Moxey v Bass

1. [1]

   HIS HONOUR: These reasons relate to proceedings, in which the Plaintiff, Geofrey Alan Moxey, seeks a family provision order, by way of greater provision than that made for him by the Will of his mother, Elizabeth Rose Moxey (“the deceased”), out of her estate and notional estate, pursuant to the Succession Act 2006 (NSW) (“the Act”), and an order that his costs in these proceedings be paid out of the estate.

2. [2]

   The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.

3. [3]

   At the hearing, it was agreed that there was no notional estate. Accordingly, hereafter, I shall simply refer to the estate of the deceased.

4. [4]

   The Defendants in the proceedings are the sister of the deceased, Margaret Irene Bass (the first Defendant), and the only other child of the deceased, Graeme Lawrence Moxey (the second Defendant). On 2 July 2014, this Court granted Probate of the deceased’s Will dated 8 June 2005 and of her codicil dated 28 October 2013, to the Defendants. (The effect of the codicil was to replace the Plaintiff, with the first Defendant as co-executor with the second Defendant).

5. [5]

   Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties and other family members, after introduction, by his, or her, given name.

6. [6]

   There is no dispute that Geofrey’s application for a family provision order was made within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased) and that, as a child of the deceased, he is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

Formal Matters

1. [7]

   It is appropriate to record certain matters which were not in issue or which I find have been established on the balance of probabilities.

2. [8]

   The deceased was born in June 1930 and died on 13 February 2014. She was married to Robert Laurence Moxey (“Laurence”), on a date not precisely disclosed in the evidence, and they remained married until his death in June 2013.

3. [9]

   The deceased was survived by Geofrey, who was born in October 1951 and by Graeme, who was born in August 1954.

4. [10]

   Under the deceased’s Will, in the events that have happened, the deceased's major asset, being her 31/40ths of the property, known as "Kintyre", situated at Darkes Forest ("the Darkes Forest Property"), a rural locality in the Wollongong and Wollondilly Shire local government areas, passed to Graeme. There were some small specific bequests. The residue was left to Geofrey and Graeme equally.

5. [11]

   The deceased’s Will relevantly provided:

6. [12]

   The estate, at the date of hearing, comprised the following assets, namely 31/40ths of the Darkes Forest property ($1,743,750), a motor vehicle ($5,000), monies held in a Pensioner Security Fund ($4,491), monies on term deposit ($15,000), monies held in a Retirement account ($3,579), horse figurines ($200), four paintings identified collectively as "Clydesdale horses" ($2,000) and jewellery ($350). However, for the purposes of the hearing, it was agreed that the nature and value of the estate should be regarded as comprising the Darkes Forest property ($1,743,750) and cash ($19,000).

7. [13]

   (Although the parties agreed that there was no relevant notional estate, there had been an amount of $80,000, held on term deposit in the name of the deceased, but it was transferred to Margaret, by a transfer dated 7 February 2014, that is about 1 week before the death of the deceased. Part of this amount ($40,000) has been used to pay some of Graeme’s and Margaret’s legal costs of these proceedings.)

8. [14]

   Usually, in calculating the value of the deceased’s estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. A plaintiff, if successful, normally will be entitled to an order that his, or her, costs, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the defendants, as administrators of the estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

9. [15]

   Ms M Harris, of the Plaintiff’s solicitors, in an affidavit sworn on 16 May 2016, disclosed that Graeme’s costs and disbursements, to the conclusion of the third day of the hearing, calculated on the indemnity basis, and inclusive of GST, were estimated to be $171,718, whilst those costs and disbursements, if calculated on the ordinary basis, and inclusive of GST, were $133,768.

10. [16]

    Mr N F Lyon, the solicitor for Margaret and Graeme, in an affidavit sworn on 12 May 2016, disclosed that their costs and disbursements to the conclusion of the third day of the hearing, calculated on the indemnity basis and inclusive of GST, were estimated to be $76,200. As stated, $40,000 of these costs and disbursements have been paid, leaving a balance of $36,200 left to be paid.

11. [17]

    I was informed by counsel that there are matters that may be relevant on the issue of how the costs of the proceedings are to be borne, depending upon the result of the proceedings. In the circumstances, the Court was requested not to deal with costs until after the reasons for judgment are delivered. I shall abide this request and if agreement cannot be reached, the issue of costs can be separately decided.

12. [18]

    Even now, it can be said that it is most regrettable that the parties, who are close family members, have pursued this litigation, incurring costs said to be close to $250,000, instead of reaching a reasonable, proportionate, and timely compromise. Courts have regularly expressed views regarding the reasonableness and proportionality of the estimate of the costs of all parties. Reference has often been made, not only in claims for a family provision order, to the necessity of resolving the issues between the parties in such a way that the cost to them is proportionate to the importance and complexity of the subject-matter in dispute.

13. [19]

    If it is necessary to determine the question of costs, further evidence on costs may be required. At that time, any concerns about the reasonableness, or otherwise, of Geofrey’s costs, in particular, can be dealt with.

14. [20]

    There was no contest about the identity of eligible persons. The parties agreed that Geofrey and Graeme are the only eligible persons. Since each is a party to the proceedings, it was unnecessary to serve on Graeme a notice of the application, and of the Court’s power to disregard his interests, in the manner and form prescribed by the regulations or rules of court: s 61 of the Act.

Some Background Facts

1. [21]

   It is helpful, at this point, to provide some further facts, which, to the extent that they are controversial, should be regarded as the findings of the Court.

2. [22]

   By Transfer dated 27 August 1954, Laurence became the sole registered proprietor of the Darkes Forest property.

3. [23]

   By Transfer dated 30 September 1985, Geofrey and his then wife, Kim Flora Moxey, came to be registered as joint tenants of a 9/40ths share, as tenants in common, with Laurence, of the Darkes Forest property.

4. [24]

   After Kim and Geofrey separated, Kim, pursuant to an order of the Family Court, by Transfer dated 5 November 1999, transferred her share of the 9/40ths interest in the property to Geofrey.

5. [25]

   By Transfer dated 17 September 2004, Geofrey transferred his 9/40ths share of the property to Graeme and Gail, as tenants in common in equal shares. At the date of the hearing, they remained the registered proprietors of that share. (I shall return to the circumstances surrounding the two transactions later in these reasons.)

6. [26]

   Laurence made his last Will on 8 June 2005, in which he appointed Graeme and Geofrey as his executors and, in the events that happened, left the whole of his estate to the deceased, if she survived him by 14 days. If she did not survive him by 14 days, then the whole of Laurence’s interest in “Kintyre” was devised to Graeme. In the event that he did not survive Laurence and the deceased, Laurence’s share of “Kintyre” was devised to his five grandchildren, Dale, Cole, Adam, Ashley, and Sharney, in equal shares as tenants in common.

7. [27]

   After Laurence died in June 2013, probate of his Will was granted to Graeme alone on 21 November 2013, Geofrey having renounced probate. Subsequently, the deceased became the sole registered proprietor of Laurence’s 31/40th share of the Darkes Forest property.

Inadequacy of Provision

1. [28]

   As it is not in dispute that Geofrey, as a child of the deceased, is an “eligible person” for the purposes of s 57(1) of the Act, and that he had commenced proceedings within the time prescribed by the Act (within 12 months of the date of the deceased’s death), the only issue for determination is whether, when considering the application, adequate provision for the proper maintenance, education or advancement in life of Plaintiff has not been made by the Will of the deceased (the operation of the intestacy rules being irrelevant).

2. [29]

   (What the case was not about should be identified. Although counsel for the Defendants submitted that Geofrey should be estopped from asserting, against the estate of the deceased, that the provision made for him by the deceased was inadequate for Geofrey’s proper maintenance and advancement in life, by reason of an agreement said to have been made in 2004, no Cross-Claim was filed to advance this claim. That the Defendants did not seek any such relief is of some importance because it means that the only matter for determination is the Plaintiff’s claim for a family provision order.)

3. [30]

   It may next be helpful to set out some features of the Act that are to be borne in mind in considering the only issue in the case. I have stated these principles elsewhere, but will repeat them again here for the benefit of the parties.

4. [31]

   Specifically, the Court must determine whether adequate provision for Geofrey’s proper maintenance or advancement in life has not been made, relevantly, by the operation of the deceased’s Will (s 59(1)(c)).

5. [32]

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

6. [33]

   Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance or advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

7. [34]

   Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

8. [35]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210-211; White v Barron [1980] HCA 14; 144 CLR 431 at 434-5; 443).

9. [36]

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

10. [37]

    Thus, whether an applicant has a “need” or “needs” is a relevant factor: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet it is an element in determining whether “adequate” provision has been made for the “proper” maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.

11. [38]

    As Callinan and Heydon JJ emphasised in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at 122, the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. Thus, “need” may be assessed by considering the applicant’s financial position, lifestyle and general expectations in life and health: Stewart v Stewart [2015] QSC 238 at [11] (Applegarth J).

12. [39]

    “Need” has also been used in the context of a value judgment or conclusion, namely, that the applicant is “in need” of maintenance or advancement in life, because inadequate provision has been made for her or his proper maintenance, education and advancement in life: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 (Bryson J).

13. [40]

    Although the existence, or absence, of “needs” which the applicant cannot meet from his, or her, own resources will always be highly relevant and often decisive, the statutory formulation and, therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for his or her proper maintenance, education and advancement in life: see Singer v Berghouse at 227 (Gaudron J). Compare Gorton v Parks at 6 - 11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at [38], [47] (Ormiston J).

14. [41]

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

15. [42]

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

16. [43]

    In Diver v Neal [2009] NSWCA 54 at [67], Basten JA wrote:

17. [44]

    In the event that the Court is satisfied that the power to make an order is enlivened (i.e. that adequate provision for his proper maintenance, education or advancement in life has not been made), then the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. If the Court is satisfied that inadequate provision for the proper maintenance, education or advancement in life has been made by the Will of the deceased for the applicant, then the Court may make a family provision order. In determining the question, the Court has regard to, among other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin at [16], [112]; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [70]; Verzar v Verzar [2014] NSWCA 45 at [39].

18. [45]

    Then, under s 59(2) and s 60(1)(b) of the Act, the Court determines what provision, if any, ought be made for the applicant out of the deceased’s estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that this decision involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

19. [46]

    Section 60 of the Act provides:

20. [47]

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

21. [48]

    It has been suggested that the expanded list of criteria provides a “more focused direction to the Court”: Phillips v James [2014] NSWCA 4; 85 NSWLR 619, per Beazley P, Meagher JA agreeing, at [51].

22. [49]

    The section does not indicate the relative weight that should be given to different matters, or “how a conflict between opposing considerations should be resolved – those things are left to the court's discretion, which must, of course, be exercised judicially” (Mallet v Mallet [1984] HCA 21; 156 CLR 605 at 608-610, per Gibbs CJ in relation to the Family Law Act 1975 (Cth)).

23. [50]

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

24. [51]

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

25. [52]

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

26. [53]

    Any family provision order under the Act takes effect, unless the Court otherwise orders, in the case if the deceased made a will, as if the provision was made in a codicil to the will (s 72(1) of the Act).

27. [54]

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

28. [55]

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

Other Applicable Legal Principles

1. [56]

   I have set out other principles that apply in many other cases. There was really no dispute about them so I shall not repeat what I have written elsewhere. Most relevantly, I have recently written about the principles that apply to adult children in Hinderry v Hinderry [2016] NSWSC 780.

2. [57]

   For the purposes of this case, I should repeat the reference to Cooper v Dungan (1976) 50 ALJR 539 at 542, in which Stephen J reminded the Court to be vigilant in guarding “against a natural tendency to reform the testator’s will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant”.

3. [58]

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

4. [59]

   Pembroke J has reiterated these principles, recently, in Revell v Revell [2016] NSWSC 947 at [8] – [9].

Pension entitlement

1. [60]

   The Plaintiff gave evidence that he receives income from a disability support pension. No evidence was given as to how a family provision order would, or might, affect his eligibility for such a pension or whether it would be reduced if a family provision order is made.

2. [61]

   I dealt with the matter of a Plaintiff’s entitlement to a pension in Kohari v Snow [2013] NSWSC 452 at [124] – [127] as follows:

3. [62]

   These principles were referred to, with approval, by Robb J, in Pang v Fong [2014] NSWSC 1425 at [150]. I referred to them again, most recently, in Hinderry v Hinderry at [276] - [281].

Additional Facts

1. [63]

   Next, I deal with the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

2. [64]

   On the topic of his relationship, Geofrey wrote in his affidavit of 27 February 2015:

3. [65]

   That their relationship was strained in the last few years of the deceased’s life, although it remained a loving one, is illustrated by the contents of a letter sent to the Plaintiff by the deceased at about Christmas 2013, some six months after Laurence died:

4. [66]

   When, in late January 2014, the deceased was admitted to hospital, Geofrey did not visit her, stating that his depression and diabetes made driving difficult. He said that he did not realise the deceased was as unwell as she was, and that he did not recall receiving a text message sent by Graeme and his wife, telling him that the deceased was in hospital.

5. [67]

   Yet, Geofrey and his wife did speak, by telephone, to the deceased whilst she was in hospital. Geofrey says that he was mostly apologising as he could not understand what she was saying.

6. [68]

   Counsel for Margaret and Graeme described Geofrey’s changed relationship with his mother as demonstrating “callous behaviour …towards the deceased in the last years of the deceased’s life”. I tend to think this is a somewhat exaggerated description, although it is clear from the letter that the deceased was worried about the change in the relationship with one of her only two children.

7. [69]

   I also think that Geofrey exaggerated the closeness of his relationship with the deceased following the death of Laurence. I tend to the view that he was extremely upset about the contents of Laurence’s Will and he believed that it reflected the different treatment of the two sons. However, I am satisfied that Geofrey and the deceased maintained some contact throughout her life, albeit, at times, only by telephone. It is most unfortunate that during the last months of her life, there was friction between them with the result that there was some change to their relationship. It seems, however, that it was not the change in their relationship that had caused the deceased to make her Will in the terms that she did.

8. [70]

   There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.

9. [71]

   The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co (Ltd) [1983] AC 463 at 478-479:

10. [72]

    This factor requires a balancing of potentially competing obligations as between Geofrey as the applicant and Graeme as the beneficiary.

11. [73]

    Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to Geofrey, as a child, once he became an adult, imposed upon her by statute or common law. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised.

12. [74]

    In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

13. [75]

    Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no “presumptive testamentary entitlement of an [adult] offspring”: Underwood v Gaudron [2015] NSWCA 269, per Basten JA, at [73].

14. [76]

    The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

15. [77]

    I have earlier identified the nature and value of the deceased’s estate. It is an estate that is of moderate size.

16. [78]

    Geofrey says that he has been unable to work, due to ill-health, since 2002. He currently receives income of $6,685 per annum, by way of disability support pension. His wife, Ann, currently receives a net annual income of $39,791, so their combined annual income is about $46,476. Their general financial position is summarised as follows:

17. [79]

    (It was put to Geofrey, in cross-examination, that the one third interest in the Swan Reach property (the other 2/3rds of which is held in their shared superannuation fund) was valued at $100,000, although this had been omitted from his declaration of assets in his affidavits. This estimate of value seems to have been accepted, and has been included above.)

18. [80]

    It was also suggested by counsel that Ann could expect to receive something “in the order of $100,000” pursuant to her mother’s Will, out of the estate, which at the time of hearing, had not yet been distributed (T 121.10). It is impossible, at this stage, to know with certainty, what, if anything, Ann might receive. Whilst it is relevant to her financial circumstances, I am only prepared to regard any inheritance as her potential financial resource (since she has not, and might not, ever receive any share of that estate).

