Re Estate Weinberger

By a summons filed on 23 April 2024 the plaintiff (a disabled adult son of the deceased who sues by his mother as his tutor) applies to the Court for a family provision order under Chapter 3 of the Succession Act 2006 NSW in respect of a small estate, the principal asset of which (a demountable cabin on a leased site) was valued for probate purposes at $400,000 and was estimated at the hearing, possibly, to have a value of about $500,000, assuming that a buyer can be found within a reasonable time. The estate “cash” presently available for distribution is about $55,000 held in the defendant’s solicitors’ trust account.

As he is named in his will, Paulo Roberto Weinberger (“the deceased") died on 29 April 2023, aged 69 years, leaving a will dated 26 March 2021 probate of which was granted to the defendant (a former de facto spouse of the deceased) on 15 December 2023.

There is no dispute that the plaintiff, acknowledged as a son of the deceased, is an “eligible person” within the meaning of sections 57(1)(c) and 59(1)(a) of the Succession Act 2006 with standing to apply for a family provision order.

It follows from his status as an eligible person within the meaning of section 57(1)(c) of the Act that the plaintiff is not required to satisfy the Court that there are “factors warranting” his making of an application for a family provision order.

The live questions in the proceedings are, first, whether (within the meaning of section 59(1)(c) of the Act), having regard to all the circumstances of the case (past or present), the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life by the will of the deceased; and, secondly, if so what, if any, provision “ought” to be made, pursuant to section 59(2) of the Act for the plaintiff’s maintenance, education or advancement in life having regard to the facts known to the Court at the time such an order is made.

To succeed on his claim for a family provision order the plaintiff must establish that, viewed from a current day perspective he has been left without “adequate provision for his maintenance, education and advancement in life” from the deceased’s estate and that further provision “ought” to be made for him from the estate.

The concepts of “adequate” and “proper” embedded in the legislation must be understood as relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19. As generally understood, “adequate” is a word concerned with quantum whereas “proper” is a word directed to a standard of maintenance, education and advancement in life. Both words focus attention on the circumstances of the particular case viewed from the perspective of the deceased and contemporary community standards.

In the exercise of its statutory powers in the determination of an application for a family provision order (in particular, sections 59(1)(c) and 59(2) of the Succession Act), the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating him or her as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally consulting specific statutory criteria referred to in section 60(2) of the Act so far as they may be material.

In consideration of sections 59(1)(c) and 59(2), the Court may have regard to the matters set out in section 60(2) of the Act, a convenient but not exhaustive list of matters that may bear upon the Court’s fact-finding process directed towards an evaluation of family relationships, personal circumstances, needs and obligations, as well as testamentary intentions of the deceased amongst other factors.

The defendant draws attention specifically to the topics for which section 60(2)(b), (d) and (i) provide: the nature of any obligations or responsibilities owed by the deceased, particularly to the plaintiff and the defendant; the financial resources and needs of the parties; and any provision made for the plaintiff by the deceased during his lifetime or from his estate.

The deceased is said to have had several romantic relationships throughout his life but, for the purpose of these proceedings, only two (each productive of a child) need to be mentioned. For convenience only (and not to imply a ranking of any family member) I refer to the deceased’s child bearing relationships, chronologically, as his “first” and “second” families.

The first relationship under consideration is that the deceased had with Marilane (the mother of the plaintiff) which ended with separation in or about March 1992.

The plaintiff, Marcus, is the only child of that relationship. He was born in July 1989 and is now aged 37 years. He has been diagnosed with an autism spectrum disorder and schizophrenia. He is prone to experience psychotic episodes accompanied by fits of violence. He has an aptitude for music, but no work prospects. He lives alone.

Marcus depends for his livelihood upon social welfare benefits (a disability support pension, a pension supplement, rental assistance, an energy supplement) and substantial NDIS funding (in excess of $300,000 per annum) for support workers who assist him with daily life. The NDIS funding does not cover his ordinary living expenses.

When the deceased left Marilane (for another woman) he left her, as a single mother, with three young children: two children of Marilane from a previous relationship and Marcus.

Although Marilane and the deceased separated in 1992 the deceased maintained his relationship with Marcus and in his final years he enjoyed a cordial relationship with Marilane.

For her part, Marilane has consistently assisted Marcus throughout his life of engagement with mental health. In recent years she has assisted him financially (borrowing against the security of her own residence) to buy a small portable cabin located on a rural property, subject to the payment of rent to the property owner.

As much as she continues to love him, Marilane can no longer have Marcus live with her, inter alia, because she fears for her safety when Marcus has a psychotic episode (as he did in or about November 2022) and to supplement the aged care pension upon which she relies for her main income support she has taken in a border and has no room to accommodate Marcus.

Born in July 1952, and now aged 73 years, she needs to husband her resources, both physical and financial.

It is a measure of Marcus’ disability that no affidavit read in support of Marcus’ summons was sworn by him, he personally gave no evidence in the proceedings, he did not attend the hearing, and no criticism was directed towards him by the defendant or members of the deceased’s family on the defendant’s side of the family.

The second of the deceased’s relationships presently under consideration was with the defendant, Marcia (between 2005-2012), with whom he had a daughter (Nina), born in March 2005 and presently aged nearly 21 years.

Marcia has a son (Tomas) by an earlier relationship. He was born in 2000 and is presently aged about 25 years.

Marcia was born in July 1965 and is presently aged 60 years. She is in poor health having been diagnosed in April 2020 with an auto immune disease, systemic vasculitis causing polyarthritis. She has a small income, supplemented with assistance she receives from her children (Tomas and Nina) as from time to time required. They continue to live with her, as does her aged mother who is in her care and substantially dependent upon her. She has superannuation currently valued at $243,000 .

The deceased manifested his affection for Marcia, Nina and Tomas shortly before his death (January 2023) in a contribution of $10,000 made to them (collectively) for airfares for a trip to Brazil to visit family, an incident of which was that Marcia brought her mother to Australia to care for her.

Although the deceased appears to have maintained a close relationship with his children (including Tomas as a stepson) he could not reasonably be regarded as a good or reliable provider for either of his two families.

The deceased appears not to have enjoyed regular employment after he was retrenched from a long standing job with the Special Broadcasting Service in 2006. His purchase of the demountable cabin which is the principal asset of his estate appears to have been funded from his inheritance from the estate of his mother, who died in September 2020. At or about the time of his death he owned a 2020 model motor vehicle (given to Marcus), the purchase of which, I infer, may have been funded by his inheritance.

Nevertheless, with forewarning of his death from cancer, he turned his mind to how he could make provision for his family. In making his will dated 26 March 2021 he had in mind that he could make provision for them not only from his deceased estate but also from a life insurance policy which, on his death, might have yielded $155,000 or thereabouts.

As it happens, the deceased, because he was terminally ill, was able to surrender his life insurance policy in November 2022, receiving a payout of $135,000.

That payout appears to have funded a gift of $50,000 paid to Marilane on trust for Marcus. What he did with the balance of the payout is not the subject of evidence. Whatever he did with it, it appears not to have found its way to any of Marilane, Marcus, Marcia, Nina or Tomas.

In anticipation of his death he allowed Marcus to live in his demountable cabin although, at much the same time, Marcia says that he promised the cabin to her.

He might have had in mind that the $50,000 he gifted to Marcus would serve as a contribution to Marcus’ acquisition of his own “tiny house” which, in the event and with the assistance of Marilane and associated debt, he has done since the deceased’s death. He occupied the deceased’s cabin, at the invitation of the deceased, between February 2023 and May 2025 or thereabouts.

By his will the deceased gave various personal effects to Marilane, Marcus, Marcia, Nina, Tomas and a long-standing friend. None of those gifts bear upon the outcome of these proceedings.

The only substantial gift made by the will, other than a gift of the residuary estate, was a gift to Marcus of the deceased’s motor vehicle (a 2020 Toyota Corolla), possession of which he gave to Marcus before his death.

The deceased left the whole of his residuary estate to Marcia and, if she failed to survive him, then to Nina and Tomas in equal shares.

That gift is consistent with a perceived intention on the part of the deceased to make financial provision for Marcus out of his insurance proceeds, leaving the bulk of his estate to Marcia in the expectation that she would, in turn, make provision for Nina and Tomas.

Although Nina and Tomas would have been entitled, as “eligible persons” within the meaning of section 57 of the Succession Act 2006, to apply for relief under Chapter 3 of the Act, they declined their opportunity to make an application for a family provision order. They deferred to their mother and Marcus.

As the deceased’s residuary beneficiary, Marcia does not have to prove her claim on the bounty of the deceased. It is for Marcus to persuade the Court that he has been left without adequate provision and ought to be awarded further provision. That said, the Court is required to pay respect to the deceased’s testamentary intentions (broadly defined, in the circumstances of this case, as including his plans for disposition of proceeds from his life insurance policy), recognising that Marcia has substantial needs of her own which the deceased plainly sought to address.

Her expectation, not realistically able to be realised, was that she would, in substance, inherent the deceased’s demountable cabin. Marcus’ need for further provision and the costs of these proceedings, in combination, do not allow that expectation to be realised.

That the deceased intended to favour Marcus via his life insurance policy is confirmed by an email he sent at 9.11 pm on 7 April 2021 to Marilane in which “for her information” he stated that his will provided for his car to go to Marcus and that Marcus needed to make a claim on his life insurance because “[there’s] around $120k for him there”.

That is consistent with an email the deceased sent to Marcia at 11.39 am on 6 April 2021 to which he attached a copy of his will and, in reference to his insurance policy, told her “there is around $35,000 for you there”.

The messages the deceased sent to Marilane and Marcia (the mothers of his children) about the insurance benefit prospectively to be paid out on his death, estimated to be $155,134. That amount was evidently reduced to $135,000 when paid out in advance of the deceased’s death.

A statement issued by the insurer on or about 5 March 2021 (in which the estimated benefit was recorded as $155,134) named the beneficiaries of the insurance as Marcus (as to 77 percent) and Marcia (as to 23%).

Had Marcus received 77% of the actual insurance payout he would have received, apart from personal effects, an inheritance of the deceased’s car (valued, perhaps optimistically, at $30,000 for probate purposes) and a sum of about $103,950.

Had the deceased not surrendered his policy, Marcus would not have received an advance payment of $50,000, but he would have received on the deceased’s death approximately $119,453.18.

These figures provide some guidance as to what provision the deceased thought that he should, as a wise and just testator, make for Marcus on his death and what provision he thought he should make for Marcia and (through Marcia) Nina and Tomas.

They do not take into account the debt incurred by Marcus to his mother in establishing a “tiny house” residence for himself in circumstances in which he cannot live with his mother, or (because of a need to cover the costs of these proceedings, necessitating a sale of the demountable) in the deceased’s demountable cabin. Nor do they take into account living and medical expenses not covered by NDIS.

At the tail end of final submissions at the hearing of these proceedings counsel for the defendant, without admissions, made an open offer that the plaintiff be paid out of the estate of the deceased a legacy of $70,000 plus costs of $50,000.

The plaintiff’s response was that the appropriate legacy would be $110,000 plus costs. The sting in the tail of that response is that the plaintiff’s costs between solicitor and client have been estimated at $105,000 (around $80,000 on the ordinary basis as between party and party) and the plaintiff’s indebtedness to Marilane arising from the purchase and renovation of his cabin (representing loans by Marilane to him) have been estimated at $101,231.

In the absence of evidence providing a full accounting of what the deceased did with his insurance payout of $135,000, it appears that the plans he made for provision for Marcus (and Marcia) miscarried.

In the event, in the absence of a family provision order in his favour, the provision made for Marcus, leaving aside personal effects, was limited to the $50,000 paid to Marilane on trust for him and the car valued (at the time of the deceased’s death) at $30,000. The deceased’s will made no substantial provision for him.

Despite the fact that Marcus has a substantial NDIS package (under review each year but presently of the order of $300,000), which largely funds support workers and the like it including other allowances, he has needs (consistent with a grant of NDIS funding) which could readily absorb the entirety of the deceased’s net estate available for distribution (particularly if the estate is to bear any costs of these proceedings).

In making this assessment I notice that his largest debt (estimated at $101,231) is a debt owed to his mother Marilane for funds expended by her, by way of a loan (I infer, undocumented) to enable him to purchase accommodation in the form of his own “tiny house”. There is no evidence to suggest that Marilane intends, or is presently entitled, to demand repayment of any loan made to Marcus but, as she has borrowed funds to assist him, there remains a possibility that unforeseen future demands upon her might carry through to him.

In all the circumstances, I am satisfied that the plaintiff has been left by the will of the deceased with inadequate provision for his maintenance, education and advancement in life.

Having regard to the facts known to the Court following a final hearing of the plaintiff’s summons, I propose to make an order under section 59(2) of the Succession Act for the maintenance, education and advancement in life of the plaintiff by way of a legacy of not more than the sum of $125,000, predicated upon an assumption that neither the estate of the deceased nor the plaintiff (as between lawyer and client) will bear costs in excess of $70,000. But before I settle upon the amount of the plaintiff’s legacy I will allow the plaintiff’s lawyers to indicate whether they are prepared to moderate their claims for costs and to submit to orders for their costs to be limited so moderated.

Having regard to the size of the deceased’s estate, and a need to preserve as much of it as might be reasonably practicable for Marcia as residuary beneficiary, I propose, before settling upon orders to be made, to invite the defendant’s lawyers also to indicate whether they are prepared to moderate their costs (to not more than $70,000) and to submit to orders for limiting their entitlements to costs as moderated.

Before making any orders in disposition of these proceedings I propose to give consideration, not only to a need to moderate the costs of the proceedings, but to the question whether a protective management order should be made under section 41 of the NSW Trustee and Guardian Act 2009 NSW for management of Marcus’s estate (or part of his estate) by the NSW Trustee or some other “suitable person”. In selecting $125,000 as a possible legacy for him I have included an allowance for the costs of funds management.

I will, however, settle upon the precise quantum of a legacy when: (a) I have locked in the quantum of the costs burdens to be borne by the estate of the deceased and, as between themselves and their respective lawyers, the parties; and (b) I have fully engaged the question whether Marcus’ estate should be subject to protected estate management or some other protective regime.

Noting the uncertainty that necessarily attaches to a sale of the deceased’s demountable cabin (and a need to make provision for the costs of effecting the sale), the object of this exercise is to provide an element of certainty to both parties and to preserve as much of the estate for the parties as may be practicable.

Another question which needs to be addressed is whether any part of a legacy given to Marcus can or should be applied in payment, or reduction, of the debt incurred by him to Marilane in acquisition of his “tiny house”. This question may intersect with the question whether, having regard to a conflict between interest and duty, she could be appointed as a financial manager for Marcus.

One possibility that needs to be canvassed is that orders might be made settling Marilane’s entitlement so that she could either assume the office of a financial manager or hold a fund on trust for Marcus with power to apply it towards his maintenance.

These questions may affect Marcia only incidentally, but they need to be addressed before a final determination of the proceedings can be made.

I need the assistance of parties and their legal representatives on the following questions: