Re Estate Charell, deceased

Patricia Mavis Charell (“the deceased”) died on 28 August 2017, aged just short of 90 years, leaving two wills: one dated 20 July 2005, the other dated 25 July 1996. There is evidence that she also made a Will in 1989, but there is no evidence of its terms. It has no apparent contemporary relevance, however, because each of the 1996 and the 2005 Wills contained a revocation clause; the 1996 Will, at least, is agreed to have been valid when made; and the 1996 Will evidenced an intention on the part of the deceased, at that time, to treat her daughters equally.

The deceased was survived by her only children, two adult daughters: the plaintiff, Deborah, born in July 1958; and the defendant, Wendy, born in September 1949. She was predeceased by her former husband (the father of her daughters) and by a man with whom, after the break down of her marriage, she enjoyed a de facto relationship of about 10 years duration until his death in or about 1989.

Probate of the deceased’s Will dated 20 July 2005, was granted to the defendant in common form on 9 January 2018. After providing for payment of a legacy of $2,000 to a third party, the daughter of her de facto partner (which has been paid), the Will divided the deceased’s residuary estate between her daughters: two-thirds to the defendant and one-third to the plaintiff.

The prior Will of the deceased, dated 25 July 1996, provided for the whole of the deceased’s estate to be divided between the plaintiff and the defendant in equal shares.

At all material times, the major asset of the deceased was her interest in her home in Simpson Street, Bondi (folio identifier 2/522779), “the Simpson Street property”. The Inventory of Property attached to the grant of probate made on 9 January 2018 records her assets as being a five-sixths share in the Simpson Street property, together with about $940 in “cash” and personal effects of no real value. At the time of the deceased’s death the property (since sold for $2 million) was the subject of a registered mortgage and an unregistered charge protected by a caveat. The registered proprietors of the property were the deceased (as to a five sixths share) and the defendant (as to a one sixth share) as tenants in common.

In summary terms, the plaintiff seeks in these proceedings:

On settlement of the sale of the Simpson Street property the net proceeds of sale were provisionally distributed to:

The parties anticipate that adjustments will be made to their respective shares as beneficiaries of the deceased’s estate consequent upon the Court’s determination of the validity or otherwise of the will dated 20 July 2005 and rulings about how particular sums should be accounted for.

The burden of the sum of $304,519.71 paid out of the net proceeds of sale for a discharge of mortgage was provisionally allocated in accordance with the respective shares of the deceased’s estate and the defendant as tenants in common:

The burden of the sum of $262,000 paid to the building company to obtain a discharge of its unregistered charge was provisionally allocated according to the ownership interests of the estate and the defendant:

The narrative form in which the parties have presented accounting information to the Court does not readily lend itself to precise analysis. For that reason, and at the invitation of the parties, I propose to deal with contentious questions in principle, allowing the parties an opportunity to make necessary adjustments before formal orders are made disposing of the proceedings.

The parties have proceeded on the basis that, if the Court decides contentious questions in principle, it is not necessary to have an arithmetically precise quantification of the value of the deceased’s estate as a precondition to a determination of the plaintiff’s claim for a family provision order. The parties are content to proceed on the basis that, the contentious accounting questions having been determined, the size of the estate is sufficiently certain to enable an exercise of the Court’s family provision jurisdiction. I do not share their complacency, particularly as the plaintiff’s submissions in support of her claim for a family provision order are scant.

Upon settlement of the sale of the Simpson Street property:

The parties’ disputes about accounting for the proceeds of an insurance claim (in the total sum $27,160.29) and rent (in the total sum of $72,272.44) find no reflection in statements accounting for the proceeds of sale of the Simpson Street property. The $27,160.29 was received into the deceased’s bank account and disbursed by the defendant at a time when she was acting as the deceased’s enduring attorney and guardian. The sum of $72,272.44 was received by the defendant from her letting agent, subject to any accounting rights or obligations she might have. $41,698.26 was received prior to the death of the deceased, $30,574.18 afterwards.

Insofar as the plaintiff seeks an order that the defendant account to the estate of the deceased for particular dealings, her standing to represent the estate is a function of the fact that she seeks to protect her interest in the estate as a beneficiary against the legal personal representative of the deceased in her personal capacity and as executor of the Will of the deceased admitted to probate: Ramage v Waklaw (1988) 12 NSWLR 84; Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432. Although the plaintiff’s claims for relief do not include a claim for an order that the estate of the deceased be administered under the direction of the Court, an order for general administration is not necessary. A partial administration order can be made by virtue of the Uniform Civil Procedure Rules 2005 NSW, rules 54.3 and 54.6. Insofar as the plaintiff seeks an accounting, the proceedings bear the character of an administration suit.

The plaintiff’s case is informed by an intuitive, subjective belief that the deceased was committed to treating her daughters “equally” (as contemplated by the Will dated 25 July 1996); but there is no contention that the deceased was bound to treat her daughters “equally” and, perhaps, there has been insufficient reflection on what is meant by “equality” in the context of the personal circumstances of the family.

In closing submissions, counsel for the plaintiff announced that the plaintiff does not press her claim for a family provision order if she succeeds on her “two main complaints”: namely, her challenge to the validity of the will dated 20 July 2005 (which, if successful, will uncontroversially lead to admission to probate of the will dated 25 July 1996) and her contention that the $304,590.71 paid out of the proceeds of sale of the Simpson Street property on 10 May 2018 for a discharge of mortgage (colloquially known as the “Aussie Home Loan Mortgage”) should be borne by the defendant’s share of the deceased’s estate.

Between 1996-2016 or thereabouts the Simpson Street property was the subject of three stages of renovation, each apparently funded on the security of the property:

The evidence relating to work done on the Simpson Street property, and arrangements for funding of that work, is imprecise. The plaintiff agrees that work was done on the property, but there are few primary records available to provide a foundation for precise findings about what was done, when it was done, what precisely it cost and how precisely its costs were funded.

Upon a consideration of accounting questions, a practical necessity is that attention must be focused on particular controversial questions identified by the parties. There is likely to be no practical utility in an order, simply, for accounts to be taken.

On the findings made in this judgment, the defendant bears the burden of the whole of the mortgage debt of $304,590.71 paid out on settlement of the Simpson Street sale. The sums of $50,000 and $10,000 (referred to in paragraph 18) applied by the defendant, from borrowed funds, for her own personal benefit, are subsumed in the payout figure of $304,590.71, liability for which is to be borne by her. No separate accounting is thus required for the $60,000.

If she has not already done so, the defendant has to account to the estate of the deceased for the $2,000 applied by her for her personal purposes from the “building loan”.

In the light of subsequent developments, notice must be taken of clause 7 of the Will dated 25 July 1996, which reads as follows:

Immediately before 11 July 1996 title to the Simpson Street property was registered in the name of the deceased alone as the proprietor of an unencumbered estate in fee simple.

On 11 July 1996:

According to its terms, the deed dated 11 July 1996 made by the deceased and the defendant recorded, inter alia, that:

The defendant’s “extension” to the Simpson Street property, by way of addition of a self-contained apartment above the deceased’s living area, was completed in or about 1997. The renovation enabled the defendant to live in the upstairs accommodation and the deceased to live in separate, but connected, accommodation downstairs.

The mortgage was varied twice in 1997, on both occasions to supplement the defendant’s borrowings (she says, to fund costs of the upstairs renovation) on the security of the Simpson Street property:

In or about late November 2004 the mortgage in favour of Perpetual Trustees Australia Ltd was re-financed. By a memorandum of mortgage apparently signed by both the defendant and the deceased on 21 August 2002, but not stamped until 23 November 2004 and only subsequently registered (as dealing number AB128392), the Simpson Street property was mortgaged in favour of Aussie Mortgages Ltd for $300,000.

About $120,000 of the refinanced loan was applied to pay out the mortgage in favour of Perpetual Trustees Australia Ltd and the balance was a fresh loan. The defendant admits that she used $10,000 of the fresh loan for herself but she says that the rest was applied in effecting renovations to the Simpson Street property.

In or about December 2004 the deceased transferred to the defendant (pursuant to a Memorandum of Transfer registered as dealing number AB 128391) a one-sixth share in the fee simple to the Simpson Street property.

The Transfer was registered as the dealing immediately preceding registration of the mortgage in favour of Aussie Mortgages Ltd, the two instruments bearing consecutive dealing numbers and the “mortgagor” in favour of Aussie Mortgages Ltd was recorded as both the deceased and the defendant.

The Memorandum of Transfer records an acknowledgement by the deceased of her receipt of consideration of $158,333.33, an amount which was not in fact paid, or expected to be paid. It represented a one-sixth of the value of the property according to a formal valuation obtained by the parties’ solicitor, Mr Peter Wise, for stamp duty purposes and to record the value of the property transferred as a precaution against a future assessment of a capital gains tax.

The plaintiff does not challenge the validity of the transfer (which was duly registered under the Real Property Act 1900 NSW) but, on a strained reading of her Amended Statement of Claim, she may be taken to have called upon the defendant to pay the sum of $158,333.33 described in the Memorandum of Transfer as consideration for what the plaintiff characterises as a “purchase” by the defendant of an interest in the Simpson Street property.

The short point is that there is no basis upon which the Court can relevantly go behind the deceased’s formal acknowledgement of receipt in the Memorandum of Transfer. On an exercise of equitable jurisdiction, the Court might certainly do so, giving effect to the substance of a transaction; but, here, neither party to the transfer expected the receipted sum to be paid by the defendant and there is no ground for equitable intervention. There is no basis upon which the Court can hold that the deceased lacked the mental capacity necessary to give effect to the transaction, which was effected through the agency of a solicitor (Mr Wise) who discerned no incapacity. Nor is there any allegation that the defendant acted unconscionably in taking the benefit of the transfer without payment of the “consideration” formally recorded in the Memorandum of Transfer.

On one view, the transfer may be characterised as a “gift”, but to adopt that characterisation would be to ignore the context in which the transfer was effected, going back to the agreement of the parties recorded in the Deed dated 11 July 1996 and its implementation. It is not necessary for the purpose of these proceedings to characterise the nature of the transfer beyond a determination that it did not give rise to a liability in the defendant to pay money to the deceased.

The transfer of a one-sixth share in the Simpson Street property to the defendant in or about December 2004 superseded an earlier proposal for the deceased to transfer a 20% share to the defendant. In evidence is an unregistered Memorandum of Transfer dated 5 October 2002, executed by the deceased as transferor and by the defendant as transferee, which omits any reference to such, if any, sum as may have been in contemplation as consideration. A solicitor other than Mr Wise acted on this transaction, which came to nothing.

In conveyancing terms, nothing turns on the existence of the incomplete Memorandum of Transfer. In a broader context, its significance is that the deceased had in mind (but resiled from) a proposal to transfer a 20% share, later reduced to a one-sixth share, to the defendant. The defendant’s explanation of the unexecuted transaction is that her mother proposed to transfer a 20% share of the property to her, to protect her personal investment in the upstairs apartment, but that proposal was abandoned when opposed by the plaintiff; without reference to the plaintiff, the deceased renewed the proposal, limited to a one-sixth share, in 2004.

A curious feature of the transfer of a one-sixth share is that the solicitor Mr Wise witnessed the deceased’s signature on the Memorandum of Transfer and signed the document as solicitor for the defendant, apparently without any formal reference to the Deed dated 11 July 1996 or the deceased’s Will dated 25 July 1996, both of which on their face testify to his involvement in their preparation.

An even more curious feature of the proceedings is that on 20 July 2005 Mr Wise acted as solicitor for the deceased in her execution of the following documents, each dated 20 July 2005 without, it seems, any formal documentation bearing upon the operation of the Deed dated 11 July 1996, the Will dated 25 July 1996, the transfer of the one-sixth share of the Simpson Street property to the defendant, or their relationship with the new Will and each other:

How all these documents executed by the deceased hang together is a central puzzle in the determination of these proceedings, not assisted by the absence of contemporaneous records of Mr Wise or his imperfect memory of distant events.

I infer that the intention of the deceased (acquiesced in by the defendant) was that the deceased’s transfer of a one-sixth share of the Simpson Street property to the defendant in December 2004 was in satisfaction of any entitlement she had to a lesser share of the property (upon completion of building work in or about 1997) under the Deed dated 11 July 1996.

The deceased became a resident in a nursing home in January 2016, after which time the defendant effected renovations to the Simpson Street property and (from September 2016) rented out the downstairs portion of the property, continuing herself to live in the upstairs residence.

On or about 27 April 2016 the defendant, on her own behalf and as the deceased’s attorney, engaged Keyturn Projects Pty Ltd (the building company of her former husband, Michael Franck) to undertake renovation work on the Simpson Street property, mostly (but not entirely) focussed on the downstairs apartment that had been occupied by the deceased as her home before she moved to a nursing home.

The contract for the building work apparently took the form of (or at least included) a document styled “Mortgage Linked Loan Agreement”, supported by an unregistered memorandum of mortgage in respect of which Keyturn Projects Pty Ltd lodged a caveat (registered dealing AM785659). The “Mortgage Linked Loan Agreement” described as “the principal sum” the subject of the loan “the amount payable by the mortgagor (the deceased and the defendant) to the mortgagee (the building company) for building works undertaken to the mortgaged property by the mortgagee”. It was further described, in another part of the document, as being “estimated at $160,000”.

The evident intent of the parties was that the company would perform agreed building works (on a do-and-charge basis) without requiring any remuneration before practical completion of the works, four months after which the whole amount payable for the works would become due, with provision for the payment of interest in the event of any delay in payment.

Mr Wise witnessed the defendant’s execution of this documentation on behalf of herself and the deceased. I infer she acted with the benefit of his advice. The evidence of neither party explored the circumstances in which the documentation came about. Mr Wise gave no evidence on the topic and he was not cross examined about it.

The builder’s estimate of $160,000 was apparently exceeded because of complications encountered in the undertaking of renovations. Upon sale of the Simpson Street property, the company was paid out of the proceeds of sale the sum of $262,000, which included legal fees incurred by the company and an interest component.