19. [81]

    From their combined annual income of $46,476, Geofrey lists their yearly expenditure as amounting to $53,933. He noted, at T 110.25 - T110.45:

20. [82]

    In cross-examination, Ann, who was said by both of them to be in control of family finances, explained that $8,500 of the annual expenditure, whilst described as “mortgage payments”, had been intended to be used for that purpose, but had, in fact, been used on daily living expenses. I accept her evidence in this regard.

21. [83]

    It can be seen, from the above, that their major debts are to Ann’s sisters and brother-in-law.

22. [84]

    Geofrey claimed to require provision from the estate in order to supplement “my income so I do not have to worry about living from week to week and budgeting.” However, he also wrote that “I am worried if I receive provision from the estate, I may lose my pension and the money I receive needs to be enough to provide for me for the rest of my life.”

23. [85]

    As stated, there was no evidence as to what amount Geofrey could receive without such provision affecting his pension entitlement.

24. [86]

    Geofrey claimed that in the future, his expenditure will increase, principally because of his medical needs. He said that he requires an arthroscopy on his left knee and dental work to correct a misaligned jaw and fill cavities, the total costs of which he estimated to be $100,000.

25. [87]

    In addition, he estimated his future ongoing medical expenses will be between $5,000 and $6,000 per annum, comprising $1,000 for medications, $1,000 for hearing aids, $2,160 for CPAP machine hire, $1,000 for doctor, specialist and counselling appointments and $250 for travelling expenses to attend medical appointments.

26. [88]

    Geofrey also requested provision from the estate to repay his share of debts owed with his wife (one half of which, at the time of hearing, was $51,931); to undertake renovations on his home, including completing the veranda, installing curtains, repairing the driveway, landscaping the garden, and making the house fire safe, which he estimated would cost $80,000; and to replace his 1993 Holden Commodore with a new Holden, which he estimated would cost $50,000.

27. [89]

    When it was suggested to Geofrey, in cross-examination, that he could meet some of these “needs” by selling his three bedroom house, which is situated on a 54 acre property, and “downsizing”, he explained:

28. [90]

    Graeme works as a farrier and in the 2015 financial year received a gross income of about $2,186 per fortnight (about $56,833 per annum). At the time of hearing, back pain from which he suffers, had forced him to reduce his working hours. He reported his earnings were reduced to about $900 a week (about $46,800 a year).

29. [91]

    Graeme’s wife has not worked since early 2016 and is wholly dependent on him. Her taxable income for the five years preceding this was between about $20,000 and $28,000 per annum.

30. [92]

    The financial circumstances of Graeme and his wife are as follows:

31. [93]

    Of course, the assets identified above do not include the provision made for Graeme under the terms of the deceased’s Will.

32. [94]

    Graeme gave evidence that he has been depleting his BT Transition to Retirement Pension Fund.

33. [95]

    Whilst Graeme did not provide a list of present and future ‘needs’ from the estate, he submitted that if they were forced to sell “Kintyre”:

34. [96]

    While he did not provide an estimate of how much it would cost, Graeme also wrote that:

35. [97]

    I have set out Ann’s financial circumstances above.

36. [98]

    Geofrey has profound hearing loss, and has had four heart by-passes. He suffers from ischaemic heart disease. He has also been diagnosed with fatty liver disease, diabetes (for which he requires five doses of insulin daily), and chronic back pain, which prevents him from doing everyday tasks such as putting on socks. He also suffers from depression, arthritis, gout, carpal tunnel syndrome, trigger finger, sinusitis, and enlarged prostate. He requires ongoing monitoring for his lapband. He also suffers from incontinence due to his medication and has to wear continence pads and take anti-diarrhoea medication when travelling. In addition, he suffers from severe sleep apnoea. He currently takes a significant amount of medication on a daily basis.

37. [99]

    Graeme, who is several years younger than Geofrey, does not suffer from such significant health problems, although he noted that he now gets

38. [100]

    Graeme also tendered a letter dated 20 June 2016 from Dr Peter Crossley Meates, General Practitioner, which stated that Graeme suffers from a “slight degree of mental impairment due to deterioration from age.”

39. [101]

    I am satisfied that Graeme’s working life is limited by the physical nature of his work and his age. His current mental state is likely to deteriorate, also, in time.

40. [102]

    As noted above, Geofrey, was born in October 1951 and is currently 64 years of age. Considering his age and his ill-health, I am satisfied that his earning capacity is significantly reduced.

41. [103]

    It is clear that Geofrey spent some part of his life working on “Kintyre”, including an almost 20 year period during his adult years when he worked on there for a wage. The Plaintiff states that:

42. [104]

    He estimated that he did an average of 20 hours per week unpaid work on the orchard when he was a young adult between 1968 to 1976, including at nights and on weekends and on holidays. Although he moved away from “Kintyre” for a period in 1973, he returned again in 1974, after which he continued to pay his parents one third of his wage as board.

43. [105]

    Geofrey left the farm again for 18 months around 1979, when he moved to Tweed Heads, although during this time he returned to the orchard during the holidays, “doing three weeks solid work each year.” Then from about 1981 to 1997 he worked on the Darkes Forest property full time. He wrote:

44. [106]

    By 1997, it was no longer economical to keep the orchard running, and the trees were pulled out. Geofrey’s work on the Darkes Forest property then ended. He says that he did not receive any redundancy or severance pay when this occurred. Despite not being paid from this time, he continued to look after the property, including slashing around fence lines, maintaining firebreaks and conducting building maintenance. Of course, from 1985 Geofrey and Kim had been registered proprietors of part of the property.

45. [107]

    I am satisfied that Geofrey made a contribution to the building up of the deceased’s estate. But that contribution was many years prior to the death of the deceased. I am also satisfied, as set out hereunder, that he received some benefits whilst he was making these contributions. Whether the benefits he received were “adequate compensation” was not fully explored in the evidence, other than as set out below.

46. [108]

    It was not in dispute that the deceased and Laurence made some provision for Geofrey throughout the deceased’s lifetime, including providing a home for him, paying his day-to-day living expenses including groceries and bills before he got his first job, and providing him with lunch while he worked on the farm. His parents also gave him a tractor worth $5,000 in 2004 and a Holden Commodore worth $1,000 in 2010.

47. [109]

    At times between 2004 and 2013, Laurence gave him about $200 in cash and Geofrey received $50 by way of birthday or Christmas gifts from his parents.

48. [110]

    Whilst it is clear that Geofrey made a significant contribution to the Darkes Forest property until about 1997, and continued to work there after the property ceased to function as a business, Margaret and Graeme submitted that Geofrey had received some recompense for what he was doing and going to do, by way of an early “share of the estate”.

49. [111]

    The facts surrounding the three historical transactions which resulted in Geofrey, initially with Kim, receiving the 9/40ths share of the Darkes Forest property, and him coming to transfer that interest to Graeme and Gail, were in dispute.

50. [112]

    The first of these transactions occurred in 1985, when, by Transfer dated 30 September 1985, Geofrey and Kim became registered proprietors, as joint tenants, of a 9/40th share of the Darkes Forest property. According to Geofrey, this occurred after he sold a property that he owned at Stanwell Tops and he used the proceeds of sale – some $90,000 – to build a three bedroom brick house on the Darkes Forest property, approximately 300 metres from his parents’ home.

