Jodell v Woods

1. [1]

   HIS HONOUR: This is a dispute between two sisters in relation to the estate of their mother, Clarice Winifred Woods ("the deceased"), who died on 3 July 2015, leaving a Will dated 21 February 2012. The case provides yet another example of the high level of emotion that is generated in relation to the distribution of the property of a parent, particularly in circumstances where there is said to have been an estrangement between the Plaintiff and the deceased for some years prior to the death of the deceased.

2. [2]

   The Plaintiff, Winifred Ann Jodell, seeks provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The Plaintiff also seeks an order that her costs of the proceedings be paid.

3. [3]

   The Defendant, Helen Jean Woods, is the nominated executor and sole beneficiary of the deceased’s estate. This Court granted Probate of the deceased’s Will to her on 19 October 2015.

4. [4]

   At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. They also agreed that there is no scope for the operation of the intestacy rules.

5. [5]

   The Plaintiff commenced these proceedings by Summons filed on 18 February 2016. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

6. [6]

   It is also not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

Background Facts

1. [7]

   In a claim for a family provision order, factual context is necessary. It is convenient to begin with a statement of background facts, since these provide that context. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

2. [8]

   The deceased was born in December 1915 and died aged 99 years. She married Jack Woods, but he predeceased her, having died in November 1996.

3. [9]

   The deceased’s husband left his entire residuary estate to the Plaintiff. Probate of his Will was granted to the Public Trustee (as the NSW Trustee and Guardian then was) on 31 December 1996. A copy of the Statement of Account, dated 22 July 1997, from the Public Trust Office, reveals that in April 1997, the amount of $56,356 was distributed to the Plaintiff, and in July 1997, a further $29,812 was distributed to her. It follows that the Plaintiff received $86,168 from the estate of her father.

4. [10]

   There were only two children of the deceased’s marriage. The Plaintiff was born in May 1943 and, currently, is almost 74 years old. The Defendant was born in July 1950 and, currently, is 66 years old.

5. [11]

   As stated, the deceased left the whole of her estate to the Defendant. The Plaintiff was not mentioned in the deceased’s Will. Indeed, the substitute beneficiary, in the event that the Defendant did not survive the deceased, was the Australian Council of the Royal Flying Doctor Service.

6. [12]

   The deceased did not include in the Will any explanation for omitting the Plaintiff completely.

7. [13]

   In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate was disclosed as having an estimated, or known, value of $1,919,467. The estate was said to consist of real property situated at Turramurra (“the Turramurra property”) ($1,600,000), the proceeds of an accommodation bond ($224,644), cash in bank accounts ($13,999), shares in different public companies ($75,324) and contents of the Turramurra property and the deceased’s personal effects ($5,500). In addition, there was a reference made to money held in a joint bank account with the Defendant ($39,177) of which one half is said to be the Defendant’s interest therein. (I have omitted, and will continue to omit, any reference to cents in amounts to which reference is made).

8. [14]

   Part of the deceased’s estate has been distributed. The Defendant stated in an affidavit sworn on 31 March 2016, that, out of the estate, she has paid $33,479, made up of the funeral and wake expenses ($4,668), some debts ($5,500), costs and expenses of the Turramurra property ($9,345) and some legal and administration costs ($13,966).

9. [15]

   In addition, the Defendant acknowledged that she had repaid to herself, $45,000, which amount she wrote are “monies loaned to Mum by me for nursing home expenses”. (How this sum was calculated is not explained in her affidavit, but nothing really turns on this because of the value of the property in the estate at the date of the hearing.)

10. [16]

    In an affidavit sworn on 2 December 2016 by the Defendant, the estate is said to consist of the Turramurra property ($1,875,000), cash in bank ($134,000) and moneys held in the trust account of the Defendant’s solicitors ($20,250). The Defendant also stated that there “are no present outstanding liabilities…as these have been paid from the estate funds as they have arisen. The only further liabilities of the estate are those that relate to maintenance and holding costs for the Turramurra Property, the legal costs of these proceedings and the accounting, administration and further legal costs to complete the administration of the estate after the determination of these proceedings”.

11. [17]

    At the commencement of the hearing, counsel for the Defendant informed the Court that the cash in bank had been reduced by $9,500, as land tax and the rates on the Turramurra property had been paid.

12. [18]

    The parties agreed that, at the date of hearing, the gross value of the deceased’s estate was about $2,020,000.

13. [19]

    Counsel for the Defendant stated that it may not be necessary for the Defendant to sell the Turramurra property, but that if she did have to sell it to meet any family provision order and costs order, there would be costs and expenses of sale totalling $54,000. (The legal representatives agreed on the estimated costs and expenses of sale.) There was no evidence given by the Defendant of the maximum amount that she had, or would have, available, to meet any order for provision, and costs, if made, before the Turramurra property would have to be sold.

14. [20]

    Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection, since the plaintiff, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate.

15. [21]

    As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

16. [22]

    The Plaintiff’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $97,740, inclusive of GST. Of this estimated amount, she has paid $3,681. (Her costs and disbursements, on the indemnity basis, were estimated to be $108,480.)

17. [23]

    At the hearing, the Defendant’s costs and disbursements, calculated on the indemnity basis, of the proceedings, were estimated to be $117,980, inclusive of GST. Of this estimated amount, the Defendant has paid $55,340 from estate funds, leaving $62,640 left to be paid.

18. [24]

    Counsel for the Defendant did not accept that, in the event that the Plaintiff is successful, an order should be made that her costs, calculated on the ordinary basis, should be paid out of the deceased’s estate. Nor did Counsel for the Plaintiff agree that the balance of the Defendant’s costs should be paid out of the estate. I shall, therefore, not determine how the burden of costs should be borne until after these reasons are published.

19. [25]

    The parties were informed that, if possible, they should be ready to argue how the burden of costs should be borne immediately following the delivery of these reasons (as the basis of any argument is said to be that the terms of an Offer of Compromise, or a Calderbank offer, may be relevant).

20. [26]

    For the purposes of the proceedings, using the estimates of costs and disbursements provided, and if all of the costs are ordered to be paid out of the estate, an amount of $160,380 would be payable. (This is not to say that the quantum of costs has been agreed. That will be for the parties to consider later.) In addition, if the Turramurra property were sold, an additional $54,000, being the costs and expenses of that sale, would be payable out of the estate.

21. [27]

    It follows that, subject to what ultimately is ordered, the estimated net value of the estate available for distribution would be about $1.8 million. On any view, this is a reasonably large estate available for distribution.

22. [28]

    The parties also agreed that there are no other eligible persons within the meaning of that term in s 57(1) of the Act.

23. [29]

    The Defendant has not made an application for an order under the Act. Nor does she raise her financial circumstances in the proceedings. Of course, she is entitled to elect to remain silent about her financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to her as the sole beneficiary, regardless of her financial position or needs. Section 61 of the Act provides that her interests, as a beneficiary, cannot be disregarded, even though she has not made an application.

24. [30]

    On this topic, in Sammut v Kleemann [2012] NSWSC 1030, at [137] – [140], I wrote:

25. [31]

    Also see, Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94]; Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23] (Basten JA).

26. [32]

    The parties seemed to accept, in the event the Plaintiff is successful, that the Court should make an order that she receive a specific lump sum, rather than a lump sum calculated as a percentage of the net proceeds of sale of the Turramurra property. I raised the latter possibility, but as the parties appear to be prepared to have the Court base any order for provision being by way of a lump sum using an estimated, rather than an actual, value, I shall not make the type of order that I have made in other cases: see, for example, Thompson v Sgro [2016] NSWSC 1869.

27. [33]

    I also considered and raised with the parties, the possibility that a costs inclusive family provision order could be made, as has been done in some cases: Taylor v Farrugia [2009] NSWSC 801, at [70]–[71]. However, unless the parties were able to agree upon the quantum of the Plaintiff’s costs, I do not think I should make such an order, especially in a case in which the estimated costs and disbursements are reasonably high.

The Relationship of the Plaintiff with the Deceased

1. [34]

   Because a considerable amount of time was spent on this issue, and because the principal submission made on behalf of the Defendant was that the relationship of the Plaintiff and the deceased was such that she should be regarded as having been “estranged” from the deceased and, as a result, should not receive any provision out of the deceased’s estate, I shall deal with this issue next.

2. [35]

   The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. (Although the reference to conduct does not expressly refer to the conduct of the deceased, “that must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones, per Basten JA, at [25]).

3. [36]

   An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances.

4. [37]

   In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

5. [38]

   The parties accepted that the nature of the relationship and what is described as “estrangement” complicates the assessment of the obligation owed by a deceased parent to an adult child.

6. [39]

   More often than not, in claims for a family provision order in which an “estrangement” is alleged, the reason, or reasons, for the breakdown in the relationship between the deceased and the applicant for provision is, or are, far more complex than the evidence reveals. This is one such case.

7. [40]

   In considering the evidence, I take into account that the deceased is not able to give her own version of events and I shall be cautious in accepting the evidence of the Plaintiff.

8. [41]

   The Plaintiff accepted that she had never really had a close relationship with the deceased. She wrote that, even as a child, the deceased did not treat her as a loving mother would, and that their relationship always was a difficult one. She also wrote that she never had “love, support or encouragement from the deceased”; that she had been physically abused (“the deceased would beat me regularly”); that her parents did not attend her nurse’s graduation, or her first wedding, even though they had been invited to do so; and she stated that “my Mother was very disapproving of my divorce”.

9. [42]

   The Plaintiff accepted that the deceased might have found her to be “at times a difficult and rebellious child and since then…acted in ways she did not agree with”.

10. [43]

    It is clear, reading all of the evidence, that there had been some difficulties in their relationship prior to the death of the Plaintiff’s father, because as the Plaintiff wrote, she “always hoped there would be some sort of reconciliation with my mother and that if he did not leave his assets to Mum there would be little chance of that happening”. (There would be no need for reconciliation if there had not been difficulties in their relationship.) It is impossible, so many years later, to determine the precise cause or causes of the difficulties.

11. [44]

    It appears that the relationship of the Plaintiff and the deceased did not improve, but, in fact, worsened, at about the time of the death of the Plaintiff’s father. From the Plaintiff’s perspective, the deceased was not keeping her informed about the condition of her father immediately prior to his death. From the deceased’s perspective, the Plaintiff was not showing any sympathy towards her, bearing in mind that her husband of many years was dying.

12. [45]

    The terms of his Will, and what occurred in respect of the distribution of some chattels, appear to have caused further problems between the Plaintiff and the deceased. When the deceased made a request to the Public Trustee “regarding taking a transfer of the motor vehicle and trailer” from her husband’s estate, the Public Trustee responded in writing, in a letter dated 18 December 1996, apparently following the instructions of the Plaintiff, that she “will give favourable consideration to the transfer of the motor vehicle and trailer if she may receive the following…”, and then set out various identified personal effects that the Plaintiff required the deceased to give to her.

13. [46]

    The exchange of correspondence prompted the deceased to describe the request made on the Plaintiff’s behalf, on the bottom of a copy of the letter sent by the Public Trustee, as “this outrageous, hurtful demand” and write to the Plaintiff regarding “your proposition”. (I should mention that the deceased indicated that the Plaintiff could have such items sought that the deceased could locate.)

14. [47]

    There is a copy of a Will made by the deceased in December 1996 (that is, about one month after the death of her husband), in which she left a legacy of $100,000 to the Plaintiff. The rest and residue of the estate was left to the Defendant. However, this Will appears to have been revoked by a Will dated 11 February 1997, in which the legacy to the Plaintiff was removed and $100,000 was divided between the Plaintiff’s three children, Matthew Georg Jodell, Annalisa Jodell and Katrina Jodell. Of course, that Will was revoked by the deceased’s last Will, to which reference has been made.

15. [48]

    The Plaintiff wrote that on the day after her father’s death, she visited the deceased and the Defendant and that after a few minutes, the deceased said words to the effect “You can go now and I never want to see you again”.

16. [49]

    The Plaintiff was cross-examined about the conversation. She accepted that part of her affidavit evidence was inaccurate about the date of the conversation and the length of two conversations that occurred after the death of her father. She also accepted that she had not referred to the statement said to have been made by the deceased in a letter sent to the deceased and others a few weeks after the death of her father. Nonetheless, the Plaintiff strenuously maintained that the statement was made by the deceased.

17. [50]

    The letter that the Plaintiff had written in December 1996 (a few weeks after the events in November 1996), included the following:

18. [51]

    Ultimately, nothing really turns on the inconsistency in the part of the Plaintiff’s evidence on this topic set out above. Whether the deceased did, or did not, say that she never wanted to see the Plaintiff again, is somewhat beside the point, since it is accepted that the Plaintiff did not, in fact, see the deceased from that time (three days after the death of the Plaintiff’s father) until shortly before the deceased’s death. It is also accepted that the deceased, in the period following her husband’s death, did not attempt to see the Plaintiff.

19. [52]

    It is then necessary to set out what occurred subsequently, about which there can really be no dispute. At least for part of the time (April 1997 to February 2008), the Plaintiff was living overseas. At other times, she was living in Castlemaine, Victoria.

20. [53]

    The Plaintiff wrote a letter dated 10 January 2003, to the deceased, informing her that she would be “passing through Sydney” in March and saying that “it would be lovely if we could meet”. The Plaintiff did, in fact, make that trip to Sydney, but she did not stop in to see the deceased, because the deceased did not respond to her letter.

21. [54]

    There is a copy of a document dated March 2003, in the hand of the deceased, which was sent to the Defendant, which document includes the following passages:

22. [55]

    The terms of this letter support the earlier statement about the way in which the deceased perceived the Plaintiff’s conduct.

23. [56]

    The Plaintiff wrote, again, to the deceased in July 2004, having returned to Spain, where she was then living with her husband. This letter commenced:

24. [57]

    It ended:

25. [58]

    The Plaintiff wrote, again, in December 2005, to the deceased from Cadiz, Spain. On this occasion, she wrote that she did not have “any immediate plans to visit Australia. I would like to come in autumn 2007. It will be good to see my family and friends again”.

26. [59]

    It ended with:

27. [60]

    In October 2012, the Plaintiff wrote to the deceased, and Defendant, this time from Castlemaine, Victoria, “enclosing a couple of photos I thought might be of interest”.

28. [61]

    To none of the Plaintiff’s correspondence, did the deceased reply.

The Plaintiff’s Financial and Material Circumstances

1. [62]

   The Plaintiff deposed that, as at 11 February 2016, her financial position was as follows. She owns her home, in Castlemaine, Victoria ($600,000), has a car ($9,000), household chattels ($5,000), some shares ($3,645) and a negligible amount in a UK Bank account. In addition, she has $15,833 in a bank account (but this is part of the fund that she has borrowed but has not yet spent). She has some liabilities, being a reverse mortgage debt secured on her home ($154,780) which had increased since her earlier affidavit because she has had to carry out repairs to her home, and a credit card debt of $1,283.

2. [63]

   She says her income is made up of the age pension ($22,172) and dividends from her shares ($31) per annum or about $425 per week with her expenditure totalling $22,562 or $431 per week. She, therefore, has a shortfall of about $300 per annum or about $6 per week.

3. [64]

   I am satisfied that the Plaintiff does not have an earning capacity.

4. [65]

   The Plaintiff states that she wishes to relocate to Melbourne and that after sale of her Castlemaine property she will require additional funds to funds to acquire similar residential accommodation in Melbourne ($300,000) and to purchase a new car ($43,590). She also identifies urgent dental expenses of $700. She says she needs additional income totalling $8,289 per annum (for garden maintenance ($3,000), private health insurance ($2,674) and pilates and water aerobics ($2,615).

5. [66]

   It was submitted:

6. [67]

   It was also submitted:

7. [68]

   The Defendant, in written submissions, wrote that the Plaintiff’s claim should simply be dismissed as her shortfall of income was negligible (about $1.00 per day) and could be avoided if she did not travel overseas as frequently as she did. He added:

The Statutory Scheme

1. [69]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff’s eligibility and the commencement of the proceedings within time is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for her proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes.

2. [70]

   It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may “the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

3. [71]

   The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.

4. [72]

   Whether the disposition of the deceased’s estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant’s “needs” that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).

5. [73]

   Although the existence, or absence, of “needs” which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 6-11 (Bryson J); Collicoat v McMillan, at 816 [38], 820 [47] (Ormiston J).

6. [74]

   “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]:

7. [75]

   In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J at added:

8. [76]

   As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

9. [77]

   If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

10. [78]

    The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

11. [79]

    Section 60 of the Act provides:

12. [80]

    It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

13. [81]

    In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [7], Basten JA wrote:

14. [82]

    The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

15. [83]

    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

16. [84]

    A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

17. [85]

    Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

18. [86]

    Section 65(1) of the Act requires the family provision order to specify:

19. [87]

    The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

20. [88]

    Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).

21. [89]

    Section 66 of the Act sets out the consequential and ancillary orders that may be made.

22. [90]

    Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

23. [91]

    There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.

24. [92]

    The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

25. [93]

    In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

26. [94]

    Of the freedom, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, at 366:

27. [95]

    In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

28. [96]

    In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:

29. [97]

    As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:

30. [98]

    White J referred to these principles in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [127]:

31. [99]

    In relation to the statement made by the deceased, in Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138; [1979] HCA 2, at [7], Barwick CJ wrote:

32. [100]

    Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

33. [101]

    In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote:

34. [102]

    In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

35. [103]

    All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].

36. [104]

    In relation to the Plaintiff’s claim, being a claim for provision by an adult child, the following principles are also useful to remember:

37. [105]

    A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].

38. [106]

    In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty”. The only other claimant on the bounty of the deceased in the present case is the Defendant.

39. [107]

    The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made for her in the deceased’s Will, or otherwise justify such provision. As a beneficiary, the Court is not entitled to disregard her interest.

Estrangement

1. [108]

   Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of the Defendant’s case in opposition to the claim by the Plaintiff.

2. [109]

   I have discussed the topic of estrangement in a number of cases. Most recently, in Underwood v Gaudron [2014] NSWSC 1055, at [231], I set out the general principles which I repeat. (Although my judgment was the subject of an appeal, which was dismissed, the Court of Appeal did not indicate any disapproval of what I had written on this topic: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269.)

3. [110]

   In Andrew v Andrew, Basten JA at [40] endorsed what I had said about estrangement, much of which is set out above, as follows:

4. [111]

   His Honour added at [49]:

5. [112]

   Also see the analysis of Ward JA in Burke v Burke [2015] NSWCA 195 at [89] – [95].

Qualifications on “Principles”

1. [113]

   As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, at 440, Stephen J wrote:

2. [114]

   As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered.

3. [115]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]:

4. [116]

   The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; Burke v Burke at [84] – [85]. They must be remembered.

5. [117]

   Being an “eligible person” is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

6. [118]

   There is no dispute that the proceedings were commenced by her within the time prescribed by the Act.

7. [119]

   In considering the answer to the first question posed by the Act, namely whether, at the time of the hearing, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased. Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for her proper maintenance or advancement in life was not made for the Plaintiff by the Will of the deceased.

8. [120]

   But, as I wrote in Morier v Liem [2016] NSWSC 582, the fact that the Plaintiff does not receive any provision under the Will of the deceased, of itself, does not bespeak inadequacy. One must also consider the Plaintiff’s overall financial position, the totality of her relationship with the deceased, and the size and nature of the deceased’s estate.

9. [121]

   Basten JA wrote in Chan v Chan at [22], that the Court must remember:

10. [122]

    Thus, in determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.

11. [123]

    This is a case in which, firstly, the Plaintiff has a need to meet her obligations, all of which, now and into the future, cannot be met from her own resources. She has a reverse mortgage debt which she is unable to reduce and a modest income provided by a pension and some interest/dividends. She has no fund available for exigencies of life. She has no earning capacity. She has no person to provide immediate, or continuing, financial support. The value of the deceased’s estate provides the means to alleviate these needs. Having regard to the competing claim upon the deceased’s bounty, which does not include any competing financial claim by the Defendant, a proportion of the estate can be used without, necessarily, impacting in any significant way, upon the financial needs of the Defendant.

12. [124]

    Also, whilst further provision for the Plaintiff, in circumstances of her relationship with the deceased, might not be expected to equal the totality of the insufficiency in her resources, when one considers that there is no competing financial claimant upon the deceased’s bounty, and also the size of the deceased’s estate, there is certainly a capacity for provision to be made for her.

13. [125]

    When the Court considers the Plaintiff’s financial and material resources, one cannot but reach the conclusion that the provision made for her in the Will of the deceased is inadequate for her proper maintenance and advancement in life. Her plight might have been ameliorated by an inheritance under the will of her father but that was a long time ago (almost 20 years ago).

14. [126]

    According to prevailing community standards, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for the Plaintiff. I am of the view that the deceased’s disappointment, as a wise and just testatrix, should not have blinded her to the needs of one of her two children, for maintenance or advancement in life.

15. [127]

    Turning then to s 59(2), namely the question what provision “ought to be made for the maintenance, education or advancement in life” of the Plaintiff having regard to the facts known to the court, the more difficult question is what would constitute adequate and proper provision for her. There is no formula that can be used to determine the amount of that provision. In any event, an order for provision should be no more than is necessary to make adequate provision for the Plaintiff's proper maintenance and advancement in life.

16. [128]

    Contrary to the submissions made on behalf of the Defendant, cases under the Act are decided on the basis of broad principles, not fiscal micrology: Re Hilton [1997] 2 NZLR 734, at 738. The court should not focus only on the Plaintiff’s particular, or specific, known needs, but rather upon her needs in the ‘relevant sense’, namely, in the sense of what is adequate for her proper maintenance or advancement in life.

17. [129]

    As Gleeson CJ wrote in Vigolo v Bostin, at [12]:

18. [130]

    I am satisfied that there is a clear need for provision for the Plaintiff out of the estate of the deceased for her immediate, and long-term, financial security and for future contingencies. Whilst only some of her “needs” may be able to be quantified with reasonable certainty, that does not prevent the court exercising its discretion in awarding additional provision to her to cover those that cannot.

19. [131]

    Even though, in Hyland v Burbidge at [56], Windeyer J wrote “where the funds are readily available there is no reason why adequate provision should not require the provision of a sufficient fund to enable this plaintiff to have secure accommodation for herself of a reasonable standard in a reasonably attractive suburb”, in this case, I am satisfied that a contribution to the cost of alternative accommodation in Melbourne ($300,000) is not a need at all, or if it is, a need that ought not to be met out of the deceased’s estate.

20. [132]

    In relation to the issue whether it is a current need, I point to the Plaintiff’s evidence:

21. [133]

    In all the circumstances of the case, I am not satisfied that the Plaintiff should receive a lump sum that would enable her to purchase alternative accommodation in Melbourne. Leaving aside any issue of “need” for such accommodation, to make such additional provision would, in my view, be more than adequate and proper provision in all the circumstances of this case.

22. [134]

    In regard to the relationship of the Plaintiff and the deceased, much has been made of the duration of any real or substantial contact between the Plaintiff and the deceased from shortly after the death of the Plaintiff’s father. But, in this regard, it is to be remembered that the Plaintiff lived overseas between about April 1997 and February 2008. Whilst it is not suggested that the geographical distance precluded contact between them, it is a matter that is to be remembered.

23. [135]

    Furthermore, there were several attempts made by the Plaintiff to reach out to the deceased in order, if not resolve the dispute that existed between them, to not dwell on them, and to maintain a relationship with the deceased. Whilst it is true that she never apologised to the deceased, a matter which the Defendant considered that the deceased had wanted the Plaintiff to do, the Plaintiff wrote attempting to maintain a relationship.

24. [136]

    For her own reasons, the deceased did not exhibit any similar desire. The Defendant gave evidence that the deceased regarded the correspondence sent as revealing that the Plaintiff was acting as if there was nothing to resolve between them and had maintained that so long as the Plaintiff did not apologise, she did not wish to communicate with the Plaintiff. I accept the Defendant’s evidence that her conversations with the deceased reflected that view. As stated, the wounds thought by the deceased to have been inflicted by the Plaintiff, following the death of the deceased’s husband were so deep, and were so damaging, that the deceased could not recover from them.

25. [137]

    In my view, the events surrounding the death of the deceased’s husband, including events shortly before his death, the terms of his Will (the Plaintiff having no control over how he chose to leave his estate) and the requests made for personal items in response to the deceased’s request to receive the car and trailer (over which the Plaintiff did have control) played a part, indeed a significant part, in the deceased not wishing to have any further contact with the Plaintiff. However, it is clear that each of them believed that she was justified in her conduct. Neither appears to have been able to express, to the other, her feelings, or explain the reasons for her conduct, perhaps by reason of their relationship history, and/or because of her perception of the other’s treatment of her.

26. [138]

    Perhaps, with the exception of the events surrounding the transfer to the deceased of the car and the trailer, the Plaintiff’s conduct does not appear to have been callous or unfeeling towards the deceased. Nor did it demonstrate hostility. Of course, it is true that it was the deceased’s husband of many years who was dying, but he was also the Plaintiff’s father. Each was entitled to expect the support of the other at that time. Each appears to have felt that the other did not provide that support. The difference between them was that, subsequently, the Plaintiff did not wish to end, completely, their relationship, whilst the deceased, so long as the Plaintiff did not apologise to her, was prepared to do so.

27. [139]

    I regard the Plaintiff’s attempts to retain, or rekindle, the relationship with the deceased as important. When the request made by her to visit the deceased was ignored, the Plaintiff did not sever all ties between them, but, on occasions, informed the deceased of what was happening in the Plaintiff’s life. She attempted to make amends, before, and at the end of, the deceased’s life by attempting to keep in contact and then, by visiting the deceased not long before her death. When she did so, the evidence from Ms Jann Zintgraff (a friend of the Plaintiff who had sworn an affidavit but who was not cross-examined), reveals that the deceased “was smiling” and “seemed genuinely happy to see both of us. [The Plaintiff] sat by her bed and held her hand. We stayed for about 45 minutes.”

28. [140]

    Regrettably, the deceased, as a wise and just testatrix, prior to this time did not extend the hand of forgiveness to the Plaintiff.

29. [141]

    Of course, in reaching this conclusion, I have taken into account that the deceased is not able to give her own version of events. Furthermore, I am not at liberty to ignore the deceased’s freedom of testation to which reference has been made previously.

30. [142]

    I am satisfied that this is not a case where, after 1996, the Plaintiff treated the deceased with complete indifference. That she did not do more may be explained, in part, by the lack of any response to her entreaties. Nor did she demonstrate ill-temper, or violence, towards the deceased. Yet, it cannot be forgotten that her attempts were limited to several letters, the time between the last two of which was several years.

31. [143]

    I do not regard the circumstances of the Plaintiff’s relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper maintenance and advancement in life of the Plaintiff. However, the nature of the relationship between the Plaintiff and the deceased, and the fact that the Plaintiff received, effectively, the whole of her father’s estate, does warrant a slight moderation of the amplitude of the provision that, otherwise, would be no more than adequate for her proper maintenance and advancement in life.

32. [144]

    In Grey v Harrison at 366–367, Callaway JA observed:

33. [145]

    The determination of quantum is not a scientific, or arithmetic, exercise: Baird v Harris [2015] NSWSC 803, at [237].

34. [146]

    Having considered all of the matters I am required to consider, taking into account all of the circumstances of the case, including the nature and value of the estate, the nature of the relationship of the Plaintiff and the deceased, both before and after 1996, her financial resources (including earning capacity), both present and future, as well as the competing claims of the Defendant as the chosen object of the deceased’s bounty, doing the best I can, I consider the amount of the lump sum that the Plaintiff should receive is $425,000. If she wishes to, she can use part of that lump sum to repay all of her mortgage debt and credit card debt. She will then have about $270,000 to provide a buffer for exigencies of life, and which, until spent, will also provide a modest additional income to meet her current shortfall and provide a little more.

35. [147]

    Such a legacy will still leave the Defendant with about $1.375 million in recognition of her moral claim on the deceased’s testamentary bounty.

36. [148]

    Accordingly, taking into account that I cannot determine the issue of costs, the Court: