSWSC 828 at [203], I referred to the statement of Keane JA (with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques at [29] where His Honour referred to the evaluative balancing of relevant considerations in the context of a claim by stepchildren, as follows:

As I have repeated, also, “I make it clear that such statements may give assistance and provide guidance, but I do not intend what I have described as applicable legal principles" or other "general principles", to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

As stated, there was, by the conclusion of the hearing, no dispute concerning the eligibility of each of Sharon and Michelle. Nothing more needs to be said about this element as I am satisfied that it was established.

There are authorities that consider the significance of recognition in a will for the purposes of s 59(1)(b) of the Act: Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 at [31] (Basten JA, Allsop P and Ipp JA agreeing); Estate Pascale [2016] NSWSC 443 at [29] (Lindsay J); Dannawi v Dannaway [2019] NSWSC 1287 at [103] (Slattery J); Purnell v Tindale [2020] NSWSC 746 at [260] (Henry J) constitute a factor warranting the making of the application. This does not apply to the facts in this case.

A matter relied upon was the provision made for his children and the deceased’s children in Jack’s Will in the event that the deceased did not survive him. It was suggested that this demonstrated that some discussion about this was likely to have taken place between the deceased and Jack. However, I consider this to be mere speculation as there is no evidence of any Will made by the deceased in which a similar provision was made for Sharon or Michelle. At no time did the deceased appear to regard either as an object of testamentary bounty. Nor was there any evidence of a representation made by her that she would do so.

Yet, the deceased appears to have considered that she needed to explain why she had not made any provision and, for this reason left the written statement that she did. This might suggest that she considered them to be persons who might have a claim upon her estate. But, as submitted by counsel for the Defendants, another explanation may have been her concern that each of Jack’s children would consider making a claim as they had done in respect of their father, and she wished to provide her subjective view why no provision should be made.

Reliance was placed on the fact that part of the deceased’s estate came to her as a result of surviving Jack, with the consequence that no provision could be made for either of Sharon or Michelle by their father. One could find, therefore, that there are factors warranting the making of the application. In this regard, neither Sharon nor Michelle suggests that she made any direct financial contribution to the acquisition of the estate of the deceased. Each suggests, perhaps indirectly, that Jack did so, and therefore, because she did not make a claim for a family provision order following his death, she contributed to the acquisition of the deceased’s estate. Whilst each had left it to Gail to seek advice, I am satisfied that Gail communicated that fact to the deceased. This caused the deceased some anxiety. Yet, none of Jack’s children proceeded to make a claim under the Act in relation to his estate, or notional estate, with the result that the deceased received the whole of Jack’s estate and property that could have been designated as notional estate.

This matter does not provide, however, a formula that should result in the value of Jack’s contributions (about which there was really no direct evidence) being returned to his child, in this case, each Plaintiff, upon the death of the deceased.

Even though the prospects of success, in relation to such a claim, had it been made, might have been extremely weak, bearing in mind the duration of the marriage at the date of Jack’s death, each was an eligible person who had a claim upon the bounty of her father.

Where, as in this case, Sharon and Michelle received nothing from the estate of Jack, one may more readily conclude that a wise and just step-parent would recognise a moral claim in a stepchild to maintenance or advancement in life from an estate which was derived, in part, from Jack. I am satisfied that there are factors which warrant the making of the application.

Yet, this does not mean that any provision ought to be made for either Sharon or Michelle. As earlier stated, before making an order for provision out of the deceased’s estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for her proper maintenance or advancement in life has not been made by the deceased’s Will for each of Sharon and Michelle. If the Court is so satisfied, it may make such order as the Court thinks ought to be made having regard to the facts known to the Court at the time the order is made.

Whether adequate provision has been made is not to be determined simply by a calculation of financial needs. A claimant’s needs are different to her, or his, “wants” and do not simply equate to “demands” or “desires”: Bezjak v Wyatt [2018] NSWSC 199 at [120]. Attention may also be given to how the claimant lived and might reasonably be expected to live in the future: Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [7]-[8].

The Court is required to make, and I have made, an assessment of the financial position of each of Sharon and Michelle, the size and nature of the deceased’s estate, the relationship between each of them and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased’s children, and the other is a grandchild, being the chosen objects of her bounty, and the circumstances and needs of both Plaintiffs and of Lisa.

Importantly, this is not a case where there was a close relationship, or where she was brought up as a permanent member of the deceased’s family, or where she was ever a full-time member, as a child of the deceased’s family. The evidence does not suggest that she was supported by the deceased, to any significant extent, educationally, or emotionally. There was not a relationship between each of the Plaintiffs and the deceased that “might be properly described as parent and child”.

There appears to have been a tenuous and distant (in time) at best, partial, dependency on the deceased. For a period of time, after Jack moved into the home of the deceased, and whilst they were children, the deceased is likely to have accepted, and discharged, some quasi-parental obligations which are implicit in the relationship of affinity that arose as a result of her relationship with Jack and with Sharon and Michelle attending at their home on some alternate weekends and for part of the school holidays.

There was no evidence of how either addressed the deceased and there was virtually no evidence indicative of close familial bonds between them. I am satisfied that the deceased did not assume anything like a close maternal role, taking responsibility for either Sharon’s, or Michelle’s, care and support during their younger years. This is not a case where the deceased acted, like a surrogate mother to either Sharon or Michelle. Neither suggested that she had such a role.

Furthermore, this is a case where, as adults, any relationship between each of the Plaintiffs and the deceased petered out. I do not accept that its cause was solely due to each of Sharon and Michelle moving interstate. This conclusion is able to be reached by the evidence of each of them to which reference has been made. I have referred to the lack of involvement in the life of the deceased in the 2000’s, with the only contact being at Jack’s funeral. The lack of concern with the deceased, particularly after Jack moved into the nursing home, and then, both before, and after, his death speaks volumes.

In this regard, also, there is no evidence that the deceased wished to have any relationship with either of Sharon or Michelle after each of them moved interstate. This is demonstrated by her not accompanying Jack when he went to visit each of them.

Thus, each had a relationship, albeit not a particularly close relationship, with the deceased, from about 1973, when Jack and the deceased commenced their relationship, although it petered out, almost completely, by 2011 or 2012.

Although there are cases in which the relationship of a step-parent and stepchild may develop into a relationship which gives rise to the making of provision, this is not such a case. Indeed, for over 15 years prior to the deceased’s death, there was really no relationship between either of Sharon or Michelle with the deceased. They rarely saw each other, and none of them made any real attempt to maintain any sort of relationship with the other.

In the years after Jack moved into the nursing home and following his death, each did not involve herself in the life of the other. I have earlier specifically referred to the evidence of each of them visiting Jack, but not the deceased. Neither Sharon nor Michelle made any attempt, following Jack’s death, to ensure that the deceased, who undoubtedly would have been grieving, was looked after.

There is no evidence that the deceased provided either with any financial support, maintenance, or provision during her lifetime (other than indirectly from marital property). Indeed, there was no evidence that suggested that either, at any stage following adulthood, had approached Jack, or the deceased, for any financial assistance. I am satisfied that each of Sharon and Michelle was financially independent of the deceased. (I do not suggest that this fact might disentitle an applicant from a claim under the Act, but it is to be noted that one of the matters to which the Court may have regard is “whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so”: s 60(2)(k) of the Act.

In the circumstances, even taking into account her financial position respectively, I am unable to come to the conclusion that at the time when the Court is considering the application, adequate provision for her proper maintenance or advancement in life has not been made by the Will of the deceased.

Even if I am wrong in these conclusions, I would not, as a matter of discretion, make an order for provision out of the deceased’s estate for either Sharon or Michelle. Taken with the above matters, the interests of the chosen objects under the 2009 Will, and in particular, the competing financial claim of Lisa, are relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for each of Sharon and Michelle, both for the purpose of s 59(1)(c) of the Act and in determining whether provision should be made and the nature of any such order.

In this regard, I am satisfied that the Defendants each had a close and loving relationship with the deceased and that each, with Emmy, is a chosen object of the deceased's bounty.

I have also remembered the deceased’s testamentary wishes, as expressed not only by the terms of the 2009 Will, but also by her written statement.

I therefore decline to make an order for provision for each out of the deceased’s estate.

The Court orders that the proceedings be dismissed with costs.