The Estate of Kati Tsilfidis; Stavrakakis v Tsilfidis

These two proceedings were heard together.

The parties to both proceedings are the only children of the late Mrs Kati Tsilfidis (“the Deceased”), who died on 21 December 2013 at the age of 79 years.

The plaintiff in proceedings 2014/33859 (the “Probate Proceedings”), Mr Paul Tsilfidis, was born in 1963 and is now 52 years of age. The plaintiff in proceedings 2014/289443 (the “Family Provision Proceedings”) is his elder sister, Mrs Sofia Stavrakakis, who was born in 1961 and is now aged 54 years. Both Mr Tsilfidis and Mrs Stravrakakis were born in Australia, of Greek parents.

At the time of her death, the Deceased’s assets were the subject of a financial management order (“FMO”) made by the Guardianship Tribunal on 14 September 2009. On that date, the Tribunal ordered that the Deceased’s estate be subject to management under the provisions of the NSW Trustee and Guardian Act 2009 (NSW) and that management of the Deceased’s estate be committed to the NSW Trustee and Guardian (“the Trustee”).

In the Probate Proceedings, Mr Tsilfidis seeks probate of a will that the Deceased made on 16 November 2012 (the “2012 Will”). By the 2012 Will, the Deceased appointed Mr Tsilfidis as her executor and left her entire estate to him. It is common ground that if the 2012 Will is valid, it revoked an earlier will made by the Deceased on 15 April 1988 (“the 1988 Will”).

By cross-claim in the Probate Proceedings, Mrs Stavrakakis seeks probate of the 1988 Will. By the 1988 Will, the Deceased appointed both Mr Tsilfidis and Mrs Stavrakakis as executors and left her estate to them in equal shares as tenants in common.

In the Probate Proceedings, Mrs Stavrakakis contends that the 2012 Will is invalid because the Deceased did not have the capacity to make the will, did not know and approve of the contents of the will, and made the will as a result of the undue influence of Mr Tsilfidis. Mrs Stavrakakis also contends that the 2012 Will is invalid by reason of what is said to be “suspicious circumstances” surrounding the making and execution of the will.

It is common ground that if probate is not granted in respect of the 2012 Will, it should be granted in respect of the 1988 Will.

If the 2012 Will is admitted to probate, Mrs Stavrakakis seeks, in the Family Provision Proceedings, an order for provision under s 59 of the Succession Act 2006 (NSW) (“the Act”).

The evidence reveals that Mr Tsilfidis and Mrs Stavrakakis are, to say the least, estranged. Such is the level of conflict between Mr Tsilfidis and Mrs Stavrakakis that, whichever will is admitted to probate, letters of administration with the appropriate will annexed should be granted to the present administrator of the estate, Mr Jack Jacovou (“the Administrator”). I will refer to Mr Jacovou’s appointment as Administrator below.

Mr Morrissey appeared with Ms Clarke for Mr Tsilfidis and Mr O’Loughlin appeared with Mr Pearson for Mrs Stavrakakis. I have been greatly assisted by the economical and competent manner in which counsel conducted the proceedings. I have also been greatly assisted by the written opening and closing submissions I received from counsel. Much of what follows is drawn, with gratitude, from those submissions.

The estate consisted of three properties, including a property located at King Street, Newtown (“Newtown”), and two adjoining properties in Hurlstone Park which the parties referred to as “871” and “873”.

The properties were purchased by the Deceased and her late husband (who died in 2003) from the proceeds of a clothing business they both ran.

The ground floor of each of 871 and 873 comprise retail premises that are leased to third parties. On the first floor of each property is residential accommodation.

Mr Tsilfidis has resided, rent free, in the accommodation on the first floor of 873 since 1997 or 1998. He lived there with the Deceased until she died.

Mrs Stavrakakis has resided, also rent free, in the residential accommodation on the first floor of 871 since around 1999, with her three adult children.

On 12 December 2013 (very shortly before the date of the Deceased’s death) the Trustee exchanged contracts to sell Newtown to a third party, Promethean Investments Pty Ltd for $1,005,500. A dispute arose between Mr Tsilfidis and the Trustee about that contract. Ultimately, the purchaser commenced proceedings for specific performance and, on 29 July 2014, Sackar J ordered that the contract be specifically performed: Promethean Investments Pty Ltd v Tsilfidis [2014] NSWSC 1049. The Trustee filed a submitting appearance in those proceedings. Mr Tsilfidis appeared before Sackar J, in person, to oppose (unsuccessfully) the order for specific performance sought by the purchaser.

On 29 July 2014, Sackar J also ordered that letters of administration of the Deceased’s estate be granted ad litem to the Administrator, limited for the purpose of him representing the Deceased’s estate in the specific performance proceedings and specifically performing the contract of 12 December 2013 in accordance with his Honour’s orders.

On 1 and 15 September 2014, Lindsay J made further orders extending the purpose for which the Administrator was granted letters of administration to enable him to manage the ground floor premises at 871 and 873, collect GST, lodge BAS returns and pay various expenses. Lindsay J also ordered that the Administrator pay from the proceeds of sale of Newtown certain sums to each of the parties. $170,000 has been paid to each of Mr Tsilfidis and Mrs Stavrakakis. Those payments may be relevant to the costs order I make in the proceedings.

Completion of the sale of Newtown took place on 5 September 2014.

The Administrator is currently holding some $500,000 in his trust account, being the net proceeds of Newtown, less the monies referred to at [19] and an amount paid by the Administrator to the Australian Taxation Office in satisfaction of a garnishee order, plus the rent received from 871 and 873.

The Administrator has obtained valuations of the two Hurlstone Park properties, which reveal that 871 and 873 are valued at $1,170,000 and $1,320,000 respectively.

The Administrator is collecting the rent from the two properties and depositing same into his trust account. The current monthly rent from 871 and 873 is in the order of $1,700 and $1,120 respectively.

Mrs Stavrakakis gave her evidence calmly and responsively. She answered questions in cross-examination directly and without hesitation.

In her affidavit evidence, Mrs Stavrakakis gave a very detailed account of conversations she has had with Mr Tsilfidis, and conversations she says she overheard (through the party wall between 871 and 873) between Mr Tsilfidis and the Deceased.

It is an agreed fact that Mrs Stavrakakis kept a diary of such events, and that the account given in her affidavit evidence was made “by reference to [those] contemporaneous notes”. When told of this agreement, I informed counsel that I would infer, absent a submission to the contrary, that Mrs Stavrakakis’s account of events in her affidavit was consistent with those contemporaneous notes. Mr Morrissey said he would make no such submission, and he did not.

Nonetheless, I have some reservations about Mrs Stavrakakis’s evidence of what she said she heard through the party wall between 871 and 873. She agreed that the party wall is a double brick wall. Even if the conversations she says she heard were ones in which voices were raised, it seems improbable that she could have heard all such conversations in the detail she recorded. Her purported recollection, based on her notes (which Mr O’Loughlin did not tender) is very detailed indeed; perhaps too detailed to be entirely accurate. Her clear animosity towards Mr Tsilfidis (which, I should add, is reciprocated) also means that she is not a detached, objective witness. And she gave an account of a conversation that she says she heard between Mr Tsilfidis and the Deceased on the day the Deceased executed the 2012 Will, which is very hard to reconcile with the evidence given by the solicitor who prepared that will, Mr Peter Livers, of his dealings with the Deceased that day (see [107] below).

Mr Tsilfidis denied the accuracy of Mrs Stavrakakis’s account of many of these conversations. However, in light of the view I have formed of the reliability of his evidence, I am able to place only limited weight on those denials.

I found Mr Tsilfidis to be a most unsatisfactory witness.

His evidence in cross-examination was very often unresponsive to the questions put to him. He did not hesitate to make speeches to advocate his cause, whether in the witness box or not. On occasion he interjected from the back of the Court, despite Mr Morrissey’s best endeavours to control such behaviour.

On one occasion he gave evidence that he must have known could not be true. That evidence concerned an oral authority he claimed he had from the Trustee to lodge BAS returns on behalf on the Deceased’s estate. That evidence is improbable in the extreme, and inconsistent with an email the Trustee sent the ATO denying that Mr Tsilfidis had any such authority.

Another example of the evidence given by Mr Tsilfidis which points to his unreliability as a witness concerned the Deceased’s debts at the date of the hearing before the Guardianship Tribunal. The evidence before the Tribunal was that the rent generated by 871, 873 and Newtown was in the order of $5,800 per month, that it was being paid into Mr Tsilfidis’s bank account and that, despite the income, the Deceased was substantially in debt. That evidence was a significant factor persuading the Tribunal to make the FMO.

In cross-examination, Mr Tsilfidis denied providing material to the Tribunal as to the level of the Deceased’s debts. Mr Tsilfidis was then shown a document in his writing, which was handed up at the hearing before the Guardianship Tribunal on 14 September 2009. It showed that the Deceased owed a total of almost $51,000 including some $21,500 owing to Marrickville Council, some $15,000 owing to Westpac Bank and some $12,000 owning for land tax.

Overall, I found Mr Tsilfidis to be a most unreliable informant.

Two of Mrs Stavrakakis’s children, Dr John Stavrakakis and Ms Angela Stavrakakis, gave evidence of conversations they had with the Deceased and conversations that they heard Mr Tsilfidis have with the Deceased. I did not find that evidence cast significant light on the issues I must decide.

The other witnesses called were Mr Livers and a consultant neurologist, Dr Konstantinos Yiannikas. I deal with the evidence of those witnesses below.

Mrs Stavrakakis gave evidence that from 2007 the Deceased started behaving somewhat unusually. For example, Mrs Stavrakakis said that the Deceased told her that she believed singers on the radio were singing to her personally, and that persons on the radio or television could see her.

As I have mentioned, on 14 September 2009 the Guardianship Tribunal made the FMO and appointed the Trustee as the Deceased’s financial manager. The Guardianship Tribunal found that the Deceased was incapable of managing her own affairs. Whilst the reasons of the Tribunal have not been admitted as evidence of the truth of its findings, s 25G of the Guardianship Act 1987 (NSW) provides that the Tribunal may only make an FMO if satisfied that:

The reasons given by the Tribunal show that it came to each of those conclusions.

In 2010, Mrs Stavrakakis became concerned about the Deceased’s wellbeing and approached the Aged Care Assessment Team (ACAT) at Canterbury Hospital.

As a result, the Deceased was assessed by Dr Andreas Suryawan, the Geriatrics Registrar at Camperdown ACAT. Dr Suryawan visited the Deceased with an officer from ACAT and a Greek interpreter.

In his report to the Deceased’s general practitioner, Dr Max Lee, Dr Suryawan said:

Nonetheless, Dr Suryawan concluded that:

Dr Suryawan’s report is dated 8 July 2010. That was the last day that Mrs Stavrakakis saw her mother. Evidently, that was because of an apprehension the Deceased had, which may well have been placed in her mind by Mr Tsilfidis, that Mrs Stavrakakis had, by causing the FMO to be made and approaching ACAT, caused the Deceased (and Mr Tsilfidis) financial hardship and was trying to have her “put…in a psychiatric ward” (to use the language that Mrs Stravrakakis says she overheard Mr Tsilfidis use).

On 25 January 2011, the Deceased was assessed by Dr Rosemary Sheehy, a geriatrician endocrinologist from the Sydney Local Health Network.

Dr Sheehy wrote to Dr Lee:

Dr Sheehy’s report also indicated how unhappy the relationship between Mrs Stavrakakis and Mr Tsilfidis then was:

Dr Sheehy concluded that the Deceased:

Dr Sheehy’s reference to Mr Tsilfidis being on a methadone program was a reference to an addiction that he has, or at least had, to heroin. I will return to this when considering Mrs Stavrakakis’s claim for family provision.

Dr Sheehy concluded:

Dr Sheehy also recorded:

That was not true. The Deceased had not given 871 to Mrs Stavrakakis. But, at least during her interview with Dr Sheehy, the Deceased evidently believed that she had.

As I have mentioned, the 2012 Will was prepared by Mr Livers.

The Deceased first consulted Mr Livers about making a will on 3 February 2012. Several years earlier, in about March 2010, the Deceased and Mr Tsilfidis consulted Mr Livers about the possibility of making an application to revoke the FMO. Ultimately, that application was not made until April 2013. It was not resolved when the Deceased died.

On 3 February 2012, the Deceased attended on Mr Livers accompanied by Mr Tsilfidis. According to a file note that Mr Livers made that day, the Deceased informed him that she “wants to make [a] will” and to leave “all to Paul Tsilfidis”.

Mr Livers gave evidence that:

Thereafter, the Deceased gave Mr Livers a brief note from Dr Lee which stated:

Mr Livers gave evidence that:

Dr Yiannikas is a consultant neurologist and clinical professor of medicine at the University of Sydney.

Mr Livers’s letter to Dr Yiannikas of 24 July 2012 was in the following terms:

On 26 July 2012, another general practitioner, Dr Costakis Papacosta, also wrote to Dr Yiannikas as follows:

Dr Yiannikas saw the Deceased on 23 August 2012. Mr Tsilfidis was also present.

In his report to Dr Papacosta of 3 September 2012, Dr Yiannikas said:

In his report to Mr Livers of 11 September 2012, Dr Yiannikas stated that “assessment of cognitive function revealed a Mini Mental State Score of 18/30” and that he thought the Deceased “had a mild to moderate dementia although she was quite well orientated”. Dr Yiannikas concluded:

In his affidavit in these proceedings, Dr Yiannikas said that at the time he saw the Deceased:

Dr Yiannikas added:

During cross-examination, Dr Yiannikas said he expressed the conclusion in pars 1 to 5 of his letter to Mr Livers of 11 September 2012 on the basis of the Deceased’s “Mini Mental State Score of 18/30”. Dr Yiannikas agreed that this was “not a particularly good score”, and suggested “moderate involvement of cognitive function”.

Dr Yiannikas said he had no recollection of discussing with the Deceased “her will”, nor of any discussion about “wills in general”.

Dr Yiannikas said:

Mr O’Loughlin submitted that Mr Livers had failed to ask Dr Yiannikas the “precisely relevant question”; namely, whether the Deceased had the mental capacity to make a will.

However, Dr Yiannikas did express opinions relevant to that question. For example, Dr Yiannikas expressed the opinion that the Deceased “was able to understand the nature and extent of her property”.

As I have set out above, in his affidavit, Dr Yiannikas said that the Deceased did not tell him anything “specific” about her property. In cross-examination, Dr Yiannikas explained that by this he meant the Deceased had not told him about the addresses or value of the properties. He must have known the Deceased owned three properties that were mortgaged to Westpac and from which the Deceased was receiving rent, as Mr Livers had stated this in his second question, which Dr Yiannikas answered.

Dr Yiannikas also expressed the opinion that the Deceased was able to recall the persons who may have claims on her estate and was sufficiently orientated to weigh the relative claims of those persons (see [65] above). Dr Yiannikas went on to say that the Deceased did not tell him “anything about her children that may have claims to her estate”. During cross-examination, Dr Yiannikas said he knew that the Deceased had two children, one of whom was present during the interview and with whom the Deceased then lived. Dr Yiannikas said that the Deceased had said nothing to him about her children’s relative means or conduct.

Finally, Dr Yiannikas opined that the Deceased had no “delusions or hallucinations”. In cross-examination, he said:

Dr Yiannikas agreed that he assumed that the answers that Mr Tsilfidis had given him in relation to such questions were correct.

Mr O’Loughlin submitted:

There is some force in the submission that Dr Yiannikas did not expose his reasoning process as clearly as he might have.

However, Dr Yiannikas must have understood that one reason he was seeing the Deceased was because she was contemplating making a will, and obviously did understand that he was being asked to express a professional opinion relating to her mental state relevant to the making of a will. The fact that he did not suggest that he detected any significant lack of mental capacity, when that is the very subject of his specialist experience, is a factor I must take into account.

On 26 October 2012, the Deceased attended Mr Livers’s office, together with Mr Tsilfidis.

In his affidavit, Mr Livers gave this evidence about that meeting:

On 16 November 2012, again accompanied by Mr Tsilfidis, the Deceased returned to Mr Livers’s office to execute the 2012 Will. Mr Tsilfidis’s son’s partner was also present.

In relation to that meeting, Mr Livers gave this evidence:

Mr Livers concluded his affidavit by stating:

Mr Livers agreed with Mr O’Loughlin’s suggestion that, in relation to the Deceased’s capacity to make a will, he had to a large extent delegated that determination to Dr Yiannikas. However, he asserted, and I accept, that he also made his own, independent judgment that the Deceased had testamentary capacity.

Mr Livers was aware of the potential significance of the Deceased’s stated intention to leave all her estate to Mr Tsilfidis, and nothing to Mrs Stavrakakis. At each of the 26 October and 16 November 2012 meetings, Mr Livers told the Deceased that it was likely that Mrs Stavrakakis would “challenge” the 2012 Will. He did not draw to the Deceased’s attention the distinction between a challenge to the Deceased’s capacity to make a will on the one hand and a claim for family provision on the other; but I doubt the Deceased would have made much of that distinction.

Mr Livers did not ask the Deceased why she was leaving nothing to her daughter in the 2012 Will. What Mr Livers did suggest was that the Deceased “prepare a note” or “set out [in] a handwritten statement” the reasons for her decision. No such note or statement was in evidence.

The principles relating to the validity or otherwise of a will are well known, and were set out by Powell J (as his Honour then was) in Re Eger; Heilprin v Eger (Supreme Court (NSW), 4 February 1985, unrep) as follows:

The locus classicus for determining testamentary capacity is that of Cockburn CJ in Banks v Goodfellow (1870) LR5QB 549 at 565, summarised as follows:

However, as Hallen AsJ (as his Honour then was) observed in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 (at [246]):

His Honour also observed (at [252] and [253]):

The 2012 Will was duly executed, and (as Mr O’Loughlin accepted) rational on its face. Thus it is presumed, in the absence of evidence to the contrary, to be “that of a person of competent understanding”.

When she made the 2012 Will, the Deceased was elderly and suffering from mild dementia. However, she impressed Dr Yiannikas as being well oriented and Mr Livers as being alert.

By the 2012 Will, the Deceased excluded Mrs Stavrakakis, a person who would naturally have a claim on her bounty as a beneficiary.

But Mr Livers twice raised this matter with the Deceased, who gave a reason for excluding Mrs Stravrakakis; namely, that she had “assisted” Mrs Stavrakakis’s children in the past. The only evidence before me of such assistance was a gift of $10,000 to Mrs Stavrakakis’s daughter, Angela, shortly before her 21st birthday. That may not strike some minds as a sufficient reason to exclude Mrs Stavrakakis entirely as a beneficiary. However, the wisdom or fairness of the Deceased’s decision is not a matter relevant to this aspect of the enquiry.

The Deceased was also able to nominate who should be executor and beneficiaries in the event that Mr Tsilfidis were to predecease her.

Mr Livers arranged to have the Deceased examined by Dr Yiannikas, who expressed the opinions I have set out above. Mr Livers also applied his mind to the question of the Deceased’s capacity and concluded that she knew she was making a will, knew what property she had, knew the claims on her bounty and knew what she wanted to do.

In all of those circumstances, I am satisfied that the Deceased had testamentary capacity when she made the 2012 Will. There is objective, professional evidence pointing to that conclusion. And the Deceased had ample time to consider what she wanted to do with her will and reflect on whether to maintain her exclusion of Mrs Stavrakakis as a beneficiary. As Mr Livers pointed out in cross-examination, the Deceased attended on him on 3 occasions during 2012 over a period of 10 months, and on each of those occasions gave him clear and consistent instructions.

Recently, White J in Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 said at [4]:

Mr O’Loughlin pointed to a number of “suspicious” circumstances that, he submitted, rebutted any presumption that the Deceased knew and approved of the contents of the 2012 Will. I have considered the matters to which Mr O’Loughlin referred, but am comfortably satisfied, without resort to any presumption following from the due execution of the 2012 Will, that, in fact, the Deceased knew and approved of its contents.

As I have said, on three occasions she told Mr Livers, in clear terms, how she wished to make her will.

The 2012 Will is by no means complex, and the Deceased had the “opportunity in the preparation and execution of the [2012 Will] for reflection and independent advice” (per Meagher JA in Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [47]).

Mr Livers gave evidence that he read the 2012 Will out to the Deceased (said to be “the most satisfactory evidence” of actual knowledge of the contents of a will: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, cited with approval by Meagher JA in Tobin v Ezekiel at [47]), and translated it from English to Greek. Mr Livers was satisfied that the Deceased understood the 2012 Will.

I see no reason in this case to conclude that the Deceased did not know and approve of the contents of the 2012 Will. I am positively satisfied that she did.

In Petrovski v Nasev, Hallen AsJ said at [263]-[264]:

Mr O’Loughlin accepted that there was no direct evidence of a undue influence. However, he pointed to the following matters:

Mr O’Loughlin also drew my attention to the evidence given by Mrs Stavrakakis of overhearing Mr Tsilfidis exhort the Deceased on a number of occasions (including 16 November 2012, the day the 2012 Will was executed) to exclude Mrs Stavrakakis from the 2012 Will.

That evidence, if true, suggests that Mr Tsilfidis did tell the Deceased, in strong terms, that she should exclude Mrs Stavrakakis from the 2012 Will. However, as I said at [27] above, it is hard to reconcile Mrs Stavrakakis’s evidence of what she heard Mr Tsilfidis say to the Deceased on 16 November 2012 with Mr Livers’s evidence of what occurred that day. According to Mrs Stavrakakis, Mr Tsilfidis told the Deceased to tell Mr Livers that Mrs Stavrakakis was to be excluded from the 2012 Will because Mrs Stavrakakis “took you to court” (presumably a reference to the Guardianship Tribunal) and “has done wrong”. That is not what the Deceased told Mr Livers. Rather, she said she was excluding Mrs Stavrakakis because she had “assisted” Mrs Stavrakakis’s children in the past.

As I have said, the Deceased told Mr Livers on three separate occasions during 2012 how she wanted the 2012 Will written. Although Mr Tsilfidis drove the Deceased to Mr Livers’s office on each occasion, Mr Livers saw the Deceased alone on the two critical occasions; 26 October 2012, when she gave him formal instructions for the 2012 Will, and 16 November 2012, when she executed it.

I am not, in those circumstances, persuaded that the Deceased’s 2012 Will was overborne by Mr Tsilfidis, such that she did something that she “did not really mean”.

I am satisfied that the Deceased had testamentary capacity when she made the 2012 Will, that she knew and approved of its contents, and that it was not procured by reason of Mr Tsilfidis’s undue influence.

Letters of administration with the 2012 Will annexed should be granted to the Administrator and the papers remitted to the Registrar to complete the grant.

In those circumstances, I turn to Mrs Stavrakakis’s claim for provision under the Act.

Section 59 of the Act provides that the Court may make, on the application of an “eligible person” (there is no dispute that Mrs Stavrakakis is an “eligible person”), a family provision order in relation to the estate of a deceased person if the Court is satisfied that:

The section provides that, if the Court is so satisfied, then:

I consider that the test to be applied remains the two-stage test referred to in Singer v Berghouse (No 2) [1994] HCA 40; 181 CLR 201 at 208-209; namely, determining whether adequate provision has been made in the 2012 Will for Mrs Stavrakakis, and, if not, what provision should be made.

A different view as to the applicability of the two-stage test has been expressed by one member of the Court of Appeal (Basten JA in Andrew v Andrew [2012] NSWCA 308 at [29] and [41]). Differing views were expressed by other members of the Court in that case (see Allsop P at [6] and Barrett JA at [65], [79]-[81] and [94]).

In Nowak v Beska [2013] NSWSC 166 Hallen J said at [113]:

His Honour expressed the same view more recently in Ciric v Ciric [2015] NSWSC 313 at [86], and observed that that view was unaffected by the more recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; 85 NSWLR 619, Verzar v Verzar [2014] NSWCA 45 and Salmon v Osmond [2015] NSWCA 42. I agree.

The first stage of the two-stage test involves a question of fact, namely whether the Deceased has made adequate provision for Mrs Stavrakakis’s proper maintenance, education and advancement in life.

The aim of the first stage is to assess whether the Court can make an order for provision. As Hallen AsJ said in Lajcarova v Todorov [2011] NSWSC 522 at [79]:

The second stage, should it arise, involves an exercise of discretion. The Court must assess whether provision ought to be made in Mrs Stavrakakis’s favour.

The object of the second stage is to assess whether the Court should make an order for provision. As Hallen AsJ said in Lajcarova v Todorov at [84]: -

Although Hallen AsJ was then considering a claim under the former Family Provision Act 1982 (NSW), I see no reason to adopt a different approach under the Act.

It is clear that the determination of the second stage involves similar considerations to that of the first stage: Singer v Berghouse (No 2) at 209-210.

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” (Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, with whom Meagher and Ward JJA agreed, speaking of the discretion to be exercised under s 20 the Property (Relationships) Act 1984 (NSW); which I see as involving, in this respect, the same notions as arise under the Act).

The guiding “principles” were summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94]-[96] as follows:

There can be no doubt that the 2012 Will does not make “adequate” provision for Mrs Stavrakakis’s maintenance or advancement; it makes no provision for her at all.

Mr Morrissey submitted that “on one view” Mrs Stavrakakis “has already received adequate and proper provision”.

Mr Morrissey relied upon a number of matters.

The first was that the Deceased, and her late husband, “significantly contributed” to the costs of a property that Mrs Stavrakakis and her former husband purchased in Canterbury.

Mrs Stavrakakis and her former husband purchased that property in 1982 for $73,000, using $15,000 savings and $15,000 that Mrs Stavrakakis said her father gave her. The balance was borrowed. That property was sold in 1991 for $190,000. Ultimately, Mrs Stavrakakis received something in the order $70,000 from the proceeds, which she lost as a result of a “short term relationship” she had with another person who “took that money from me and gambled it”.

I do not see this factor as having great significance. The money was advanced almost a quarter of a century ago, and has since been lost.

Mr Morrissey also pointed to the fact that Mrs Stavrakakis and her three (now adult) children have had rent free accommodation at 871 for some 16 years.

Mrs Stavrakakis’s three children do live with her at 871, and pay little or no board. Each has some capacity to pay board (especially her two sons, who are in full time employment). The capacity of those children to support Mrs Stavrakakis is a factor to be weighed in the balance.

Mr Morrissey also submitted that Mrs Stavrakakis was “employable” and pointed to experience she has had doing market research and in translation work.

However, the evidence shows that Mrs Stavrakakis has a series of medical problems, including a left knee and ankle problem, anxiety and depression. She does not sleep well. Her only income at the moment is Centrelink benefits. I accept Mr O’Loughlin’s submission that Mrs Stavrakakis’s skills are “well out of date”, and it is most unlikely she will be able to return to the workforce.

Much the same can be said about Mr Tsilfidis. He has had, and may still have, a drug dependency, and is also in receipt of social security benefits.

Mr Tsilfidis was certainly the Deceased’s primary carer after July 2010 (Mrs Stavrakakis did not see her mother after that) and appears also to have been the Deceased’s primary carer for several years before that.

Just as Mrs Stavrakakis has had rent free accommodation in 871 for many years, Mr Tsilfidis has had rent free accommodation in 873 for a similar period.

Overall, my opinion is that Mr Morrissey’s opening submission that Mrs Stavrakakis and Mr Tsilfidis “seem to be in roughly similar personal and financial circumstances” is a fair summary of the evidence.

Both are now in their middle age, in poor health and have very limited, if any, prospects of obtaining employment in the future. Both need security of accommodation, some source of income and some capital to deal with future contingencies.

For more than 15 years, 871 has been Mrs Stavrakakis’s home and 873 has been Mr Tsilfidis’s home. Although 873 has been valued at $150,000 more than 873, it yields slightly less rent from the retail premises at ground level.

There is a little under $500,000 held by the Administrator in his trust account. It may be that the costs of one or both parties will be paid from this fund; counsel have asked me to defer making any decision as to costs until publication of these reasons.

In all of those circumstances, the conclusion to which I have come is that the provision that should be made from the Deceased’s estate for Mrs Stavrakakis is that the less valuable property and the one in which she is living, 871, be transferred to her. She should also be paid one half of the net funds in the Administrator’s trust account.

That will leave Mr Tsilfidis with 873 and the remaining funds. It will leave both siblings with an income from the retail premises at 871 and 873, and a capital sum for the future.

To a very large extent, that will leave the chips to lie where they have, for all practical purposes, already fallen.

Conclusion

I invite the parties to confer and agree on the orders that should now be made to give effect to these reasons. I will hear submissions as to costs.