Robertson v McCann

1. [1]

   HIS HONOUR: The application before the Court is a family provision claim by a niece, Julianne Linda Robertson (the plaintiff), in respect of the estate of the late Raymond Leslie Smith (the deceased) who died on 20 October 2020 aged 90 years.

2. [2]

   Jason McCann (the defendant) is one of two children of the plaintiff, and great-nephew of the deceased.

3. [3]

   The deceased left a Will dated 17 April 2018 probate of which was granted to the defendant on 29 September 2021.

4. [4]

   The plaintiff commenced these proceedings by summons filed on 18 October 2021 seeking a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Succession Act).

5. [5]

   I have determined that the plaintiff’s claim for a family provision order should be dismissed.

6. [6]

   Without intending any disrespect, it is convenient to refer to various of the deceased’s family relations (many of whom bear common surnames) by reference to their given or familiar family names.

7. [7]

   The parties provided written submissions both prior to the hearing and on the final day of hearing in addition to their counsel making oral submissions on the final day of the hearing.

8. [8]

   I will make reference to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows: the plaintiff’s opening written submissions (POS); the defendant’s opening written submissions (DOS) and defendant’s concluding written submissions (DCS).

Family details

1. [9]

   The deceased was born in June 1930 being one of two children of Leslie James Smith and Louise Mary Smith (albeit that some evidence refers to her as Louisa: CB 659).

2. [10]

   The deceased lived for most of his life in a property at 384 Young Street, Annandale (the property). The precise genesis of that is unclear. The defendant’s submissions suggest that the property has been in the Smith family for many decades, that the deceased was raised there by his parents in the 1930s and that he subsequently bought the property in the mid-1950s. I have not been able to find any specific evidence to clarify when the deceased acquired the property.

3. [11]

   There is evidence that from the time of the plaintiff’s birth in 1956 the deceased was living in the property at that time with her maternal grandparents: CB 132 [10].

4. [12]

   It is nonetheless correct to say that various extended family members came into the property and left over the years: DOS [28].

5. [13]

   The deceased married Joan Guthrie (Joan G) in 1969. Joan G died in 1972.

6. [14]

   The deceased was a carriage builder (CB 77) and worked at least part of his life at Redfern Railways: CB 689, 690. The plaintiff indicates that he was a carpenter by trade: CB 56 [39].

7. [15]

   The property appears to be a two-storey house with two bedrooms (circa 2018 CB 593), with front and back gardens and a back patio: CB 194 [74].

8. [16]

   In January 2019, the house was described as having a main living area at street level with two internal steps from the hallway to a lounge room with a rail. There were 11 steps to a downstairs bathroom and laundry: CB 672.

9. [17]

   The deceased commenced living in the property in or about 1935, when he was aged five: CB 690. He remained living in the property until approximately February 2020 when he entered a BUPA Aged Care Nursing Home in Ashfield (BUPA Nursing Home): CB 195 [79].

10. [18]

    The deceased’s health started to fail him in his final years. The defendant indicates he installed handrails to assist the deceased to access and use the house despite his mobility issues: CB 194 [74], 593.

11. [19]

    In early 2020, he was admitted to Royal Prince Alfred Hospital (RPA) for chest pain, and it seems this was a precursor for the assessment that he needed to enter into a BUPA Nursing Home, which occurred later in 2020: CB 195 [78].

12. [20]

    The plaintiff’s given name, as noted above, is Julianne. However, she is known by the name Julie: T3.

13. [21]

    The deceased’s sister (Enid) married Jack Irwin (Jack), and they are the parents of the plaintiff.

14. [22]

    Enid and Jack had, apart from the plaintiff, five other children.

15. [23]

    The plaintiff was born in November 1956 and is aged 66.

16. [24]

    The plaintiff has two children namely the defendant born in March 1973, aged 49 and Elisha born in November 1979, aged 43.

17. [25]

    The plaintiff married Steven Paul McCann (CB 188 [9]) (or Stephen see T 16.39-46) (Mr McCann) in 1979 and they separated in 1982.

18. [26]

    The plaintiff married Greg Robertson (Greg) in May 1988. They remained married until his death on 11 February 2015. However, the plaintiff indicates that they were separated at the time of his death.

19. [27]

    The plaintiff has a sister Sharon Dempsey (born 1954) and four brothers, Wayne, Glenn (born February 1958), John and Mark. There are several Sharons referred to in the evidence, and, accordingly, I will refer to Sharon Dempsey as “Aunty Sharon”.

20. [28]

    Wayne died in March 1988 and John died in December 1999.

21. [29]

    The defendant has had a number of marriages or relationships.

22. [30]

    He has four children from those relationships:

    1. (1)

       Dylan born in September 1993 (there initially being some varying evidence and doubt over his actual date of birth (T 17) which was cleared up by agreement (T 24)) currently aged 29 – his mother is Clare Talty;

    2. (2)

       Justin born in November 1995 currently aged 27 – his mother is Rachel Unwin;

    3. (3)

       Rory born in November 2000 and who died on 10 May 2020 – his mother being Danielle McCann (Danielle); and

    4. (4)

       Megan born in June 2003 and currently aged 19 – her mother being Danielle.

23. [31]

    On 7 July 2021, the defendant married Sharon Febers (Ms Febers) who was born in South Africa in December 1972 and is aged 50. Ms Febers has two children (Amelia aged about 19 and Riley aged about 18) from a prior marriage to Stephen Jackson (Mr Jackson): CB 329 [5].

24. [32]

    Elisha is partnered to David Lewis, and she has two children: Kaylee and Kallem.

25. [33]

    Greg’s mother Joan Robertson (Joan R), a pensioner, died on 8 November 2020.

26. [34]

    Aunty Sharon is or was married to Frank.

27. [35]

    Wayne has daughters: Rachel Irwin (Rachel) and Jodie.

Will and estate

1. [36]

   The deceased made a number of Wills including Wills relevantly on 20 July 1987 (1987 Will), 3 November 2003 (2003 Will) and 17 April 2018 (2018 Will).

2. [37]

   The deceased by the 1987 Will nominated the NSW Public Trustee (as the NSW Trustee & Guardian then was) to be his executor and left the property together with all his household chattels to the plaintiff absolutely.

3. [38]

   He left the residue of his estate in three equal parts with one part to the plaintiff, the second part to Aunty Sharon and the remaining third part for such of his nephews Glenn, Wayne and John living at his death and if more than one in equal shares.

4. [39]

   The deceased by the 2003 Will appointed the plaintiff as executrix and left his estate as to 50% to the plaintiff, 30% to Aunty Sharon and 20% to Glenn.

5. [40]

   The deceased, by the 2018 Will, appointed the plaintiff as “executor” unless she was unable or unwilling to act or continue to act in which event he appointed the defendant as executor.

6. [41]

   In the events that occurred, the deceased left his estate on trust for sale and conversion to pay his debts funeral and testamentary expenses as well as any legacies.

7. [42]

   He gave to the defendant his property, including the household contents therein, and all AMP shares as he might hold at the date of his death.

8. [43]

   He gave to the plaintiff, Aunty Sharon and Glenn all funds held in any bank accounts he held as of the date of his death as tenants-in-common in equal shares and the residue of the estate to the defendant absolutely.

9. [44]

   The plaintiff, as instituted executor, did not take any steps to obtain probate and did not formally renounce her executorship.

10. [45]

    The defendant was granted probate with leave reserved to the plaintiff to come in subsequently and apply for a grant: CB 167 [5].

11. [46]

    According to the inventory of property, the deceased held an amount of $2694.58 in two Endeavour Mutual Bank (EMB) accounts and the property, which for probate purposes, was valued at $1.4 million.

12. [47]

    As will be noted below, the deceased also held AMP shares at the date of his death. Those shares (for reasons unexplained) are not recorded in the inventory of property attached to the grant of probate.

13. [48]

    On the basis that the inventory of property set out the extent of the deceased’s estate, there was no residue.

14. [49]

    Leaving aside expenses of the estate, each of the plaintiff, Ms Dempsey and Glenn would have been entitled to no more than approximately $898 each.

15. [50]

    As at 19 April 2018, close to the date of the April 2018 Will, one of the deceased’s EMB accounts (described as the “S1 Account”) had a balance of $5989.85: CB 517.

16. [51]

    The deceased’s other EMB account (described as the “S70 Account”) had a balance, as at 30 April 2018, of $1331.47.

17. [52]

    The parties, in compliance with pre-trial directions, prepared an agreed schedule regarding assets and liabilities of the estate and costs.

18. [53]

    The schedule accords with the inventory of property of the deceased’s estate as of the date of the deceased’s death with the exception that it additionally indicates that the deceased held 1017 AMP shares at $1.16 per share bearing the value of $1,179.72.

19. [54]

    The total assets at the date of death was said to be $1,403,874.30.

20. [55]

    The deceased had a liability being an invoice from BUPA Aged Care Australia Pty Ltd (BUPA) in the sum of $1,672.14, leaving a net estate of $1,402,202.16.

21. [56]

    As at 31 January 2023, the parties agreed that the assets of the deceased’s estate comprise the following items (CB 48):

    1. (1)

       the property valued at $1,325,000;

    2. (2)

       monies held in Annandale Lawyers’ trust account ($3597.31); and

    3. (3)

       the AMP shares ($1.34 per share) ($1362.78).

22. [57]

    As at the time of the hearing a revised figure for the property is agreed to be $1,387,500 (T 19, 24) with the result that the total assets are $1,392,460.09.

23. [58]

    A number of liabilities in respect of the deceased’s estate have been identified in the agreed schedule as follows:

    1. (1)

       BUPA invoice $1,672.14;

    2. (2)

       property expenses paid by the defendant and Ms Febers $14,509.44;

    3. (3)

       funeral expenses paid by family members $7,152;

    4. (4)

       legal fees for probate application $6,297.67; and

    5. (5)

       amounts paid to fund settlements of related proceedings $30,000.

24. [59]

    Details of the above amounts appear in the evidence, including the BUPA invoice: CB 216.

25. [60]

    Amounts for the property expenses paid by the defendant and Ms Febers are detailed at CB 216.

26. [61]

    The net estate is $1,332,828.84, subject to some further potential expenses (if the property is sold) and costs.

27. [62]

    However, the joint schedule indicates that, in the event that the property is required to be sold, further expenses will be incurred.

28. [63]

    Figures were provided for the agreed schedule: CB 49. Those figures included commission based on a property value of $1.325M. Although updated figures were not provided it appears appropriate to revise the commission fee (calculated at 2.75% of the property value) to reflect the agreed value of the property being $1,387,500.

29. [64]

    Based on the revised property value ($1,387,500) and assuming that there is no alteration to the agreed figures for the advertising/marketing budget and costs to ready the property for sale, the expenses that will be incurred in the event that the property is required to be sold are as follows:

    1. (1)

       real estate agent commission fee at 2.75% (on total property value $1,387,500) – the amount is $38,156.25;

    2. (2)

       advertising/marketing budget $5,000; and

    3. (3)

       costs to ready property for sale $5,000.

30. [65]

    The property and the deceased’s AMP shares both remain registered in the name of the deceased and have not been transmitted to the defendant as beneficiary: CB 215.

31. [66]

    The BUPA invoice remains unpaid. It, apart from the costs of the proceedings, is the only unpaid liability of the estate.

32. [67]

    The figure for funeral expenses is an amount which was paid in one third equal shares by each of the defendant, the plaintiff and Sharon. The defendant has indicated that he does not seek reimbursement of the funeral expenses paid by him. He states that he has not been informed by the plaintiff or Aunty Sharon that they seek reimbursement.

33. [68]

    However, the defendant referred in his evidence to the fact that Aunty Sharon had in her affidavit stated that she and the plaintiff seek reimbursement of their contribution to funeral expenses: CB 168 [11]. The reference to that evidence is in fact to a paragraph of Aunty Sharon’s affidavit which was not read: CB 146 [116].

34. [69]

    Irrespective of the fact that the particular paragraph was not read, unless the plaintiff and Aunty Sharon have agreed otherwise (about which there is no evidence) they should be entitled to be refunded the portion of the funeral expenses that have been paid by them. It appears to be an amount of $2,384 each (being one third of $7,152).

35. [70]

    The amount for the legal fees for probate expenses is an invoice paid by the defendant personally: CB 169 [19].

36. [71]

    The defendant does not seek nor claim commission in relation to administration of the estate: CB 169 [20].

37. [72]

    On 18 October 2021, Aunty Sharon and Glenn commenced family provision proceedings against the defendant in respect of the deceased’s estate.

38. [73]

    The amount of $30,000 relates to amounts paid by the defendant in respect of family provision proceedings brought by each of Aunty Sharon (2021/00296005) and Glenn (2021/00296008) (related proceedings).

39. [74]

    On 12 July 2022, Francis Farmakidis (the plaintiff’s solicitor) (Mr Farmakidis), who was acting for Aunty Sharon and Glenn in the related proceedings caused to be filed notices of discontinuance with the consent of the solicitor for the defendant which were signed and dated 14 July 2022.

40. [75]

    On 19 July 2022, orders were made disposing of the related proceedings and noting the discontinuance on the basis that an ex gratia payment had been made in the sum of $15,000 to each of Aunty Sharon and Glenn: CB 216-217 [14], 229-234.

41. [76]

    The effect of the above is that if the property is to be sold the net estate is $1,332,828.84 less:

    1. (1)

       $4,768 (if the plaintiff and Aunty Sharon are to be reimbursed for funeral expenses);

    2. (2)

       $48,156.25 (sale expenses); and

    3. (3)

       $148,000 (defendant’s costs)

42. [77]

    The defendant has provided alternate figures on the basis that he will not seek reimbursement from the estate of certain payments if he were to be able to retain the property. The amounts that he would not seek reimbursement for include property expenses ($14,509.44), his share of funeral expenses ($2,384), probate expenses ($6,297.67) and amounts to fund the settlements of the related proceedings ($30,000).

43. [78]

    Additionally, on that scenario, there would be no sale expenses for the property and the defendant would absorb the cost of his legal expenses to retain the property.

44. [79]

    The plaintiff’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of a two-day hearing are $98,000 plus GST on the ordinary basis, and $146,000 plus GST on the indemnity basis.

45. [80]

    The defendant’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of a two-day hearing (incorporating the costs and disbursements incurred in the related proceedings) are $104,000 plus GST on the ordinary basis and $148,000 plus GST on the indemnity basis.

46. [81]

    The orders made in each of the related proceedings relevantly provided that there would be no orders as to the defendant’s costs to the intent that he would bear his own costs of those proceedings: CB 230-234.

47. [82]

    The defendant’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of the two-day hearing (not incorporating the costs and disbursements incurred in relation to the related proceedings) are $76,000 plus GST on the ordinary basis and $108,000 plus GST on the indemnity basis.

48. [83]

    To date, the plaintiff has paid $60,997.24 on account of her costs and disbursements.

49. [84]

    The defendant paid $4,180 to the mediator Martin Gorrick for a mediation on 20 January 2022 as well as $7788 in counsel’s fees.

50. [85]

    There is a sum of $18,032 held in trust, paid by the defendant, to be applied to further costs and disbursements: CB 51.

Issues

1. [86]

   The plaintiff’s summons is filed within time.

2. [87]

   The plaintiff identified herself, the defendant, Aunty Sharon and Glenn as being persons who are or may be eligible persons: CB 6. There is evidence that Tony Barakat (Mr Barakat), a solicitor with the carriage of the proceedings on behalf of the defendant as at 18 November 2021, served, on that date, notices of claim relevantly on Aunty Sharon and Glenn: CB 476-479.

3. [88]

   The defendant does not dispute that the plaintiff is an eligible person within the meaning of s 57(1)(e) of the Succession Act being a person who was, at any particular time, wholly or partly dependent upon the deceased and who was, at that particular time or at any other time, a member of the household which the deceased was a member.

4. [89]

   Whilst the defendant does not dispute the eligibility of the plaintiff, it is nonetheless necessary to at least briefly consider the basis of the plaintiff’s eligibility. The reason for that is that generally speaking, parties cannot by consent confer jurisdiction on a Court to make orders which the Court lacks power to make: e.g. R v Moore; ex parte Australian Workers’ Union (1976) 11 ALR 449 at 453 per Barwick CJ (Gibbs, Stephen, Mason and Jacobs JJ agreeing).

5. [90]

   Despite the defendant not disputing the plaintiff’s eligibility, the Court should be satisfied that there is at least some evidence to satisfy the jurisdictional requirement of eligibility.

6. [91]

   The main issues for determination on the application are:

   1. (1)

      Whether having regard to all the circumstances of the case there are factors which warrant the making of the plaintiff’s application?

   2. (2)

      Whether at the time the Court is considering the application, adequate provision for the plaintiff’s proper maintenance, education or advancement in life has not been made by the deceased’s Will?

   3. (3)

      If satisfied as to (1) and (2), what provision, if any, ought to be made for the plaintiff?

7. [92]

   In opening the matter Mr Davidson SC identified a number of matters which he submitted were relevant to assessing the plaintiff’s claim.

8. [93]

   The matters were as follows:

   1. (1)

      That the plaintiff’s claim should be assessed on the basis that she ought to be treated as equivalent to an adult daughter (equivalent adult daughter submission): T 3.

   2. (2)

      That adequate provision is not limited to financial necessities: citing Scott v Scott [2022] NSWCA 182 at [15] (adequacy transcends financial needs submission): T 4.

   3. (3)

      That the Court should have regard to the fact that the gift to the plaintiff under the deceased will was “meaningless” (T 4) essentially in a sense that the value of it was of little financial worth (meagre Will entitlement submission): T 4.

   4. (4)

      The defendant had systematically taken cash from the deceased’s bank accounts (unauthorised withdrawals submission): T 4.

   5. (5)

      The deceased was suffering from dementia, and I should not give much primacy to the deceased’s assessment of adequate provision for the plaintiff by his Will by reason of the fact that the deceased had cognitive impairment and did not properly appreciate the full circumstances of the plaintiff’s position and, in particular, purportedly disbelieved that the plaintiff had a mortgage to pay (testamentary deference submission): T 4.

Evidence

1. [94]

   On the hearing the plaintiff read and relied upon substantive affidavits from herself, Elisha, Glenn and Aunty Sharon.

2. [95]

   The plaintiff also relied on an affidavit from John Carrington sworn on 9 February 2023 which was not part of the Court Book but nonetheless was read in the proceedings. He was not required for cross-examination.

3. [96]

   The defendant read affidavits of himself and Ms Febers.

4. [97]

   There was a further affidavit of Rachel. Initially, the affidavit of Rachel was not read by Mr Wood SC as she had been required for cross-examination, but he was unable to make her available for cross-examination: T 29.

5. [98]

   Ultimately, following discussions as between Mr Wood SC and Mr Davidson SC, Rachel’s affidavit sworn 4 April 2022 was read without objection to any particular paragraph in the affidavit. Although notice was given for her to be available for cross‑examination, and she was not available for cross‑examination, Mr Davidson SC released her from that requirement: T 81.18-23. However, that was in a context in which he intimated that the weight that could be attached to the evidence without her being available for cross-examination might be affected: T 81.9.

6. [99]

   There were formal affidavits read on each side. The plaintiff read an affidavit (as to costs) of her solicitor, Mr Farmakidis. The defendant read an affidavit (as to service of notice claims) of Mr Barakat, solicitor, and an affidavit (as to costs) of Steven Mousas. None of those solicitors were required for cross-examination.

7. [100]

   Each party, apart from affidavit evidence, adduced documentary material. The documentary material included bank account records, medical documents in respect of the deceased and other materials including NSW Police Force Computerised Operational Policing System (COPS) records in respect of both the plaintiff and the defendant.

8. [101]

   A significant amount of material in the proceedings in the affidavits was not strongly disputed. Further, a large degree of the documentary material included bank account records, medical records and COPS records.

9. [102]

   In light of that, I set out below facts in relation to background details as well as details regarding the parties’ relationship with the deceased and financial and material circumstances.

10. [103]

    The facts that I set out in relation to those matters should be regarded as findings of the Court unless qualified or otherwise indicated.

11. [104]

    Nonetheless, there are a number of disputed issues and I have separately addressed those issues below when addressing issues regarding the credit and reliability of the parties and various witnesses.

Some background

1. [105]

   In about June 1964, Jack, who had earlier in that year contracted pneumonia and a golden staph infection whilst in hospital, deteriorated in health. Enid had kidney problems and jaundice and had also suffered a heart attack: CB 54.

2. [106]

   At about this time, the plaintiff and Aunty Sharon moved in to live with the deceased in the property. At that stage, the deceased was residing with his mother.

3. [107]

   In about July 1964, Jack died. The plaintiff was seven years of age at that time.

4. [108]

   The plaintiff states that she and her siblings became “wards of the state”. Subject to one matter I will come to the evidence leaves unexplained any detail regarding that.

5. [109]

   The plaintiff indicates that she and Aunty Sharon continued to live with the deceased at the property whilst her mother Enid and brothers went to live with their paternal grandfather in Lane Cove.

6. [110]

   In early May 1968, Enid died: CB 54; T 79.

7. [111]

   The plaintiff was about 11 years old at that time and continued to live with the deceased. She states that the deceased and her grandmother provided everything to continue raising her and paying for her education.

8. [112]

   In about 1969, the deceased married Joan G who moved into the property. The plaintiff says she has shared a bedroom with her grandmother.

9. [113]

   In 1971, the plaintiff left school after completing year 10. The plaintiff indicates that after she left school the deceased took her for her first job interview with the Greater Union Theatre Organisation.

10. [114]

    In about 1972, Joan G died.

11. [115]

    In or about late June 1972, the plaintiff became pregnant. She states that as she was under the age of 18 the New South Wales Child Welfare Agency tried to remove her from living with the deceased. However, she says that he made an application for her to continue to live with him which was ultimately successful. During the plaintiff’s pregnancy Wayne moved into the property to live: CB 54 [22].

12. [116]

    In about July 1972, the plaintiff’s grandmother died. The plaintiff indicates that she continued to live with the deceased after this time and took on additional household responsibilities including some general maintenance, cooking, cleaning laundry and grocery shopping: CB 54 [21].

13. [117]

    In March 1973, the plaintiff gave birth to the defendant.

14. [118]

    In about December 1973 or January 1974, the plaintiff moved out the property to live in a unit with the defendant and his father in Leichardt.

15. [119]

    Shortly after that occurred Wayne also moved out of the property and Glenn moved in to live with the deceased in the property.

16. [120]

    Following the death of his mother in 1972, the deceased insisted that the “whole family” (being the plaintiff, her siblings any partners and children) spend Christmas Day together with him at the property. For a few Christmases thereafter the plaintiff prepared lunch for the whole family and would take the deceased shopping so that he could buy Christmas presents for everyone: CB 55 [28].

17. [121]

    However, as the family grew and expanded the property became too small to host Christmas and so from about 1990 onwards the plaintiff and Aunty Sharon hosted Christmas at their residences in alternative years. Nonetheless, the plaintiff says she continued to assist the deceased with Christmas gift shopping: CB 55 [29].

18. [122]

    In 1979, when the plaintiff married Mr McCann, the deceased walked the plaintiff down the aisle during the wedding ceremony: CB 55 [30].

19. [123]

    In 1982, when the plaintiff separated from Mr McCann, she moved back into live with the deceased at the property with the defendant and Elisha for a 15-month period during which she states she undertook all home duties for him, and the two children shared a bedroom with her: CB 56 [33].

20. [124]

    In about 1983, the plaintiff and her children moved out of the property as it was not practical, there being only two bedrooms. The plaintiff continued to spend time with the deceased at least twice a week for lunch or dinner and he also often took her and the children on different outings on the weekends: CB 56 [34]-[35].

21. [125]

    In about 1986, when the plaintiff was working at AMP Corporate, she suggested the deceased invest some of his superannuation with AMP. She states he did so: CB 56 [36].

22. [126]

    In 1987 or 1988 the deceased spent 3 months living with the plaintiff at her home to recuperate from a kidney operation (first stay): CB 56 [37].

23. [127]

    From about 1987 until 2015, the plaintiff took the deceased to all of his medical appointments including his eye and heart specialists and arranged for him to attend a podiatrist in Five Dock. She states that she was the primary contact for him for all his treating medical practitioners and for RPA: CB 58 [48].

24. [128]

    From about 1987 onwards, the plaintiff held a power of attorney for the deceased: CB 58 [49].

25. [129]

    In May 1988, the plaintiff married Greg and the deceased walked her down the aisle.

26. [130]

    In 1989, the plaintiff and Greg bought a property at Kings Road, Five Dock (Five Dock property).

27. [131]

    In 1990, the plaintiff organised a surprise birthday party at her home in Five Dock for the deceased to celebrate his 60th birthday: CB 55 [31].

28. [132]

    In about 1994, whilst living with her, the deceased joined the Canada Bay Club which was around the corner from the plaintiff’s Five Dock home. From this time for about 20 years (until about 2014) every Thursday night they would go to the club for dinner and join in the raffle draws: CB 57 [42].

29. [133]

    In about 1995, the deceased became a member of the Sydney Harbour Casino (which the plaintiff indicates is now The Star Sydney) and for many years the deceased took her and Aunty Sharon there for lunch and to see shows: CB 57 [42].

30. [134]

    In 1997, the deceased spent 2 months living with the plaintiff at her home to recuperate after the deceased had contracted hepatitis (second stay): CB 57 [45].

31. [135]

    In 2000, the plaintiff organised a birthday party for the deceased at her home on his 70th birthday: CB 55 [31].

32. [136]

    In 2007, the deceased spent 6 or 7 months living with the plaintiff at her home to recuperate after the deceased had open heart surgery (third stay): CB 57 [47].

33. [137]

    In mid-2009, the plaintiff was convicted for perjury. I will address this in more detail below.

34. [138]

    In 2010, the plaintiff organised a birthday party for the deceased to celebrate his 80th birthday at the Canada Bay Club: CB 55 [31].

35. [139]

    Following his 80th birthday and within the period of his early 80s there was a realignment of the deceased’s relationship with the plaintiff and the defendant.

36. [140]

    One aspect of this is that the defendant commenced living with the deceased.

37. [141]

    The defendant had been living with his cousin Rachel for a period of about four years and says that he moved to live with the deceased in the property in 2012: CB 194 [70].

38. [142]

    The plaintiff asserts that the permanent living arrangement for the defendant commenced from 2014. The defendant submits that nothing material turns upon the difference in the evidence: DOS [29].

39. [143]

    In or about 2014, the plaintiff says (contrary to the defendant’s evidence) that the defendant was living with herself and Greg at the Five Dock property.

40. [144]

    The plaintiff indicates that at this time Greg was diagnosed with Stage IV cancer (the cancer being unidentified) and one day at about this time the defendant was intoxicated, and assaulted Greg and she told the defendant he would have to leave otherwise they would call the police. She says following this incident the defendant moved in with the deceased at the property: CB 62.

41. [145]

    The defendant was cross-examined about the timing. He accepted that given his addictions as at 2014, he could not be too certain about when his move occurred: T 111. The plaintiff, on the other hand, referenced the move to the occasion of the defendant’s behaviour impacting upon her then husband Mr McCann and her requesting the defendant to leave the Five Dock property in 2014.

42. [146]

    Each of Aunty Sharon (CB 141 [79]) and Glenn also gave evidence to the effect that the defendant started living with the deceased from about 2014: CB 113 [53].

43. [147]

    I accept the plaintiff’s evidence, Aunty Sharon’s evidence and Glenn’s evidence that the timing of the defendant’s move to live with the deceased was in 2014, or at least closer to 2014 than 2012.

44. [148]

    A second aspect of the realignment is that in or about 2014 the deceased started to be more reluctant to leave the family home.

45. [149]

    The plaintiff asserts that the deceased became frightened to go out at nighttime and that the reason the deceased limited his outings is, she believes, due to the defendant’s struggles with drugs and alcohol: CB 57 [42], [45].

46. [150]

    The plaintiff indicates that from about this time (2014) the deceased ceased to go out at night-time and stopped going to the races every Wednesday and Saturday (which he had been doing since he was 17): CB 57 [44].

47. [151]

    In any event, whatever the precise reason, it seems undisputed that the deceased had such a reluctance to go out and the impression I have is that he spent more time in the company of the defendant and resultingly less time in the company of the plaintiff.

48. [152]

    A third aspect of the realignment is that the defendant says that because of the plaintiff’s conviction for perjury the deceased became somewhat less trusting of the plaintiff. I refer to this more particularly below.

49. [153]

    The defendant’s drug and alcohol issues persisted until about March 2017.

50. [154]

    On 5 January 2018, the deceased was admitted to RPA. He was discharged on 9 January 2018. He presented with symptoms of shaking: CB 584.

51. [155]

    The note of the entry on 5 January 2018 indicates “nephew cognitive decline”: CB 584.

52. [156]

    There is reference in the progress notes (at CB 587) to:

53. [157]

    Further, on 5 January 2018 or thereabouts, the deceased underwent a Mini Mental State Examination on which he scored 26/30: CB 589, 590.

54. [158]

    The progress notes make reference to the deceased’s nephew. There is no suggestion that Glenn or Mark were present with the deceased on his attendances at RPA.

55. [159]

    The notes in particular have a number of references which identify the defendant as a nephew living with the deceased. Without being exhaustive, I note the entries “lives with nephew” (CB 587), “Jason lives with PT” (CB 593) and “Lives with Nephew Jason…”: CB 593.

56. [160]

    I proceed on the basis that the medical note references to a nephew are, unless context suggests otherwise, a reference to the defendant. Mr Davidson SC cross-examined on that basis and Mr Wood SC did not dispute that.

57. [161]

    On 8 January 2018, the progress notes record the following (at CB 593):

58. [162]

    There is a more precise note in the medical records which refers to the deceased: “lives with grandnephew”: CB 603.

59. [163]

    The deceased made the 2018 Will on 17 April 2018. There was some evidence adduced regarding the catalyst for that which I refer to briefly below.

60. [164]

    Leaving aside for the moment the plaintiff’s claims regarding the defendant’s involvement in the making of the Will, it is clear that the Will in its terms represented in financial terms for the plaintiff a significant reduction from the provision for her under the prior Wills.

61. [165]

    On 12 October 2018, the deceased was further admitted to RPA, having fallen several days prior, presenting with shaking of his upper limbs and with mild confusion reported: CB 603. There is specific reference in the notes to “grandnephew reports of having more ataxic gait and increase of confusion”: CB 603.

62. [166]

    On 22 January 2019, the deceased underwent an Addenbrooke’s Cognitive Examination: CB 623. He achieved a score of 66/100: CB 628.

63. [167]

    The notes at the end of the page recording the scoring indicate normative results based on 63 controls of patients aged 52 to 75 and 172 dementia patients aged 46 to 86. Test result scores under 88 and 82 suggest a respective likelihood of, or certainty of, dementia: CB 628.

64. [168]

    On 24 January 2019, the progress notes recall an interview with a trainee specialist prior to the deceased being admitted to Balmain Hospital. The notes indicate (at CB 629):

65. [169]

    It seems that the deceased was admitted to Balmain Hospital for a few days.

66. [170]

    On 27 January 2019, the deceased self-discharged from Balmain Hospital: CB 663.

67. [171]

    On 31 January 2019, there was an Aged Care Assessment Team (ACAT) Assessment: CB 660-675.

68. [172]

    The ACAT notes redact reference to persons other than the deceased: CB 660-675.

69. [173]

    The notes indicate that an unidentified person (name redacted) was spoken to in order to make the appointment, was present at the assessment and that most of the information collected came from that person: CB 662. The notes indicate that “Raymond enjoyed having a chat, but found it difficult to answer questions directly or reliably remember events and timings”: CB 662.

70. [174]

    Despite the name being redacted, having regard to the references on that page and the fact that there is no suggestion on the evidence that any person other than the defendant was living with the deceased at the time, it seems to me that the person who was present with the deceased for the ACAT Assessment and provided information to the assessor was the defendant.

71. [175]

    The ACAT notes indicate that the deceased was admitted to RPA following a period of increased confusion and that his primary health condition was “Dementia in Alzheimer’s disease”: CB 670.

72. [176]

    The notes further indicate that “Raymond experiences dementia. He was diagnosed around two years ago with a rapid decline reported over the past 3–6 months” and “Client has dementia, is confused and disoriented”: CB 671.

73. [177]

    In 2020, the deceased celebrated his 90th birthday at the BUPA Nursing Home during the COVID-19 pandemic. The plaintiff indicates that during that period she visited him as often as she could at least once or twice a week: CB 55 [31].

Credit issues

1. [178]

   Following the conclusion of evidence, I requested counsel to identify for me particular issues regarding credibility which they considered that I needed to resolve.

2. [179]

   Mr Davidson SC submitted that there were no key factual issues which would ultimately swing the case one way or the other: T 140.

3. [180]

   Nonetheless, he submitted that were important factual issues where there were conflicts of evidence: T 140. A particular instance of this which he indicated was whether or not the defendant had told anyone before the 2018 Will was changed of an intention by him to persuade the deceased to leave him the property: T 140, 152.

4. [181]

   I have addressed this issue below. In fact, I reject the defendant’s evidence that he did not have discussions regarding any intention to persuade his uncle to leave him the house.

5. [182]

   However, whilst Mr Davidson SC submitted that I should make findings in respect of that (which I have done) it is far from clear to me why I should give any great or decisive significance to the evidence regarding the defendant’s involvement in encouraging the deceased to make a Will to benefit the defendant.

6. [183]

   Apart from that, there were some submissions in relation to the credit of each of the plaintiff and the defendant which I note below.

7. [184]

   There was quite a degree of evidence given by the plaintiff which related to her upbringing, her marriages, her work and her relationship with the deceased which was not really contentious or disputed.

8. [185]

   Indeed, the defendant does not cavil with much of the plaintiff’s characterisation of her relationship with the deceased after leaving the property for the second time in the early 1980s, to the effect that she maintained a close and loving relationship with the deceased marked by “mutual care, respect and assistance” except to say that (DOS [47]):

   1. (1)

      from 2008, when the plaintiff pleaded guilty to, and served a sentence for, a charge of perjury, the relationship was adversely affected and marked by the deceased expressing some distrust and wariness of the plaintiff; and

   2. (2)

      the plaintiff’s evidence about how often she visited the deceased following his admission to the BUPA Nursing Home in 2020 prior to his death is overstated, based on the defendant’s own visits and observations.

9. [186]

   Mr Wood SC described Julie as a “liar of the worst kind”: DCS [26].

10. [187]

    When I asked Mr Wood SC what of the plaintiff’s evidence he submitted I should not accept, he raised with me a number of matters: T 155.

11. [188]

    Essentially, they related to the plaintiff’s perjury, nondisclosure of financial resources and circumspection regarding the plaintiff’s alleged needs. I address these matters below.

12. [189]

    An issue which was raised in the affidavit evidence and in the pre-trial submissions and DCS related to the fact that the plaintiff had a conviction for perjury: DCS [26]-[29].

13. [190]

    Neither counsel referred me to any particular caselaw to address what approach I should take in relation to assessing the evidence of such a witness.

14. [191]

    Mr Wood SC ultimately indicated that where someone is demonstrated to have lied when they were under an obligation to tell the truth, the Court would be more cautious about accepting their uncorroborated evidence. He essentially indicated that that was a matter of general principle and consistent with the Evidence Act 1995 (NSW) (Evidence Act) provisions regarding cross-examination on credibility: T 155.

15. [192]

    In Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290, Ward CJ in Eq (as her Honour then was) stated the following with respect to the Court’s approach to the credibility of witnesses where their veracity is questioned:

16. [193]

    The decision of the Court of Appeal in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Malco) concerned a worker who had applied for compensation in respect of three injuries said to have been sustained while in employment of the appellant. In the application and at the hearing, the respondent falsely claimed that his wife was wholly dependent upon him and gave deliberately false evidence as to the nature and extent of the disabilities from which he suffered.

17. [194]

    Malco is an extreme example of damage to a witness’ credibility, given that the perjury was demonstrated to have occurred within the trial itself. This, of course, differs from the present case, where the damage to credibility consists of a historical conviction for perjury in unrelated criminal proceedings.

18. [195]

    Nonetheless, I consider that Handley JA’s mandate of “carefully” assessing the witness’ evidence to determine its honesty and reliability is a prudent course in the present circumstances, involving a historical conviction for perjury.

19. [196]

    The conviction for the plaintiff’s perjury arose in the following circumstances.

20. [197]

    The defendant gave evidence regarding the plaintiff’s charge for perjury. His version was to the effect that in 2008, an acquaintance of the plaintiff was charged with possession of stolen goods worth approximately $300,000 and cash in the vicinity of $60,000. He says the plaintiff gave false evidence under oath during the hearing: CB 192 [51], [53].

21. [198]

    The official records certainly revealed there was a charge of perjury. However, there were some material differences in the details.

22. [199]

    According to the COPS records at CB 686:

    1. (1)

       In December 2005, the police executed a search warrant at premises and located a large amount of stolen property estimated to be over $100,000 in value.

    2. (2)

       Subsequently, [the accused] was charged with a number of offences and there was a hearing in September 2007 at the Downing Centre.

    3. (3)

       The plaintiff was called to give evidence for the defence. She made a false statement under oath knowing the statement to be false concerning a matter material to the proceedings, namely that on or about 23 November 2005, a withdrawal she made in the sum of approximately $17,597 from her Westpac account was in the form of a cheque for $10,500 and an amount of cash, of which she handed $7000 in cash to [redacted names].

    4. (4)

       Witness accounts and bank statements proved the evidence was false.

    5. (5)

       On 20 May 2009, the plaintiff was arrested and charged with making a false statement on oath amounting to perjury.

23. [200]

    It appears that on or about 7 July 2009, in a context of offering no evidence, the plaintiff was convicted of perjury (CB 677, 686) and was sentenced to 6 months of weekend detention: CB 192 [53]. I pause to note that the plaintiff was cross-examined briefly on the timing for the conviction. It was suggested to her and she accepted that the evidence that she had given in Jodie’s proceedings was in May 2007 and her conviction was on 20 May 2009: T 62-63.

24. [201]

    The precise timing is not important. Nonetheless, in light of the COPS records I find that the false evidence that she had given in Jodie’s proceedings was in September 2007 and the date of 20 May 2009 was the date of her being charged rather than the date of her conviction.

25. [202]

    The plaintiff gave an explanation both in her affidavit in respect of the charge and conviction for perjury. She stated (at CB 84 [22]):

26. [203]

    The defendant says that he observed that this conviction affected the deceased’s relationship with the plaintiff stating the deceased did not seem as happy to see the plaintiff as he used to be. The defendant says that on more than one occasion, the deceased said to him words to the following effect (at CB 192 [54]):

27. [204]

    Mr Wood SC cross-examined the plaintiff regarding the effect that the conviction for perjury had on her relationship with the deceased. The plaintiff denied that it had any effect on the relationship. Her evidence was as follows (T 63):

28. [205]

    I have scrutinised the plaintiff’s evidence with care.

29. [206]

    I accept that the plaintiff did continue to have dinners with the deceased and go out with him on occasions.

30. [207]

    I am less convinced that there was no breakdown in trust.

31. [208]

    Even on the plaintiff’s own evidence she had conversations with the deceased about a number of topics in which he indicated that he did not believe what she had told him.

32. [209]

    One instance was in 2014 in which she says that Greg and the deceased had not spoken since 2012. She states that the deceased did not remember that, and (in 2014) they had a conversation as follows (at CB 63 [81]):

33. [210]

    Another instance is an occasion in May 2018 in which she says she had become aware that the deceased changed his Will, and she had a conversation with the deceased to the following effect (CB 61 [72]):

34. [211]

    The tenor of the plaintiff’s evidence in respect of these matters was that the explanation for the deceased’s disbelief was that he had a failing memory and was affected by dementia.

35. [212]

    I think the more likely explanation is that the deceased was, as he had mentioned to the defendant (which evidence I accept) more circumspect with and somewhat less trusting of the plaintiff in what she said to him at least in some instances.

36. [213]

    Mr Wood SC submitted that the plaintiff failed to reveal her home contents as an asset: DCS [45]-[47]. None of the plaintiff’s affidavits indicated any item or attributed value to home contents.

37. [214]

    The plaintiff was cross-examined regarding home contents.

38. [215]

    As at 5 October 2020, the plaintiff had building and contents insurance in relation to the Five Dock property.

39. [216]

    That insurance was held with CommInsure covering an amount of $603,658 for building insurance and $201,220 for contents. The total annual premium was $2,316.10: CB 711.

40. [217]

    The plaintiff was cross-examined about contents insurance and indicated that at the moment she had not got around to insuring either house or the contents: T 49.

41. [218]

    When asked about the CommInsure policy that she had organised it was unclear how the figures had been allocated. She indicated that an insured could nominate the amount they wanted although qualified that by indicating that she probably would have gone off the policy from the year before in terms of nominating an amount: T 49-50.

42. [219]

    When asked about her contents she indicated that she disposed of some furniture items (coffee tables, wall units and general decluttering): T 50-51.

43. [220]

    However, when she purchased the Berkeley Vale property, she did purchase some furniture items: T 51.

44. [221]

    When was put to her that she had not mentioned any figure in her initial affidavit in her schedule of assets for home contents she initially asserted “I wasn't aware that I had to” and then quickly responded “I assumed I would have included it in the house”: T 51.

45. [222]

    Her answer in this regard did not particularly impress me. She was further cross-examined regarding this, and it was evident that in the later affidavits the figure that she had put for the Berkeley Vale property was the purchase price of the property without any reference to including within that figure a figure for contents: T 52.

46. [223]

    The plaintiff denied that she had in the witness box opportunistically sought to explain the absence of including any figure in her first affidavit for contents of her house by asserting that she had included it in the value of the Five Dock property and that it was false evidence: T 52.

47. [224]

    However, she could not provide any answer as to why if that was the case, she had changed her practice when setting out her assets in her December 2022 affidavit in allocating the purchase price as being the value of the Berkeley Vale property without any reference to a figure for contents: T 53.

48. [225]

    Ultimately, the effect of the evidence left me with a slight unease regarding the plaintiff’s evidence.

49. [226]

    Self-evidently, the plaintiff has home contents. Yet she did not appear to explain the lack of any mention of contents or a figure for it other than what I have described above.

50. [227]

    Ultimately, it is clear that the plaintiff has some contents of value. Whether the value is in the order of $201,000 or some other figure is unclear.

51. [228]

    Generally, home contents are not usually considered by the Court to be a significant financial resource available to a plaintiff. Of course, each case will depend upon its own facts.

52. [229]

    Here the evidence leaves unclear whether there are any items of particular value that the plaintiff has in the home which might be a saleable resource to her.

53. [230]

    The plaintiff had available to her a financial resource in terms of an inheritance, that had not been disclosed by her in any affidavit evidence prior to trial. Mr Wood SC indicated that the plaintiff had misled the Court in this regard: DCS [49].

54. [231]

    Counsel for the parties asked me to record as an agreed fact that the Court Book had been served on 7 February 2023: T 134.

55. [232]

    The relevance of that is that incorporated within the Court Book was an exemplification of probate attained by the defendant’s solicitors on his behalf on 27 January 2023 in respect of the estate of Joan R: CB 772.

56. [233]

    That exemplification had been obtained on the defendant’s behalf it seems (T 157) for the purposes of demonstrating that the plaintiff had not properly disclosed an inheritance from Joan R’s estate as a financial resource available to the plaintiff.

57. [234]

    The exemplification recorded that probate had been obtained of Joan R’s Will dated 21 August 2015 (slightly in excess of six months after the date of Greg’s death) by which Joan R appointed John Carrington and the plaintiff as executors of her Will: CB 775.

58. [235]

    Joan R gifted the whole of her estate after payment of debts, funeral and testamentary expenses to the plaintiff: CB 775.

59. [236]

    Probate of the Will was obtained on 10 August 2021 (well before the plaintiff’s first affidavit in these proceedings).

60. [237]

    The inventory of property of Joan R’s estate disclosed the following assets:

    1. (1)

       Leasehold of a retirement village unit estimated $200,000; and

    2. (2)

       Westpac account savings $73,279.84.

61. [238]

    Prior to the hearing, the plaintiff herself did not swear any affidavit addressing this inheritance.

62. [239]

    John Carrington’s affidavit indicates that he is the nephew of Joan R and since obtaining probate has on behalf of himself and the plaintiff been attempting to carry out the practical obligations of the estate and managing the estate on a day-to-day basis.

63. [240]

    He refers to dealing with real estate agents in order to sell the leasehold interest in the Strathfield unit noting that it had not been able to be sold at that point.

64. [241]

    The affidavit annexed a statement in relation to fees or charges incurred in respect of the unit.

65. [242]

    The statement was dated 30 January 2023 and indicates that a total of $22,518.91 was then outstanding in respect of fees associated with the Strathfield unit. The statement appears to disclose monthly charges in the order of $865.13.

66. [243]

    The plaintiff was cross-examined in relation to this asset.

67. [244]

    When she was asked whether she took care to ensure that her initial affidavit covered all the relevant assets she agreed with that proposition: T 36. However, as the cross-examination developed from that point, she readily volunteered that she had another potential asset being what she described as “a claim to my late mother-in-law’s estate”: T 36.

68. [245]

    The plaintiff disputed that it was likely to sell for about $250,000: T 36. She indicated that “we” (I take it herself and John Carrington) had tried to sell it for what Joan R had purchased it for namely $235,000: T 37.

69. [246]

    She indicated that it had been on the market since Joan R had died (November 2020) and they had reduced it down to $200,000 and it still cannot be sold. She asserted that there are five units within the complex including Joan R’s unit that cannot be sold: T 37. When asked about the fact that she had not taken steps to include reference to the inheritance in her initial affidavit the plaintiff said as follows (at T 37):

70. [247]

    During submissions, I attempted to clarify with Mr Davidson SC what value ought properly to be attributed to the inheritance.

71. [248]

    He did not cavil with the proposition that I should assume that it was valued at less than $200,000: T 147. He asserted the monthly figures were approximately $900 a month (in fact $865). On a basic rough and ready calculation, assuming that it might take another year for the property to sell and having regard to existing outstanding charges and accumulating charges, Mr Davidson SC did not dispute that the inheritance would have a value in the order of approximately $240,000: T 148.

72. [249]

    Mr Wood SC under the general heading of “misle[ading] the Court about her assets” made particular reference to aspects of the plaintiff’s claim for provision regarding landscaping and a swimming pool: DCS [48].

73. [250]

    Mr Wood SC indicated that I should be very circumspect of the plaintiff’s need for a swimming pool: T 155. He went so far as to indicate that I should find the plaintiff had deliberately referred to the need for a pool to create a claim for financial need without ever having any intention of putting in such a pool: T 155-156.

74. [251]

    He supported that by reference to the fact that the plaintiff had referred to a need for landscaping which he eventually accepted had been done before she moved into the house. Perhaps more significantly, he referred to her description of the size of her backyard and indicated that it was difficult to see how a pool could ever be constructed in the backyard of such a limited size: T 155-156.

75. [252]

    Apart from mention of the prospect of a pool, there was a complete absence of detail regarding whether a pool could in fact be constructed and details as to the costing of that. In light of that lack of detail I have some doubt about how realistic it is for the plaintiff to arrange for a pool to be constructed in her backyard. However, I do not consider that the plaintiff has intentionally created a false need with no intention of ever putting in such a pool.

76. [253]

    Each of Elisha (T 72-74), Glenn (T 75-78), and Aunty Sharon (T 81-85) were cross-examined. My general impression was that each of them gave their evidence in a clear and straightforward way.

77. [254]

    It was put to Elisha relevantly that the conversation she said that she had had with Rachel never took place and that she had made up the entire contents of that conversation. She denied that. Elisha was not otherwise challenged in cross-examination on her credit.

78. [255]

    Mr Wood SC in his DCS submitted that Elisha had an incentive to lie because she was an obvious and natural subject of her mother’s estate and noted that Rachel had called her a liar: DCS [25].

79. [256]

    I do not regard the future possibility that Elisha might receive some benefit from her mother’s estate as being a sound basis to find that she had an incentive to lie. In any event, as noted, I accept her evidence.

80. [257]

    Glenn was asked about his conversations with the deceased in the mid-late 1970s. He accepted that during his lifetime the deceased stepped in and always helped all of the family members. He also accepted that the accommodation needs of members of the deceased’s family changed between the mid-late 1970s when he had had conversations with the deceased: T 78. Glenn was not otherwise challenged as to his conversations with the defendant.

81. [258]

    Aunty Sharon gave evidence as follows (at CB 144 [105]):

82. [259]

    Mr Wood SC challenged this evidence:

83. [260]

    Aunty Sharon had given further evidence regarding a conversation which she had with the deceased which she identified as having taken place in late May 2018. She stated that the deceased said (at CB 145 [107]; T 83-84):

84. [261]

    When asked whether she said anything to the deceased after he made that statement, Aunty Sharon stated that she did not remember: T 84.

85. [262]

    Aunty Sharon agreed that she knew that in May 2018 the defendant had helped to arrange for the Will to be changed and that a solicitor had come and attended at the property on two occasions, and that the deceased had been requesting to change his Will for some months before that: T 84.

86. [263]

    In light of that, when challenged as to whether she understood that the deceased’s statement that he was making to her (as set out above) was wrong, she indicated that (at T 85):

87. [264]

    Aunty Sharon accepted that she did not say to the deceased that what he had told her was incorrect: T 85. She denied that the conversation that she set out in her affidavit did not occur: T 85.

88. [265]

    The evidence is somewhat curious.

89. [266]

    There is other evidence – being a form of a file note – which suggests that Bronwen Ginges (Ms Ginges) attended at the house approximately a week before the Will was signed rather than a day or two before.

90. [267]

    To the extent that the deceased stated that he did not know who the women were or why they had come to the house, that is a strange statement. However, it is immediately followed by a statement that they came back another day with a new Will for the deceased – which is correct.

91. [268]

    Leaving aside the deceased’s particular response, I accept that the conversation deposed to by Aunty Sharon did occur.

92. [269]

    Aunty Sharon was not effectively challenged on any other matter as to credit.

93. [270]

    Mr Davidson SC submitted that Glenn’s evidence was straightforward and was not challenged regarding his conversation with the defendant. He submitted that Aunty Sharon’s evidence was credible and persuasive, and that Elisha’s evidence was highly credible and that I should unreservedly accept evidence of her discussions with the defendant: T 142.

94. [271]

    I essentially agree with Mr Davidson SC’s assessment of their evidence in this regard, and I generally accept their evidence.

95. [272]

    The defendant was cross-examined at T 103-130.

96. [273]

    The defendant was reluctant to accept whether his “problems with alcohol and addictions” caused problems for the plaintiff: T 183-185.

97. [274]

    The defendant says that from 2012 to 2017 he carried out works on the property including: painting the house both internally and externally; installing handrails; repairing the plumbing; replacing the laundry sinks; terracing the backyard; installing drainage and guttering the rear of the house; reroofing the back patio; replacing broken screen doors front and back and also replacing broken and dangerous light fixtures; treating rising damp and black mould issues throughout the house; installing a new washing machine; connecting and programming a new TV; planting the front and back gardens with plants; repairing the boundary fences and facilitating the delivery and filling of five 2-ton skip bins to remove accumulated and hoarded building material stored under the house which was termite infested: CB 194-195 [74].

98. [275]

    The defendant denied that, from the time that he moved into live with the deceased (whether it be 2012 or 2014) whilst he was consuming drugs and alcohol, up until March 2017, he did little work to assist the deceased on the property: T 112.

99. [276]

    It was suggested to the defendant in cross-examination that prior to April 2018, the main work that he did on the property was planting new plants in the front and back yards. He rejected the suggestion: T 112.

100. [277]

     The defendant agreed that until March 2017 whilst he was consuming drugs and alcohol, it was primarily the deceased who was looking after him: T 112.

101. [278]

     I accept that the defendant carried out the work that he describes as having done on the property albeit that in light of my earlier finding the work was in all likelihood carried out from 2014.

102. [279]

     Subject to the following matters, I accept the defendant’s evidence. The defendant had in his affidavit evidence effectively identified his mother’s niece Jodie as an “acquaintance” of his mother: CB 100; T 109-110. Whilst the description is inaccurate, I do not regard the inaccuracy of the description as being of great moment.

103. [280]

     The defendant denied that around 2017 the deceased started to suffer increased cognitive decline: T 112, 117.

104. [281]

     My impression is that the defendant was somewhat reluctant to suggest that the deceased had any form of cognitive decline in 2018-2019 in circumstances where there was material suggestive that the defendant had been an informant to relevant health professionals of cognitive issues affecting the deceased.

105. [282]

     There is some medical material which was included in the Court Book (Exhibit JP-1) would bore upon the deceased’s cognition, including at CB 671.

106. [283]

     At least initially, the defendant did not recall attending RPA on about 5 January 2018 and informing staff at that stage that the deceased had had a year of cognitive decline: T 112-113. It seems to me a distinct possibility that the defendant was the informing party.

107. [284]

     The defendant denied that in or about March 2019, he informed the deceased’s treating doctor that the deceased had been diagnosed about two years previously with dementia: CB 671.

108. [285]

     The defendant disputed being able to recall assisting the deceased with a “myagedcare” home support assessment on 31 January 2019: CB 662, T 115. Nonetheless, it seems to me a distinct possibility that the defendant was present.

109. [286]

     The defendant did not accept prior to the deceased being admitted to RPA in January 2019 that the deceased suffered or had been suffering increased confusion: T 116. Nonetheless, the defendant appeared to accept that towards the time of the deceased’s death he had a period of increased confusion.

110. [287]

     The defendant accepted that at some stage he had informed the plaintiff that the deceased wanted to make a new Will and that the plaintiff had informed him that the deceased already had a Will: T 119-120.

111. [288]

     The defendant says that he became aware, through conversations between the plaintiff and Rachel, that the plaintiff, Aunty Sharon and Glenn were included in a Will of the deceased: T 121.

112. [289]

     However, essentially, that is where agreement on these issues ceased.

113. [290]

     The defendant asserted that when the deceased said he wanted to change his Will that he (the defendant) had no idea what the deceased was proposing to change it from: T 121.

114. [291]

     The defendant denied that:

     1. (1)

        he ever spoke to the deceased about changing his Will so that the defendant could inherit the deceased’s house: T 123;

     2. (2)

        he had ever told any of the “relevant people” who had given evidence in the proceedings that before the Will was executed (17 April 2018) that he had told them that he was going to get the deceased to change his Will: T 123;

     3. (3)

        he ever suggested to the deceased that it was not worth his while continuing to care for the deceased if the deceased did not give him some security that the deceased would leave the defendant the house: T 124; and

     4. (4)

        received a copy of the Will from Ms Ginges’ office in April 2018 and says he was given a copy of the Will by the deceased to show to his mother: T 125.

115. [292]

     Aunty Sharon gave evidence of a conversation with Rachel in or about 2014 to the effect that Rachel had told her that the defendant had spoken with her and said to her that he was going to get the deceased to let him move in with him and get him to change his will so that the defendant would get the deceased’s house: CB 140 [77].

116. [293]

     Rachel, in an affidavit which was read albeit that she was not able to be made available for cross-examination, disputed that she had a conversation with Aunty Sharon to that effect: CB 472 [5].

117. [294]

     The defendant disputed that by early 2018 he knew the contents of the 2003 Will and knew that the deceased had left his estate by that Will entirely to the plaintiff, Aunty Sharon and Glenn: T 121.

118. [295]

     Elisha gives evidence that in about early 2018, she and her partner were carrying out renovations to their home in Belmont and had a telephone conversation with the defendant asking whether he would assist them with her renovations. She places the conversation at being at a point of time when the defendant was unemployed but had recently become sober: CB 101.

119. [296]

     She states that on a day that the defendant came to the house to assist them with the renovations he informed her that (at CB 102 [9b]):

120. [297]

     She says that the conversation went on in which he indicated that there was no way they (in context the plaintiff, Aunty Sharon and Glenn) would continue to permit him to live at the property and that he was:

121. [298]

     The defendant denied having such a conversation with Elisha: T 122-124.

122. [299]

     The defendant denied producing a copy of the Will to Elisha at that time: T 124.

123. [300]

     I reject the defendant’s evidence. I prefer the evidence of Elisha and accept that there was a conversation as she states, at about the time that she states, and that he produced a copy of the Will on that occasion.

124. [301]

     Glenn gave evidence that on one occasion, in about 2017, he went to visit the deceased and that the defendant was at the house and he had a conversation with the defendant in which the defendant said to him (at CB 113 [53]):

125. [302]

     Glenn states the defendant denied that the deceased had spoken to the defendant and the plaintiff about such a proposed change to his Will: CB 113 [53].

126. [303]

     The defendant denies telling Glenn in 2017 that the deceased was going to change his Will and leave the defendant the deceased’s house: T 121-122.

127. [304]

     On that issue, I reject the defendant’s evidence and prefer the evidence of Glenn.

128. [305]

     Elisha gave evidence of a conversation she had with Rachel in early 2018 to the effect that the defendant was trying to get the deceased to change his will: CB 99 [6].

129. [306]

     The evidence was admitted but with a limitation in relation to assertions regarding the deceased’s dementia.

130. [307]

     Rachel, in an affidavit, denied that she had had any such conversation with Elisha: CB 472-473 [6].

131. [308]

     Rachel was not made available for cross-examination. Elisha was cross-examined and I accept her evidence in relation to that account.

132. [309]

     Elisha gave further evidence that in or about late 2018 (at a point of time which could have been no more than two weeks after the date of the deceased’s Will) she was at the plaintiff’s Five Dock property having a conversation with Dylan. She states that at some point the defendant, who was present, came out onto the veranda and reached into the left inside breast pocket of his black jacket and produced a copy of the deceased’s 2018 Will: CB 100 [7].

133. [310]

     Elisha asserts that the defendant told her that he had left the solicitor’s office with the deceased’s new Will and that he had “got the house” and “got him to change his will and leave me pretty much everything”: CB 100 [7].

134. [311]

     The conversation was admitted subject to relevance but also with a limitation under s 136 Evidence Act as to the assertion regarding the deceased’s dementia.

135. [312]

     The defendant denies having any such conversation with Elisha: T 122.

136. [313]

     Nonetheless, I was impressed by Elisha’s evidence, and I accept her evidence that such a conversation did occur.

137. [314]

     The defendant denied that he had any role in the deceased changing his will to leave the house to the defendant, apart from locating a solicitor for him: T 112.

138. [315]

     Ms Febers had a number of addiction and alcohol issues. Those persisted until at least September 2018: T 106. She had a brief relapse for about 24 hours nine months prior to the hearing. However, apart from that occasion, the defendant indicated that she had been clear from both drugs and alcohol: CB 196, T 106-107.

139. [316]

     Ms Febers was briefly cross-examined: T 131.

140. [317]

     She gave her evidence in a straightforward way. She clarified some of her affidavit evidence. She was not effectively challenged on credit. I accept her evidence as clarified by her.

141. [318]

     Ms Febers separated from Mr Jackson in 2014 and divorced him in approximately 2019: CB 131.

142. [319]

     She had a property settlement with Mr Jackson sometime before 2017: CB 132.

143. [320]

     They ran a business, Dickens & Hawthorne, which specialised in “care products”. By that property settlement Mr Jackson retained the matrimonial home at Stanmore and she received a sum in the order of $420,000: CB 132.

144. [321]

     Using those proceeds of about $400,000 she was able to acquire a three-bedroom apartment in Hurlstone Park with borrowings of $450,000. She sold the property in or about late May or early June 2017 for $825,000. There was a six-week settlement with sale completing in or about the first week of July 2017: T 132-133.

145. [322]

     Thus, it seems that Ms Febers netted approximately $375,000 (T 133) which, I note, appears to reflect a loss on what she had purchased the property for.

Plaintiff

1. [323]

   I have recounted earlier the plaintiff’s upbringing and circumstances of her relationship with the deceased up to and including 1972 when the plaintiff moved out of the property.

2. [324]

   The plaintiff says that after she moved out of the property in 1973/74, she continued to maintain a strong relationship with the deceased for the rest of his life and that she would spend time with him on a weekly basis usually having either lunch or dinner together at the property or at her home: CB 55 [27].

3. [325]

   The plaintiff says that the deceased spent several months assisting the plaintiff and Greg after they purchased the Five Dock property with renovations and thereafter continued to assist them with house maintenance works: CB 56 [39].

4. [326]

   The plaintiff indicates that the assistance was reciprocated and that she and Frank assisted the deceased with painting and other renovations at the property with her making new curtains for him every few years for the house and helping him with choosing appliances such as his stove and fridge, and with carpet and other furniture when they needed replacing: CB 57 [40].

5. [327]

   On the whole, I accept the plaintiff had a good and loving relationship with the deceased during her life.

6. [328]

   Nonetheless, I consider, as I have mentioned above, that there was a realignment in the relationship from about mid-2009 – following the plaintiff’s conviction for perjury – until his death (consequent to which the deceased had some degree of caution in trusting the plaintiff).

7. [329]

   Further, by dint of a combination of circumstances including the defendant coming to live with the deceased in 2014, and the deceased spending more time at home, the occasions for the plaintiff to spend time with the deceased lessened.

8. [330]

   The plaintiff’s home loan account statements (CB 857-869) relevantly showed that, as at 1 January 2021, her mortgage was just under $200,000 ($199,726.83): CB 858. There were fortnightly payments of $900 made by the plaintiff to reduce the balance of the mortgage.

9. [331]

   On 20 July 2021, Balmoral Partners Pty Ltd, agents, prepared a Sales Inspection Report for the plaintiff in respect of the Five Dock property: CB 712-713. The document also combined an Auction Agency Agreement: CB 714-723.

10. [332]

    On 22 July 2021, the plaintiff signed the report/agreement.

11. [333]

    The agent’s opinion as to the current estimated selling price of the property was nominated as being $3.2 million-$3.5 million. The agreement noted that the plaintiff had, as principal, instructed the agent to market the property at a price guide of $3.2 million-$3.52 million: CB 713.

12. [334]

    The proposed auction date was 14 August 2021: CB 714. It appears there was some delay in the property being ultimately sold.

13. [335]

    On 2 December 2021, the plaintiff entered into a contract for sale of the Five Dock property for a price of $3.07 million with a deposit to be paid of $307,000, leaving a balance of $2.763 million: CB 724.

14. [336]

    Leo Muggleton, solicitor, acted for the plaintiff on the sale: CB 724.

15. [337]

    The agent’s fee totalled $34,100 with an invoice issued to that effect on the date of exchange of contracts (2 December 2021): CB 725.

16. [338]

    On 30 March 2022, the sale was completed: CB 92. The plaintiff indicates that after payment of the mortgage (said to be approximately $185,000) she received the total sum of $2,884,581.24 (including interest on the deposit) from the sale: CB 92.

17. [339]

    On 30 March 2022, the plaintiff received a payment into that account in the sum of $2,730,969.24 – which would appear to be funds directed to be paid to her on settlement of the sale of the Five Dock property.

18. [340]

    On 30 March 2022, the plaintiff made a payment ($180,351.88) to discharge the mortgage/home loan: CB 869. From that point, the plaintiff was mortgage free.

19. [341]

    On 31 March 2022, the plaintiff received an additional sum of $153,612 paid into the account – which appears to have been the agent (Balmoral Partners) accounting to her for the balance of the deposit monies due to her on sale of the Five Dock property: CB 849.

20. [342]

    On at least three occasions during this period, the plaintiff made some significant payments directly from her CBA Pensioner Security Account (Pensioner Security Account).

21. [343]

    On 25 May 2022, the plaintiff transferred to Elisha, seemingly directly from this account, the sum of $18,000 referable to payment for an operation she was undergoing: CB 851.

22. [344]

    On or about 19 August 2022, the plaintiff exchanged contracts to purchase a new property at Berkeley Vale for $1.43 million: CB 92, 93.

23. [345]

    On 19 August 2022, the plaintiff transferred to the agent for the Berkeley Vale property (Brand Property Sales Trust) an amount of $67,925 referable to the deposit on that property: CB 854.

24. [346]

    The plaintiff states that she ultimately chose to purchase a property in that area in order to live closer to her daughter Elisha and her family, noting that Elisha and her two young children now visit her more regularly: CB 93 [14].

25. [347]

    Further, on 20 September 2022, the plaintiff transferred out of the Pensioner Security Account (but not apparently to her CBA Complete Access Account (Complete Access Account)) the sum of $62,870: CB 855. That payment related to stamp duty for the purchase of the Berkeley Vale property: CB 93 [13].

26. [348]

    On 23 September 2022, the plaintiff completed purchase of the Berkeley Vale property: CB 93 [13].

27. [349]

    The plaintiff withdrew the sum of $1,362,425.21 from the Pensioner Security Account in order to complete that purchase: CB 855.

28. [350]

    The plaintiff's financial circumstances changed in a relatively significant way as between the time the proceedings were commenced and the time of the hearing.

29. [351]

    At the time the proceedings were commenced the plaintiff had the following assets:

    1. (1)

       Five Dock property estimated $2.3 million;

    2. (2)

       2008 Holden HSV estimated $8000;

    3. (3)

       Australian Super superannuation estimated $374,716; and

    4. (4)

       bank account savings estimated $29,964.

30. [352]

    The plaintiff’s liabilities were as follows:

    1. (1)

       CBA mortgage on Five Dock property estimated $191,624; and

    2. (2)

       CBA MasterCard estimated $23,939; and

31. [353]

    On 4 December 2022, the plaintiff affirmed an affidavit updating her financial position.

32. [354]

    The plaintiff’s financial circumstances had by that point changed significantly as a result of selling the Five Dock property and redeploying her assets.

33. [355]

    The plaintiff indicates that in March 2022, she withdrew a total of $30,000 from her superannuation fund to assist her with living expenses: CB 92 [9]. On or about 25 May 2022, the plaintiff paid $18,000 for medical expenses for a gastro band operation for Elisha as it was not covered by Elisha’s medical benefits fund: CB 93 [19].

34. [356]

    The plaintiff’s updated listing of assets and liabilities as at 4 December 2022 was stated be as follows.

35. [357]

    The plaintiff’s assets were:

    1. (1)

       The Berkeley Vale property estimated $1.43 million;

    2. (2)

       2020 Hyundai Tucson estimated $32,000;

    3. (3)

       Australian Super Superannuation estimated $326,707;

    4. (4)

       CBA Pensioner Security Account estimated $1,160,863; and

    5. (5)

       CBA Complete Access Account estimated $12,831.

36. [358]

    The plaintiff's liabilities (CB 95) were stated as being as follows:

    1. (1)

       CBA MasterCard estimated $11,000; and

    2. (2)

       Suncorp Bank Credit Card estimated $300.

37. [359]

    At the time the proceedings were commenced, the plaintiff indicated that her monthly income was nil. In context that appeared to be an indication that she was simply not receiving any salary, as appeared to be confirmed by Mr Davidson SC in submissions: T 150. She indicated that she had no other income: CB 69.

38. [360]

    She stated that she was presently living on savings: CB 59.

39. [361]

    Her expenses as at the time of commencement of the hearing totalled $6993 per month.

40. [362]

    Significant components of that expenditure related to mortgage payments of $1,800 per month and food and entertainment being $2000 per month.

41. [363]

    In the plaintiff’s updated financial position:

    1. (1)

       the plaintiff's monthly income was indicated as still being nil. She noted that she had not been employed since resigning and was still living on her savings: CB 92.

    2. (2)

       the plaintiff's monthly expenses had reduced to a figure of $4,724, the most significant amount was still a sum of $2,000 being for food and entertainment: CB 96.

42. [364]

    None of plaintiff’s various affidavits set out any particular health issues she was suffering whether at the time of the commencement of the proceedings or final hearing.

43. [365]

    In the plaintiff’s initial and final updating affidavit her Medicare expenses were said to be $84 a month being $1008 per annum. Her “healthcare” expenses were said to be $120 per month being $1440 per annum: CB 76, 96.

44. [366]

    Of some significance is that the plaintiff’s initial affidavit does not set out in a clear way her claim for provision.

45. [367]

    What can be gleaned from the affidavit is that:

    1. (1)

       she could not access her superannuation;

    2. (2)

       was considering listing the Five Dock property for sale as she would not be able to continue meeting the mortgage payments: CB 60, 62;

    3. (3)

       the plaintiff intended to use funds she was entitled to from the deceased’s estate to assist her in paying the mortgage if her home was not sold or to otherwise assist her in finding a new place; and

    4. (4)

       to assist her with living and healthcare expenses.

46. [368]

    The plaintiff’s updating affidavit gave details regarding the sale of the Five Dock property and purchase of the Berkeley Vale property: CB 92-93.

47. [369]

    In the updating financial affidavit, the plaintiff does not expressly describe her claim for provision. Nonetheless, the plaintiff indicated the following:

    1. (1)

       she was currently in the process of arranging various renovations and other works to the Berkeley Vale property including constructing a swimming pool, installing pool fencing, landscaping, and sliding doors and she estimated that the construction and landscaping works would cost not less than $108,000;

    2. (2)

       at that stage she had estimated her expenses as she had not yet received an electricity bill and was yet to organise home and contents insurance;

    3. (3)

       she did not currently have private health insurance and was paying for all of her out-of-pocket medical expenses: CB 93.

48. [370]

    The plaintiff indicated that she would provide the Court with a further update of her monthly expenditure closer to the hearing date: CB 93 [17]. That did not occur.

49. [371]

    The plaintiff reaffirmed as stated in her earlier affidavit that she would use any provision from the estate that she receives to assist her with living and healthcare expenses as she ages and for her retirement: CB 93 [21].

50. [372]

    The plaintiff’s affidavit referred to an expected expense in relation to dental work: CB 93 [21]. That evidence was rejected as being inadmissible as to form.

51. [373]

    During the hearing the plaintiff supplemented her evidence regarding the dental work she might require.

52. [374]

    She indicated that she currently had stents on the bottom of her front teeth that needed to be replaced either with implants or a plate. She seemingly has a plate and crowns for her top teeth which are failing, requiring, she says, new dental work: T 33.

53. [375]

    She further stated that she has osteoporosis and whether or not she can have implants will seemingly be dependent upon a bone density test: T 33.

Defendant

1. [376]

   The defendant lived with the deceased in the property for a period of about 15 months in or about 1982-1983 with the plaintiff when the defendant was aged about 9 or 10: CB 56 [33]-[34]; 189 [17]-[18].

2. [377]

   The defendant did not disclose any particularly strong connection with the deceased thereafter until, on his version, about 2012 for what I find was more probably 2014 (CB 189 [17]-192 [55]), other than what might be inferred from his attendance at any family functions.

3. [378]

   In 2014, the defendant moved in to live with the deceased in the property and their relationship grew in significance at that time persisting until the deceased’s death.

4. [379]

   There is considerable evidence in the proceedings directed to the alcohol and drug struggles that the defendant had, which struggles the defendant admits he had.

5. [380]

   The defendant dates his alcohol addictions from about 1989 when he was 16 (CB 190 [26]-[27]) and indicates that these addictions persisted until approximately March 2017: CB 192 [59]; DOS [66].

6. [381]

   In particular, the defendant says that between 2012 and August 2016 he continued to be addicted to alcohol and drugs despite attending Alcoholics Anonymous (AA) meetings from 2014.

7. [382]

   He describes this stage, at least up until 2017, as a very low and dark period of his life. He is grateful for and “will never forget” the help the deceased gave him by his support, encouragement and patience. He recognises that the deceased “endured” the consequences of the defendant’s addictions: CB 194 [72].

8. [383]

   He says, and I accept, that in August 2016 he entered Foundation House, Drug, Alcohol and Gambling Rehabilitation Facility (Foundation House) for the first time and was sober for approximately four months. In Christmas 2016, he had a relapse at his mother’s house and used cocaine and alcohol with relatives.

9. [384]

   In March 2017, he was again readmitted into Foundation House and he states that as a result of this second admission he has been sober and has not used drugs or alcohol since: CB 192 [56]-[59].

10. [385]

    The defendant says that from about this time he attempted to contribute to the deceased’s welfare in return: CB 194 [73]. He indicates he did this in a number of ways by contributing to repair and renovation of the property (CB 194 [74]) and becoming the deceased’s primary carer, attending to all aspects of his personal cleaning and care, arranging and attending with him to all medical appointments and managing and carrying out the day-to-day running and maintenance of the property: CB [195].

11. [386]

    In February 2020, the defendant started a Certificate IV in Community Services at TAFE New South Wales, Ultimo Campus.

12. [387]

    In September 2020, he secured a placement at Foundation House up until November 2020 at which time he successfully completed his certificate.

13. [388]

    Since November 2020, he has begun and been in paid employment at Foundation House: CB 192-193.

14. [389]

    He is currently studying a Diploma of Counselling through the Australian Institute of Professional Counsellors: CB 193.

15. [390]

    The defendant set out details of his financial circumstances in his initial affidavit (CB 197-198) and in his December 2021 affidavit: CB 237-240.

16. [391]

    The defendant is currently employed by Foundation House and has been so employed since November 2020. He is employed on a permanent part-time basis and as such indicates he does not receive a salary, but he is on wages.

17. [392]

    He is currently contracted to a minimum of 12 hours per week and averages approximately 24 hours per week.

18. [393]

    His average weekly net wage is $811.69.

19. [394]

    His taxable income for the 2020-2021 financial year was $34,737 and for the 2021-2022 financial year was $66,651.

20. [395]

    Sharon works at AMBS Ecology & Heritage, and her weekly net income is $888.93.

21. [396]

    The defendant has monthly expenses of his own in the amount of $550 and joint expenses with Sharon in the amount of $2902.

22. [397]

    The defendant has the following assets:

    1. (1)

       CBUS superannuation $10,365.35;

    2. (2)

       CBA account $288;

23. [398]

    He does not have, presently, any liabilities.

24. [399]

    Ms Febers addressed her financial position as at 15 December 2021 (CB 335-336) and updated it as at 7 December 2022: CB 339-341.

25. [400]

    She has monthly expenses totalling $1085.

26. [401]

    She gives a slightly different estimate for her joint monthly expenses with the defendant, her figure being $2600: CB 340.

27. [402]

    She has the following assets:

    1. (1)

       Volkswagen car $3000;

    2. (2)

       St George savings account $42.04;

    3. (3)

       ING Direct Account $10,122.24; and

    4. (4)

       Ing Direct Orange Account $293.22.

28. [403]

    Ms Febers has the following liabilities:

    1. (1)

       St George Visa Card $5302.88; and

    2. (2)

       Ing Direct Visa Card $1412.04.

29. [404]

    Ms Febers has superannuation through ANZ Smart Choice in the sum of $169,479 albeit that she cannot access that superannuation at this time: CB 341.

30. [405]

    Since 1998, the defendant has been living with epilepsy and bipolar disorder. He has been prescribed anticonvulsants and mood stabilisers to treat those conditions.

31. [406]

    In October 2022, the defendant was diagnosed with pulmonary artery scarring. He asserts (and it was not disputed) that this is an ongoing potentially life-threatening condition which will need monitoring for the rest of his life. He is currently under the care of a cardiologist Professor Jo-Dee Lattimore: CB 240.

32. [407]

    Ms Febers has a number of health ailments.

33. [408]

    Due to a non-repairable detached retina, she has permanent blindness in her right eye. In the left eye, she has Scleritis (inflammation of vessels) which is currently being treated by steroid injections. She is a patient of Dr James Leong an ophthalmologist.

34. [409]

    She has a worsening of a bunion on her left foot that can only be corrected by surgery. She is a patient of Dr Michael Symes, an orthopaedic surgeon, and surgery on the bunion is due to take place at some point this year at a cost of $2,500.

35. [410]

    She has bursitis of the right hip which is currently being treated by quarterly steroid injections and physiotherapy. She indicates that surgical correction of her left foot should see this condition correct itself: CB 342.

36. [411]

    The defendant lives with Ms Febers in the property which is his home and he wishes to continue to live there as he states that it provides him with a secure base and a sense of permanency and security.

37. [412]

    Ideally, he would like to keep the property as a permanent family home. He has strong connection to the area, good relationships with his neighbours and memories associated with the property, in particular, memories of the deceased.

38. [413]

    It is a good location for his and Ms Febers’ work.

39. [414]

    The defendant and Ms Febers try to live frugally, and he indicates that they are attempting to save as much as they can.

40. [415]

    The plaintiff asserted that in about late-2017 to early-2018, the defendant was entitled to and had received the rights to stay in a one-bedroom housing commission unit in Northmead and after the deceased signed his Will on 17 April 2018, the defendant gave up his housing commission unit: CB 67 [96]-[98].

41. [416]

    The defendant denied that he had a “Housing Commission Unit”. He stated he had had private “Community Housing Provider” accommodation being a private lease agreement. As a DSP disability support pension recipient, he was put on the housing commission waiting list. He gave this unit up as he could not afford to keep it and moved to live with the deceased in the property: CB 203 [149].

42. [417]

    The defendant and Ms Febers have carried out renovations and improvements to the property and he indicates that it would meet all their needs moving forward.

43. [418]

    Of particular note is that the defendant indicates that he does not have the financial capacity or means to purchase alternative accommodation in the Annandale area nor the financial capacity or means to cover stamp duty, removalist costs and other costs and expenses associated with the purchase of a home.

44. [419]

    He does not have any substantial borrowing capacity at this stage: CB 240.

45. [420]

    He indicates that given the state of his savings and superannuation he does not have any buffer for unseen contingencies and, accordingly, if any major expenses did arise, he would not have the ability to meet these: CB 240.

46. [421]

    The defendant states that if he is able to keep the property, he is hopeful that he and Ms Febers will be able to continue to build up their savings and superannuation so that they can have a more comfortable life moving forward.

47. [422]

    Mr Davidson SC submitted that another relevant consideration supporting the plaintiff’s case was that the defendant played a part in persuading the deceased to change his Will (testamentary involvement submission).

48. [423]

    The submissions were foreshadowed in the POS.

49. [424]

    Mr Davidson SC submitted that the defendant “orchestrated” the 2018 Will, and referred to the defendant “boasting of his plan’s success”: POS [D4.3]-[4.4].

50. [425]

    In particular, Mr Davidson SC refers to evidence suggesting that the deceased intended his estate to be distributed to assist the plaintiff, Aunty Sharon and Glenn with their mortgages and refers to the plaintiff’s evidence that after the deceased made his 2018 Will there was a discussion about the mortgages. He asserted that the deceased was under a mistaken belief that none of the plaintiff, Aunty Sharon nor Glenn had mortgages: POS [D4.6].

51. [426]

    In the plaintiff’s conversation she said she had with the deceased in May 2018, the plaintiff stated to the deceased (at CB 61 [72]):

52. [427]

    Of note is that the plaintiff seemingly at that stage knew or asserted that the deceased had no money in his bank account or perhaps was asserting that there was minimal or negligible money such that there would be no effective provision for the plaintiff.

53. [428]

    Mr Davidson SC referred to the conduct of the defendant in allegedly “[t]hreatening the deceased that he would lose his house or that the defendant would abandon him”: POS [D5.2].

54. [429]

    Mr Davidson SC, accepting that there was no claim to set aside the Will based on undue influence or suspicious circumstances, indicated that the role of the defendant in persuading the deceased to change the Will had relevance “in general terms, in the declining cognitive position of the deceased and the Court’s assessment [of inadequacy of provision]” (asserting that the provision for the plaintiff was nominal or such a small sum that it could almost be put at nought): T 140.

55. [430]

    I expressed to Mr Davidson SC that I could not really understand why on his case it was necessary for him to tie the uncontested fact that minimal (in dollar terms) provision had been made to the plaintiff to issues of the deceased’s cognitive decline and the defendant’s conduct (whether it be in seeking to persuade the deceased to change his Will or the withdrawal of monies from the deceased’s S1 Account): T 140-141.

56. [431]

    Mr Davidson SC referred to s 60(2)(n) and (j) Succession Act.

57. [432]

    To say that the defendant’s conduct is relevant under s 60(2)(n) and that evidence of testamentary intentions is relevant under s 60(2)(j) per se does not provide clarity around what if any weighting ought be given to such matters.

58. [433]

    As I observed during submissions, it is legally permissible for a person to press their testamentary claims upon a deceased and in a sense, it only becomes impermissible at the point where the pressing of claims becomes undue influence. Mr Davidson SC accepted that: T 143.

59. [434]

    Although Mr Davidson SC has asked me to weigh what he claims to be the defendant’s conduct in the involvement of the deceased’s Will making activity (T 143), I am not persuaded that it is a highly material matter to be weighed in the consideration of whether the plaintiff has been left with inadequate provision.

60. [435]

    Mr Davidson SC made submissions regarding the withdrawal of monies from the deceased’s bank account: T 143-145. Ultimately, his submission was as follows (at T 145):

61. [436]

    As I have stated at the outset of these reasons, I accept that the smallness of the plaintiff's entitlement to a share of the balance of the bank accounts (no more than $900) per se is a material factor to take into account in assessing adequacy of provision. However, if that is the ultimate submission then I fail to see why time was taken in the pursuit of a finding that the defendant had inappropriately taken out funds from the deceased’s bank account.

62. [437]

    I reject the submission that the defendant inappropriately took funds from the deceased’s accounts. I have no regard to any such alleged inappropriate conduct in assessing whether the plaintiff has been left with inadequate provision.

Family provision principles

1. [438]

   The Court may make a family provision order if it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the [applicant] has not been made [by either or both of the Will of the deceased or by operation of the rules of intestacy]: s 59(1)(c) Succession Act.

2. [439]

   The Court must be so satisfied at the time when the Court is considering the application: s 59(1)(c) Succession Act.

3. [440]

   For the purposes of Chapter 3 of the Succession Act, in determining whether any order can or should be made in the family provision claim, it has been said that the question of whether the two-stage approach outlined in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 (Singer v Berghouse) applies should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [68]-[69] per White JA (McColl JA at [1] and Payne JA at [4] agreeing).

4. [441]

   A practical way of approaching the matter of whether any order can or should be made in a family provision claim is by considering the matter by reference to issues posed by s 60 to be determined by the Court. Section 60 provides categories of factors or “matters” which may be considered, namely (a) whether the applicant is an eligible person; (b) whether a family provision order should be made, and (c) the nature of any such order: Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 per Basten JA at [17] (Leeming JA agreeing at [94]).

5. [442]

   In relation to applicants whose eligibility arises by reason only of paragraph (d), (e) or (f) of the definition of “eligible person” in s 57, there is a further question as to whether, having regard to all the circumstances of the case (past or present) there are factors which warrant the making of the application: s 59(1)(b) Succession Act.

6. [443]

   In determining whether to make a family provision order and the nature of any such order the Court may have regard to a number of matters enumerated in s 60(2) Succession Act which in any given case may be relevant to an assessment of whether adequate provision has been made.

7. [444]

   In this regard I refer to my comments in Shymko v Lach [2022] NSWSC 1096 (Shymko v Lach) at [759]-[763].

8. [445]

   Significant terms used in the legislation are not defined by the Succession Act. Thus, there are no definitions for any of the individual terms “adequate”, “provision”, etc which appear in s 59(1)(c): e.g. Mallitt v Gow [2022] NSWSC 1012 at [187]-[188] per Hallen J.

9. [446]

   The terms “maintenance” and “advancement” when used in family provision legislation have not been understood as being coextensive with the way those terms are understood in the law of trusts and payments to beneficiaries (JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at 491) but have been given a broader construction.

10. [447]

    Understanding of what is meant by these terms has historically been left to judicial explanation in what is now in NSW over a century of three principal forms of family provision legislation since 1916 (the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act); the Family Provision Act 1982 (NSW) (FP Act) and the Succession Act). Naturally, understanding of these terms has been refined over the years.

11. [448]

    I refer below more particularly to the applicable terminology.

Is the plaintiff an eligible person?

1. [449]

   A niece of a deceased will be eligible to make a family provision claim if within the meaning of that term in s 57(1)(e) of the Act, she was (i) at any particular time, wholly or partly dependent on the deceased person, and (ii) at that particular time or at any other time, a member of the household of which the deceased person was a member.

2. [450]

   What is meant by a person being “a member of the household of which the deceased person was a member” has been addressed in numerous cases – in particular, cases under the FP Act.

3. [451]

   A brief summary of the caselaw on membership of a household was referred to by Hallen J in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [227]-[235].

4. [452]

   For many years in the Equity Division of this Court as a practical matter in assessing whether a person was a “member of a household which the deceased person was a member” assistance was drawn from the comments of McLelland J (as his Honour then was) in Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep) to the effect that the concept of membership of a household connotes “a degree of continuity and permanency of mutual living arrangements”: see e.g. Porthouse v Bridge [2007] NSWSC 686 at [20]-[21] per Bryson AJ (as his Honour then was).

5. [453]

   McLelland J, in describing the requirement in that way, noted that the concept of household had been extensively discussed by Gobbo J in Kingsland v McIndoe [1989] VR 273 and by Young J (as his Honour then was) in Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep).

6. [454]

   Ultimately, as was observed by Young J (as his Honour then was) in Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep) at 47, it is a question of fact.

7. [455]

   The plaintiff lived with the deceased in the property for two periods (totalling approximately 10-11 years). The initial period commenced from June 1964 and ended in or about December 1973 or January 1974: CB 54 [11], 55 [25].

8. [456]

   Leaving aside the second more limited period in which plaintiff lived with the deceased, I am comfortably satisfied that during this initial time there was a household constituting the deceased and his mother, and the plaintiff and Aunty Sharon at least up until the deceased married Joan G in 1969.

9. [457]

   There was, so far as the plaintiff was concerned, a continuity and permanency of mutual living arrangements with other members of the household including the deceased.

10. [458]

    The constitution of the members of the household changed to some degree when Joan G came to live in the household in 1969 or thereabouts following her marriage with the deceased. Nonetheless, again so far as the plaintiff is concerned, there was a continuity and permanency of mutual living arrangements with the deceased and those other members of the household until Joan G’s death and Louise’s death in 1972.

11. [459]

    There has been in recent years some refinement in Court of Appeal decisions bearing upon the question of dependency. I discussed the law regarding dependency in Shymko v Lach at [767]-[787] including the decisions of the Court of Appeal in Chisak v Presot [2022] NSWCA 100 (Chisak v Presot) and Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 (Spata v Tumino). I am bound by Court of Appeal authority and, accordingly, adhere to what I said in Shymko v Lach at [792]-[799].

12. [460]

    Ultimately, whether an applicant was dependent upon the deceased is a question of fact.

13. [461]

    It is clear that one of the commonest forms of dependence may be a financial one “in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays the other things”: Petrohilos v Hunter (1991) 25 NSWLR 343 (Petrohilos v Hunter) at 346 per Hope AJA (Clarke and Sheller JJA agreeing).

14. [462]

    The plaintiff does not give precise evidence as to who within the household was looking after her between the period from July 1964 (when she went to live in the property) up till 1968 (when her mother died). The plaintiff indicated that her mother had gone to be with the plaintiff’s brothers and the plaintiff’s paternal grandfather in Lane Cove.

15. [463]

    In any event, the plaintiff states that from 1968, when she was 11 years of age at the time, she “continued to live with the deceased after [her] mother died. The deceased and [her] grandmother provided everything to continue raising [her] and they also paid for [her] education”: CB 54 [15]-[16].

16. [464]

    Had there been serious dispute regarding dependency, it might have been necessary for me to probe the question somewhat further.

17. [465]

    In light of the above evidence, I am satisfied that the plaintiff was at least partly dependent upon the deceased at least in so far as the plaintiff nominates the deceased and her grandmother as providing what was necessary to raise her and educate her.

18. [466]

    Apart from Mr Wood SC’s concession, I am satisfied as a matter of evidence that the plaintiff is an eligible person.

Are there factors warranting the plaintiff’s claim?

1. [467]

   In the case of a niece who is eligible by reason only of s 57(1)(e), the Court may only make a family provision order if it is satisfied that there are factors which warrant the making of the application: s 59(1)(b).

2. [468]

   As with the law regarding dependency, there has been recent refinement in Court of Appeal decisions as to the question of what constitutes “factors warranting”. I discussed the law regarding factors warranting in Shymko v Lach at [767]-787] including the decisions of the Court of Appeal in Chisak v Presot and Spata v Tumino. I am bound by Court of Appeal authority and, accordingly, adhere to what I said in Shymko v Lach at [792]-[799].

3. [469]

   Essentially, one looks to determine whether there are factors which when added to the facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased, as discussed by McLelland J (as his Honour then was) in Re Fulop (deceased) (1987) 8 NSWLR 679 at 681D.

4. [470]

   In Churton v Christian (1988) 13 NSWLR 241 at 252A-E, in addressing the case of a step-child, Priestley JA (Hope JA agreeing) substantially agreed with the analysis of McLelland J in Re Fulop, although added that:

5. [471]

   In Petrohilos v Hunter, Hope AJA (with whom Clarke and Sheller JJA agreed) at 347C when discussing the issue of factors warranting referred, with apparent approval, to the above-mentioned comments of Priestley JA. Further, his Honour, in addressing the application of the plaintiff, another stepchild, stated at 347G-348A.

6. [472]

   Whilst the determination of the Court as to whether to make a family provision order is made having regard to the facts known to the Court at the time that the order is made (s 59(2)), the consideration of facts or circumstances that may bear upon factors warranting is not limited to circumstances as of the date of the hearing.

7. [473]

   The wording of the statutory provision is that the Court may have regard to all the circumstances of the case (whether past or present) as to whether there are factors which warrant the making of the application: s 59(1)(b).

8. [474]

   There is dispute between the parties as to whether there are factors warranting the making of the plaintiff’s application.

9. [475]

   Mr Davidson SC, in the opening written submissions in the section dealing with the issue factors warranting, identified the following factors as being factors which, in addition to the facts which he indicated made the plaintiff eligible, warranted the making of the application.

10. [476]

    In substance, he indicated that the following facts demonstrated a closeness of relationship to support his equivalent adult daughter submission (POS [D1.2]-[1.7]):

    1. (1)

       the deceased became the plaintiff’s guardian and supported and cared for the plaintiff until adulthood (I take the reference to “guardian” to be de facto guardian, there being no formal evidence of legal guardianship);

    2. (2)

       the deceased walking the plaintiff down the aisle in her wedding ceremonies in 1979 and 1988;

    3. (3)

       the regularity of time the deceased and the plaintiff spent with each other both on special occasions and throughout each week;

    4. (4)

       the support that the plaintiff provided to the deceased during periods of ill-health including supporting him during his recovery from kidney operations, after he contracted hepatitis and after he suffered a heart attack as well as continuing to assist the deceased with all of his medical appointments;

    5. (5)

       the fact that the deceased provided support to the plaintiff when she purchased a home with her then husband in 1979 assisting them with renovation and ongoing maintenance work which support was reciprocated by the plaintiff who assisted the deceased with maintenance of the property; and

    6. (6)

       the appointment in 1987 of the plaintiff as power of attorney for the deceased.

11. [477]

    I pause to note that the assistance that the plaintiff provided to the deceased in respect of taking him to medical appointments and being the primary contact for him for all his treating medical practitioners and for RPA on the plaintiff’s own evidence either ceased or substantially diminished in 2015: CB 58 [48].

12. [478]

    Mr Wood SC submits that there are no factors warranting the plaintiff’s application (DCS [31]-[32], [42]) because:

    1. (1)

       the plaintiff is an adult niece of independent means and not a natural object of the deceased’s testamentary intentions nor a person in respect of which the deceased could be said to owe a moral duty: DOS [14], DCS [31];

    2. (2)

       “the community would not impose upon the deceased any duty to make provision for a niece who is now a mature adult with ample capacity to support, and provide for, herself”: citing Yee v Yee [2017] NSWCA 305 at [173] per McColl JA (Gleeson and Simpson JJA agreeing): CB 27 DOS [16];

    3. (3)

       the first stay, the second stay and the third stay are best characterised as temporary periods of recuperation, as opposed to periods during which the deceased became a member of the plaintiff's household: DOS [43], DCS [41] – (I did not understand Mr Davidson SC to submit otherwise);

    4. (4)

       for the majority of the period in which the plaintiff resided at the property with the deceased as a child/teenager, she was only partly dependent on him, being also dependent upon her grandmother: DOS [45c];

    5. (5)

       the total duration of the time that the plaintiff resided with the deceased at the property was about 10 years, and the majority of that time expired many decades ago when the plaintiff turned about 16 (in fact about 17-18 – the period being from June 1964 to about December 1973/January 1974): DOS [45a,b];

    6. (6)

       there was no further sharing of a household or ongoing dependence for more than 37 years prior to the deceased’s death: DOS [45d,e].

13. [479]

    I have referred to Mr Davidson SC’s equivalent adult daughter submission.

14. [480]

    It is a little curious that in the plaintiff’s affidavit evidence there was no express statement by the plaintiff to the effect that she regarded the deceased as a father.

15. [481]

    However, during cross-examination on the issue of perjury nonetheless the plaintiff stated, somewhat non-responsively, as follows (T 63):

16. [482]

    Whilst I separately comment upon how the deceased reacted to the plaintiff’s conviction for perjury, I accept that at least during her childhood from age about 7 to 17, the position of the plaintiff was akin to that of a child of the deceased.

17. [483]

    Mr Wood SC submitted that there is no evidence that the plaintiff was dependent upon the deceased during the first stay, the second stay and the third stay. He submits that the deceased was dependent upon her and not vice versa.

18. [484]

    I accept that is a reasonable characterisation. The evidence of the deceased’s stay with the plaintiff on those occasions does not provide any material support for the plaintiff’s dependency on the deceased. However, it does provide evidence of the plaintiff’s contribution to the deceased’s welfare.

19. [485]

    The plaintiff indicates that during the first stay she provided the deceased with all his meals, attended to his laundry, helped him bathe and changed his dressings on a daily basis and administered his daily medication.

20. [486]

    In the second stay, the plaintiff likewise provided meals, administered medication and sterilised items (I infer to ensure the deceased did not contract infection). Also, in the third stay, the plaintiff apart from providing meals, doing laundry and ironing, bathing and administering medication and changing dressings, sat together with the deceased in front of her combustion heater and listened to his favourite music and conversed with him about their lives.

21. [487]

    Apart from those circumstances, a clear indication of whether an applicant is or might be described as a natural object of testamentary recognition involves looking at the terms of the Will or Wills that the relevant deceased person has made.

22. [488]

    Each of the 1987 Will and the 2003 Will made substantial provision for the plaintiff.

23. [489]

    The 1987 Will left the property together with all his household chattels to the plaintiff and one third of residue.

24. [490]

    The 2003 Will left the plaintiff 50% of residue.

25. [491]

    The 2018 Will, although making what Mr Davidson describes as nominal provision for the plaintiff, nonetheless names the plaintiff as a beneficiary thus providing strong support for characterising her as a natural object of testamentary recognition.

26. [492]

    The scheme of testamentary provision running through those three Wills is, in my estimation, a strong factor suggesting factors warranting.

27. [493]

    There is other very significant material indicating a close relationship between the plaintiff and the deceased for many years and up until the time of her death, with a couple of qualifications that I have mentioned above in the events which I refer to as a form of realignment of the deceased’s relationships.

28. [494]

    First, as I have noted, from about 2014, the deceased spent more time in the company of the defendant and resultingly less time in the company of the plaintiff. Mr Davidson SC acknowledged the lessening of time spent although at least on one view he places this down to what he describes as the deceased’s declining mental cognition: POS [D1.4].

29. [495]

    Secondly, with respect to the realignment, the defendant says that because of the plaintiff’s conviction for perjury the deceased became somewhat less trusting of the plaintiff. I have addressed this above.

30. [496]

    Overall, I accept as noted below that there are aspects of this case in which the plaintiff would be regarded as a natural object of testamentary recognition.

31. [497]

    I accept there are factors which warrant the making of the plaintiff’s application.

Is the provision under the Will inadequate for the plaintiff’s maintenance and advancement in life?

1. [498]

   The question as to whether an applicant has been left with inadequate provision for her proper maintenance, education or advancement in life involves a finding of fact, albeit one that is, in light of the substantive character of the matter to be decided, evaluative. It does not involve an exercise of discretion: see Strang v Steiner [2019] NSWCA 143 at [76] per Macfarlan JA and at [131] per White JA; Georgopoulos v Tsiokanis [2022] NSWSC 563 at [256] per Hallen J.

2. [499]

   I addressed and adhere to what I stated in Shymko v Lach regarding a number of the principles which are relevant to considering the question of adequacy of provision as follows:

3. [500]

   Mr Davidson SC’s opening written submissions, albeit in the section dealing with the issue of factors warranting, addressed the financial needs and resources of the plaintiff, the testamentary intentions of the deceased and the conduct of the defendant.

4. [501]

   I will deal with the submissions regarding the plaintiff’s resources and claim for provision below.

5. [502]

   Mr Davidson SC referred to the fact that the deceased’s 1987 Will and 2003 Will reflected that the plaintiff was the major beneficiary of the deceased’s estate: POS [D4.2].

6. [503]

   I have addressed Mr Davidson SC’s submissions regarding the defendant’s involvement in the deceased’s 2018 Will above.

7. [504]

   Mr Davidson SC, in particular, referred to the conduct of the defendant regarding his drug and alcohol use: POS [D5.2].

8. [505]

   Mr Davidson SC submitted that the claim of the defendant to retain the property as a great-nephew (or even if he were an adult child) is not something so vital as to outweigh what he submitted were the proper, albeit modest, claims of the plaintiff: T 139-140.

9. [506]

   Mr Wood SC emphasised that the plaintiff is an eligible person at the “outskirts” of that legislative term: DCS [7].

10. [507]

    Mr Wood SC submitted that whilst the plaintiff no longer derives an income from employment, there is no evidence to suggest that she does not have the means to meet her day-to-day expenses and also to cover additional items of discretionary spending including “luxuries” that cannot be characterised as necessities in life: DOS [53]; DCS [33].

11. [508]

    He submits that the plaintiff is not a person with any financial need for provision and that her evidence betrays that she is unable to articulate any such need: DOS [54].

12. [509]

    In this regard, Mr Wood SC refers to the comments of Gaudron J in Singer v Berghouse at 227 that financial need refers to an inability to satisfy financial requirements from the applicant’s own resources.

13. [510]

    However, her Honour’s comments as I read them were directed more generally to the question of determining adequacy of provision which her Honour indicated is to be determined in light of all the circumstances of the case and thus noted that it followed at least as a matter of law, that the issue goes beyond the question of whether an applicant has needs and requirements that cannot be met from his or her own resources: at 227.

14. [511]

    Mr Wood SC referred to the fact that the plaintiff had nominal liabilities (referencing the credit card debts). He argued that her only quantifiable need - the funds for renovations in the sum of $108,000 - could hardly be characterised as a need as opposed to a want or a luxury. He submitted that the plaintiff is able to meet all of her claimed needs for “healthcare expenses” or “retirement” out of her existing financial resources: DOS [55]-[57].

15. [512]

    In substance, Mr Wood SC submitted that the defendant had a superior claim to retain the benefits given to him by the 2018 Will such that no provision should be made for the plaintiff: DOS [58].

16. [513]

    Mr Wood SC submitted (DOS [61]-[73], DCS [19], [54]) that the claim of the defendant was urgent and undeniable in circumstances in which the defendant:

    1. (1)

       had a particularly close and interdependent relationship with the deceased marked by trauma and struggle;

    2. (2)

       had an objectively distressing childhood, and lost a child himself and did not presently maintain a relationship with two of his three surviving children;

    3. (3)

       had a fractured relationship with the plaintiff in which the plaintiff had not provided him with support; and

    4. (4)

       had struggles with alcohol and drugs but nonetheless had been able to turn his life around.

17. [514]

    Mr Wood SC emphasised the fact that since early 2017 there had been a role reversal in terms of care and support as between the deceased and the defendant in which the defendant became the deceased’s primary carer: DOS [74]-[77], DCS [55].

18. [515]

    Mr Wood SC also pointed to the fact that the defendant and Ms Febers by dint of their financial circumstances (which I have referred to above):

    1. (1)

       are required to live frugally; and

    2. (2)

       have no security associated with a strong asset base, and that the challenge to the permanency of their accommodation (being the property) gives rise to a risk of financial instability in that their capacity to meet their needs wholly presupposes their security of accommodation in the property: DOS [85], [90]; DCS [58].

19. [516]

    Mr Wood SC also indicated that if the property has be sold the defendant and Ms Febers will be setback indefinitely and lose any meaningful capacity to move forward in their lives: DCS [56].

20. [517]

    Mr Wood SC, like Mr Davidson SC, also referred to the deceased’s intentions and financial freedom but submitted that the 2008 Will and the deceased’s comments to the plaintiff are consistent with the fact that the deceased had a history of changing his Will to look after and support family members in need: DOS [96], DCS [14]. He noted that the plaintiff had accepted, in substance, in cross examination that the deceased changed his Will to support family members: T 40.50, 41.5.

21. [518]

    In particular, he indicated that after the defendant turned his life around the deceased made a deliberate decision to look after him by granting him the house: DCS [14].

22. [519]

    Ultimately, Mr Wood SC submitted that the plaintiff is an objectively wealthy, independent adult niece and the deceased had no particular accruing obligation to her as distinct from his primary obligation to the defendant: DOS [105].

23. [520]

    Mr Wood SC submitted that it had not been demonstrated that the provision made for the plaintiff by the Will is in all the circumstances inadequate and not proper: DOS [17]-[18], DCS [34]. Rather, he submits that no additional provision should be ordered in favour of the plaintiff as any such provision would “fundamentally threaten the integrity of the testamentary disposition in favour of the Defendant, which the deceased wanted” and submits that the majority of the estate should be preserved for the benefit of the defendant: DOS [24]-[26], DCS [37].

24. [521]

    I propose to deal with some particular submissions raised by Mr Davidson SC first before addressing submissions regarding the plaintiff’s resources and claim for provision and the remaining submissions on the question of adequacy of provision.

25. [522]

    Mr Davidson SC principally put forward the equivalent adult daughter submission to persuade the Court to find that the threshold of establishing factors warranting had been passed: T 138. However, he also referred to the fact that the plaintiff’s relationship with the deceased was like a daughter in relation to the question of adequacy of provision: POS [E4].

26. [523]

    To say that the plaintiff was the equivalent of an adult daughter begs the question of whether there is any material difference between the deceased being a de jure parent (biological or adoptive father of the child) or a de facto parent.

27. [524]

    I accept that by force of the legislation, and to a degree as confirmed by caselaw, that the bare fact of paternity is “of very great importance” or at least “of importance” in considering the question of adequacy of provision and any order: see e.g. Gorton v Parkes (1989) 17 NSWLR 1 (Gorton v Parkes) at 10A per Bryson J.

28. [525]

    However, it must be remembered that in this case the deceased did not formally adopt the plaintiff. The deceased thus did not, at least in an express way, take on the obligations towards the plaintiff that arise from being the legal biological or adoptive parent of a child.

29. [526]

    The Court of Appeal has in the realm of family provision cases emphasised that the distinction between de jure and de facto legal obligations is significant. In particular, in Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 (Marshall v Carruthers), Hodgson JA stated at [63] as follows:

30. [527]

    Young CJ in Eq, who broadly agreed with the reasons of Hodgson JA, stated at [73]:

31. [528]

    Palmer J at [78] agreed with the reasons of Hodgson JA and concurred with the observations of Young CJ in Eq.

32. [529]

    Ultimately, each case is facts specific.

33. [530]

    To say that someone is the equivalent of an “adult daughter” does not in some quantifiable way benchmark what the status of being the daughter or an equivalent daughter entitles the applicant to in assessing adequacy of provision and in determining the amount of any order.

34. [531]

    Marshall v Carruthers reinforces the notion that there are no specific benchmarks and broad guidelines regarding forms of provision, whilst providing some assistance to Judges in dealing with family provision cases over the years, cannot apply to mandate a particular outcome for the very reason that each case is fact specific: [64]-[65].

35. [532]

    Indeed, Bryson J, who made the observation regarding paternity in Gorton v Parkes as noted above, later, as a Judge of the Court of Appeal in Bladwell v Davis [2004] NSWCA 170 (Bladwell v Davis) made a similar point.

36. [533]

    His Honour (with whom Ipp JA and Stein AJA agreed) observed that there have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to the claims of widows: Bladwell v Davis at [12].

37. [534]

    After referring to a degree of caselaw, his Honour expressed the (respectful) view that there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstances of each case of this statutory provision as established by the approach in Singer v Berghouse.

38. [535]

    His Honour noted that preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the relevant legislation (in that case the FP Act): at [18].

39. [536]

    Little needs to be said regarding the submission to the effect that adequacy of provision can transcend financial needs. In Shymko v Lach (see above) I referred to the comments of Basten JA in Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317.

40. [537]

    Mr Davidson SC cited Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 (Steinmetz v Shannon) at [32] per White JA and at [122]-[132] per Brereton JA: T 140.

41. [538]

    Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life.

42. [539]

    Thus, expressing a preference for a proposed expenditure, if the preference is soundly based, informs what is “proper” maintenance (or advancement) for an applicant: Steinmetz v Shannon at [32] per White JA citing Sgro v Thompson at [74].

43. [540]

    Brereton JA noted in summary in Steinmetz v Shannon at [132]:

44. [541]

    Their Honours’ comments are helpful reminders of the nature of the jurisdiction. Obviously, the precise interaction between the financial resources and needs or claim for provision of an applicant as a factual matter and the ultimate assessment of whether the applicant has been left with inadequate provision will vary in any given case.

45. [542]

    What I have described as the meagre Will entitlement submission from the outset of the hearing became somewhat of a vexed issue.

46. [543]

    It is entirely undisputed that the amount of the benefit which the plaintiff received under the Will, if one has regard to the inventory of property of the deceased estate, is, without taking into account any expenses of the estate, a figure less than $900.

47. [544]

    Indeed, the defendant concedes that the provision for the plaintiff under the Will is modest: DOS [17].

48. [545]

    That is something that clearly the Court would take into account in assessing the plaintiff's claim. I have no difficulty with that proposition.

49. [546]

    The difficulty arises by reason of the fact that Mr Davidson SC was not content simply to rely upon the meagre value of that entitlement per se but sought on the hearing to make out a case that I should take into account that in some way the reason meagre funds were left to the plaintiff was not of the deceased’s own doing but linked to the unauthorised withdrawal submission to the effect that the defendant had systematically taken cash from the deceased’s bank accounts.

50. [547]

    Considerable time was spent on the morning of the first day of the hearing and other times during the second day of the hearing exploring with Mr Davidson SC precisely what finding he was asking me to make regarding the so-called systematic deduction from the deceased’s accounts.

51. [548]

    Mr Davidson SC handed up a schedule which I marked as “MFI-1” which recorded deductions from the deceased’s S70 Account over the period from 2 January 2014 to 25 December 2019.

52. [549]

    The figures on the schedule for that almost six-year period totalled $187,740 (2014 $24,100; 2015 $33,190; 2016 $18,440; 2017 $37,100; 2018 $41,000 and 2019 $33,210).

53. [550]

    Further, connected to the meagre Will entitlement submission was a submission to the effect that the deceased wanted to make sure that the plaintiff was “taken care of”.

54. [551]

    In particular, to attempt to make good that submission Mr Davidson SC tendered a file note from Ms Ginges, solicitor, dated 10 April 2018 which became Exhibit P-1: T 92.

55. [552]

    The file note is in the following form:

56. [553]

    There was an objection to tender of the document on the basis that it did not fall within the business records exception within s 69(2) Evidence Act: T 89-92.

57. [554]

    Ultimately, I permitted the tender on the basis that the representation within the document of Ms Ginges’ was, I infer, made on the basis of information directly or indirectly supplied to her by the deceased. That was on the basis that he was the person who had personal knowledge of what he had in mind in the assertion that the plaintiff would be “taken care of”: T 92.

58. [555]

    Beyond the reference to making sure that the plaintiff was “taken care of”, precisely what Mr Davidson SC sought to draw from the file note remained elusive.

59. [556]

    He did not identify except by reference to returning to the unauthorised withdrawal submission what content should be ascribed to the notion of making sure that the plaintiff was “taken care of”.

60. [557]

    Mr Davidson SC initially sought to identify, over a six-year period, withdrawals that had been made from the deceased’s S70 Account with the purpose of identifying what monies (he said) should have been in the deceased’s account as the date of his death for the purposes of quantifying – as the date of death – the benefit the deceased supposedly “intended” for the plaintiff.

61. [558]

    To the extent at that point in the hearing that Mr Davidson SC sought to have me infer that the deceased intended that the sum of $187,740 of funds should have been in his bank account as at the end of 2019 or even at that the date of his death, I reject that submission.

62. [559]

    Ultimately, from what I note below, Mr Davidson SC sought to persuade me that the questions as to adequacy of provision and the amount (if any) of an order should be determined by reference to the fact that a more limited amount of money had been withdrawn by the defendant from the deceased’s bank account which was not used for the benefit of the deceased.

63. [560]

    Mr Davidson SC suggested that a figure of approximately $130,000 was “probably now too large” and “without having done the maths” was of that order or under it: T 97, 99.

64. [561]

    The submission to my mind is flawed in a number of respects. I note:

    1. (1)

       The content of “taken care of” is very arguably identified simply by reference to the provisions of the Will that the deceased made seven days after the attendance of Ms Ginges upon the deceased, which Will gave the plaintiff a one-third share of monies (whatever amount they might happen to be) in the deceased’s bank accounts as of the date of his death.

    2. (2)

       If a deceased makes a Will leaving the contents of bank accounts to a number of persons, it is clear that the content of the gift is inherently uncertain prior to death because the balance of a bank account may fluctuate up to that point for numerous reasons.

65. [562]

    To even get remotely close to making good a submission that $130,000 (or thereabouts) was impermissibly withdrawn it would have been necessary to adduce evidence or otherwise providing some rational basis for establishing or inferring:

    1. (1)

       the defendant rather than the deceased made the withdrawals;

    2. (2)

       what the monies were drawn were used for; and

    3. (3)

       the defendant did not use the monies withdrawn for expenses on behalf of the deceased or for his benefit or in any event in some way other than in accordance with the deceased’s wishes.

66. [563]

    The utility of that exercise appeared to me to be marginally relevant.

67. [564]

    There are a number of reasons for that. They include (without being exhaustive) the following:

    1. (1)

       It is not obvious to me that it is appropriate to consider any withdrawals from the account prior to the date that the deceased made his last Will on 17 April 2018.

    2. (2)

       Monies paid out of the deceased’s account prior to the date of the Will, without anything further, can hardly be used per se as a basis for inferring the quantum of benefit which the deceased intended beneficiaries to share on his death.

    3. (3)

       The balance of the deceased’s S1 Account as of the date of the Will was $5,118.30. Two days later, on 19 April 2018, the deceased received a pension payment of $871.55 which increased the balance of the account to $5,989.85: CB 517. Even if one uses the latter figure, at that point, had the deceased died, the balance in that bank account coupled with the then balance of his S70 Account, being $1,329.56 (CB 531), totalled $7,319.41. The benefit under clause 7(c) of the deceased’s 2018 Will to the plaintiff, Aunty Sharon and Glenn would have been $2,439.80 each at best assuming the proceeds of the bank accounts did not bear any burden of any other debts, funeral or testamentary expenses of the deceased.

    4. (4)

       There was no specific evidence adduced in chief as to who withdrew the monies from the deceased’s bank account and what the monies were used for.

    5. (5)

       In particular, there was no specific evidence identifying what amount could reasonably have been expected to have been the total balance of the deceased’s bank accounts as of the date of his death as being an amount either not used for the deceased’s expenses or otherwise for the deceased’s benefit or, more particularly, used otherwise than with the knowledge and consent of the deceased.

68. [565]

    In particular, I am mindful that in this regard there are cases where a purported interested party or beneficiary seeks to have restored to the estate of a deceased monies taken or removed from an elderly person’s bank account allegedly without authority.

69. [566]

    Some such cases fail because there is evidence that the deceased gave the allegedly offending party a general authorisation to use the money and account for their own benefit: e.g. Dulhunty v Dewhirst [2005] NSWSC 350.

70. [567]

    Thus, to lay the foundation for the unauthorised withdrawal submission, Mr Davidson SC would need to embark upon cross-examination of the defendant, potentially putting to him an assertion of some form of improper conduct giving rise to unauthorised withdrawals.

71. [568]

    The transcript will record that on the first day of the hearing, I was reluctant to permit Mr Davidson SC to undertake that exercise in circumstances in which there had been no attempt made to set aside the 2018 Will or to amend the plaintiff’s claim in the proceedings to seek specific relief in relation to the withdrawals.

72. [569]

    I was further concerned that it might not be fair to the defendant to allow an issue to be ventilated on the hearing alleging inappropriate conduct by the defendant in respect of the withdrawals without the defendant having fair notice of such an issue and an opportunity to adduce evidence to explain the withdrawals.

73. [570]

    Mr Davidson SC patiently sought to demonstrate that the alleged unauthorised withdrawals were a live issue by reference to an assertion in correspondence from his instructing solicitors on 22 April 2022 to the defendant’s solicitors (which letter became Exhibit P-2) that an alleged failure by the defendant to produce documents gave rise to inferences which the plaintiff would ask the Court to draw including that the defendant:

    1. (1)

       exercised undue financial control and influence over the deceased including by way of utilising the deceased’s funds for his own expenses without authority: T 95; and

    2. (2)

       wasted the assets of the deceased: T 95.

74. [571]

    Mr Davidson SC further sought to tender a document from his instructing solicitors to the defendant’s solicitors dated 7 February 2023 which had been partly redacted by reason of the fact that it was a document that had been part of without prejudice correspondence.

75. [572]

    Mr Wood SC objected to the tender on the basis that it should be excluded pursuant to s 131 Evidence Act as being a document prepared in connection with an attempt to negotiate settlement of a dispute.

76. [573]

    There was some debate over the admissibility of the letter: T 92-101.

77. [574]

    In the midst of that debate, Mr Davidson SC, bearing in mind comments that I had made about the relevance or utility of withdrawals from the account prior to the date of the Will, eventually proposed to seek to limit whatever claim he was making in relation to cash withdrawals in a way so as to commence from a later date, namely March 2017.

78. [575]

    Mr Davidson SC selected that date as being relevant based on the timing from which he would submit that the defendant’s alcohol and drug addictions were overcome: T 95-96.

79. [576]

    Ultimately, following submissions and an indication from Mr Wood SC that he might be able to address the matter by means of a relevance submission (T 100), I indicated to Mr Davidson SC that I would mark the tendered letter MFI-1 (T 101), but nonetheless give him an opportunity to cross-examine the defendant with respect to withdrawals from the deceased’s S1 Account and the use of such funds: T 101.

80. [577]

    Mr Davidson SC availed himself of the opportunity to cross-examine the defendant on withdrawals from the account: T 125. Mr Wood SC made a general objection to the evidence on the ground of relevance: T 125.

81. [578]

    The cross-examination proceeded.

82. [579]

    The defendant gave evidence that:

    1. (1)

       from about March 2017, when the deceased was declining at least in relation to his physical health, and the point of time at which the defendant had been able to deal with his own drug and alcohol issues, the deceased would very rarely leave the property: T 126;

    2. (2)

       by August 2017, the deceased even more rarely left the house unless accompanied: T 126;

    3. (3)

       in respect of five withdrawals from the deceased’s S1 Account between 9 and 17 August 2017 (CB 513) totalling $3,210 it was probable that he (the defendant) was the person who attended to make those withdrawals using the deceased’s EFTPOS card: T 126;

    4. (4)

       those sums were used on house renovations including a lot of painting, a lot of things that were replaced (including a washing machine), renovation of the laundry in the bathroom, installation of handrails, tiling and electrical work to make the house more liveable and that he (the defendant) did most of the work: T 126;

    5. (5)

       sometimes the deceased was with the defendant when some of the withdrawals were made, but not on a daily basis: T 127;

    6. (6)

       there were three withdrawals made on 9 July 2018 ($1,000), 13 July 2018 ($800) and 17 July 2018 ($1,000) which the defendant speculated could be referable to renovations although he indicated that the deceased liked to keep money on him: T 127;

    7. (7)

       he (the defendant) although asked to produce receipts for works done does not have any such receipts: T 127-128;

    8. (8)

       all cash withdrawals the defendant made from the deceased’s account were solely for the deceased’s purposes with his consent: T 127;

    9. (9)

       contrary to Mr Davidson SC’s assertions, with the inability of the deceased to go out, his normal living expenses actually went up (rather than being lower) than before his physical health declined in 2017: T 128;

    10. (10)

        an incidence of increased expenses was that the deceased had incontinence and they were buying adult nappies for him and the defendant was replacing blankets, pillows, clothing and underwear and a lot of things on a regular basis: T 128; and

    11. (11)

        the defendant did not know that he had to keep receipts for such expenditure: T 128.

83. [580]

    The entries for the deductions of amounts of the three withdrawals made on 9 July 2018, 13 July 2018 and 17 July 2018 are not entirely clear as to the ATM location.

84. [581]

    The withdrawal of the $800 amount appears to be at an ATM at Annandale. The other two withdrawals have a reference “LE”. There is a further entry just immediately below those entries being another ATM withdrawal on 24 July 2018 in the sum of $1000. However, that entry appears to be distinctly referable to an ATM at Leichardt: CB 518.

85. [582]

    There is evidence, which I referred to, that the deceased in 2018 caught a bus to Leichardt. Such evidence is consistent with the notion that the deceased was still, at that stage, able to travel and that he went to a suburb which was at least one of the suburb locations in which withdrawals were made from an ATM.

86. [583]

    It was further evidenced in the medical records that the defendant had assisted the deceased with renovations.

87. [584]

    Overall, I accept the defendant’s evidence as to the withdrawals of monies from the deceased’s S1 Account.

88. [585]

    I am not persuaded that it has been demonstrated that the defendant systematically withdrew monies without the deceased’s consent, and I reject the unauthorised withdrawal submission.

89. [586]

    Mr Davidson SC sought to support his submission in relation to persuading me not to be overwhelmed by the deceased’s testamentary decision to give the provision he gave to the plaintiff by reference to the comments of Parker J in Scott v Scott [2021] NSWSC 1619 at [343]-[348] as follows:

90. [587]

    The passages referred to above from Sgro v Thompson and Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 relate to the provision a deceased makes in a Will.

91. [588]

    Parker J’s comments at [344]-[348] relate not per se to the provision in a will but rather to what is described as a testamentary statement (see s100 Succession Act).

92. [589]

    Quite often Wills either embody reasons for why a deceased is making the provision (whether fulsome, minimal or non-existent) the deceased makes for a beneficiary, or the Will is accompanied by a statement, sometimes in the form of a statutory declaration, which expresses such reasons.

93. [590]

    The comments of Parker J are conventional in the above respect.

94. [591]

    However, they are somewhat different from what I understood Mr Davidson SC sought to submit in this case.

95. [592]

    What he sought to do was to point to pieces of evidence suggesting that the deceased had dementia and cognitive impairment to provide the springboard for a submission that the deceased’s assessment of provision for the plaintiff as minimal was not something that should stand as a strong barrier to the Court making its own assessment of adequacy of provision and order provision (if any) for the plaintiff.

96. [593]

    There was at least some flavour in what Mr Davidson SC was suggesting that the Court should have regard to the evidence regarding dementia and cognitive impairment and for that reason not place considerable weight on the judgement of the deceased in altering the provision for the plaintiff from that set out in the 2003 Will and/or making the provision of only a one third share of the ultimate balance of his bank accounts in the 2018 Will for the plaintiff.

97. [594]

    To the extent that the submission was to that effect, I reject this submission.

98. [595]

    The Court should be wary to guard against a collateral attack on a Will that has been granted probate, where the plaintiff does not seek to set aside the Will despite having had an opportunity to do so and having made a forensic decision not to do so.

99. [596]

    As a basic starting point, the Court should proceed on the basis that the deceased understood at least as of the date of the Will the provision given to the beneficiary under it.

100. [597]

     Without attempting to be specific, it is self-evident that the deceased, at the time that he made the 2018 Will, in giving the defendant the property and its contents on one hand and giving to the plaintiff a one-third share of the monies in his bank accounts on the other hand, understood, at that point, that he was providing in favour of the defendant the vast majority of his then estate.

101. [598]

     The corollary of that is that he was not providing the vast majority of his estate to the plaintiff.

102. [599]

     Further, as I have noted above, the total of the proceeds of his bank accounts at that stage were not significantly more than about $7,000.

103. [600]

     There is no evidence that the deceased was expecting his bank accounts to be enlarged in any significant way by monies other than through the payment of a weekly pension amount and some income from an AMP investment.

104. [601]

     It is not in my estimation profitable to dwell too much upon the practical effect that had upon provision for the plaintiff. There are a number of reasons for that.

105. [602]

     Those reasons include the fact that assessing the value of the deceased’s gift to the plaintiff was inherently difficult to quantify until such time as the deceased had died. I have already noted the obvious that the bank account balances in the general scheme of life’s affairs vary over time.

106. [603]

     There are possibilities by which the plaintiff might ultimately have received a more significant benefit under the Will without the deceased changing the Will. For example, if the deceased had later sold his house in order to go into nursing home accommodation and directed some portion of the proceeds to be paid into his bank accounts, more significant provision might have flowed to the plaintiff.

107. [604]

     Further, the assessment of the family provision claim is made at the time the Court makes the order, not at an earlier time.

108. [605]

     There was not the sort of clear evidence from the plaintiff regarding dental expenses that one might expect.

109. [606]

     It appears that she had not sought any information in relation to the cost of dental work or obtained any quote in respect of it.

110. [607]

     As noted, the plaintiff sought to supplement her evidence regarding dental work during the hearing.

111. [608]

     She stated that she had no idea how much it would cost although indicated that roughly 15 years ago when she had her front crowns done it cost in the vicinity of $20,000 and so simply indicated that she was anticipating that it was going to be quite costly now: T 33.

112. [609]

     A further question as to whether her decision about having implants would be influenced by the result of a bone density test was objected to and rejected: T 33.

113. [610]

     Because the costing appears to be dependent upon whether the plaintiff is able to have implants and that in turn is dependent upon results of a bone density test, it is difficult to know what figure can be estimated for such work and if indeed whether any such work is able to be carried out in full.

114. [611]

     Without knowing outcomes of bone density tests, I do not have any clear evidence of what, if any, dental treatment might be ultimately necessary for the plaintiff and if so, what that treatment might cost.

115. [612]

     Mr Davidson SC accepted that there was no evidence of costing of private health insurance as a claimed need for the plaintiff: T 149.

116. [613]

     The plaintiff’s (4 December 2022) figure of $11,300 for credit card debt was not updated.

117. [614]

     The plaintiff considered in cross-examination that landscaping has already been completed. Mr Davidson SC accepted that that claim had gone by the wayside: T 163.

118. [615]

     I have already indicated that I consider there to be some doubt regarding how realistic it is for a pool to be installed or constructed in the plaintiff’s backyard. In any event, I simply do not have any clear figures as to the costing of that because of the way that the plaintiff in her estimate for works suggested a global figure of not less than $108,000 to carry out works to the Berkeley Vale property: T 147-148, 163.

119. [616]

     I set out above details of the plaintiff’s financial circumstances.

120. [617]

     The plaintiff at the time of the deceased’s death was in employment but on 20 August 2021 resigned from her then employment with MB Insurance Group Pty Ltd: CB 59.

121. [618]

     As at 17 August 2021, immediately prior to her resignation, the plaintiff had been in receipt of a fortnightly salary of $2967.57: CB 805, 806.

122. [619]

     I assume that figure, which is the amount deposited to the plaintiff’s CBA bank account, was net of tax. I raised this with counsel on the hearing. Neither counsel confirmed their position to me although neither counsel disputed that nor suggested that I could not safely proceed on that assumption.

123. [620]

     Additionally, on 17 August 2021, the plaintiff received a payment from her employer of $28,165.43: CB 806

124. [621]

     I asked the plaintiff as to whether there was any particular reason for the timing of her resignation which was about three months before her 65th birthday.

125. [622]

     She indicated that she had had a very stressful 2020 when she lost her grandson, her uncle and mother-in-law. She was working from home during the COVID-19 pandemic under much stress and anxiety. She could not cope and had asked for more staff (I take it to assist her with her job).

126. [623]

     She was informed that she could not be given any additional staff.

127. [624]

     She indicated that she had been in that employment for 20 years and they had asked her to stay on for another 12 months (the evidence was unclear, but I infer that it was to take her employment into her 65th year).

128. [625]

     She indicated that she felt she could not continue to do her job properly and correctly in a manner that it should be done and made a spur of the moment decision to resign on the basis that “my health was more important to me”: T 64.

129. [626]

     The plaintiff’s evidence left unexplained precise details about her access to superannuation.

130. [627]

     She indicated that she was able to access superannuation and had indeed accessed it twice. First, when her long service leave money “ran out”, she indicated that she withdrew another $20,000 to keep paying the mortgage. Secondly, there was another withdrawal of $10,000 that she used until her house sold: T 64-65.

131. [628]

     When I sought to clarify whether the access she had enabled her to simply draw down on the entirety of the amount of the superannuation and whether it was accessible to her as a lump sum or whether it gave her a pension, she did not know: T 64-65. She assumed (presumably on the basis that she had been able to access lump sum amounts) that she was able to draw down on the entirety of the superannuation but, honestly, did not know: T 65.

132. [629]

     On 30 November 2022, the defendant’s solicitors corresponded with the plaintiff’s solicitors complaining that documents produced by the plaintiff pursuant to a notice to produce were scant and piecemeal and identified a number of documents which they pressed for production of: CB 782.

133. [630]

     The plaintiff produced various CBA bank statements for:

     1. (1)

        a Complete Access Account for the period 1 February 2021 to 31 July 2022; and

     2. (2)

        a Pensioner Security Account for the period from 1 January 2022 to 30 September 2022.

134. [631]

     The Complete Access Account appears from the materials to be essentially a general account with balances, for the most part, under $10,000.

135. [632]

     Matters of note include that:

     1. (1)

        up until August 2021, the plaintiff’s fortnightly salary (as I have noted above) was paid into the account;

     2. (2)

        from time to time the plaintiff topped up the account with various transfers from what appears to be the Pensioner Security Account;

     3. (3)

        on some occasions, salary amounts were received in excess of the sum of $2967.57: e.g. 30 March 2021 ($3013.08) and 13 April 2021 ($5389.08);

     4. (4)

        the plaintiff on occasion transferred monies to Elisha in relation to kitchen expenses (four amounts of $2500 between 3-6 October 2021);

     5. (5)

        the plaintiff received a cheque for $6863.15 on 31 January 2022 which amount is unexplained;

     6. (6)

        on 2 March 2022, the plaintiff withdrew the first sum of $20,000 from Australian Super;

     7. (7)

        on 21 March 2022, the plaintiff withdrew a sum of $10,000 from Australian Super which was deposited into the account;

     8. (8)

        on 17 and 18 June 2022, the plaintiff paid legal fees to her lawyers in connection with an invoice in 2 amounts totalling $39,783.53;

     9. (9)

        on 28 and 29 June 2022, the plaintiff topped up the account in order to pay amounts to Gilles Motors Pty Ltd totalling $27,990.

136. [633]

     The plaintiff was cross-examined regarding some five withdrawals she had made on 11 March 2021 from an ATM at the Canada Bay Club at Five Dock totalling $900 (four withdrawals of $200 and one withdrawal of $100): CB 789.

137. [634]

     The plaintiff accepted that she had spent at least some of that money on poker machines, drinks and dining with friends: T 49. The plaintiff further accepted that she was in a position as at that date (21 March 2021) to enjoy a fairly “luxurious lifestyle” of being able to withdraw up to $900 on such an occasion: T 49.

138. [635]

     Although it was not expressly the subject of submissions, the evidence reveals that, as at 1 April 2022, the plaintiff had an opening balance of $2,884,598.73 in her Pensioner Security Account.

139. [636]

     The pages of the account statement for the period 1 April 2022 to 30 September 2022 disclose quite a few deductions in varying amounts but often in the sums of $2000 and, occasionally, greater, to top up the Complete Access Account: CB 851-855.

140. [637]

     As at 1 January 2022, the plaintiff had a nominal balance of $17.49 in her Pensioner Security Account: CB 849.

141. [638]

     Mr Davidson SC noted that the plaintiff’s estimate of the monthly expenditure ($4724) was a conservative estimate and may increase over time as the plaintiff’s home or other needs grow as she progresses in age: POS [D3.5].

142. [639]

     Mr Davidson SC referred to the circumstances in which the plaintiff sold the five Dock property and purchase the Berkeley Vale property. He says that she did that as she was required to make mortgage repayments in circumstances where she had no income and that situation was unsustainable: POS [D3.2].

143. [640]

     Mr Davidson SC’s POS noted that in the immediate future the plaintiff intends to carry out works to the Berkeley Vale property which she estimates to be at a cost of not less than $108,000: POS [D3.3].

144. [641]

     Mr Davidson SC submitted that the plaintiff, who is now 66 and has not been employed since August 2021, will naturally increasingly incur medical expenses as she continues to advance in age.

145. [642]

     He made reference to the fact that the plaintiff would require substantial dental work. He noted that the plaintiff was not covered by private health insurance, has to pay for all out-of-pocket medical expenses, and submitted that her health and medical expenses may cause a significant depletion of her available cash: POS [D3.4].

146. [643]

     I engaged Mr Davidson SC in submissions regarding the strength of the plaintiff’s financial resources: T 146 ff.

147. [644]

     The plaintiff has as resources an unencumbered house and funds totalling in the order of about $1.6 million to $1.7 million ($1.16 million plus $320,000 plus $240,000): T 148.

148. [645]

     The plaintiff has available to her cash or what will be cash-like resources of $1.6 million to $1.7 million. I noted that if one were to add to such resources the range of provision suggested by Mr Davidson SC then, potentially, the plaintiff would have resources in the range of $1.85 million to $2 million: T 149-150.

149. [646]

     The deceased estate is overwhelmingly constituted by the value of the property ($1,387,500). There are minimal cash assets and potentially large liabilities. If the property were to be sold and the defendant’s estimated costs paid, the estate would be in the order of $1.13M ($1,131,904.59): s 60(2)(b).

150. [647]

     In respect of the plaintiff, the following may be noted in relation to s 60(2) factors.

151. [648]

     I have referred above to the nature and duration of the relationship between the deceased and the plaintiff. I accept there was a closeness of relationship particularly in the plaintiff’s formative childhood years and well into adult life: s 60(2)(a).

152. [649]

     Whilst the deceased is said by the Mr Davidson SC to have been a father to the plaintiff, he did not take on the responsibilities of being a de jure parent and did not adopt the plaintiff: s 60(2)(b).

153. [650]

     I have referred to the plaintiff’s financial resources above. She is not cohabiting with another person, and no other person is liable to support her: s 60(2)(d),(e),(l).

154. [651]

     The plaintiff is aged 66, does not have any disclosed physical intellectual or mental disability, and is retired from employment (having retired a number of months prior to her 65th birthday). There is no particular evidence suggestive that the plaintiff will live longer or shorter than the average lifespan of an adult female: s 60(2)(d),(g).

155. [652]

     The plaintiff contributed by some degree of modest means to maintenance of the deceased’s home: s 60(2)(h).

156. [653]

     I accept that during the plaintiff’s lifetime she contributed at times (in particular during the first study, second stay and third stay) to the deceased’s welfare by caring for him. I further accepted that the plaintiff for much of her life had regular and convivial contact with the deceased and provided companionship akin to that of a daughter: s 60(2)(h).

157. [654]

     The deceased provided for the plaintiff during her childhood and teenage years: s 60(2)(i)

158. [655]

     It is clear that under the 1997 Will and 2003 Will the deceased intended significant provision for the plaintiff at those times. The deceased must have been taken to have still intended the significant provision provided under the 2003 Will at least up until April 2018. At that point of time the deceased made a conscious decision to reassess his testamentary intentions and priorities: s 60(2)(j).

159. [656]

     Whilst the plaintiff depended upon the deceased as a child and into her teenage years, she was not being maintained by the deceased prior to his death and any such particular financial dependence ceased decades prior to his death: s 60(2)(k).

160. [657]

     Much has been made by Mr Wood SC of the conduct of the plaintiff in respect of the convictions of perjury. As I have indicated, I accept that the deceased was somewhat cautious of statements made by the plaintiff to him after that time: s 60(2)(m).

161. [658]

     In respect of the defendant the following may be noted in relation to s 60(2) factors.

162. [659]

     The defendant, other than for a period of about 15 months in 1982-1983 did not live with the deceased or have any apparent relationship of significance until about 2014, when the defendant commenced to live with the deceased. The principal means by which the defendant describes his relationship with the deceased is by reference to the description “Uncle Ray”. In some of the medical records, the defendant is referred to as the deceased’s nephew: s 60(2)(a).

163. [660]

     At least formally, the deceased should not owe any de jure obligations to the defendant: s 60(2)(b).

164. [661]

     The defendant cohabits with his wife Ms Febers and I have referred to their financial resources above. They are liable to support one another: s 60(2)(d),(e),(l).

165. [662]

     The defendant is aged 49. He will be shortly 50 and has potentially another decade or more of opportunity to engage in remunerative employment prior to a natural retirement age: s 60(2)(d),(g).

166. [663]

     The defendant had until March 2017 addiction issues with drugs and alcohol. He has some health issues which I have referred to. Other than that, he does not have any disclosed intellectual or mental disability: s 60(2)(f).

167. [664]

     Prior to 2014, there is no suggestion that the defendant contributed in any particular financial sense to the conservation and improvement of the deceased’s welfare or his property or estate. The defendant asserts that he contributed in a material way thereafter and I accept this: s 60(2)(h).

168. [665]

     There is no suggestion that the deceased made any particular financial provision for the defendant prior to 2014: s 60(2)(i).

169. [666]

     The deceased, prior to the 2018 Will, made no testamentary provision for the defendant: s 60(2)(j).

170. [667]

     From about 2014, the defendant was maintained at least in part by the deceased in the form of provision of accommodation and care. Beyond March 2017, the accommodation and maintenance continued. However, there was a form of role reversal from about March 2017 in terms of the defendant caring for the deceased: s 60(2)(k).

171. [668]

     Whilst I accept that the conduct of the defendant is a matter the Court may have regard to, I am not persuaded that it should weigh heavily in assessing whether the plaintiff was left with inadequate provision.

172. [669]

     The defendant’s drug and alcohol use was clearly known to the deceased. It ceased in or about March 2017. Approximately 13 months later the deceased made a Will which made substantial provision for the defendant in light of that history: s 60(2)(n)

173. [670]

     The plaintiff’s claim for financial provision does not to my mind strongly benefit by the plaintiff pointing to what is said to be inappropriate conduct of the defendant self-evidently known to the deceased prior to the making of his last Will.

174. [671]

     Mr Davidson SC accepted that Aunty Sharon and Glenn were not competing financial claimants: T 139.

175. [672]

     Mr Davidson SC accepted that there was no claim for education provision for the plaintiff and the claim was effectively for maintenance and advancement: T 149.

176. [673]

     Mr Davidson SC opened the case on the basis that there ought to be provision for the plaintiff in the order of $250,000-$300,000: T 149.

177. [674]

     At the end of submissions, Mr Davidson SC entertained the possibility that the Court in considering the plaintiff’s claim for provision might entertain some “slight adjustments” to those figures, such that a smaller amount might be awarded by way of provision to the plaintiff: T 150, 151.

178. [675]

     As I have noted above, logically, in approaching the question of inadequacy of provision one needs to have some reference point for assessing inadequacy.

179. [676]

     The approach of the Court in having a reference point for assessing inadequacy is, as I have noted, addressed by White JA in Sgro v Thompson. His Honour stated there at [86]:

180. [677]

     To my mind, one of the most critical issues in the case was the relative strength of the plaintiff's financial position by reference to her claim for provision on the one hand and the competing claim of the defendant to retain the provision given to him. Mr Davidson SC accepted that: T 138.

181. [678]

     Relatively speaking, it seems to me that that issue is a much larger consideration in the assessment of whether the plaintiff has been left with inadequate provision rather than the submissions as to unauthorised withdrawals, testamentary deference and testamentary involvement.

182. [679]

     Ordinarily, applicants for provision will be able to quantify (to some degree) specific items within a claim for provision that are present and future “financial needs” within the meaning of s 60(2)(d) Succession Act.

183. [680]

     Apart from such specific quantifiable financial needs, often applicants for provision will propound, as part of the claim for provision, a claim for advancement in life.

184. [681]

     Whilst the Court does not necessarily expect that an applicant will be able to quantify a figure for “advancement in life” in the same way as a figure might be quantifiable for specific financial needs or for maintenance, ordinarily an applicant might be expected to identify as a matter, item or thing for which provision for advancement in life might be given.

185. [682]

     In this case, once one puts aside the items of dental work (the availability and costing for which is uncertain) and the claims related to the swimming pool in the Berkeley Vale property (as to which it is unclear as to whether a pool can be installed in the space available and the separate costing for it is unquantified), the only matters which have in some sense been identified are the:

     1. (1)

        the prospect that she may incur medical expenses as she ages which may deplete her savings; and

     2. (2)

        the fact that as matters currently stand she has retired and is simply drawing on savings to pay her monthly expenses.

186. [683]

     I can accept for the moment that those matters may be considered in assessing what the plaintiff’s “proper” maintenance (or advancement) requires.

187. [684]

     However, it is far from clear to me that the plaintiff is not able to address those matters from her existing resources and what, if anything, the plaintiff would be able to do differently by reason of having such additional resources ($1.85 million to $2 million) as distinct from having her existing resources of $1.6 million to $1.7 million: T 149-150.

188. [685]

     Mr Davidson SC was not really able to point to anything that the plaintiff could purchase with increased resources as distinct from being able to be purchased out of her existing resources.

189. [686]

     He directed my attention to the fact that the plaintiff had to sell the Five Dock property and draw on some superannuation and pay out a mortgage.

190. [687]

     I indicated that effectively what has happened is that she has demonstrated that she is able, on one view, to make sensible financial choices and put herself in a position to be mortgage free.

191. [688]

     Mr Davidson SC suggested that she was, however, forced to move to a cheaper area and be away from the home where she wanted to be and had lived for 37 years (or strictly speaking 32 years): T 150.

192. [689]

     It is not the law that a plaintiff must present to the Court detailed calculations to demonstrate that they are using their existing resources in an economically optimal way to budget for their maintenance and to achieve their goals to advance their lives.

193. [690]

     However, it is significant in this case that no attempt was made to set out in any form the way in which the plaintiff proposed to marshal her existing resources to provide her with any form of investment or other income to cover her expenses other than simply drawing down on funds principally in the Pensioner Security Account.

194. [691]

     Ordinarily, there is wisdom in putting financial resources which one has (or has been entrusted with) to some appropriate use to generate more resources rather than not do so: ‘Parable of the Talents’, Matthew 25:14-30, Bible - New Revised Standard Version, Anglicised (see also Luke 19:12-27).

195. [692]

     I attempted to engage Mr Davidson SC in respect of this. The discussion was at least in part as follows:

196. [693]

     The plaintiff expenses are $4,724 per month or $56,688 per annum.

197. [694]

     I posed some very rough calculations in submissions to Mr Wood SC, but also for the benefit of Mr Davidson SC, to try to get at least some sense of how long the plaintiff might be able to draw on her resources if she was still being paid income of approximately $3,000 net per fortnight. That equates to $78,000 per annum: T 160.

198. [695]

     Accepting for the moment that none of these figures are precise, the point is that even if the plaintiff’s expenses went up to $60,000 per annum, on one view, the plaintiff should still be able to save $15,000 or more a year, or, more particularly, have available to her $15,000 or a bit more to cover contingencies each year.

199. [696]

     Accordingly, I noted that if the plaintiff were to live with availability of $78,000 per annum (to cover not merely expenses but also some degree of contingencies) resources of approximately $1.6M might be extinguished within 20 years: T 160.

200. [697]

     It is not unknown in family provision cases for an applicant to provide the Court with little detail regarding her (or his) financial requirements.

201. [698]

     In Robinson v Tame [1994] NSWCA 266, Kirby P (with whom Handley and Sheller JJA agreed) stated at 8:

202. [699]

     There is a tension in the proceedings regarding whether the property would have to be sold or not.

203. [700]

     The defendant’s case is presented on the basis that the property should not be sold as it provides the defendant with accommodation and the defendant could not easily obtain alternative accommodation, and if the property were to be sold the defendant and Ms Febers would at least to some degree be set back in having any capacity to move forward in their lives: DCS [56].

204. [701]

     Mr Davidson SC, whilst pressing for provision for the plaintiff, did not submit that the outcome of the case meant that sale of the property was inevitable.

205. [702]

     My sense of the matter is that the defendant, in order to retain the property, may be able to bear the expenses that I have noted above. However, if an order for provision were made to the plaintiff and any costs order made for the plaintiff that would in a sense be the straw that breaks the camel’s back which would compel a sale of the property.

206. [703]

     I am mindful that the strength of the plaintiff’s financial position and resources is not the only consideration in assessing adequacy.

207. [704]

     I am, in particular, mindful of the importance not to elide the distinction between needs and adequate provision and that adequacy of provision is not to be determined by a calculation of financial needs.

208. [705]

     In considering adequacy of provision, whilst I have accepted that the plaintiff’s relationship with the deceased was akin to that of child and parent, I am nonetheless mindful that the deceased did not have the de jure obligations of a parent.

209. [706]

     I am mindful that the plaintiff provided daughter-like companionship to the deceased on a regular basis throughout his life – at least up until 2014 – and contributed to his welfare in that respect and, in particular, cared for the deceased on three occasions (3 months plus 2 months plus 6-7 months) which I have described is days totalling a period of about a year.

210. [707]

     However, as against those matters there are strong factors favouring a determination that the plaintiff has not been left without proper and adequate provision.

211. [708]

     These include:

     1. (1)

        The plaintiff did not, other than by some degree of maintenance (painting and other unspecified renovations) and some homemaking assistance (making new curtains, help with choosing appliances and choices with replacing carpet and other furniture), contribute in any significant material way to the maintenance or improvement of the deceased’s estate.

     2. (2)

        The plaintiff has not been able to quantify other than by reference to credit card debts of $11,300 any specific debt or expense as a current or anticipated future need.

     3. (3)

        The plaintiff, whilst referring to some requirement for dental work, has not sought any information in relation to the cost of dental work or obtained any quote in respect of it. If the plaintiff is unable to have implants because of bone density issues, I do not have any clear evidence of what, if any, dental treatment might be ultimately necessary for the plaintiff and if so, what that treatment might cost.

     4. (4)

        The plaintiff has not provided any other details regarding her current health or any medical condition such as might require an outlay for her to incur private health insurance.

     5. (5)

        In any event, the plaintiff has not provided any costing in relation to the expense of private health insurance.

     6. (6)

        The plaintiff has already undertaken landscaping work. She has not provided any sufficient evidence to identify what part of a figure of $108,000 (which was not, in any event, supported by any quote or basis for calculation) might be referable to non-landscaping work being installation of a swimming pool, pool fencing, landscaping and sliding doors.

     7. (7)

        In terms of advancement in life, as I have discussed above, the plaintiff is unable to point to any specific matters requiring provision to advance her position in life beyond the fact that she may in the future incur medical expenses (notwithstanding there is no evidence of any current medical condition apart from requiring some dental work) that might give rise to significant expense and she is simply drawing upon accumulated funds to pay expenses.

     8. (8)

        Whilst I accept that potentially funding future medical expenses would generally inform proper provision there is no evidence of any current medical condition (other than the dental work which I have separately addressed) that might give rise to significant expense.

     9. (9)

        Whilst I accept that drawing on accumulated funds or savings to pay expenses would generally inform proper provision, the plaintiff has not provided the Court with any even rudimentary plan regarding how she proposes to marshal her resources to generate income to pay for her expenses.

     10. (10)

         The deceased whilst caring for the plaintiff in her childhood did not assume de jure legal obligations to maintain the plaintiff.

     11. (11)

         The defendant contributed in the last years of the deceased’s life to his welfare.

     12. (12)

         The defendant carried out works on the deceased’s property, albeit that some undefined part of the works were paid from the deceased’s S1 Account.

     13. (13)

         The defendant is in need of a residence and if the property were to be sold, he (and Ms Febers) will be setback indefinitely and lose any meaningful capacity to move forward in their lives.

     14. (14)

         The defendant was not challenged in cross-examination in relation to his evidence regarding his attachment to the property and his limited capacity to purchase alternative accommodation.

     15. (15)

         I have accepted that the defendant:

     16. (16)

         The deceased, in discussions with Ms Ginges prior to preparation of his 2018 Will, wished the defendant to receive the property in a context where the deceased regarded that the defendant had “done such a good job of looking after him”.

     17. (17)

         The deceased’s desire to make sure that the plaintiff was also taken care of does not appear to have been intended by him to impinge in any significant way his intention for the defendant to “have the house”.

212. [709]

     If more ready funds had been accumulated by the deceased in his bank account the plaintiff would, subject to the effect of estate expenses, have received a greater provision.

213. [710]

     If any provision were given at all to the plaintiff, it would ordinarily carry with it an order for costs.

214. [711]

     However, as matters presently stand the defendant does not have additional ready funds that might be able to permit him to cover any order for provision and an associated costs order for the plaintiff without jeopardising his ability to retain the property.

215. [712]

     Overall, whilst I accept that proper provision can encompasses improvement and enhancement of the plaintiff’s position, making an order for provision to give the plaintiff what she claims by way of provision ($250,000 to $300,000) or even some lesser amount, would in my assessment only marginally potentially enhance the plaintiff’s position, whilst significantly impacting upon the defendant’s position.

216. [713]

     Ultimately, taking all these considerations into account, I am not persuaded that the plaintiff has been left without proper and adequate provision.

What if any provision ought to be made for the plaintiff?

1. [714]

   In light of my determination regarding adequacy of provision there is no occasion for me to determine what, if any, provision ought to be made for the plaintiff.

Conclusion

1. [715]

   In the above circumstances, I dismiss the plaintiff’s claim and will give the parties an opportunity to address on the question of costs.

2. [716]

   The orders of the Court are:

   1. (1)

      Dismiss the proceedings.

   2. (2)

      As to the costs of these proceedings: