Leverton v Predny

Few, if any, families are without complex relationships, moments of strain, decisions taken by some family members bemusing others, and words spoken and deeds done that come to be regretted. Yet notwithstanding all of these issues, even difficult family relationships often remain underpinned by a shared sense of affection. All these characteristics are demonstrated by the family at the centre of this case, which also offers a sobering example of how destructive family provision proceedings can be of relationships between the protagonists. Without disrespect, I shall refer to the parties and other protagonists by their given names.

Adam Leverton and Alicia Leverton (the plaintiffs) are the children of Cheryl Leverton and Phillip Leverton. Adam was born in 1984 and Alicia was born in 1986. Cheryl and Phillip had married in 1982 and separated in 2013. Adam, Alicia and several members of Cheryl’s family all acknowledge that Cheryl and Phillip’s marriage was often an unhappy one.

Phillip died unexpectedly in September 2014. Phillip’s final will was made on 15 November 1999, 14 years before he and Cheryl separated. That will provided for the whole of Phillip’s estate to pass to Cheryl. Among other things, Phillip’s will was a source of tension between Cheryl and Adam and Alicia. Both Adam and Alicia acknowledge they were surprised that their father left his entire estate to Cheryl, notwithstanding that Phillip and Cheryl had separated in 2013. Both believed that Phillip had made a later will which also included provision for them.

In late 2015, both Adam and Alicia commenced family provision proceedings against Cheryl in her capacity as the executor of Phillip’s estate. The proceedings were settled in April 2016. Adam and Alicia each received $65,000 and $15,916.57 towards costs. Cheryl received the balance of the estate, valued at approximately $1.8 million.

In June 2021, Cheryl was diagnosed with breast cancer. She died on 18 August 2022. Cheryl’s final will was executed on 16 August 2022. That will appointed Mr David Predny, a solicitor, and Ms Agnes Day (Cheryl’s mother and Adam and Alicia’s grandmother) as executors of her estate. On 1 March 2023, probate of the will was granted to Mr Predny and Agnes.

It was accepted by the parties that the net value of the estate was $1,596,641.39. The will made these provisions:

Clause 7 of the will provided:

On 26 July 2023, Adam and Alicia filed a summons seeking family provision orders pursuant to s 59 Succession Act 2006 (the Act) from Cheryl’s estate. The defendants are Mr Predny and Agnes in their capacity as executors of the estate. The filing of the summons was within the 12 months after Cheryl’s death in accordance with s 58 of the Act. There was no dispute that as children of the deceased, Adam and Alicia are eligible persons to seek a family provision order under the Act.

The hearing was efficiently conducted over two days. Mr S Chapple of Senior Counsel appeared for Adam and Alicia. Mr A Hill of Counsel appeared for the executors.

In opening written submissions, Mr Chapple submitted that Adam and Alicia each sought a lump sum payment of $300,000. Mr Hill provided short minutes on the second day of the hearing reflecting the executors’ position that Alicia should only be provided nominal provision of $100,000 and her costs of the proceedings out of the estate, and that Adam should not receive any provision.

The crux of the dispute was whether Adam and Alicia should be entitled to further provision given their financial circumstances, Cheryl’s clear testamentary intention not to make any provision for her children, the financial circumstances of other beneficiaries and whether the plaintiffs’ relationship with their mother disentitled them from further provision.

For the reasons which follow, the Court has determined that Adam should receive provision of $250,000 and Alicia provision of $300,000. The Court’s reasons may be summarised as:

Several witnesses were cross-examined. The Court was not asked to make, and will not make, adverse credibility findings against any witnesses. To my observation, each of the witnesses did their best to answer questions honestly, recollecting many events which occurred several years ago and which in some cases were still a cause for emotion.

Subject only to debate about the frequency and nature of the contact between Adam, Alicia and Cheryl, neither the material facts nor the applicable legal principles for family provision claims were in dispute. I will next set out the facts which represent the Court’s findings under headings which are familiar in matters of this kind.

The parties accepted that the assets of the estate have largely been realised and comprise $1,591,641.39 in cash and a motor vehicle valued at $20,000. The only unpaid liability is a tax debt of approximately $15,000. The net estate was therefore $1,596,641.39.

It was also accepted that the estate was large in relative terms for matters of this kind which come before this Court. Both parties’ costs of the proceedings were capable of being paid out of the estate. The plaintiffs’ costs, calculated on the ordinary basis, up to and including the conclusion of a two-day hearing were estimated to be $141,600. The defendants’ costs on the indemnity basis were estimated to be $163,460. Therefore, should all parties costs be paid out of the estate on the usual basis, the net residue of the estate would be $1, 291, 581.40.

If all legacies are paid to Cheryl’s four grandchildren ($16,000) and Deborah’s five grandchildren ($25,000), there would be $1,250,581.40 in residue.

It was also accepted by Mr Hill that should the Court decide to order provision for both Adam and Alicia in some form, the size of the estate meant it may still be possible to provide for all remaining beneficiaries to receive their entitlements in accordance with Cheryl’s will. Nevertheless, Mr Hill still pressed for the orders referred to in [10] above due to what he described as the defendants’ ‘disentitling conduct’.

Alicia is now 38 years old and since March 2022 has been engaged to Mr Chris Jones, now aged 41. Together they have one child, a daughter now aged two. The family live in a property at Bulli worth $1,600,000.00 and which is encumbered by a mortgage of $824,674.61.

Alicia is employed as a manager at a medical device company. Her net monthly income is $7,897.26. Chris is employed by Shoalhaven City Council and has a net monthly income of $5,236.66.

Alicia and Chris’ monthly expenses are $14,202.56, which exceeds their monthly income by approximately $1,000. Their most significant expenses are their mortgage repayments totalling $5,215.00 per month and childcare expenses of $3,380 per month.

Alicia and Chris have savings of just over $10,000 and own shares worth $18, 936. Their combined superannuation is $284,369. They owe $20,000 to Chris’ parents, who provided those funds to help Alicia and Chris to raise their daughter. During her examination in chief, Alicia also accepted that Chris had received shares as a gift from his parents which were valued at $14,000.

Being aged 38, and without any evidence to the contrary, it was accepted that Alicia has many years of employment ahead of her and has no other physical ailments which might inhibit her ability to work. Alicia was receiving treatment from a psychologist but has since discontinued these sessions due to their cost. She would like to recommence these sessions. Chris receives treatment for psoriatic arthritis which is monitored by several specialists, and also currently receives treatment from a psychologist.

It was submitted by Mr Chapple SC that after reducing her mortgage, Alicia’s primary financial need is to reduce mould contamination in her home (at an approximate cost of $29,167), provide ventilation in her home ($2,970-$20,000) and install sub-soil drainage to prevent further mould growth and prevent the likelihood of landslides (a temporary solution costing $9,510.28 and a permanent solution costing in excess of $100,000). Alicia would also like to repair damage in their backyard caused by a minor landslide and renovate the backyard to make it more child friendly (approx. $50,000-$200,000).

Adam is now 40 years old. He joined the Australian Army in 2003 at the age of 18. He served until 1 August 2023 when he was medically discharged due to injuries suffered on deployment. During his time in the army Adam was posted to various locations around Australia and served in Iraq and Afghanistan.

On 15 March 2008, Adam married his wife Ms Sonia Leverton. Together they have three children: sons aged 7 and 9 years old, and a 2 year old daughter.

After being medically discharged from the army, Adam receives a disability pension. His net monthly income is $4,870.14. Sonia works part-time as an early childhood educator. Her net monthly income is $53.10 with the balance of her income being paid directly to her employer to cover their daughter’s daycare costs. Sonia also receives a pension from MilitarySuper of net $1,437.21 per fortnight. Her total net monthly income (including her pension) is $2,927.52. Adam and Sonia’s combined monthly expenses are $10,728.42 which exceeds their combined income by $2,930 per month.

Adam and Sonia also have savings of $337,443.40 (largely comprised of a compensation payout which Sonia received due to injuries sustained serving in the army) and a combined superannuation of $243,459.54. Together they own a property in Queensland worth approximately $910,000 which is encumbered by a mortgage of $252,166.95 (requiring monthly repayments of $2,307.01).

As a result of his service in the army, Adam has a number of serious physical and mental health conditions. In October 2023, Adam was certified as being unable to work because of these injuries. In April 2024, the same doctor recorded that Adam may be able to return to full time work from January 2024 but that is subject to the success of rehabilitation and psychological support programs. Adam is currently on a waitlist for psychological treatment.

Adam acknowledges that if and when he is cleared to return to work he may need to undertake further studies to obtain employment. He is enrolled in a phlebotomy course at TAFE in Brisbane which is due to commence in 2025. Sonia also suffered injuries from her service in the army. She sees a psychiatrist once a month which is paid for by the Department of Veterans Affairs. There is no evidence to suggest she will not be able to continue her employment in a part-time or full-time capacity in the future.

Mr Chapple SC submitted that Adam and Sonia required further provision to reduce their mortgage, which was noted as their most pressing financial need. They also require funds to repair their home (approximately $10,000) and for Adam’s future studies.

Ms Deborah Ola Bosden, who is 63 years old, is Cheryl’s younger sister. Deborah is entitled to the residue of Cheryl’s estate (see [6] above). Deborah accepts in her affidavit in reply dated 15 February 2024 that she was surprised to hear she was the residuary beneficiary of Cheryl’s estate.

Deborah is now divorced and has two children from her previous marriage. Deborah received $90,000 from her divorce settlement but had to pay a taxation debt from her marriage leaving her with $72,000.00. She provided her eldest daughter, Rebecca, $70,000.00 from her property settlement to help her buy a home. Deborah’s father (Rebecca’s grandfather) also provided Rebecca with a $90,000 gift to help Rebecca buy a home. This gift was in lieu of Deborah receiving any inheritance from him and she did not receive anything in his will.

Deborah works 50 hours per fortnight as a Disability Support Worker on a contract basis for a company based in Cooma. She earns $1,914.15 per fortnight before tax. She also earns additional income if she works outside normal hours and receives a mileage allowance for business use of her car, however her overtime pay is unpredictable. In the financial year ending on 30 June 2024, this mileage allowance amounted to $9,308.00. Her usual fortnightly living expenses amount to $3,080.31. There is a shortfall of approximately $1,100.00 between her fortnightly income and expenses. She takes extra work shifts when her employer makes them available to her.

Deborah rents a two-bedroom unit in Jindabyne from her daughter, Rebecca. Deborah lives in that property with another daughter and her granddaughter. The property was purchased by Rebecca using the $70,000 provided by her mother (referred to at [33] above). As part of her usual fortnightly living expenses (referred to at [34] above), Deborah pays $700.00 in rent per fortnight. It was accepted during cross-examination that she is still paying rent notwithstanding that she provided Rebecca with $70,000 for the property and Rebecca had the benefit of $90,000 from the estate of Deborah’s father. In response to a question put to her by Mr Chapple SC, Deborah suggested that if the property was to be sold she would expect to receive $160,000 back from Rebecca, although this may or may not be Rebecca’s position (see [40] below).

Deborah has savings of $23,833.82 and superannuation of $53,375.91. Her assets include a car worth approximately $10,500.00 and second-hand furniture with an estimated value between $1,000 - $2,000.

It was submitted by Mr Hill that Deborah’s greatest financial need is for her to buy a home and be financially secure. Deborah would like to buy a three-bedroom home in Jindabyne to stay close to her daughters who live in the area and enable them to stay over if required. She deposed in her affidavits that without receiving the residue of Cheryl’s estate she will have to work well into her sixties to pay her rent and support herself.

In the course of his cross-examination, Mr Chapple SC showed Deborah various Domain advertisements for properties in the Jindabyne area. Deborah said that it was her wish to have a house with a backyard, no stairs and three rooms so her daughter can live with her. Deborah accepted that a three-bedroom property she was shown by Mr Chapple SC in Cooma on ground level and with a backyard would be suitable. That property was listed for sale for $540,000.

Ms Rebecca McFarland is Deborah’s eldest daughter and Cheryl’s niece. Pursuant to clause 6.2 of the will, Rebecca will receive $5,000 from Cheryl’s estate. Rebecca has three children with her partner James. She also suffers from a serious illness which she has had since she was 19 years old. Rebecca’s circumstances are not in issue in this case.

During cross-examination, Mr Chapple SC asked Rebecca to explain what she understood the $70,000 her mother provided her would be used for. Rebecca said that the money was for the purpose of helping her family (that is Rebecca, her husband, and children) to get ahead. At the time she received the money she already owned the unit that her mother lives in and was in the process of building another property. Rebecca accepted that she charges her mother rent approximate to the amount due under her mortgage repayments. Rebecca also said that her sister moved into the unit after a relationship break down, but she is unaware if she makes any contributions to the rental payments. Rebecca accepted that she has not had a conversation with her mother about whether she is going to pay back the money that she has received from her mother and the money from her grandfather’s estate.

There was no evidence concerning the circumstances of Cheryl’s grandchildren (Adam and Alicia’s children).

There was also no evidence from any of Cheryl’s great nieces and nephews (being Deborah’s children) about their circumstances.

Mr Hill submitted that Adam should not get any provision because he has not established any need that cannot be met out of his own resources, but accepted that Alicia has demonstrated some need. However, he submitted that due to their conduct towards Cheryl, Adam should not receive any provision and Alicia should only receive minimal provision. The consideration of this issue requires the Court to set out a history of their relationship and the evidence on that topic by other witnesses.

The Court is well satisfied that Cheryl was very emotionally volatile. To the inexpert eye this appears to have been verging on some form of psychological disorder, but the evidence does not permit a finding to that effect and none is made.

In his affidavit sworn 27 July 2023, Adam deposed that he loved his mother but described her behaviour as frequently erratic and violent. His affidavit records that when he was approximately 10 or 11 years old Cheryl stomped on his head after he had expressed disappointment about not being allowed to attend a local carnival.

He also deposed that Cheryl was frequently verbally or physically abusive towards him and Alicia. His affidavit provides several examples of what Cheryl would say to them during her outbursts including “I wish you would all just fuck off”, blaming outbursts on the children by saying “it’s all your fault” and saying in a derogatory tone “you are all just like your father.” These examples were corroborated during the cross-examination of Ms Tracey Sinclair, a friend of Cheryl’s. Adam also deposed that after Cheryl had an outburst, her demeanour would sometimes change suddenly and she would become caring and affectionate towards him.

Sometime around 1996, aged 11, Adam moved to Queensland to live with his paternal grandmother Ms Joyce Leverton. Adam says he was later told that his parents relocated Adam to Queensland because he was experiencing severe bullying at school. During that period Adam spoke with his parents on the telephone about once a week and exchanged letters.

In 1997, aged 12, Adam moved back from Queensland to live with his parents and Alicia in Port Macquarie. Adam deposes that upon his return the deceased was initially less verbally and physically abusive towards him and was dedicated to supporting his junior representative rugby league pursuits. However, he also said that his mother continued to have angry outbursts at random.

In February 2023, aged 18, Adam joined the army. He says that his mother supported him during his training and encouraged him to remain resilient when the training became difficult. After completing his Initial Deployment Training, Adam was posted to Townsville for three years (between 2004 to early 2008). During this period, the distance between Townsville and Port Macquarie meant that he was only able to visit his family approximately twice a year for about two weeks at a time. Adam recalls these visits as a positive experience. Adam otherwise spoke to his mother and father on the phone about once a fortnight. He recalls these phone calls were also positive.

On 31 December 2005, Adam proposed to Sonia. Adam recalls that Cheryl responded to the news by expressing disappointment that Sonia’s father had been informed of the news before her. Adam expressed disappointment at Cheryl’s reaction.

From 2005 until his father’s death in 2014, Adam recalls speaking to both of his parents approximately once per fortnight, unless he was on a field exercise (which lasted up to three months) or he had been deployed overseas (which lasted six to eight months). Between approximately August 2007 and March 2008, Adam was deployed to Afghanistan. While Adam had two-weeks pre-embarkation leave prior to leaving for Afghanistan, he says he spent those two weeks travelling to Sydney to obtain a passport which he needed to obtain prior to deployment.

He also says that he travelled with Sonia to Port Macquarie to visit his parents at least once each year, typically over the Christmas period. During cross-examination he stated that he and Sonia visited Sonia’s mother once or twice a year and they visited Adam’s family and Cheryl twice a year. Adam and Sonia married in March 2008 and all family members attended their wedding.

At the time of his parents’ separation in 2013, Adam recalls that he did not know that Cheryl was intending to separate from Phillip. He was only informed of the separation when his father told him that Cheryl was moving out of the family home. Adam recalls continuing conversations with both parents at this time and that he did not discuss their separation with either of them.

The same year, Adam purchased a home with Sonia and both Cheryl and Sonia’s mother travelled to Brisbane to visit and stayed in their new home.

In or about 2014, Adam recalls property settlement proceedings commencing between Cheryl and Phillip but cannot recall who commenced the proceedings. On or about 4 September 2014, Adam recalls his father informing him that he was updating his will. As noted at [3] above, Phillip passed away unexpectedly from a heart attack in September 2014.

After his father’s death, Adam returned to Port Macquarie to be with his family and assist with his father’s funeral arrangements. He recalls Cheryl sorting through his father’s possessions and disposing of things she didn’t want. This upset Adam because he said he was not consulted about what items he may like to keep. Adam also says that Cheryl provided minimal to support to Alicia and himself following their father’s death.

Adam also said he tried to make attempts to repair his relationship with Cheryl after his father’s death but every time he mentioned his father’s estate, Cheryl would become angry and remind him that ‘everything belongs to me’. During cross-examination Adam said the ‘problem’ he was trying to repair in their relationship was Cheryl’s apparent focus on obtaining Phillip’s property.

In December 2014, Cheryl informed Adam that she was in Brisbane and would like to meet his eldest son. Adam deposes that he arranged for Cheryl to meet his son and she took a photo with him. During cross-examination Adam accepted that this visit was short and lasted approximately 5 minutes.

In 2015, family provision proceedings were commenced by Adam and Alicia against their mother as executor of their father’s estate. In his reply affidavit, Adam acknowledged that after the mediation Alicia and Adam’s barrister commented in the doorway that he expected that Alica and Adam would not want anything to do with Cheryl and they both agreed. He says he did not know that Cheryl’s barrister overheard the comments and had he known, he would have ensured Cheryl knew that he intended to continue having a relationship with her. During cross-examination Adam said that this was ‘a moment that I really regret, especially at that time’ (Tcpt, 30 September 2024, p. 42(10)).

After the family provision proceedings, Adam admitted that he did not speak to Cheryl or visit her in person as frequently as he had previously. Adam explained this was because it was difficult for him to see Cheryl due to where he was posted with the army, COVID-19 restrictions and that he only had minimal leave which he used to spend time with Sonia and his children.

It was put to Adam during cross-examination that given he was living in Brisbane in 2016, he could have visited his mother prior to being posted to Albury-Wodonga in 2017. Adam says that he felt he would not have been welcomed by Cheryl in 2017 given the state of the relationship at the end of 2016 after the family provision proceedings.

In 2018, Adam was deployed to Iraq for six months. Adam says he was not able to see any of his family during this time and did not have access to his mobile phone. In 2019, Adam was stationed in Albury/Wodonga for two years until 2021. Adam says that these commitments meant he could not travel to New South Wales.

Between 2015 and Cheryl’s death in August 2022, Adam says Cheryl only travelled to Brisbane to visit him once in March 2020. Adam says he did not see Cheryl on this occasion as he was scheduled to have shoulder surgery in Melbourne, was only informed of her incoming visit the week before and could not reschedule the surgery.

Between May 2018 and July 2022, Adam sent several text messages to Cheryl. Adam does not have access to any text messages prior to May 2018. On 6 May 2018 Cheryl sent Adam a text saying “Ok pop not well love you 2 [sic]?”. Adam responded by sending some photos of his two sons. On 13 December 2018, Adam sent a text message to Cheryl stating “Hey mum. Apologies for not contacting you sooner. I had my phone suspended whilst I was in Iraq and was only re-connected. I’m sorry to hear about pop, condolences to you and the family. May he rest easy. Love u.”

There is evidence before the Court that Adam and Cheryl would share text messages on special occasions such as birthdays, Easter, and Christmas and Adam would periodically send photos of his children. Throughout 2019, many text conversations were instigated by Cheryl. Adam would often respond without any written message but would send photos of his children. Adam also says he spoke to Cheryl on the phone but recalls Cheryl often becoming angry and would yell at him for not visiting her.

On 11 May 2020, Adam sent the following text to Cheryl “Hey serious question. Do Alicia and I get any inheritance or not.”

Cheryl responded:

Adam responded… “Wow you seriously asked about that. No one asked about your inheritance from your dad.”

On 21 May 2020 Cheryl texted Adam “Hi mate I hope your opp went ok love u xxx.” Adam replied “Hey, op went really well. I spent the night in hospital and now back on base In the wards. Already started physio and pain levels are moderate.”

On 8 June 2020, Adam sent Cheryl a text thanking her for the card for his younger son’s birthday and the $10 for both sons. Cheryl responded “Good morning Happy Birthday little man love Nan Chez & Great Nan Day xxxxxx” and “They are beautiful and thank u what kind of cake did he have?”

On 11 July 2022, Adam sent a message to Cheryl informing her that his daughter had been born the previous evening.

During cross-examination, Adam said that it wasn’t until he was informed by his aunt Deborah that he became aware of how sick his mother was a few months before Cheryl’s death in August 2022. Adam admits that he did not visit Cheryl during this period but accepts in hindsight that he should have. Adam also accepts that he could have asked for compassionate leave to visit Cheryl. Adam says that he was not informed by Agnes that Cheryl had been admitted to hospital prior to her death and was not informed of her death until Alicia told him. Adam attended Cheryl’s funeral.

In her affidavit sworn 26 July 2023, Alicia deposed that she had a very close relationship with her mother as a child given she was her only daughter. However, she recorded that her mother had a temper and suffered from mood swings and was frequently physically and occasionally verbally abusive towards Adam and herself.

Alicia recorded several instances from her early childhood in her affidavit where her mother would refer to Alicia as a “bitch” and would say “I fucking hate you”. Some of these instances of verbal abuse were accompanied by physical abuse including her mother kicking and slapping her. Her affidavit also noted that after these outbursts, her mother would appear to become a different person and would act in a very kind and loving way to her.

Alicia deposes that Cheryl’s behaviour continued to be erratic during her (Alicia’s) teenage years. She says her mother frequently referred to her as a “spoilt bitch” and would have outbursts when something upset her. Again, Alicia notes there were periods where her mother was caring and affectionate towards her. She records that when she was in year 10 her mother took her to Melbourne for a weekend and bought her a formal dress.

In April 2008, when Alicia was 21 years old, she moved to London for two years. She records that she spoke to Cheryl on the phone at least twice a week and her mother visited her in London once in 2009 for two weeks. Alicia returned to Australia in April 2010 and stayed with her parents in her family home in Port Macquarie for one month before moving to Townsville for work and to live with friends she had met in London. Alicia describes her relationship with her mother as positive and believed that the distance helped to improve their relationship. When Alicia returned to Port Macquarie, the two of them went out for lunch together.

On 1 January 2013, Alicia was informed by her mother that she was separating from Phillip. Alicia says that she was not surprised to hear her parents were separating because, to her observation, their marriage had been unhappy for many years.

Alicia stated that her parents’ divorce was a source of renewed tension between her and Cheryl. After an incident at a cousin’s 21st birthday party in February 2013, Alicia deposes that she telephoned her mother and encouraged her to seek psychological help. Cheryl appeared to disregard Alicia’s requests. After this conversation Alicia records that she did not speak to her mother until November 2013 and Cheryl made no attempts to contact Alicia.

On 29 November 2013, Cheryl sent Alicia a letter stating that she felt Alicia had not properly supported her following her separation with her father. A few weeks later, Alicia sent a long letter in reply detailing her concerns about her mother’s behaviour throughout her life and her concerns about her mother’s mental health. The letter included (emphases in original):

After Cheryl phoned Alicia about her letter, the pair did not speak through to the end of 2013 and during 2014 except on special occasions such as birthdays and Christmas.

On 26 September 2014, Cheryl phoned Alicia to inform her that her father, Phillip, had died. The aftermath of her father’s death was a clear source of tension between Cheryl and Alicia. Both Adam and Alicia believed that their father had made a new will which did not leave everything to their mother. Alicia was concerned that her mother and Agnes were disposing of her father’s possessions before this alleged new will was found.

Mr Hill cross-examined Alicia as to what basis she had to believe her father had created another will. Alicia said that she and Adam had been personally told by Phillip that he had made a new will. She also stated that a family friend and her father’s auntie also informed her that Phillip had made a second will.

Adam and Alicia commenced family provision proceedings against their mother as executor of their father’s estate in late 2015. The proceedings settled by consent in April 2016. As part of these proceedings the parties attended a mediation. Alicia accepts that at the end of the mediation, their barrister said to Adam and Alicia in the doorway “so after this, she’ll basically be dead to you right?” and that both agreed with that proposition. Alicia says that she did not know that their barrister relayed their comments to Cheryl’s barrister, and she never intended for her mother to believe those comments came directly from Adam and herself. Alicia reiterates in her affidavit that her mother was not dead to her and that she never intended to have nothing further to do with her. During cross-examination said that this was an ‘off-the-cuff remark’ (Tcpt, 30 September 2024, p. 23(1)).

At some time in March 2016, Alicia attempted to reconcile with her mother. In response to Cheryl’s texted reply “Sorry I’m working I think u said what you have 2 say I’m dead [sic]” Alicia sent the following text messages:

Alicia and Chery did not speak for the remainder of 2016. However, on Christmas Day 2016 Alicia sent Cheryl a text message saying “Merry Christmas Mum! I hope your[sic] having a nice day with everyone. Hope to speak to you face to face in the new year.” Cheryl replied on the same day “Mery xmas Alicia I hope had [sic] lovely xmas I do missu [sic] and love u so much xxxx.”

Between 2017 and 2019 Cheryl and Alicia met with each other in person on approximately five occasions and spoke to each other on the phone approximately once or twice a month and exchanged text messages. For example, on 11 March 2017 Alicia sent Cheryl a text message which stated “Hi Mum, I was wondering if you would like to meet up soon and talk?” Cheryl responded with “sure”.

On 23 March 2017, Alicia sent Cheryl a text stating “Hi Mum would you like to meet up on Saturday 8th April for a coffee?”. Both Cheryl and Alicia then subsequently agreed to have lunch at The Entrance after Easter on Saturday 29 April 2017.

On 10 April 2017, Cheryl sent a Alicia a text message sating “Hi I hope you had are lovely day Happy Easter xxx [sic]”. Alicia responded “Happy Easter Mum” which was punctuated by a ‘blowing kisses’ emoji.

On 25 April 2017, Cheryl texted Alicia “Hi I hope you had nice day were [sic] do u wont 2 meet on Saturday for lunch xxx.” Alicia responded “Hey Mum, yeah had a nice ANZAC day. We went to the dawn service this morning. I thought we could meet at The Entrance lakehouse.”

After the meeting at The Entrance on 29 April 2017, Cheryl texted Alicia “Hi I had are lovely day thank u I hope u got home safe love u xxcxxx” [sic]. Alicia responded “Hey Mum, I had a lovely time with you. Glad we met up!....”

On 14 May 2017, Alicia sent Cheryl a text message wishing her a happy Mother’s Day. Cheryl replied on the same day with a message which stated “Thank u Adam text me 2 and sent me photo of [Adam’s eldest son] it great of u And [sic] Adam 2 text for Mother Day xxx [sic]”. On 2 June 2017 Alicia sent Cheryl a message asking if Cheryl was free to catch up for her birthday. The pair organised to meet on 24 June 2017.

On 15 June 2017, Cheryl messaged Alicia to inform that her maternal grandfather was ill. Alicia responded ‘ Hi Mum, that’s not good, What’s wrong? On 16 June 2017, Alicia sent a text to Alicia and wished her a happy 60th birthday.

There was evidence of extensive communications between Alisha and Cheryl between the end of 2017 and 2019. Both wished each other well on special occasions and corresponded about significant life updates including the success of Alicia and Chris’s search for a house to purchase. For example, on 8 August 2019, Cheryl sent Alicia a text message to wish her a happy birthday. Alicia responded “Thanks Mum, love you xxxx.” Cheryl then asked “How is the house hunting going xxx”. Alicia responded “There hasn’t been that much on the market. The real-estate was saying that around September it probably will pick up again. Hopefully something comes up soon. How have you been?” The pair then sought to organise a catch up.

On 15 August 2019, Cheryl sent Alicia a message saying “Hi I’m think of you love xxx.” Alicia responded “Thanks Mum! Love you x” and also informed her that she had checked the mail that morning and received the card and money that Cheryl sent Alicia.

On 2 October 2019, Alicia sent Cheryl this text:

Cheryl responded on 3 October 2019:

Alicia responded on the same day:

On 22 November 2019, Alicia informed Cheryl that she (Alicia) and Chris had purchased a property off market. On 25 December 2019, Alicia sent Cheryl a text wishing her a Merry Christmas.

Between 2020 and 2021, COVID-19 restrictions precluded Alicia from visiting Cheryl, but they continued to speak to each other on the phone once every two or three weeks and exchange telephone messages. For example, during April 2020, Alicia and Cheryl shared several messages about how Alicia was finding the process of moving into her new home. On 28 April 2020, Alicia sent Cheryl a text saying “Hey Mum, cause [sic] we’ve moved from an apartment to a house we need to get some furniture… would you be willing to help us out to buy some stuff?” On 29 April 2020, Cheryl asked Alicia for her bank account details so she could transfer her $2000.

On 8 May 2020, Alicia sent a text to Cheryl asking if she received a hamper she had bought her as a gift. Cheryl sent a photo to confirm receipt. Throughout the end of 2020 and the beginning of 2021 there was evidence of continued text communication between Cheryl and Alicia, consistent well wishes on special occasions and periodic mutual inquiries about the other’s welfare.

On 1 June 2021, Cheryl informed Alicia via text that she had been diagnosed with breast cancer. Alicia responded by trying to call Cheryl and requesting she call back when she was free. Alicia deposes that her mother became less receptive to her phone calls during this period. On 2 June 2021, Alicia texted Cheryl, ‘are you free today? Can I call you?’. Cheryl did not respond to this message. On 3 June 2021, Alicia texted Cheryl “Hey Mum, good luck today! I hope everything goes well. I’ll be thinking of you. I’ll call you tomorrow to see how you are. Love you.” Cheryl did not respond to this message.

On 16 June 2021, Alicia wished her mother a happy birthday. Cheryl responded “I will thank you xxx”. On the same day Alicia asked Cheryl if she received her medical results back. On 28 June 2021, Alicia sent Cheryl a text message: “Hey Mum, good luck tomorrow! I’ll be thinking of you. It’s good they got it early. Take care and I’ll call you on the weekend to see how you are going. Love you x”

After Cheryl underwent cancer surgery in July 2021, Alicia recalls sending her mother flowers. On 1 July 2021, Cheryl sent Alicia a text saying “Hi thank you for the beautiful flowers they are lovely I’m ok but tied [sic] going back 2 bed.” On 13 July 2021, Cheryl sent Alicia her medical reports and also sent a photo of the flowers Alicia had sent her the week before.

There was continued intermittent text message correspondence between Alicia and Cheryl between July and September 2021. On 21 November 2021, Alicia sent a text message to Cheryl which stated “Hey Mum, how are you going? Xx’. On 22 November Cheryl replied “Yes I’m great thank for asking” [sic].

On the same day Alicia sent the following text message:

Cheryl then responded that she did want a relationship with Alicia:

In March 2022, Chris proposed to Alicia. Alicia immediately informed her mother of the news by telephone on 13 March 2022. They also shared the following text conversation:

Alicia deposes that she continued to keep her mother informed about her pregnancy. For example, on 21 March 2022, Alicia shared ultrasound scans of the baby with her mother. On 7 June 2021, this text message exchange occurred:

During her mother’s cancer treatment, Alicia deposed that she made several attempts to visit her mother. For example, she said that her mother told her that she could not visit as she was undergoing radiation treatment and the doctor said it was too risky for Alicia to visit given she was pregnant. On another occasion, she said that it was too risky for Alicia to visit due to the number of COVID cases at the time and Cheryl’s immune system being so low. Alicia says she respected her mother’s decision and felt she did not need to visit her in person at that time given they were in regular telephone and text messaging contact.

Mr Hill cross-examined Alicia about why she did not immediately visit Cheryl after her second cancer diagnosis in June 2022 especially since her uncle, Alan and her cousins Aaron Wiegold and Skye Reed had spoken to her about the seriousness of the new diagnosis. Alicia said that her mother had provided a more positive picture of her current welfare and that Cheryl had told Alicia not to visit her because the doctor said that it was too dangerous for Alicia to attend while she was pregnant and Cheryl was undertaking radiation therapy.

On 5 July 2022, Alicia texted Cheryl that “I’m going to have my baby shower September 17th, will you be able to come? You can stay at my house.” Cheryl responded ‘I hope I can come for get Alicia Nan come with Nan would love 2 come 2 any I live it up 2 u xxx [sic].

On 10 July 2022, Alicia texted Cheryl “Hey Mum, I was calling to see how you are going. I was at the airport I flew to Singapore today just landed a couple hours ago. I’ll call you once I am back. Let me know when your next specialist appointment is so I can take time off and come with you. Xx.” On 28 July 2022, Alica texted Cheryl “Good luck today mum with the injection. I hope it doesn’t make you feel sick.” On 31 July 2022 Cheryl responded “everything went ok not sick just tied [sic] I gave my self the needle it was ok I ask the Doctor if you can come up but answer no it 2 Ricky xxxxxx [sic]”.

On 13 August 2022, Alicia sent Cheryl a text saying “Hey Mum is everything ok” to which Cheryl said she would respond tomorrow. Alicia responded with a message which said “…. I just want you to know, that I do want to help. I want you to survive and fight this. I want you to be here when my baby arrives and I do you want you to be a part of it’s life.”

On 17 August 2022, her aunt Rebecca called Alicia and informed her that she (aunt Rebecca) and Agnes had taken Cheryl to the hospital because she was not well, and the nurses had informed them that Cheryl might not make it through the night. Alicia deposed that she and Chris immediately drove from Bulli to Lake Macquarie Private Hospital and arrived at 11:30pm. Alicia was at her bedside until Cheryl died.

After Cheryl’s death, Alicia deposes that she had conversations with her grandmother who informed her that Cheryl purportedly did not want Alicia or Adam at her funeral. She also deposes that she and Adam were never mentioned at their mother’s funeral except during Cheryl’s eulogy by her friend Ms Tracey Sinclair who referred to the children in her eulogy as follows:

On 20 July 2022, Alicia sent a handwritten letter to her grandmother asking her to stop telling lies about Adam and Alicia to the rest of the family and to let there be peace.

Several other family members and friends also gave evidence about their observations of the plaintiffs’ relationship with Cheryl.

Ms Julianne Wiegold is Cheryl’s sister-in-law and married to Cheryl’s younger brother, Mr Stanley Wiegold. Julianne was called in the plaintiffs’ case but was not required for cross-examination. Julianne deposed in her affidavit that she observed Cheryl verbally and physically abusing her children from time to time. She specifically recalled that Cheryl would say to Alicia “You’re a little bitch” and would refer to Adam as a “little shit” or a “shit of a kid”. Julianne also deposed that in 2019 Alicia confided to her that she was communicating with Cheryl again but that Cheryl told her she didn’t want Agnes finding out otherwise she would try and stop her from communicating with her.

Stanley, Cheryl’s brother, also deposed an affidavit in the plaintiffs’ case but was not called for cross-examination. He provided unchallenged evidence that when he visited Cheryl and her family, he heard Cheryl call Alicia “a fucking little bitch” and Adam a “fucking bastard”. He also deposes that he saw her use violence against her children.

Deborah also provided evidence in the proceedings about Cheryl’s relationship with Adam and Alicia and with her. In her 6 November 2023 affidavit, Deborah acknowledged that she had her differences with Cheryl from time to time and they would sometimes not speak until matters were resolved. She also deposed that Cheryl told her that she was deeply hurt by Adam and Alicia saying that Cheryl was dead to them. However, Deborah accepted during cross-examination that Cheryl did not tell her that she had met Alicia in person at The Entrance in 2017 nor did Cheryl inform her (Deborah) that she had exchanged text messages and phone calls with Adam.

In her affidavit in reply, Deborah deposed that two days after Cheryl’s funeral she received a phone call from Alicia while she was at Agnes’ house in Dora Creek asking if she and Adam were in Cheryl’s will and if they could come and take what they wanted out of her house.

Deborah also accepted during cross-examination that Cheryl was someone who was subject to mood swings, had a quick temper and struggled to regulate her emotions due to her struggles to articulate her thoughts and feelings. Deborah also proffered evidence that she also had a conversation with Alicia about Cheryl’s mood swings and agreed that Cheryl would have benefitted from counselling to help her with past trauma.

Similar evidence was also provided by Mr Arthur Smith, a close friend of Cheryl. Arthur said that as their friendship developed, they would talk about their family lives. Cheryl informed Arthur that she had two grandchildren but only had contact with her children by phone or text and said that ‘my kids don’t allow me to see my grandchildren.’ Arthur says Cheryl would become emotional when recording these facts.

Cheryl’s friend Tracey also gave evidence in the proceedings and was cross-examined by Mr Chapple SC. Tracey gave evidence that Cheryl ‘went through hell with Phil and her beloved children’ and was subject to verbal, mental and financial abuse from Phil and verbal and mental abuse from Adam and Alicia. She also deposed that Cheryl told her that her health was being severely impacted by not being able to see her grandchildren and described her children as only ever caring about money.

During cross-examination, Tracey accepted that over the years she had seen Cheryl, ‘when pushed to her limit’, threaten to kick the children out of the house, say “I wish you would all just fuck off”, blame the causes of her angry outbursts on her children and say in a derogatory tone “you are just like your father.” Tracey said that Cheryl would be pushed to her limits by the children ignoring her instructions or requests and Phil making demeaning remarks to her.

Tracey deposed that Cheryl told her that “I was invited to Alicia’s baby shower, but Alicia said ‘only if you stay for a short time and you can’t say at my house overnight.’ I won’t go as Alicia thinks I’ll be an embarrassment in front of her new family and friends, it’s not worth the grief, she only wants money anyway, she’s asked me to pay for nursery set up.” This evidence is contradicted by the text messages set out above and demonstrates that people do not always tell the truth to their friends.

Tracey also deposed that she was neither aware nor personally witnessed Cheryl ever physically abuse her children. Her evidence was that Cheryl was frustrated by what she sensed was her children becoming more like their father through their increased use of demeaning or derogatory ‘one liners’ towards her. Tracey did say that she recalled Cheryl calling Alicia “A fucking little bitch”. She says that her outbursts were caused by her children causing Cheryl to reach ‘breaking point.’

Tracey also provided evidence that she recalls Cheryl mentioning that Alicia had sent her flowers after her surgery to remove her breast cancer in July 2021 (see [103] above). She recalled commenting to Cheryl that “Alicia may be feeling a bit guilty, or caring?” and Cheryl replying “Who cares they’ll be going in the bin”. However, whatever Cheryl may have told Tracey, the photo Cheryl sent Tracey one week later (see [103] above) demonstrates that they did not “go into the bin”.

According to Tracey, it was only once Cheryl was diagnosed with ‘both cancers’ that Cheryl informed her “Alicia tried to make contact and reach out as there might be money involved.” She says she witnessed Cheryl decline or ignore calls from Alicia on at least three or four occasions.

Tracey deposed that Cheryl had told her that she did not want Adam and Alicia to be told of her death, attend her funeral or have photos of them at her funeral. Contrary to Alicia’s evidence (see [115] above), Tracey denies that her eulogy at Cheryl’s funeral only mentioned Adam and Alicia when she allegedly said “Following Phil’s death, Cheryl’s children alienated her, which kept her from her grandchildren. That’s why we are here today.” The eulogy in evidence before the Court does reflect that Tracey referred to Adam and Alicia as Cheryl’s proudest achievement.

Agnes’ evidence is that Cheryl’s relationship with Adam and Alicia ended on the day of the mediation after hearing that she was ‘dead’ to her children. She deposed that to the best of her knowledge there was no physical contact from Adam or Alicia, just the occasional text message. During cross-examination, Agnes accepted she felt that Alicia and Adam were wrong in challenging their father’s will and that from this point she did not want to have a relationship with Adam and Alicia. She says that she blames Alicia and Adam for Cheryl’s death on the basis that they broke her heart when they challenged their father’s will.

Agnes also stated that she did not give any thought to allowing Adam and Alicia to take belongings from Cheryl’s house because she believed that Cheryl had adopted a non-negotiable position that Adam and Alicia should not have anything. When asked by Mr Chapple SC if her belief that this position was non-negotiable was partially because she was upset with Adam and Alicia because they challenged their father’s will, Agnes replied “No, because I [sic] upset their mother. She’d done nothing to them except break her heart.” (Tcpt, 30 September 2024, p.53(9)-(10)).

It also became evident during cross-examination that Agnes was not completely aware of the extent of the contact that Cheryl had with Adam and Alicia after Phillip’s death. Despite her affidavit stating that there was no physical contact from Alicia with Cheryl, Agnes accepted that they had lunch at The Entrance in April 2017, in Terrigal in August 2017 and had lunch in November 2017. Agnes also accepted that she was not aware that Cheryl and Alicia spoke on the phone on a few occasions each month. In relation to Cheryl’s contact with Adam, Agnes was aware that they exchanged text messages but said that Cheryl never informed her they spoke on the telephone

At [40] of her affidavit affirmed on 24 January 2024, Agnes deposed that after Alicia had expressed concerns to her about her mother’s behaviour she said to Alicia “Your mother is going through change of life, and you should speak to your father about this. Perhaps she should see a doctor. Your mother may have bipolar, I don’t know, but speak to your father.” During cross-examination, Agnes resiled from this evidence. She said that she did not recall volunteering that information and, sitting in the witness box, she did not believe that Cheryl was bipolar. To the extent it is necessary, the Court prefers the evidence in Agnes’ affidavit.

There was no dispute about the applicable legal principles.

In Basset v Bassett [2021] NSWCA 320 at [78]-[88] (Bell P; Leeming and Payne JJA), the New South Wales Court of Appeal summarised the discretionary exercise which the Court must undertake pursuant to ss 59(1)(c) and 60(2) of the Act which I respectfully adopt and apply:

As noted at [11], one of the key issues in this case is whether, and if so to what extent, the nature of the relationship Adam and Alicia had with their mother should be a factor against the Court making orders for provision in their favour. Historically, the Court was required to consider whether ‘the character or conduct’ of the applicant ‘is such as to disentitle him to the benefit of such an order (emphasis added) (See s 3(2) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (now repealed). Section 60(2)(m) of the Act now stipulates that the Court may consider ‘the character and conduct of the applicant before and after the date of the death of the deceased person’.

As was noted by Lindsay J in Estate MPS, deceased [2017] NSWSC 482 at [49] “Section 60(2)(m) of the Succession Act has a broader, more flexible focus than section 3(2) of the 1916 Act. It does not employ the word “disentitling”. It appears in the context of legislation that requires the Court to consider the totality of a relationship.” The significance of this is that the Act does not automatically preclude the Court from providing provision to an applicant merely because there is evidence of a strained relationship. The plaintiff’s conduct and the nature of the relationship between Cheryl and the plaintiff’s (see s 60(2)(a) of the Act) are just two of a number of discretionary factors the Court may consider when undertaking the instinctive synthesis required to determine a family provision claim.

Cases which concern whether the relationship between adult children and a deceased testator should affect the amount (if any) provision should be provided have also frequently considered whether there was an ‘estrangement’ between the applicants and the deceased. In Rada v Smith [2024] NSWSC 273 at [26]-[28] I criticised the use of the term ‘estrangement’:

I respectfully adhere to that view. Nevertheless, authorities which have considered the impact of relationships between adult child plaintiffs and deceased testators on the amount of provision awarded commonly refer to the ‘estrangement’ between the parties. For example, in Burke v Burke [2015] NSWCA 195 at [88]-[93] Ward JA (Meagher and Emmett JJA agreeing) (emphasis added) outlined principles for how trial judges should consider any estrangement between parties amongst other discretionary factors in family provision cases:

The law in relation to estrangement in family provision claims was also comprehensively considered by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [230]-[244] (upheld in the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641)

This case is another apt demonstration of why, in my respectful opinion, the term ‘estrangement’ is unhelpful. The objective evidence clearly demonstrates that the source of the tensions between Adam, Alica and Cheryl were all manifestations of the ordinary incidents of family life given each of their circumstances from time to time, those circumstances including, but not being limited to, Cheryl’s volatile personality. There has also been a clear attempt by all sides to reconcile the relationship. To describe the nature of the relationship as ‘estranged’ would be to unfairly attribute moral blame on both parties and cast a shadow over the steps which were taken to restore and maintain contact and reconcile differences.

The authorities set out above require a close examination of the objective facts to appreciate the relationship between the parties in this case before any determination as to the impact of that relationship on any provision awarded can be made. The authorities also demonstrate the impact of ‘estrangement’ (or ‘lack of contact’ as I prefer) is just one of all the relevant circumstances the Court needs to consider when exercising its discretion as to whether provision should be awarded. In this case, the mere fact that Adam and Alicia may have had periods when they had a lack of contact with Cheryl is not a reason to preclude them from receiving provision. However, it also does not mean their conduct may not have a negative impact on the amount of provision the Court might order. The undoubted and successful attempts at reconciliation are also an important matter in the exercise of the Court’s discretion.

The focus of both parties’ submissions was on the extent to which Adam and Alicia’s relationship with their mother, Cheryl, should affect the amount of provision, if any, they receive. Mr Chapple SC submitted that their relationship should not be analysed by scrutinising isolated incidents to define the entire relationship. Instead, it was submitted the relationship needed to be viewed through three distinct stages which informed each other:

As to the first stage, Mr Chapple SC argued that both Adam and Alicia’s evidence described that their mother had erratic mood swings and both provided several examples of where Cheryl was either physically or verbally abusive towards them. These instances of verbal abuse were also corroborated by the evidence provided by Stanley and Julianne. It was properly clarified by Mr Chapple SC that the Court was not invited to cast blame upon particular people as to the source of the outbursts or for the existence of any such outbursts. Although Mr Chapple SC postulated, and the Court accepts, that the toxic relationship which was evidently present between Phillip and Cheryl must have been a significant contributing factor.

However, it was also acknowledged that both Adam and Alicia accepted that Cheryl would often show deep affection towards them and was a good mother who was very supportive of their endeavours at school. Mr Chapple SC submitted that it was the oscillation between Cheryl’s emotional states which was difficult to comprehend for Adam and Alicia and which informs the next stages of the relationship.

The second stage of the relationship was contended to be defined by both Adam and Alicia realising that some separation between themselves and Cheryl may assist their relationship. However, even where distance was created it was noted both children continued to communicate with Cheryl. For example, during Alicia’s time living in London between 2008-2010 Alicia would speak to Cheryl on the phone weekly. Similarly, Adam spoke to his parents regularly on the phone and used annual leave to return to Port Macquarie to visit his parents whilst posted in Townsville for his army duties.

Mr Chapple SC also noted that it was during this stage of the relationship that Adam and Alicia sought out relatives including Agnes and Deborah to talk about their mother’s emotions and her mood swings. Mr Chapple SC submitted that Agnes and Deborah’s affidavit and cross-examination evidence corroborated Adam and Alicia’s evidence that Cheryl did have a volatile personality and commonly had mood swings. This was said to demonstrate that Cheryl had ongoing and long-term issues which affected her personality which were not only affected by the way that Adam and Alicia interacted with her.

Mr Chapple SC accepted that Adam and Alicia’s relationship with Cheryl changed in the third stage of their relationship, the period after Phillip’s death. Mr Chapple submitted that rightly or wrongly, Adam and Alicia believed that their father had created a second will and that belief was reasonable. The reasonableness of this position was that their parents had separated in 2013, Family Court proceedings were commenced for the purposes of obtaining a property settlement, there was evidence from Agnes that Cheryl had obtained legal representation to assist her with those proceedings and both Adam and Alicia provided evidence that Phillip had directly informed them that he had created a second will.

Similarly, it was also contended on behalf of Adam and Alicia that the family provision proceedings were readily explainable because of the evidence of a longstanding turbulent relationship between the parties, the statements made to Adam and Alicia by Phillip about his will being changed, as well as Cheryl and Phillip’s separation and subsequent proceedings which made it reasonable to believe Phillip might not leave his entire estate to Cheryl. On this basis the Court was asked not to make any adverse inferences against Adam and Alicia as to their conduct on the basis that they commenced family provision proceedings. The Court accepts that submission and will make no such adverse inference.

Mr Chapple SC conceded that Adam and Alicia had acceded to their barrister’s comment at their mediation that Cheryl was “dead to them.” However, Mr Chapple SC emphasised that both acknowledged in the witness box that they regret what they said and did not genuinely believe the gravamen of the comment. Their remorsefulness and the comment occurring in a clearly emotionally charged situation were submitted to be sufficient basis for the Court not to find that their statement should affect any provision they are awarded. The Court accepts that submission.

Not only did Mr Chapple SC submit that the long-term nature of the relationship between Adam, Alicia and Cheryl was explainable by reference to the three stages referred to above. He also sought to characterise and subsequently challenge Cheryl’s position that Adam and Alicia wanted nothing to do with her as a false narrative. Mr Chapple SC accepted the genesis of the narrative was the comment made at mediation, but that narrative was inconsistent with the objective evidence of the subsequent communication between Adam, Alicia and Cheryl.

For example, Mr Chapple SC noted that it was Alicia who took the positive step in March 2016 to rekindle her relationship with Cheryl (see [84] above). He noted that Alica decided to meet Cheryl in person at The Entrance on 29 April 2017 (see [90] above) and made further attempts to visit in person in July and October of 2017.

Mr Chapple SC also observed that Alicia was proactive in providing emotional support to her mother after she informed her of her cancer diagnosis. As soon as Alicia found out about Cheryl’s cancer on 1 June 2021, Alicia immediately tried to call her, and Alicia also sent Cheryl flowers in July 2021 to Cheryl after she had surgery. Mr Chapple SC submitted that these interactions were warmly received by Cheryl as demonstrated by Cheryl sending Alicia an image of the flowers a week later to thank Alicia. It was noted this evidence contradicted Tracey’s affidavit evidence that Cheryl would throw the flowers in the bin.

Notwithstanding this communication, Mr Chapple SC accepted that the relationship continued to be affected by periods of tension. For example, Alicia’s message to Cheryl on 21 November 2021 where she asks whether Cheryl still wants contact to her is indicative of such tension. However, Mr Chapple SC said that conduct was explainable by the long-term tensions which had evolved throughout the various stages of their relationship.

Mr Chapple SC submitted that the litany of positive interactions between Alicia and Cheryl show that despite their lack of face-to-face contact, they had a strong personal relationship. This was underscored by Cheryl being the first to know from Alicia that she was pregnant after becoming engaged to her fiancé Chris. Mr Chapple SC noted this rapprochement was reciprocated by Cheryl, who asked if she could buy anything for the baby room. Mr Chapple SC submitted that this interaction demonstrates that the evidence does not inform any suggestion that Cheryl was going to be estranged from Alicia’s grandchild. Alicia inviting Cheryl to her baby shower in July 2022 was further evidence against any purported estrangement.

Mr Chapple SC rejected any submission that Alicia did not take steps to visit Cheryl when she was sick with cancer. Mr Chapple SC relied on the message sent by Cheryl to Alicia on 31 July 2022 informing Alicia that the doctor had said that it was not safe for a then pregnant Alicia to visit Cheryl whilst she was undergoing radiation therapy (see [112] above). This corroborates Alicia’s evidence that she tried to visit her mother but was informed it was unwise to do so. Mr Chapple also relied on various supportive text messages Alicia sent to her mother in around July-August 2022, around the same time the will was made on 16 August 2022, to reject the veracity of Clause 7(d) of the will which claimed that there had been ‘little or no contact between my Children and I for many years and there is no relationship of love and affection between us’.

In relation to Adam’s communication with Cheryl, Mr Chapple SC accepted that their communications were more guarded and less frequent but did not reach a state which should affect any provision the Court provides Adam. Mr Chapple SC provided three reasons why this was the case. First, messages sent by Adam to Cheryl before 2018 were not recoverable. Second, Adam was incommunicado for extensive periods while he was on tour with the army. Third, Mr Chapple SC hypothesised that the nature of the relationship between mother and daughter and mother and son may be different.

Mr Chapple SC acknowledged that the messages between Adam and Cheryl demonstrated Adam providing photos of his children to Cheryl and exchanging kind and celebratory messages around significant dates like Christmas and birthdays. Mr Chapple SC again accepted the relationship was not without tension, noting the 21 May 2020 text Adam sent to Cheryl asking if he and Alica were in the will caused a momentary strain in their communication but submitted that after this message was sent they continued with their usual exchanges of love, well-wishes and photographs of Cheryl’s grandchildren. Mr Chapple SC submitted the evidence of their communications once again provided no basis to support a conclusion that there was little or no contact between Adam and Cheryl.

The evidence of communication was also submitted to contradict various pieces of evidence relied upon by the executors to establish that Adam and Alicia did not want, and did not have, any contact with Cheryl after the mediation:

Mr Chapple SC submitted that this evidence demonstrated that what Cheryl was telling her friends and family was inconsistent with the actual nature of the relationship she was having with Adam and Alicia. Mr Chapple SC described this situation as one of ‘parallel narratives’. Mr Chapple SC asked to the Court to draw a positive inference that Cheryl did not want to disrupt the narrative that she had been disowned by her children. Mr Chapple SC relied on Ms Wiegold’s affidavit evidence that Alicia said “Mum and I are talking again. Mum doesn’t want my Nan to know…” as support for the proposition that Cheryl was not being honest with some people about the nature of the contact she was having with her family.

Therefore, it was submitted to be clear that Adam and Alicia’s conduct with their mother should not preclude them from obtaining provision from Cheryl’s estate.

Alicia’s financial circumstances are not in dispute. However, in contending that Alicia should receive provision of $300,000, Mr Chapple SC accepted that the Court needs to factor in the extra $14,000 in shares owned by Chris when determining the appropriate amount of provision for Alicia. It was submitted that Alicia’s need to reduce her mortgage repayments (the mortgage currently being $824,674), and to conduct essential home renovations to address the effects of a landslide and remove mould demonstrated sufficient needs to justify provision. Mr Chapple SC candidly accepted that the proposed costs of the remediation work were unclear and that the Court would not be able to provide sufficient provision for Alicia to cover her mortgage and renovation costs. Instead, it was likely the provision would address remedial costs and the remaining amount could be used to reduce the mortgage.

It was also accepted by Mr Chapple SC that their income is not sufficient to meet their expenses and it might be that they need to sacrifice the amount of renovation work that they do to pay more off the mortgage so they can bring down their expenses.

Adam’s financial circumstances are also not in dispute subject to a disagreement as to how Adam’s daughter’s childcare costs are calculated. This dispute was moot because whether the daycare expenses were deducted from Sonia’s daycare income or were added as an expense does not change the totality of Adam’s financial circumstances.

Mr Chapple SC submitted that the Court should provide Adam with provision of $300,000. This amount would allow Adam to discharge his mortgage, currently $252,166.95 and leave an additional amount to allow Adam to retrain in furtherance of his search for future employment. Mr Chapple SC acknowledged that Adam and Sonia have the benefit $337,000 from Sonia’s compensation pay out from the army but noted that money is being used to supplement the excess of their expenses over income which is about $2,930 per month. He also accepted that there is scarce evidence of what future employment Adam would like to pursue and any upskilling or training he will require to obtain those roles.

Mr Chapple SC’s final submission was that providing further provision for Adam and Alicia would not displace Cheryl’s legitimate testamentary intentions. He first noted that it was accepted by both sides that Deborah, as the sister of the deceased, is not someone for whom the law would ordinarily regard the deceased as having a moral obligation to provide, but that Deborah did provide a lot of support and care to Cheryl during her illness with cancer.

It was also accepted that Deborah’s financial circumstances were poor. However, Mr Chapple SC contended that even if the Court provided Adam and Alicia with $300,000 each this would still leave Deborah with $650,000. This amount, it was submitted:

Mr Hill challenged Mr Chapple SC’s characterisation of Adam and Alicia’s relationship with Cheryl being defined by ‘three stages’ as misleadingly attributing the bulk of the blame to Cheryl and submitted that the issues in the relationship were not ‘one-sided’. Mr Hill relied on Tracey’s affidavit which indicated that the children ‘knew how to press [Cheryl’s] buttons’ and would mock her for her outbursts. This was submitted to show that Adam and Alicia had responsibility for the state of the relationship.

Tracey’s evidence was contended to be of significance given she was a witness who did not have a financial interest in the outcome of the case and had ‘no axe to grind’. The executors also relied on Tracey never observing Cheryl hit her children as further evidence that blame should not be overly attributed to Cheryl for the state of the relationship.

Mr Hill also submitted that the November 2013 letter (see [79] above) which Alicia sent to Cheryl outlining her grievances with how Cheryl treated her when she was younger was ‘offensive in its terms’ and reinforces that the children played a significant role in the fraying relationship between them.

Mr Hill challenged Mr Chapple SC’s contention that the relationship had repaired to the extent that it had. Mr Hill contended the Court should place significant weight on Adam and Alicia acceding to their barrister’s observation that Cheryl was ‘dead to them’. Mr Hill submitted those comments ‘weighed heavily’ on the deceased and must be considered, despite his acceptance that they both regretted those comments.

Mr Hill also submitted that Adam and Alicia’s remorse for their comment needs to be viewed in light of other purported failures to rekindle their relationship with their mother. It was said that a key concern for Cheryl was that the children never came to visit her face to face. Mr Hill accepted that Alicia tried to repair the relationship via text but that was insufficient given Cheryl wanted a face-to-face visit. Mr Hill asks the Court to find that Adam did not visit Cheryl after the family provision proceedings were resolved in 2016.

Mr Hill also submitted that it was ‘quite repugnant’ that Adam never facilitated Cheryl’s wish to see her grandchildren regularly. He submitted that the only time Cheryl saw her grandchildren was when she took a photo with Adam’s eldest son in Brisbane and only saw him for five minutes. Adam asking Cheryl if he and Alicia would get an inheritance was submitted to support Tracey’s evidence that Cheryl spoke to her about the children being obsessed with money. This alleged obsession, absent any attempt to reconcile the relationship by meaningfully supporting Cheryl’s desire to see her grandchildren, was also submitted to be ‘repugnant.’

Mr Hill also submitted that the Court should take note that Adam was aware for two months prior to Cheryl’s death that she was very ill and still did not see her. It was contended Adam could have applied for and used compassionate leave to visit Cheryl but did not do so.

Mr Hill relied on Justice Hallen’s adoption of what was said in Hampson v Hampson (see [141] above) that the Court may find parties were sufficiently estranged where there is conduct on the part of the applicant that is hurtful to the deceased or which the deceased seriously disapproves. This was contended to be applicable in this case where Cheryl was hurt by the comment that Adam and Alicia believed she was dead to them, she never had the opportunity to properly see her grandchildren and the children rarely visited her after 2016. On this basis, Mr Hill submitted that the conduct of Adam and Alicia provided sufficient basis for the Court not to provide provision to either child.

In the alternative, if the Court found Adam and Alicia’s conduct insufficient to preclude them from any family provision order, Mr Hill submitted that Adam had not demonstrated sufficient need to justify any provision order being made. It was contended that Adam has a house, cash and income which will continue in the form of his disability payments from the army. Mr Hill also accepted that even if the Court were to make an order for provision which would enable Adam to pay off his mortgage, he would still be spending more than they would earn in that situation and Adam would still be required to change his current expenditure habits.

The starting point is whether s 59(1)(c) of the Act – the ‘jurisdictional question’ - has been satisfied. This provides:

If the jurisdictional question is satisfied, s 60 provides the Court with a broad and non-exhaustive set of considerations in exercising the discretion to determine whether any further provision should be provided.

As I discuss further below, there was no dispute that adequate provision had not been made by the will for Alicia. In relation to Adam, Mr Hill rightly did not put any dispute over whether the will did not make adequate provision for Adam at the forefront of his case. No provision for Adam in the will, on the evidence, is not adequate provision for Adam. The parties’ real focus was on three key matters going to the question of whether any provision should be ordered and, if so, in what amount:

For the reasons which follow the Court has determined by reference to those issues:

As the Court of Appeal made clear in Bassett at [78]-[79], prior to the Court making any order for provision, the Court must be satisfied that the ‘jurisdictional question’ as prescribed by s 59(1)(c) of the Act has been satisfied. In this case, Clause 4 of the will demonstrated that no provision was made for Adam and that Alicia was to receive jewellery of perhaps greater sentimental than financial value (there being no evidence of the value of the jewellery and it not being listed as a separate item in the probate inventory of property). As to whether the jurisdictional question is satisfied, the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 at [74] (White JA, McColl and Payne JJA agreeing) held that it is wrong to focus solely on whether the ‘material needs’ of the plaintiffs have been satisfied. The Court goes on to say at that paragraph that “the question was whether the provision was inadequate in all the circumstances for the applicant’s “proper” maintenance, education and advancement in life, and that that required regard to be had to not only the applicant’s financial position, but the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and others with claims upon his or her bounty.”

In this case the Court is satisfied that the jurisdictional question is satisfied for three reasons:

Assuming that Adam had also satisfied the jurisdictional question, the only basis that Mr Hill contended Adam had not demonstrated he had any need for further provision was that Adam had a house, cash, and was continuing to receive income in the form of disability payments from the Army.

However, the Court accepts Mr Chapple SC’s submissions that Adam’s most significant and proven need is to pay off his mortgage, currently valued at $252,166.95. Further provision of $250,000 will enable Adam to do this. That payment will also relieve him and Sonia of current monthly repayment obligations of $2,307, which will reduce their current excess of expenditure over income to approximately $600 per month. In relation to that excess, the Court accepts that while Adam and Sonia have accumulated a large amount of savings, they have three young children who are completely financially dependent upon them. Their current rate of savings are insufficient to place them in a position of long-term financial security and also pay off their mortgage. Adam accepted that once medically cleared he would need to find employment to help support his family’s financial needs.

The Court declines to order in Adam’s favour the $300,000 provision contended for by Mr Chapple SC for three reasons:

In relation to Alicia, the Court accepts Mr Chapple SC’s contention that $300,000 is the appropriate amount of provision which should be awarded, for the reasons advanced on her behalf, and balancing her claim against those of Adam and Deborah and the size of the estate. It was uncontested that Alicia has significant financial needs. She has a large mortgage ($824,674.61), monthly childcare expenses of $3,380 and is going to have to undertake essential repairs of her house to address the impacts of a landslide and mould infestation. Mr Chapple SC accepted that the exact cost of those renovations was uncertain. For example, the Court was only provided with an approximate amount to address the mould issue ($29,167) and was provided with a very wide range of costs to mitigate against landslides ($9, 510.28-$100,000).

$300,000 will assist Alicia and Chris to reduce their mortgage significantly, from its current level of $824,674.61. This would eliminate their monthly deficit in the context of the significant financial burden they face which in addition to mortgage repayments, includes a $20,000 loan which needs to be repaid to Chris’ parents, childcare and other expenses.

Even with the further provision of $300,000, Alicia and Chris may need to make difficult decisions to help reduce their expenses to become financially secure in the long term. Given the size of the estate, the Court has no hesitation in concluding that a wise and just testator would have provided approximately such an amount to provide a starting point to help Alicia become more financially stable and independent during her adult years. In reaching that conclusion, the Court has not ignored that both Alicia and Chris are both relatively healthy and have many years of working life ahead.

The starting point to assess this issue is that, in my respectful opinion, it is not reasonably open to question (s 144, Evidence Act 1995 (NSW)) that children who are raised by a parent who oscillates wildly between aggressive outbursts and displays of affection are likely to have a conflicted relationship with that parent even into adulthood. As I will next develop, this provides a persuasive explanation as to why Adam and Alicia’s relationship with Cheryl was difficult over a long period of time. There is also no doubt that the comment made at the mediation was hurtful and weighed heavily on Cheryl’s mind. However, for the following reasons the Court is not satisfied that the conduct of the plaintiffs towards Cheryl provides a basis for the Court to order no provision, or otherwise reduced provision, in favour of Adam and Alicia.

The Court is not satisfied that the relationship, viewed as a whole, demonstrates any conduct by Adam and Alicia which is sufficiently reprehensible to warrant no (or reduced) provision being awarded and is satisfied that the ups and downs of the relationship are readily explainable without dispositively adverse reflection on Adam and Alicia.

The Court accepts Mr Chapple SC’s submission that the parties’ relationship should be viewed over a lifetime and the Court should not place excessive weight on the comments made at the mediation, which was undoubtedly a difficult and emotional time for everybody. The Court also accepts that the state of the relationship is explainable by the course of events over a lifetime and are not simply caused by the mediation.

The affidavit and oral evidence provided by Alicia and Adam demonstrated that during their childhood Cheryl did have erratic mood swings and on several occasions was verbally and physically abusive towards them. This account is supported by the affidavit evidence of Stanley and Julianne Wiegold. It was also corroborated by Cheryl’s friend Tracey who provided evidence that she had witnessed Cheryl swear at her children on several occasions, but denied she ever saw Cheryl hit her children. In the absence of any submission impugning Adam and Alicia’s credit, the Court also accepts their evidence that Cheryl did physically abuse them on occasions during their childhood.

At the same time, the Court also acknowledges that Cheryl was a very loving mother throughout their childhood. For example, the evidence demonstrates that Cheryl went to school events and was supportive of Adam’s rugby league aspirations. The Court also accepts the evidence from Alicia, Adam, Deborah and Tracey that Cheryl and Phillip’s marriage was not happy and that Phillip’s behaviour towards Cheryl was dismissive and at times belittling. The Court accepts that this, in addition to the behavioural challenges of Adam and Alicia attributable to their age, is also part of the explanation for Cheryl’s behaviour towards the plaintiffs.

The Court also accepts Mr Chapple SC’s submission that Cheryl’s relationship with Adam and Alicia did improve when Adam and Alicia were young adults. While Alicia was in London she had a positive relationship with her mother and spoke to her weekly. Similarly, even while deployed in Townsville for his Initial Employment Training, Adam’s unchallenged evidence was that he visited his family at least twice a year for two weeks at a time.

However, the evidence also demonstrates that the children’s relationship with Cheryl changed after their father died and animosity was generated because of Adam and Alicia’s belief that their father had made a later will. However, the Court accepts this was a reasonable belief for three reasons:

The Court rejects Mr Hill’s submission that viewing the relationship in the ‘three stages’ contended for by Mr Chapple SC attributes too much blame to Cheryl for the state of the relationship. This misconceives Mr Chapple SC’s submission, which expressly did not blame Cheryl for the state of the relationship and accepted that both Adam and Alicia’s juvenile behaviour and Phillip’s behaviour towards Cheryl were also triggers for strong emotions to which she was disposed by her personality.

The Court also rejects Mr Hill’s submission that Tracey’s evidence that she was not aware of Cheryl ever physically abusing Adam and Alicia is to be given weight because she is a ‘disinterested witness’. While it is the case that Tracey does not have a financial interest in the matter, she was clearly a close friend of Cheryl.

However, the Court does accept Mr Hill’s submission that Adam and Alicia acquiescing to their barrister’s comment that Cheryl was ‘dead to them’ was a deeply hurtful and imprudent thing to say, whether or not they intended it to be a private comment. It evidently and understandably caused Cheryl deep distress. However, the Court will not place dispositive weight on that comment to avoid scrutinising relationships based on isolated events (see Underwood v Gaudron at [140]) and because both Adam and Alicia have demonstrated remorse for that comment.

An important factor in favour of Adam and Alicia is that each made attempts to reconcile the relationship with Cheryl.

The evidence at [73]-[116] above demonstrates that Alicia took several active steps to reconcile her relationship with Cheryl and, contrary to clause 7 of the will, had a relationship of love and affection with Cheryl. The following examples of contact are especially pertinent:

The Court accepts that the foregoing does not mean the relationship between Cheryl and Alicia was “perfect”. However, Alicia certainly did not treat Cheryl ‘callously, by withholding without proper justification their [her] support for Cheryl’ (as was the case in Ford v Simes [2009] NSWCA 351 at [71] (Bergin CJ, Tobias JA and Handley AJA agreeing). Nor could Alicia’s conduct be described as ‘hostile’ or conduct of which Cheryl seriously disapproved (see Underwood v Gaudron at [140]). Cheryl’s willingness to help Alicia purchase a home and buy items for Alicia’s nursery shows that Cheryl enjoyed having a relationship with Alicia.

The Court rejects, for three reasons, Mr Hill’s submissions that Alicia’s attempts to reconcile the relationship were insufficient and that she should have visited Cheryl in person more often. First, Alicia did clearly make attempts to visit Cheryl face to face during 2017. Second, the Court takes notice that between 2020-2021 COVID restrictions would have hindered Alicia’s ability to visit Cheryl face to face. Finally, Mr Hill did not challenge Alicia’s evidence that Cheryl informed Alicia she could not visit her whilst she was pregnant as the doctor had said it was dangerous to visit whilst Alicia was pregnant and Cheryl was undergoing chemotherapy.

The Court finds that Adam also took steps to reconcile the relationship with Cheryl after 2018 by sending her text messages which included photos of his children, and well-wishes on special occasions. While his efforts were not as assiduous as those of Alicia, Adam’s deployment to Iraq for 6 months in 2018 and his posting to Albury/Wodonga between 2019-2021 affected his ability to see his mother. The text messages refute the proposition in Clause 7 of the will that she had no contact with Adam.

Nevertheless, in finding that Adam’s conduct does not warrant any adverse consideration in these proceedings, the Court has not overlooked that, in hindsight, Adam’s conduct could have been better. To his credit, Adam acknowledged as much. First, after his father’s death in 2014 when Cheryl came to visit him in Brisbane, Adam and Cheryl had a five-minute meeting where Cheryl was able to take a photo with Adam’s son. No explanation was given as to why that meeting was so short. Second, Adam accepted in cross-examination that he could have visited Cheryl between 2016-2017 when he lived in Brisbane, but he did not do so. Third, while the text messages showed that Cheryl wanted a relationship with her grandchildren, Adam only sent her photos and did not engage with her. Fourth, whilst only finding out late about how sick Cheryl was prior to her death, Adam did not visit her in hospital and accepted in cross-examination this was something he regretted.

Furthermore, Adam’s text to Cheryl on 11 May 2022 (see [66] above) which inquired whether he and Alicia would receive any inheritance from Cheryl highlights the tension which existed between them. Contrary to the submission by Mr Hill, the Court does not find that Adam was obsessed with money. If an explanation for the matters in this and the preceding paragraph is required, it was evident in the witness box that Adam still struggled with the volatility of his mother’s treatment of him as a child and young adult. In any event, if some recognition of Adam’s less fulsome attempts at reconciliation should be made, it is achieved (albeit for other reasons – see [186] above) by the amount of provision for Adam being less than that for Alicia.

For completeness, the Court also declines to accept the submission by Mr Hill that the evidence from other witnesses, particularly Agnes and Tracey, demonstrates that Alicia and Adam had ‘no relationship of love and affection’ with Cheryl. Agnes during cross-examination accepted that she was not aware of the extent of communication Cheryl had with Alicia.

It is also clear that Tracey was incorrectly told that Cheryl would bin the flowers Alicia sent in light of Cheryl texting a photo of the flowers to Alicia a week after they were sent. Tracey’s evidence that Cheryl said that she was scared of Alicia, that Alicia only wanted money and that Alicia said Cheryl was not allowed to stay at her house for the baby shower are all uncorroborated by the evidence of the text messages. To the contrary, the messages show that Cheryl and Alicia had a fond (if sometimes distant) relationship, that Cheryl wanted to help Alicia purchase a new home and items for the nursery, and that Alica invited Cheryl to stay at her house for the baby shower. Therefore, the Court prefers that contemporaneous evidence about the nature of Adam and Alicia’s relationship with Cheryl, and accepts Mr Chapple SC’s submission that Cheryl was not providing her relatives and Tracey with a complete picture of the extent of the contact she was having with Adam and Alicia.

The Court is also satisfied that the proposed order for provision continues to respect Cheryl’s testamentary intentions. In Bassett at [87] the Court of Appeal referred to White JA in Sgro v Thompson [2017] NSWCA 326 at [83] (with whom McColl and Payne JJA agreed) where his Honour quoted what he had said in Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]:

His Honour’s judgment reiterates that the Court ought to consider and have regard to the wishes of the testator when considering family provision claims. However, the Court is not satisfied in this case that Cheryl gave due consideration to the plaintiffs’ claims on the estate. This is because the reasons outlined in clause 7 of the will for why Cheryl did not provide further provision to Adam and Alicia are not supported by the evidence. For the reasons outlined above, it is incorrect to say that there was ‘little or no contact’ between Cheryl and her children and no longer any relationship of love and affection. There is no doubt that communication between Adam, Alicia and Cheryl was limited compared to the level of engagement other families may come to expect between parents and adult children, but there nevertheless remained genuine and more than occasional contact between the parties and expression of affection.

At the same time, the authorities recited above also make clear that the Court should have due regard to the interests of other beneficiaries to the will. In this case, the Court is satisfied that the amount of provision which will be ordered in favour of Alicia and Adam will still enable Cheryl’s testamentary intentions to be honoured.

As noted at [17] above, even if all legacies are paid to Cheryl’s four grandchildren ($16,000) and Deborah’s five grandchildren ($25,000) and the costs of the proceedings were paid out, there will still be $1,250,581.40 left in the estate. Provision of $250,000 to Adam and $300,000 to Alicia will leave $700, 581.40 in residue for Deborah.

This outcome sufficiently respects Cheryl’s intentions for two reasons.

First, it means Deborah continues to receive the greater part of the estate.

Second, that amount is enough for Deborah to obtain a property which satisfies her desire, articulated during re-examination (see [38] above) to have a house with a backyard and three rooms so her daughter can live with her, and also without stairs, which is located close to her daughters in the Jindabyne area. Based on the sample property valuations tendered by Mr Chapple SC during the hearing, $700,000 would be more than enough for Deborah to purchase a two bedroom unit in Jindabyne, a two bedroom property in Berridale or a three bedroom home in Cooma.

Alicia and Adam are to receive respectively $300,000 and $250,00 of the residue of the estate. Subject to any special costs applications, the plaintiffs should have their costs out of the estate on the ordinary basis and the executors on the indemnity basis. The parties will be given an opportunity to bring in short minutes to give effect to these reasons, and to make any submissions as to costs to the extent that issue cannot be agreed.