KD v BS

1. [1]

   The Plaintiff, KD, seeks provision under s 59 of the Succession Act 2006 (NSW) from the estate of her late mother (“the Deceased”).

2. [2]

   The Deceased died on 8 July 2020, aged 83. By her will dated 5 June 2018, the Deceased left her entire estate to the Plaintiff’s sisters, BS and CC (together, “the Defendants”), and appointed them as her executrices.

3. [3]

   KD is now aged 65. The Defendants, BS and CC, are aged 66 and 64 respectively.

4. [4]

   Much of the controversy in these proceedings relates to applications made by KD to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”) and to the Queensland Civil and Administrative Tribunal (“QCAT”).

5. [5]

   Section 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) provides, in relation to proceedings in the Guardianship Division:

6. [6]

   There is a provision to like effect in the Guardianship Act 1987 (NSW). [1] The transcript of the proceedings before QCAT is marked “restricted” which suggests a non-publication order may, under a corresponding although differently worded provision, [2] have been made.

7. [7]

   I doubt that, on its proper construction, s 65 of the NCAT Act prohibits publication of the name of a person involved in proceedings in the Guardianship Division by the person to whom the proceeding related, nor that the tendering of the NCAT material before me constituted “publishing” or “broadcasting” that material. I think it clear that this Court is not a “person” subject to the prohibition in s 65. [3] However, the section bespeaks a legislative intention to protect the privacy of persons involved in proceedings in the Guardianship Division and suggests that judicial restraint should be exercised about revealing the identity of such persons. [4] Accordingly, I have decided not to name the parties to these proceedings and to identify them as I have indicated above, and to identify one other person as I indicate below. [5]

8. [8]

   KD has engaged three firms of solicitors to act for her in these proceedings. All of the affidavits KD affirmed in the proceedings were prepared by one or other of those legal advisors. The most recent solicitor filed a Notice of Ceasing to Act on 31 May 2022.

9. [9]

   As a result, KD appeared before me in person.

10. [10]

    KD clearly found this to be a distressing and difficult experience. Nonetheless, she conducted herself in a dignified manner and with what appeared to be a good familiarity with the eight volume Court Book. [6] She also prepared a lengthy opening “Statement” and some 27 pages of “Closing Submissions”.

11. [11]

    Ms Hoskinson appeared for the Defendants, as executrices of the Deceased’s estate. Bearing in mind the obvious hostility between KD and her siblings, Ms Hoskinson conducted their case with appropriate restraint and moderation.

12. [12]

    The Deceased’s estate was relatively modest with a current value of some $534,000. That value is likely to be understated somewhat as it included “household contents/furniture” at only $400. There is evidence to suggest that the value of the Deceased’s household contents and furniture was more than this. The difference is, however, immaterial, for present purposes.

13. [13]

    The Defendants’ costs as executrices are in the order of some $124,000. That figure does not appear unreasonable, having regard to the material adduced on behalf of KD: 5 affidavits totalling around 1000 paragraphs.

14. [14]

    It is common ground that KD had a warm and loving relationship with her mother until April or May 2018. Until then, KD saw her mother regularly and cooked her meals three times a week.

15. [15]

    Until around 2014, the Defendants saw less of the Deceased than did KD as they had moved away from where the Deceased was living.

16. [16]

    However, although BS was then living in Queensland, on 4 May 2011 the Deceased appointed BS to be her Enduring Guardian and, on 19 September 2014, to hold an Enduring Power of Attorney. Both documents were explained to the Deceased by her solicitor, who on each occasion witnessed her signature.

17. [17]

    The Deceased’s earlier wills, each prepared by the same solicitor, reflected her testamentary awareness and her close relationship with KD.

18. [18]

    By her will of 9 September 2010, the Deceased left her estate to KD, BS and her then husband, JD, equally. She did not include CC in her will “because she and her family are financially secure”.

19. [19]

    By her next will dated 19 September 2014, the Deceased left her estate equally to KD, BS and CC. The Deceased and JD were then divorced, or about to be divorced.

20. [20]

    As I have said, by her final will dated 5 June 2018, the Deceased left her estate equally to BS and CC, and made no provision for KD.

Events leading to the will – KD’s application to NCAT in relation to “the Uncle”

1. [21]

   There is no doubt as to the circumstances that led the Deceased to exclude KD from her will.

2. [22]

   For many years, the Deceased’s elder brother, JW (who I will call “the Uncle”) lived with the Deceased and her former husband, JD, in the Deceased’s home at Charlestown. The Uncle, a single man, had evidently come to Sydney from regional NSW for medical treatment sometime in the 1990s and thereafter, until his admission to John Hunter Hospital around April 2018, lived with the Deceased and JD at Charlestown.

3. [23]

   On 30 April 2018, KD made a Guardianship Application, and a Financial Management Application, to the Guardianship Division of NCAT in respect of the Uncle.

4. [24]

   Evidently, KD did not give the Deceased or the Uncle notice that she intended to make the application. It was this application that led the Deceased to exclude KD from her will.

5. [25]

   In her Guardianship Application, KD said:

6. [26]

   The “money” referred to was, evidently, the proceeds of the Uncle’s lottery win of a little under $200,000 in December 1999. It seems that the Uncle kept cash from that lottery win, and perhaps other cash, in his bedroom at the Charlestown property.

7. [27]

   In her Financial Management Application to NCAT, KD said:

8. [28]

   On 25 May 2018, KD sent an email to NCAT which included:

9. [29]

   At some time during May 2018, the Deceased wrote:

10. [30]

    KD informed me that she believes her sisters, particularly BS, influenced the Deceased to write this. I do not doubt that this is KD’s belief. However, the evidence before me does not enable me to come to any conclusion about this.

11. [31]

    As I have said, the Deceased made her final will on 5 June 2018.

12. [32]

    A file note dated 5 June 2018 made by her solicitor reveals that he asked the Deceased for whom she wished to make provision, and that the Deceased answered, “my two daughters, [BS] and [CC]”.

13. [33]

    The solicitor asked whether the Deceased had other children. The Deceased identified KD. The solicitor asked why the Deceased did not wish to make provision for KD. His note records that the Deceased replied, “definitely not after what she’s been up to”.

The Deceased’s stroke and admission to hospital

1. [34]

   On 27 June 2018, a little over three weeks after she made her last will, the Deceased had a stroke and was admitted to Belmont District Hospital. The Deceased was discharged from hospital on 13 August 2018. She then travelled by air ambulance to Gympie in Queensland, where she was admitted to the Japara Gympie Residential Care Centre. BS was by then living in Gympie.

2. [35]

   KD informed me that she believed BS had unduly influenced the Deceased into moving to Gympie and pointed to a hospital note made on 16 July 2018 which recorded that the Deceased “plans to go home on [discharge]”.

3. [36]

   However, there is in evidence a note made by the Deceased, sometime later, in which she stated:

4. [37]

   Other evidence, to which I will refer below, suggests that the Deceased was happy enough with her transition to the Japara Care Centre in Queensland.

KD’s further NCAT application

1. [38]

   On 14 August 2018, KD filed a further Guardianship Application at NCAT, this time in relation to the Deceased.

2. [39]

   In that application, KD said that the Deceased was at risk and continued:

3. [40]

   KD also said:

4. [41]

   At around this time, the Deceased’s Charlestown property was sold for $615,000. What remains of the proceeds of the sale of the property appears to comprise the bulk of the Deceased’s estate. KD informed me that she believed BS had influenced the Deceased to cause the Charlestown property to be sold. It may well be that BS suggested to the Deceased this was a sensible course, bearing in mind that the Deceased was to move to Queensland. There is, however, no direct evidence as to the circumstances which led to the sale of the Charlestown property.

The Deceased’s “statutory declaration”

1. [42]

   On 12 October 2018, the Deceased made what purports to be a “statutory declaration” in which she stated:

2. [43]

   KD told me that she believed BS had unduly influenced the Deceased to sign this document. There is, however, no evidence before me that would enable me to come to this conclusion.

3. [44]

   On 23 October 2018, Ms Cassandra Naylor, the Home Manager at the Japara Care Centre, wrote a note addressed “To Whom It May Concern”:

NCAT determination of KD’s application in relation to the Uncle

1. [45]

   On 31 October 2018, the Guardianship Division of NCAT ordered that the Uncle’s estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and that management of that estate be committed to the NSW Trustee and Guardian.

2. [46]

   The Tribunal concluded:

3. [47]

   Thus, to an extent, KD’s concerns about the management of the Uncle’s affairs were vindicated.

4. [48]

   However, a little over two weeks later, on 16 November 2018, the Uncle died.

NCAT’s determination of KD’s application in relation to the Deceased

1. [49]

   Several weeks later, on 10 December 2018, NCAT heard KD’s application to be appointed guardian of the Deceased’s estate.

2. [50]

   Again, to some extent, the concerns raised by KD about the manner in which BS had dealt with the Deceased’s estate were upheld.

3. [51]

   The Tribunal concluded that the Deceased was not able to manage her financial affairs and expressed “several concerns” about the manner in which BS had managed the Deceased’s financial affairs under the Power of Attorney of 19 September 2014.

4. [52]

   Thus, the Tribunal held:

5. [53]

   The Tribunal also observed:

6. [54]

   The Tribunal ordered that the Deceased’s estate be subject to management under the NSW Trustee and Guardian Act and that management of the Deceased’s estate be committed to the NSW Trustee and Guardian.

JD’s Supreme Court proceedings

1. [55]

   On 27 June 2019, JD commenced proceedings in this Court against the Deceased, claiming a share of the proceeds of sale of the Charlestown property based on his contention that, when the property was purchased in 1998, he had advanced $40,000 towards the purchase price.

2. [56]

   This claim had been foreshadowed by a letter that JD’s solicitor sent the Deceased on 9 August 2018 (when she was in Belmont Hospital and shortly before she was transferred to the Japara Care Centre).

3. [57]

   In that letter, JD’s solicitor wrote:

4. [58]

   This claim was made notwithstanding the fact that JD and the Deceased had agreed to “Terms of Settlement” over 20 years earlier in the Family Court of Australia. As I have said, they were divorced in 2014.

5. [59]

   The Deceased’s defence to those proceedings was conducted by her tutor, the NSW Trustee and Guardian.

6. [60]

   It is BS’s and CC’s position that KD was instrumental in instigating that demand.

7. [61]

   That contention was based on KD’s statement in her affidavit of 13 April 2021 that:

8. [62]

   KD attributed the statement in this paragraph about her bringing and funding the Supreme Court proceedings to an error by her then solicitor. Nonetheless, KD had affirmed the truth of the statement and I see no reason to doubt it reflected her belief when she did so. KD, however, insisted that the Supreme Court proceedings were “not against Mum” and that she was sure that, had she been in a position to do so, the Deceased would have agreed to pay her former husband the money he sought. I return to this below.

KD’s application to QCAT

1. [63]

   On 7 February 2020, KD commenced proceedings in QCAT.

2. [64]

   In her application, KD sought an order that she be appointed as the Deceased’s guardian. KD alleged that “[BS] had used fear, lies and manipulation to control Mum and protect herself” in the NCAT proceedings and that:

3. [65]

   However, on 25 March 2020, Dr Rodney Day wrote:

4. [66]

   I see no reason to doubt the accuracy of Dr Day’s observations.

5. [67]

   On 30 March 2020, QCAT dismissed KD’s application.

6. [68]

   In the course of the application the following exchange took place between [KD] and the Tribunal Member:

7. [69]

   The Member, giving the Tribunal’s reasons, said:

8. [70]

   Thus, although KD failed to persuade QCAT that she should be appointed guardian, or indeed that any of the arrangements then in place for the Deceased’s care be changed, she appears to have elicited from [BS] an agreement to keep her informed of any “significant healthcare decisions” about the Deceased.

9. [71]

   KD also alleged before QCAT that the appointment by the Deceased of BS as her Enduring Guardian was “invalid” or “fraudulent”. The Member was not satisfied that that was so. There is no evidence before me that it was so.

10. [72]

    Following the hearing, BS’s solicitors reported to her:

11. [73]

    Having read the transcript of the proceedings before the Member, this appears to me to be a fair summary of what transpired during the hearing.

Settlement of JD’s proceedings against the Deceased

1. [74]

   On 15 April 2020 Lindsay J approved the settlement of JD’s claim against the Deceased.

2. [75]

   In an affidavit sworn in support of such approval, the NSW Trustee and Guardian’s solicitor, Ms Sherlock, deposed:

3. [76]

   KD accepted that she had made an affidavit in support of her father’s claim against the Deceased in these proceedings. The form of that affidavit is not before me. As I have set out above, KD maintained before me that her evidence, and the proceedings generally, were not “against” the Deceased. I find it hard to see how KD could have seen things that way.

4. [77]

   The result of the settlement of the proceedings, and Lindsay J’s approval of the settlement, was that the Deceased’s estate was diminished by the $75,000 settlement figure, as well as by the costs incurred by the NSW Trustee and Guardian acting on her behalf, which were paid out of the Deceased’s estate. It is impossible to know whether any different outcome would have resulted had the Deceased had the capacity to give instructions in the matter.

The Deceased’s final admission to hospital

1. [78]

   In or around June 2020, the Deceased was admitted to Gympie Hospital. She died there on 8 July 2020.

2. [79]

   KD placed great emphasis on the following extract from the hospital’s Progress Notes on 20 June 2020:

3. [80]

   Thus, it seems, very shortly before her death, KD was able to achieve some form of reconciliation with her mother.

KD’s circumstances

1. [81]

   As I have said, KD is now aged 65. She lives at a property she owns in Warners Bay. She lives there alone and has no dependents. Her only income is a Centrelink benefit of $353 per week.

2. [82]

   The Warners Bay property is not encumbered. There is no evidence as to its value save that a certificate from the Valuer General dated 11 May 2022 states that the net land value is $466,000.

3. [83]

   The house is in bad condition, as it was when KD purchased it in 2013.

4. [84]

   KD contended:

5. [85]

   In her 17 May 2022 affidavit, KD said:

6. [86]

   KD told me that she is no longer able to sleep in the house and sleeps in her van, parked in the driveway.

7. [87]

   KD appears to live a spartan existence.

8. [88]

   KD stated in her affidavit evidence that she estimated it would cost $150,000 to renovate the Warners Bay property. There is, however, no independent evidence confirming what the likely cost of renovation would be.

9. [89]

   As I have said, there is no direct evidence as to the property’s current value. It may well be that the property is, for all practical purposes, unsaleable in its present condition.

10. [90]

    There is no call in this case for a comparative analysis between KD’s financial position and that of BS and CC as they are not applicants for provision.

11. [91]

    KD has incurred legal costs in these proceedings in the order of $97,600, of which she has only paid some $12,000, using money loaned to her by her father. Her costs assessed on an ordinary basis are in the order of $73,500.

12. [92]

    KD told me that she is disputing her obligation to pay these fees, at least as to part, and that she had had some communications with the Legal Services Commissioner about this.

13. [93]

    KD said, in relation to her legal representation:

14. [94]

    However this may be, the fact is that KD signed the affidavits in their final form and affirmed the contents to be true.

15. [95]

    It is not possible to predict the outcome of such dispute as KD may have with the solicitors who have acted for her, in relation to their fees. It is therefore not possible to predict the amount for which she will ultimately be liable for legal fees.

Did the Deceased make inadequate provision for KD?

1. [96]

   The question under s 59 of the Succession Act is whether the Deceased made “adequate” provision for KD’s “proper” maintenance or advancement in life.

2. [97]

   “Adequate” and “proper” are value-laden concepts. [10] The expressions are “always relative” and “there are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards”. [11]

3. [98]

   Although a binary choice is necessary, a provision being either adequate or not, [12] what is involved is “an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific”. [13]

4. [99]

   It is not the Court’s function, in cases like this, to endeavour to achieve a “fair” disposition in a deceased estate, or to achieve some sort of equity between the various claimants. [14]

5. [100]

   In this case, KD got nothing from the Deceased’s estate. If regard were to be had only to KD’s financial circumstances, that does not appear to be adequate. KD’s financial position is not strong.

6. [101]

   But there are other factors to be considered.

7. [102]

   The first is that the estate is relatively small.

8. [103]

   The second is that weight must be given to the Deceased’s deliberate decision to exclude KD from her will. The Court must always be cautious about interfering with a testator’s or testatrix’s decision, especially where, as here, there is an identified reason for the decision.

9. [104]

   On one view, the Deceased’s decision was an extreme reaction to KD’s application to NCAT in relation to the Uncle. That application was, I am satisfied, born of KD’s genuine concern for the Uncle’s welfare; which concern was, as I have set out above, to some extent vindicated by the outcome of the proceedings. It was, nonetheless, not heralded by KD nor sought by the Deceased or the Uncle.

10. [105]

    The Deceased’s decision to exclude KD from her will may have been informed by things said to her by BS or CC.

11. [106]

    However, as I have set out above, the Deceased committed to writing her position at the time.

12. [107]

    As has been said:

13. [108]

    Here, the Deceased’s decision was to exclude KD from her will. There is no suggestion that the Deceased was not competent to make this decision.

14. [109]

    I must also take into account KD’s later conduct, including her application to NCAT concerning the Deceased’s estate. As I have set out, to some extent KD’s application was vindicated. But it was, nonetheless, evidently unwelcome by the Deceased. I must also take into account her decision to play a role in her father’s claim against the Deceased and her later application to QCAT.

15. [110]

    I see substance in Ms Hoskinson’s submission that:

16. [111]

    Nonetheless, my conclusion is that, taking all these matters into consideration, the provision made in the Deceased’s will for KD – nothing – was not adequate.

17. [112]

    As to what “proper” provision is, more difficult questions arise.

18. [113]

    KD submitted that she should receive her costs from the estate, as well as two thirds of the balance of the estate. On the other hand, Ms Hoskinson submitted that KD should have no, or at most nominal, provision.

19. [114]

    I am persuaded that some modest provision, between these two extremes, should be made for KD.

20. [115]

    BS and CC, as executrices, must have their costs from the estate on an indemnity basis. Their duty was to seek to take all reasonable steps to uphold the Deceased’s will. They have done that.

21. [116]

    Were KD, as a successful applicant, to have her costs, assessed on an ordinary basis (some $73,500) paid from the estate, [16] that alone would account for some 17.5% of the remaining distributable estate. However, the figure of $73,500 must be discounted to take account of the challenge KD proposes to make to her liability to pay those costs. It is impossible to be precise about what that discount should be. Again, an evaluative discretionary decision is called for. I will assess the discounted figure to be $40,000 and will, pursuant to s 99 of the Succession Act, cap the amount KD may recover from the estate for costs at that figure.

22. [117]

    That will leave the distributable estate, making an allowance for the likely understatement of the value of the Deceased’s household effects, to be in the order of $375,000. [17]

23. [118]

    I can see no basis on which KD should receive an equal share with BS and CC of that amount: some $125,000.

24. [119]

    That would, in any event, be far short of the amount needed to meet KD’s actual costs, some $97,600, assuming she remains liable to pay them, and her estimate of the amount needed to renovate her home, some $150,000.

25. [120]

    And to award KD an amount equal to one third of the estate would be to ignore the Deceased’s decision to exclude KD as a beneficiary, and to place no weight on KD’s conduct that, whether KD intended this or not, and although vindicated to some extent, caused distress to the Deceased.

26. [121]

    My conclusion is that there should be provision for KD of $60,000, being an amount in the order of 16% of the remaining distributable estate after costs. In addition, as KD has to this extent been successful, I will also order that she have her costs from the estate, but capped at the figure of $40,000 to which I have referred.

Conclusion

1. [122]

   I order that, pursuant to s 59 of the Succession Act, provision be made for the Plaintiff from the estate of the Deceased in the sum of $60,000.

2. [123]

   I further order that, pursuant to s 99 of the Succession Act, the Plaintiff’s costs, capped at $40,000, be paid from the estate.