The plaintiff complains about the blowout in the amount paid to the company, but there is no basis upon which the blowout can be attributed to the defendant. She engaged the company with the benefit of legal advice and there is no basis upon which it can be said (or is said) that she colluded with her former husband in effecting the renovations.

After the death of the deceased, shortly after probate of the deceased’s Will dated 20 July 2005 was granted to her on 9 January 2018, the defendant effected a sale of the property. As evidenced by the front page of the contract dated 13 March 2018, the property was sold for $2 million. That price was agreed by both the plaintiff and the defendant. Upon settlement of the sale on 10 May 2018, the net sale proceeds were accounted for on a basis which recognised that the defendant was entitled to a one-sixth share of the net proceeds and the estate of the deceased was entitled to a five-fifths share, subject to adjustments.

The parties are in dispute principally, it seems, about who should bear the burden of two deductions made from the proceeds of sale on settlement of the Simpson Street property; namely:

The defendant lived in the upstairs apartment on the Simpson Street property from the time of its construction in or about 1997 until completion of the property’s sale on 10 May 2018. Throughout that time she alone serviced the Perpetual Trustees Australia Ltd mortgage, and the Aussie Mortgages Ltd mortgage, until discharge of the latter mortgage upon sale of the property.

These proceedings were commenced by a statement of claim (which included the plaintiff’s claim for family provision relief) filed on 11 May 2018 (a day after settlement of the sale of the Simpson Street property), within the time prescribed by section 58 of the Succession Act 2006 for the making of an application for a family provision order. The claim for family provision relief is maintained in the plaintiff’s current pleading, an amended statement of claim filed on 27 April 2021.

As a daughter of the deceased, the plaintiff has standing as an “eligible person” (pursuant to section 57 of the Succession Act) to make an application for a family provision order. The questions for determination upon her application are whether she can be said to have been left without adequate provision for her maintenance, education and advancement in life (Succession Act, section 59(1)(c)) and, if so, whether any (and, if so, what) provision ought to be made for her from the estate of the deceased (Succession Act, section 59(2)).

The only interests in competition on the plaintiff’s application for a family provision order are those of the plaintiff and the defendant. The only other “eligible person” whose interests might have required consideration (the daughter of the deceased’s de facto partner, the recipient of a $2,000 legacy under the Will dated 20 July 2005) has disclaimed any intention to make a greater claim against the estate of the deceased. The plaintiff does not seek to disturb the $2,000 legacy.

Before taking leave of the plaintiff’s amended statement of claim, notice needs to be taken of her refinement of her case at the commencement of the final hearing of these proceedings. At that time:

By 26 April 2021 (the day before the final hearing commenced) the plaintiff had received a total of $200,000, and the defendant had received the sum of $45,000, by way of an interim distribution from the estate of the deceased.

At the commencement of the hearing the defendant, for her part, made the following formal concessions:

The parties approached the question of testamentary capacity by reference to the criteria identified in Banks v Goodfellow (1870) LR 5 QB 549 at 565. The plaintiff’s contention of incapacity was expressly limited to the proposition that the deceased lacked capacity because, it was said, she did not understand the extent of the property of which she was disposing at the time she executed the will dated 20 July 2005.

The deceased suffered from vascular dementia for some years prior to her death. She suffered a stroke in 1995, from which she appears largely to have recovered but for the progressive development of her dementia and expressive dysphasia.

After her stroke in 1995, and until she was injured in a motor accident in late October 2007 (when she was knocked down by a motorised scooter), the deceased continued part-time work selling sweets from a stall at Paddy’s Markets and another suburban market.

The 2007 accident appears to have accelerated the deceased’s decline, in confidence if not also in general health. Ultimately, by about 2014 her expressive dysphasia had developed to the point that she lost her ability to speak altogether.

Having moved in with her mother at the Simpson Street property following the break down of her marriage in 1995, the defendant drew ever closer to the deceased. In late 2008 she became her mother’s full time carer, a function she performed until the deceased entered a nursing home at Maroubra in January 2016. After the deceased’s entry into the nursing home, she continued to provide supplementary care for the deceased.

The deceased remained in the nursing home until her death in August 2017.

Leaving aside tensions between siblings that occurred from time to time, there appear generally to have been cordial relationships between the deceased and her two daughters, both of whom consistently showed respect for their mother.

From the time of the deceased’s stroke, the major responsibility for social contact (and, ultimately, care) for the deceased fell upon the defendant. She was close at hand and, following her marriage break up, herself in need of companionship and support. Although the plaintiff was an attentive daughter, she moved to the United Kingdom in 1984. She continues to live there with her husband, with whom she has two adult daughters. She is a published author. Her contact with the deceased after her move to the UK was limited to (regular) telephone calls and occasional trips.

In challenging the validity of the deceased’s Will dated 20 July 2005, the plaintiff contends that at the time the deceased executed the Will she was not aware of the nature and value of her estate and, in particular, she did not recall that she had already gifted one-sixth of the Simpson Street property to the defendant.

That contention is to be assessed in the context of the deceased’s dementia and experience of memory loss. As an illustration of the deceased’s memory loss, the plaintiff relies upon what she perceives to have been a lack of memory on the part of the deceased, from one week to the next, as to whether she had read instalments of the plaintiff’s first novel sent to her each week from about 2004.

In medical terms, the plaintiff relies upon the evidence of Associate Professor Tuly Rosenfeld, a Consultant Geriatrician. Dr Rosenfeld was not a treating doctor of the deceased and never met her. He provided an expert medico-legal report which concentrated upon damage to the deceased’s brain, including damage to her temporal lobe (where memory, speech and cognition are situated) and her occipital lobe (where vision and association areas are situated) consequent upon the stroke suffered in 1995.

On page 5 of his report dated 27 February 2020 Dr Rosenfeld opined as follows:

In paragraph 8, on pages 16-18, of that report, under the heading “OPINIONS”, Dr Rosenfeld responded as follows (with editorial adaptation) to the question whether, in his opinion, the deceased had testamentary capacity as at the date of the making of the Will on 20 July 2005:

Dr Rosenfeld adhered to these opinions in a supplementary report dated 16 August 2020 (responsive to evidence adduced on behalf of the defendant) and in his oral evidence.

Against Dr Rosenfeld’s opinion, the defendant adduced evidence of contemporaneous medical reports and from the deceased’s general medical practitioner, as well as lay evidence.

Of the lay evidence, particular importance attaches to the evidence of Mr Wise, the solicitor who prepared the Will dated 20 July 2005 and supervised its execution. This is despite the fact that he has not retained contemporaneous records beyond the Will and copies of the power of attorney and guardianship appointment executed at the same time as the Will. His memory is imperfect. His evidence in support of a finding of testamentary capacity is based squarely upon detailed evidence of his long standing usual practice in the preparation and execution of wills, coupled with evidence that, had he had any doubts about the deceased’s testamentary capacity, he would have insisted that an up-to-date medical report as to her capacity be obtained, which he evidently did not do. The admissibility of such evidence was confirmed in Drivas v Jakopovic (2019) 100 NSWLR 505.

Evidence of the defendant corroborates the evidence of Mr Wise about his usual practice insofar as she recalls that, although she accompanied the deceased to Mr Wise’s office, he had her remain outside while he took instructions from the deceased alone.

Mr Wise first met the deceased in 1989 shortly after the death of her de facto husband, a client of his. He has a record that the deceased made a will at that time, but he has no record of it apart from a file listing, and he has no recollection of the contents of the document.

In 1996 Mr Wise prepared the Deed dated 11 July 1996 and the deceased’s Will dated 25 July 1996, documents retained by him in a Deed Packet held in safe custody without any other records. He has no independent memory of any discussions or instructions concerning the Deed or Will; but he is generally aware that the deceased wanted the defendant to have a share of the Simpson Street property as the defendant was adding the upstairs section of the house on the property. He has no recollection of the origins of a discrepancy between the Deed and the Will in reference to the share of the Simpson Street property to accrue to the defendant upon completion of the upstairs addition. The Deed refers to 13.5%. The Will refers to 13.4%. As Mr Wise posits, one of those numbers is likely to be a typographical error.

Mr Wise did not act on the proposed transfer in 2002 of a 20% interest in the Simpson Street property to the defendant or the mortgage in favour of Aussie Mortgages Ltd signed at that time. He says that he first knew of the proposed transfer only after the death of the deceased.

As far as Mr Wise can recall, he did no legal work for either the deceased or the defendant in the period between 1996 and 2004. He has no record of having done so.

He did, however, act on the transfer of the one-sixth share of the Simpson Street property to the defendant in 2004, and he liaised with Aussie Mortgages Ltd in securing its consent to registration of the Memorandum of Transfer. He did not act for either the deceased or the defendant in relation to the mortgage registered immediately after the Transfer. He no longer has a physical file relating to the Transfer, but he does have a computer record of a valuation of the property at $950,000, correspondence with Aussie Home Loans seeking their consent to the transfer and a copy of the Memorandum of Transfer.

He has no independent recollection of this matter, discussions or instructions. However, he deposes that he was aware that the earlier 13.5% or 13.4% share for the defendant was to be formalised with the defendant going on title as to a one-sixth share. He does not recall how or why the share was increased from 13.5% or 13.4% to a one-sixth share (16.67%). He does, however, have a recollection of attending upon the deceased and the defendant at the Simpson Street property in connection with the Transfer, and a vague recollection of a discussion to the effect that the defendant was to pay all the costs and stamp duty associated with the Transfer.

Mr Wise records that, if he had any doubts about the mental capacity of the deceased at the time of receiving instructions for the transfer of the one-sixth share, he would have, as was his general practice with wills and powers of attorney, requested she obtain a medical certificate before proceeding, and he would have placed any such certificate in the Deed Packet, or Packets, which contained the 1996 Deed, the 1996 Will, the 2004 Valuation and the 2005 Will. As there is no such medical report in any Deed Packet, he presumes that none was requested.

Mr Wise no longer retains a file relating to preparation of the Will, Power of Attorney and Enduring Guardianship Appointment signed by the deceased in his office on 20 July 2005. The file was probably destroyed, in the ordinary course of his practice, after seven years. His computer records enable him to say that a file was opened and documents prepared between 12.15pm and 1.32pm on 20 July 2005. He is also aware from the Will’s witness details that the attesting witnesses were a paralegal and a solicitor in his office.

He has no record or recollection of what was discussed with the deceased on 20 July 2005. However, he says that he would have acted in accordance with his “usual practice” in that, if he had any suspicions as to the deceased’s capacity to make a will, a power of attorney or enduring guardianship appointment, he would have sent her to her GP for a letter of confirmation that she was competent to make a will.

On 20 July 2005, he posted to the deceased a letter of the same date in which he recorded that they had discussed her Will “at length” and set out in summary form the terms of the Will and the nature of a Power of Attorney and Guardianship Appointment. The letter recorded its inclusion of a tax invoice, a copy of which is not in evidence. The deceased appears to have arranged for a timely payment of the invoice by cheque. That is an inference to be drawn from her handwriting on an envelope (bearing the name of Mr Wise’s firm and a post office stamp dated 20 July 2005) recording the fact of payment. Nothing in the letter, and nothing in the process of payment of Mr Wise’s tax invoice, reflects adversely on the deceased’s testamentary capacity.

In the affidavit in which Mr Wise records his dealings with the deceased, he explains his “usual practice” relating to the preparation of a Will by reference to “a series of questions / discussion points” that he has long used as a template for taking instructions from a will-maker. They include interrogation about the client’s property holdings. In the same affidavit he also sets out precautionary steps routinely taken by him in dealing with a client in respect of whom he apprehends that there is some doubt as to mental capacity.

In his cross examination Mr Wise was not challenged on his evidence about his “usual practice”. Nor was it put to him that the deceased lacked capacity to give instructions for a one-sixth share in the Simpson Street property to be transferred to the defendant in 2004 or capacity to execute the Will, Power of Attorney and Enduring Guardianship Appointment dated 10 July 2005.

In the absence of an attack on his evidence about usual practice, I accept that evidence, the tenor of which implicitly supports a finding that the deceased had the mental capacity requisite to sign the Memorandum of Transfer of a one-sixth share and each of the documents (including the deceased’s Will) dated 20 July 2005.

Affidavits from attesting witnesses to the deceased’s execution of the Will prove execution of the Will without deposing to facts beyond execution. Neither witness has independent recollections of the event.

Evidence of the deceased’s general practitioner, Dr Robert Muller, is more expansive. His records reveal that the deceased was seen by his medical practice (nearly always by him) 89 times between 2001-2008, including 13 visits in 2004, 10 visits in 2005 and 16 visits in 2006. He was familiar with her social circumstances as well as her health.

That is apparent from the following extract from an affidavit affirmed by him on 5 July 2020:

Dr Muller’s reference to a report of Associate Professor Garrick is a reference to a report dated 3 February 2005 addressed by Dr Raymond Garrick (a Neurologist) to Dr Muller.

Omitting formal parts, that report is in the following terms (with emphasis added):

In view of Dr Rosenfeld’s characterisation of the deceased’s 1995 stroke as a major stroke, reference should also be made to Dr Garrick’s report dated 13 April 2003 (addressed to Dr Muller) in which he made the following observations (with emphasis added):

This medical evidence should be read in the context of the following evidence of Dr Rosenfeld elicited in cross examination:

I accept Dr Rosenfeld’s evidence that, because these “cognitive tasks” may have been of a routine nature for the deceased, they do not of themselves necessarily ground a finding that the deceased had capacity to execute legal documents in 2004 or 2005. Nevertheless, they do, in combination with the evidence of Mr Wise, the evidence of Dr Muller and the reports of Dr Garrick, support a finding of capacity. There is no evidence, and no submission has been made, that they are anything other than evidence of the deceased’s independent conduct. In particular, there is nothing to suggest that they were written at the prompting of the defendant.

Dr Rosenfeld’s opinion that the deceased lacked capacity to make the Will dated 20 July 2005 is, at least in part, predicated upon an opinion that the deceased would not have been able to understand the complexity of transactions relating to her ownership of the Simpson Street property following execution of her Will dated 25 July 1996. That opinion is open to challenge by reference to factors extrinsic to the apparently inconsistent legal documents executed by the deceased in 1996 and 2004/5.

The complexity of the deceased’s transactions arises, in part, from the unavailability of full contemporaneous documentation. Without the benefit of Mr Wise’s files it is difficult, on the face of the documents, to see how they all fit together. Viewed in the context of the personal circumstances of the deceased and her daughters, the complexity dissipates.

As an adult, the defendant began living with the deceased at the Simpson Street property at about the time, in 1995, that her marriage broke up and she found herself without a place to live and without any substantial assets, though she was employed with a reasonable income.

Responding to her plight, the deceased invited the defendant to live with her. Recognising what would be cramped conditions in the deceased’s house, the defendant proposed that she build a self-contained apartment above the deceased’s living area with funds borrowed on the security of the Simpson Street property. The deceased agreed, provided that the defendant assumed personal responsibility for repayment, and servicing, of the mortgage debt. At this time, until she was retrenched in 2008, the defendant enjoyed what seemed to be secure employment whereas the deceased was a pensioner, with part time (one day a week) employment.

$105,000 was borrowed upon security of the Simpson Street property in 1996. As evidenced by the Deed dated 11 July 1996, the loan funds were to be applied in part for construction of the self-contained apartment and in part for purely personal purposes of the defendant. Whatever the application of the loan funds in fact, the arrangement between the defendant and the deceased was that the defendant would be responsible for repayment of the mortgage debt and servicing the mortgage in the meantime.

As envisaged by the Deed dated 11 July 1996, upon completion of the upstairs apartment, the defendant acquired a beneficial interest in the Simpson Street property. For present purposes, nothing turns on whether her share of the property was 13.5% or 13.4%. As events transpired, when the time came for conversion of the defendant’s beneficial interest into a legal interest, the share of the fee simple transferred to the defendant in 2004 was a one-sixth (16.67%).

As in the nature of building renovations, the funds borrowed for construction of the upstairs apartment in 1996 were inadequate for the purpose. Accordingly, the 1996 mortgage was twice varied in 1997 to provide an additional $35,000 to complete the construction.

In the course of living at close quarters in the Simpson Street property, the deceased and the defendant drew closer. Their affairs were, to some extent, intermingled as they enjoyed a shared life and had a common interest in maintenance, if not development, of the property. The deceased became increasingly dependent upon the defendant for companionship and care. The defendant depended on her mother, and a carer’s pension, no less.

The deceased was concerned in 2002 to protect the defendant’s interest in the Simpson Street property. At about the same time, the parties, I infer, had in mind the possibility of raising additional funds on a fresh mortgage for reasons largely unexplored in the evidence but which, I infer, may have related to a desire to undertake further renovations. Any such plans were displaced by friction between the deceased and the defendant (on the one hand) and the plaintiff (on the other hand), the plaintiff resentful that she might not be being treated on equal terms vis-a-vis the defendant.

It was not until 2004 that the deceased and the defendant brought to fruition their plans for refinancing the mortgage of 1996 as varied in 1997. It was in conjunction with the process of refinancing that a one-sixth share of the legal title to the Simpson Street property was conferred on the defendant. This was thought to be less provocative to the plaintiff than the 2002 proposal for transfer of a 20% share.

In closing submissions, counsel for the plaintiff informed the Court that her client did not consider that it was unreasonable for the defendant to have acquired a one sixth share in the property.

After the refinanced mortgage in 2004, and until completion of the sale of the Simpson Street property in 2018, the defendant continued to service the mortgage debt on the property. This I take to be confirmation of the parties’ original arrangement that the defendant would be responsible for repayment of the debt and, to protect the defendant’s investment, she would be given a share in the legal title to the property.

Having been frustrated in her 2002 proposal to transfer a 20% share in the property to the defendant, the deceased topped up the defendant’s notional interest in the property by changing her Will on 20 July 2005, prospectively giving the defendant a two-thirds share (rather than a one-half share) of her residuary estate.

At the same time (on 20 July 2005), the deceased formalised the defendant’s role as her companion and carer by appointing the defendant as her enduring attorney and guardian.

A turning point in the deceased’s life came in October 2007 when she was knocked down by a motorised scooter, an event reported in the local newspaper. Before that time, she was better able to fend for herself than she was after that time.

As fate would have it, in the year following the deceased’s 2007 injury, the defendant was unexpectedly retrenched. That put her in funds, she says, to pay down $100,000 of the mortgage debt, but it left her without substantial prospects of re-employment. After a failed attempt to establish an independent business, she found that increasing amounts of time and attention were taken up with caring for the deceased.

An elaboration of subsequent events may be necessary in dealing with accounting questions, but enough has been said to place in perspective the property dealings of which the deceased would have been aware at the time she made the Will dated 10 July 2005. Subsequent events do not bear upon the validity of the Will.

Any complexity implicit in the Will, in my opinion, arises from a failure to locate in their social setting legal documents which do not, on their face, fit well together: in particular, the Deed and the Mortgage dated 11 July 1996, the Will dated 25 July 1996, the mortgage variations of 1997, the draft Memorandum of Transfer dated 5 October 2002, the mortgage dated 21 August 2002 registered only in December 2004 after registration of the Memorandum of Transfer providing for transfer of a one-sixth share of the property to the defendant, and the Will, Power of Attorney and Guardianship Appointment all dated 20 July 2005.

From beginning to end, the purpose of this documentation was to facilitate development of the Simpson Street property so as to enable the defendant to live with, or at least close to, the deceased and to have the defendant’s investment in the property protected by both conferral of a property interest on the defendant and recognition of her investment with an increased share of the deceased’s residuary estate. It was not beyond the deceased’s comprehension.

Although I appreciate the importance to the plaintiff of her literary efforts and the importance to her of having those efforts recognised by a much-loved mother, I do not regard any hesitancy on the part of the deceased in being able to report upon weekly instalments of the plaintiff’s novel as indicative of a form of mental incapacity. An author’s preoccupation with an anticipated publication is not necessarily shared even by empathetic relatives.

In my assessment, the deceased had testamentary capacity at the time she executed her Will dated 20 July 2005 and, in making that Will, she acted in a manner consistent with events that post-dated her execution of the Will dated 25 July 1996. The Will dated 20 July 2005 was duly executed, rational on its face and responsive to the deceased’s personal circumstances at that time. The plaintiff concedes that the deceased knew and approved its contents. It was not vitiated by a want of testamentary capacity. I do not accept the plaintiff’s contention that the deceased did not understand the nature or extent of property available for her disposition. She appears to have evaluated, with care, the competing claims of her daughters on her bounty. The daughter with whom she lived, and upon whose companionship she depended, had an ongoing financial investment in the Simpson Street property. Her other daughter (no less loved but, by choice, living at a distance) did not. Testamentary provision was made for them both, not in an arithmetically equal measure but with an apparently rational purpose. In my assessment, the Will dated 20 July 2005 was the last Will of a free and capable testatrix.

Accordingly, the plaintiff’s application for an order that the grant of probate of the deceased’s Will dated 20 July 2005 made to the defendant on 9 January 2018 be revoked is to be dismissed. The application having been heard on its merits in a contested proceeding, on notice to all persons interested in the estate of the deceased, I propose to make an order that the Will dated 20 July 2005 be admitted to probate in solemn form and that the grant made on 9 January 2018 be endorsed as a grant in solemn form.

The question whether the defendant or the estate of the deceased should bear the burden of the payment of $304,590.71 paid out of the proceeds of sale of the Simpson Street property on 10 May 2018 is to be determined by reference to the agreement of the parties, initially recorded in the Deed dated 11 July 1996, that the defendant would be responsible for mortgage debt charged against the Simpson Street property with the consent of the deceased.

That agreement was implicitly confirmed, across transactions associated with two variations and a refinancing of the original mortgage debt, by: (a) the defendant’s assumption of ongoing responsibility for servicing the debt; and (b)her acceptance of a one-sixth interest in the legal title to the Simpson Street property subject to the mortgage registered in conjunction with the Memorandum of Transfer in her favour.

The defendant’s acceptance of responsibility for the original mortgage debt, as varied from time to time or refinanced, was the “price” she paid for the deceased’s permission to construct and occupy the upstairs apartment on the Simpson Street property and for conferral upon her of an ownership interest in the property. Having accepted the benefit of the transactions in which she joined with the deceased, she is bound to bear the associated burden.

Subject to allowing the parties an opportunity to be heard as to the form of orders to be made in disposition of these proceedings, I propose to make a declaration that the defendant is liable to reimburse the estate of the deceased for the sum of $253,825.59 paid out of the proceeds of sale of the Simpson Street property on 10 May 2018, on the account of the estate, to obtain a discharge of the mortgage then registered on the title to the property.

Introduction. A determination of responsibility for other items of expenditure referable to the estate of the deceased requires that closer attention be given to the relationship between the defendant and the deceased after the deceased, on 20 July 2005, appointed the defendant as her enduring attorney and guardian.

The transactions for which the plaintiff seeks to hold the defendant accountable to the estate of the deceased all occurred after a sharp decline in the deceased’s health following injuries suffered in late October 2007. It is not necessary to be precise about a specific time at which the deceased became mentally incapacitated or, more generally, incapable of managing her affairs, but a reliable indicator of an incapacity for self-management, in the absence of any need to be more precise, might be the time in late 2008 when the defendant assumed the role of the deceased’s full time carer.

During the period in which impugned transactions took place the relationship between the deceased and the defendant falls to be considered in the following context:

Entitlements attaching to Co-ownership of Property. Insofar as the defendant effected improvements to the Simpson Street property and rented out the deceased’s downstairs apartment during the deceased’s residency at a nursing home, her entitlement to do so and any obligation she may have to account to the estate of the deceased require an acknowledgement of her co-ownership of the property (Dunkel v Izsak (1984) 3 BPR 966) and the nature of any accounting obligations owed by co-owners (Ryan v Dries (2002) 10 BPR 19, 497; Forgeard v Shanahan (1994) 35 NSWLR 206).

Leaving to one side for the moment fact that at the time the defendant effected improvements to the Simpson Street property in 2016 (a) the deceased was incapable of managing her own affairs; and (b) the defendant held, and purported to exercise, authority as the deceased’s enduring attorney and guardian, her status as a tenant in common (with a one sixth share in the title to the property) entitled the defendant to an “undivided” (that is, a physically undivided) share of the property with a right (in the absence of any agreement to the contrary) to occupy the whole property in common with her co-owner, the deceased. Tenants in common enjoy “unity of possession”. They do not, by virtue only of their co-ownership, owe fiduciary obligations one to the other. They can generally deal with their share of the property in co-ownership as they see fit, provided that they do not exclude a co-owner: B.A. Helmore, The Law of Real Property in NSW (Law Book Co, 2nd ed 1966), pages 274-276.

In an administration suit, or like proceedings, a co-owner who has excluded another co-owner from possession of a co-owned property may be liable to account for exclusive occupation or enjoyment of the property by an allowance in favour of the excluded co-owner, or by a payment to the excluded co-owner, of an occupation fee or a proportion of rents received. Likewise, in such proceedings, a co-owner who seeks an allowance for the value of improvements effected to a co-owned property may be liable to account to a co-owner for rents received in respect of the property. Upon an exercise of equitable jurisdiction the maxim that he who seeks equity must do equity applies.

In the province of property law, the deceased’s entry into a nursing home may not, of itself, be characterised as an act by which the defendant “excluded” her from the Simpson Street property; but in an administration suit, or the like, notice needs to be taken of the circumstances in which the deceased was unable personally to occupy, or to enjoy, the property.

The Defendant’s Assumption of the Obligations of a Fiduciary. The deceased’s placement in a nursing home occurred in circumstances in which the defendant exercised her authority as the deceased’s enduring guardian, and attorney, to decide where the deceased lived. The deceased was a person in need of protection. The defendant had, and exercised, authority to manage her affairs, her person and her property. By reason of that fact, she assumed the obligations of a fiduciary attaching (to paraphrase Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420) to the office of a person entrusted with a fund (the Simpson Street property and the deceased’s pension) to be applied in or towards the maintenance and support of a person (the deceased) under her care.

As between the deceased and the defendant (respectively, a principal of the first part and an enduring attorney/guardian of the other part), the defendant was a fiduciary, and, speaking generally, bound to serve the interests of the deceased and required not to place herself in a position of conflict, nor to obtain a profit or benefit from her position without first obtaining the deceased’s fully informed consent (or, in the absence of capacity in the deceased to give such consent, authorisation from the Court): Taheri v Vitek (2014) 87 NSWLR 402 at 427 [115].

Speaking generally, two broad principles inform consideration of the defendant’s performance of her fiduciary obligations. First, the scope of her obligations as a fiduciary depended in large measure upon the terms of her appointments as an enduring attorney and guardian. Secondly, any liability she may have to account for her dealings with property of the deceased also depends upon an assessment of the purpose for which she was appointed as an enduring attorney and guardian and upon whether she acted in fulfilment of that purpose.

As to the first of these principles, upon an assessment of any fiduciary obligations owed by the defendant to the deceased, and upon an assessment of her authority vis-à-vis the deceased, regard has to be had to the terms and implicit limitations of the instruments dated 20 July 2005 pursuant to which the defendant was appointed as the deceased’s enduring attorney and guardian.

As to the second principle, in deciding whether (and, if so, to what extent) the defendant should be held liable to account to the estate of the deceased for dealings with property of the deceased, consideration needs to be given to the character of the liability to account attributed to an enduring attorney, enduring guardian or carer, not to be confused with the liability to account of a trustee: Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423; Clay v Clay (2001) 202 CLR 410 at 428-431.

The Enduring Power of Attorney dated 20 July 2005. The Enduring Power of Attorney executed by the deceased on 20 July 2005 in favour of the defendant was governed by Part 2 (incorporating Schedule 2) of the Powers of Attorney Act 2003 NSW as then in force. It was substantially in the form prescribed by section 8 and Schedule 2. It was duly executed in the presence of Mr Wise, who provided a certificate of independent advice in the form required by section 19 for the operation of an enduring power of attorney. By operation of section 9, and according to its terms, the instrument conferred on the defendant, as the deceased’s attorney, “the authority to do on behalf of the principal [the deceased] anything that the principal may lawfully authorise an attorney to do.”

Although the instrument recorded a statement that the defendant’s authority was “subject to any additional details specified in Part 2 of this document”, there was no “Part 2” of the document.

The instrument executed by the deceased did not expressly authorise the defendant to give gifts, to confer benefits on herself or to confer benefits on third parties as contemplated by sections 11, 12 and 13 (respectively) and Schedule 3. Accordingly, the instrument did not:

The Enduring Guardianship Appointment dated 20 July 2005. The instrument dated 20 July 2005 appointing the defendant as the deceased’s enduring guardian was governed by Part 2 of the Guardianship Act 1987 NSW, and Part 2 (incorporating Schedule 1) of the Guardianship Regulation 2000 NSW, as then in force.

The instrument was substantially in the form prescribed (by section 6C(1)(a) of the Act and Schedule 1 of the Regulation) for the appointment of an enduring guardian.

The functions conferred on the defendant as the deceased’s guardian followed the standard form, conferring authority to make decisions about where the deceased lived, what health care she received, what other kinds of personal services she received and to consent to the carrying out of medical or dental treatment.

Ancillary Features of the Defendant’s Appointment as Enduring Attorney and Guardian. Mr Wise formally witnessed the execution of the instruments of appointment by the deceased and certified that she appeared to understand the effect of the instruments.

The defendant formally accepted her appointments as the deceased’s attorney and guardian by her execution of the instruments of appointment contemporaneously with the deceased and Mr Wise. In due course, she exercised her authority as an enduring attorney and guardian in management of the deceased’s affairs. Her assumption of the obligations of a fiduciary derive from her acceptance of appointment to the offices of attorney and guardian and her exercise of the authority of those offices in combination. She accepted her appointment on the basis that she would act on them if and when the deceased lost capacity for self-management.

In the meantime, in the letter dated 20 July 2005 written by Mr Wise to the deceased following their conference, and their execution of the instruments, that day, he summarised the effect of the Will, the Power of Attorney and the Enduring Guardianship Appointment.

The letter explained the Power of Attorney and the Enduring Guardianship Appointment in the following terms:

The “Building Contract” for Renovations, 2016. The Power of Attorney was registered as Book 4704 Number 921 on 6 April 2016, apparently in anticipation of execution on or about 27 April 2016 of the document styled “Mortgage Linked Loan Agreement” between Keyturn Pty Ltd (as “mortgagee”) and the deceased and the defendant (as “mortgagor”), and the accompanying Memorandum of Mortgage, which supported Keyturn Pty Ltd’s Caveat Number AM785659. The Caveat attributes the date 27 April 2016 to the primary documents, the copies of which in evidence are undated.

The defendant signed the primary documents on her own behalf and (pursuant to the registered power of attorney) on behalf on behalf of the deceased. Mr Wise witnessed each of the defendant’s signatures.

The building work undertaken by Keyturn Pty Ltd in mid-2016 in reliance upon this documentation related mainly to the downstairs apartment on the Simpson Street property; to a lesser extent, the upstairs apartment; and the garden area of the property at large. The evidence does not permit an apportionment of the costs of the work between those three parts of the property.

Accounting for the 2016 Renovations and Rent. As between the defendant and the estate of the deceased, competing claims about who should bear the burden of the cost of renovations (the sum of $262,000) and who should be entitled to rent (in the total sum of $72,272.44) are to be determined together. This is not a case of one co-owner (the defendant) simply excluding another (the deceased), but a case in which, the deceased having become incapable of managing her own affairs, the defendant acquiesced in the deceased’s placement in a nursing home and took it upon herself (in her personal capacity and as the deceased’s attorney) to renovate the Simpson Street property, and to lease out the downstairs apartment on the property which, by reason of her entry into a nursing home, the deceased was no longer herself able to occupy personally.

As the deceased’s guardian, the defendant was authorised to determine where the deceased lived. She determined, or acquiesced in a determination, that the deceased live at the nursing home, away from the property. She was, in that sense, privy to the deceased’s exclusion from the property.

There is no challenge to the validity of the transactions entered into by the defendant as the deceased’s attorney. In particular, there is no challenge to the validity of the defendant’s entry into contractual or security arrangements with Keyturn Pty Ltd to get work done, although the plaintiff complains about the interest component included in the amount of $262,000 paid to Keyturn Pty Ltd out of the proceeds of sale of the Simpson Street property. Nor is there any objection to the fact that the downstairs apartment was rented out, or to the amount of rent charged for the apartment, although the plaintiff complains that, whilst renting out the downstairs apartment, the plaintiff continued to occupy the upstairs apartment.

The fact that the defendant contracted for renovation work in her capacity as the deceased’s attorney, as well as in her own capacity, and that she leased the deceased’s apartment at a time when she was acting as the deceased’s enduring attorney and guardian, engages the process of accounting by a fiduciary, bearing in mind that the defendant (as a tenant in common as to a one sixth share in the property) was entitled to do what she did on her own account, but subject to a potential liability to account to the deceased as an “excluded” co-owner.

Had the defendant effected renovations in her own name alone, and without acting in her capacity as a fiduciary, her entitlement to recover from the estate of the deceased an allowance for the renovations may have been limited to an amount equal to the increase in the value of the property, if any, consequent upon the renovations. The defendant may have been liable alone for the cost of the renovation work, an amount not necessarily coincident with the amount of any increase in the value of the property consequent upon the work having been performed. In the circumstances of the present case, however, the defendant undertook the renovations on the account of the deceased and herself, relying upon her appointment as the deceased’s attorney. In effect, the defendant and the deceased jointly contracted for the renovation work to be done.

In my opinion, on an accounting between the defendant and the deceased the cost of the renovation work should be borne by the defendant as to one sixth and by the estate of the deceased by five sixths, reflecting their respective ownership interests in the property.

Although a case might be made for imposing on the defendant the burden of the interest component of the amount paid to Keyturn Pty Ltd, in the absence of any challenge to the contractual arrangements made with the company I decline to take that course. There is no allegation that, in her entry into the contractual arrangements or in her delay in arranging for the company to be paid, the defendant acted in breach of her fiduciary obligations to the deceased.

As each party (the defendant and, on behalf of the estate of the deceased, the plaintiff) invites the Court to engage in a process of accounting, on an exercise of the Court’s equity jurisdiction, an order for apportionment of the costs of renovations should be accompanied by a comparable order for apportionment of rent receipts, net of ordinary expenses incurred in leasing out the property. An allowance should be made in favour of the plaintiff for one sixth of the net rents received and an allowance should be made in favour of the estate of the deceased for a five sixths share of the receipts.

It matters not that, at the time the downstairs apartment was rented out, the plaintiff continued to occupy the upstairs apartment. As a co-owner of the property she was entitled to remain in possession of the property.

Although, in the ordinary course, the deceased occupied the downstairs apartment and the defendant occupied the upstairs apartment, there was no agreement between co-owners that attributed to either of them an entitlement to occupy, or to enjoy the fruits of, a part of the Simpson Street property to the exclusion of the other.

The defendant’s obligation to account to the deceased for a share of rents received is not (as the defendant contends) limited to a period following the death of the deceased. The defendant owed the obligations of a fiduciary to the deceased before the death of the deceased, as well as after. The deceased’s placement in a nursing home, to the knowledge of the defendant, if not at her instigation, and the defendant’s letting out of the apartment formerly occupied by the deceased effectively excluded the deceased from personal occupation of the Simpson Street property. It would be an unconscientious exercise of her powers as an enduring attorney and guardian if the defendant were to keep the deceased in a nursing home without accounting to her for rent received by reason of her residence in the nursing home.

Just as the costs of the 2016 renovations are to be borne by the co-owners in proportions reflecting their ownership interests, so too must net rental receipts be apportioned. She who seeks equity must do equity.

In making this determination, I am conscious that the power of attorney dated 20 July 2005 did not authorise the defendant to confer a benefit on herself. Her authority as attorney did however extend to entry into a contract for renovation work and a contract of lease in conjunction with herself, acting in her personal capacity. On an accounting for the cost of the renovation work and for rent receipts, an apportionment of the burden of expenditure and the benefit of receipts reflective of ownership interests is consistent with both the rights and obligations of the defendant and the deceased as co-owners and a working out of the fiduciary obligations of the defendant as the deceased’s attorney.

Subject to allowing the parties an opportunity to be heard as to the form of orders to be made in disposition of these proceedings, I propose to make declarations to the effect that:

As liability for the payment of $262,000 was apportioned (as here contemplated) at the time of sale of the Simpson Street property, no adjustment is now required in respect of it save to the extent that the defendant may not yet have accounted to the estate of the deceased for her personal use of $2,000 of the loan funds.

I am not confident that all rent received by the defendant has been accounted for, or that all expenses incurred by the defendant on the account of herself and her mother in earning that rent have been taken into account. These matters need the parties’ attention in light of my determination that, in principle, the benefits and burdens of rents received on the Simpson Street property are to be enjoyed, and borne, in accordance with the ownership interests of the deceased (five sixths) and the defendant (one sixth) both before and after the death of the deceased.

Receipt of Insurance Proceeds. In late 2015 the house on the Simpson Street property suffered storm damage. An insurer effected some repairs and, in 2016, made compensation payments totalling $27,160.29.

That sum was paid in three instalments: $3,065 was paid on 22 March 2016; $22,375 was paid on 12 April 2016; and $1,720.29 was paid on 8 June 2016. Each payment was made into the bank account of the deceased.

The insurance payout was disbursed in replacing things not covered by insurance and in meeting living expenses of the defendant and the deceased, in proportions not quantified by the evidence.

Prima facie, on an accounting for the insurance proceeds as between the defendant and the deceased, the sum of $27,160.29 should be apportioned:

This apportionment reflects the ownership interests of the defendant and the deceased in the Simpson Street property and the fact that the compensation paid by the insurer was paid for damage to the property.

However, I do not propose to order that the defendant account for expenditure of the deceased’s share of the insurance proceeds. At the time those moneys were disbursed, the deceased was recently admitted to a nursing home and adjusting to her residence there; the defendant was actively engaged in providing secondary care for the deceased (and meeting some of her living expenses) and in effecting renovations to the Simpson Street property as a co-owned property; to the extent that the defendant enjoyed any benefit from the deceased’s share of the insurance money, it was a benefit incidental to her role as the deceased’s enduring attorney, guardian and carer, with an indeterminate amount of expenditure on household items replacing water damaged items; and, although the defendant no longer physically lived with the deceased, she continued to ensure that the deceased was cared for appropriately and regularly visited. In short, the deceased’s share of the insurance funds was, in effect, entrusted to the defendant to be applied in or towards the maintenance and support of the deceased (notwithstanding her residence in a nursing home) as a notionally continuing member as the same household as the defendant, who used the funds substantially in the interests of the deceased, albeit incidentally in her own favour as well. The defendant did not use the funds without regard to her continuing obligation to support her mother.

During the course of final submissions counsel for the plaintiff invited the Court to have the parties settle the detail of accounts after a determination by the Court of questions of principle which, by this judgment, I have done.

On reflection, I propose to act upon that invitation because I am not satisfied, on the current evidence and submissions, that I can quantify all adjustments that may be necessary to effect a proper accounting.

I very much doubt that a formal order that accounts be taken would result in anything more than unproductive expenditure on legal or accounting costs. In my opinion, the parties should be allowed an opportunity to see whether, questions of principle having been decided, they can achieve a practical outcome before the listing of the proceedings for further submissions.

Although the parties seem to have imagined that I could make a determination on the plaintiff’s claim for a family provision order without clarity as to the size of the deceased’s estate, I am of the opinion that there is presently too much uncertainty about the size of the deceased’s estate to embark upon a conscientious consideration of the criteria for a family provision order mandated by the Succession Act 2006 NSW, sections 59(1)(c) and 59(2).

Apart from uncertainty attaching to estate accounts, a factor that may be necessary to take into account upon a consideration of the plaintiff’s application for a family provision order is the question of liability for costs attending a determination of other aspects of the proceedings. This, in itself, is a topic upon which I should allow the parties an opportunity to be heard if they cannot (as perhaps they will) settle their differences generally.

As presently advised, I am inclined to the view that there are at least three impediments to the plaintiff’s success on her application for a family provision order.

First, respect is due to the deceased’s deliberate division of her estate (after allowing a small legacy for a de facto step daughter), departing from an earlier testamentary arrangement which would have given her estate to her daughters equally. Secondly, under the deceased’s will the plaintiff receives a significant (one third) share of her residuary estate, an amount yet to be quantified. Thirdly, even with assistance received from the deceased during her lifetime, the defendant is in poor financial circumstances, ostensibly without family (other than the plaintiff) to whom she might look for support at a time when she is no longer young.

Even if (which I accept) the plaintiff was a loving and supportive daughter of the deceased (and noting that, at a time when her mother was in need, she gifted $3,000 to the deceased), these factors might weigh heavily against findings necessary for the making of a family provision order. If there is to be such an order, there needs to be an agreement or findings about the size of the deceased’s estate, and a discharge by the plaintiff of the forensic onus she bears upon a consideration of sections 59(1)(c) and 59(2).

Having published these reasons for judgment, I propose to list the proceedings for directions (or, if the parties can resolve their differences, for final orders) at a time to be appointed in consultation with counsel.