51. [113]

    Geofrey wrote that:

52. [114]

    There is some objective evidence about the transaction in a file note dated 22 June 1994, of Mr Lyon, who even then, was the solicitor who assisted the family, which file note stated

53. [115]

    However, according to Graeme:

54. [116]

    I tend to the view that the transfer of 9/40ths was intended by Lawrence to take into account the costs of the enhancement of the Darkes Forest property (although, according to a valuation, this only increased its value by about $22,500 (Ex. 1)) and also the work that Geofrey had done, and was going to continue to do in maintaining that property. In this regard, I note that Clause 3 of Laurence’s Will, which remained unchanged from 29 April 1983 until his Codicil made in 1999, provided for Geofrey and Graeme to be substitute beneficiaries in equal shares in respect of the Darkes Forest property (Ex 2) if the deceased did not survive Laurence.

55. [117]

    The second relevant transaction, the subject of dispute, occurred after Kim and Geofrey separated, and when Kim, pursuant to an order of the Family Court, by Transfer dated 5 November 1999, transferred her share of the 9/40ths interest in the property to Geofrey.

56. [118]

    According to Graeme, he loaned Geofrey $100,000, which was the amount required to purchase her share.

57. [119]

    Counsel for the Defendants submitted that “[i]n 1999 Geofrey and Graeme entered into an agreement whereby Graeme effectively purchased (with the contribution of $30,000 credit from Laurence) Kim’s 9/80ths of the property for $100,000”.

58. [120]

    Graeme stated, and I accept, that on 25 October 1999, he gave Kim, on behalf of Geofrey, and with Geofrey’s knowledge, that amount, which comprised $70,000 of his savings, and $30,000 that he borrowed from Laurence.

59. [121]

    Graeme wrote:

60. [122]

    That such an agreement was made is supported by a contemporaneous diary note, dated 5 November 1999, of Mr Lyon, which, relevantly, states:

61. [123]

    Laurence altered his Will of 29 April 1983, by codicil dated 9 November 1999, with the following operative provision:

62. [124]

    Also in evidence was a letter dated 13 October 2000 from Mr N Lyon to Laurence, in which the solicitor advised him that: “[t]here are plans for the state government to abolish stamp duty within 5 years, replacing the money they get from it now with the money it will get from the new GST. When the abolition of stamp duty is made law, then we can actually arrange the transfer of a 9/40th share to him instead of relying on a change in your will.”

63. [125]

    The existence of these records adds support to the Defendants’ case that Geofrey obtained the money he required to pay out his former wife in 1999 from his family, in exchange for which he agreed to give up a share of “Kintyre”, but that no transaction was enacted to legally transfer the agreed share to Graeme at this stage because he could not afford to pay stamp duty.

64. [126]

    There is no suggestion that the relationship of Geofrey and Graeme was so close that the latter would lend, without receiving anything back, that large amount, or use the whole of his savings to assist Geofrey to pay the amount.

65. [127]

    However, according to Geofrey’s version of events, there was no such agreement. He wrote that:

66. [128]

    Geofrey gave evidence that he had repaid this debt with the proceeds of the sale of collectable birds, some of which he inherited from a friend, and money he was paid for building kitchens (T40-41). There was some evidence tendered to support this, in the form of a copy of a probate document showing that he inherited aviary birds worth $79,000 in 1999 (Ex. C), and an affidavit of Raymond Alfred Ackroyd, an exotic bird breeder and broker, who deposed to having paid Geofrey $75,000 for 8 birds in December 1999.

67. [129]

    While I accept that Geofrey may have received such payment at this time, no evidence, other than from Geofrey, corroborated that any of this money was ever paid to Laurence. There was no evidence that any amount had been repaid to Graeme.

68. [130]

    I find Graeme’s version of events – that he loaned Geofrey $100,000 in return for the transfer of Kim’s share of the 9/40ths share – to be more plausible, since this version is supported by the file note of the independent solicitor Mr Lyon. Why, in those circumstances, Geofrey would repay Laurence is difficult to fathom.

69. [131]

    A third transaction of the legal ownership of “Kintyre”, the circumstances of which were disputed, occurred some five years later, when Geofrey transferred his 9/40ths share of the property to Graeme and Gail Moxey by Transfer dated 17 September 2004, subsequent to entering into a contract for sale of land for $400,000.

70. [132]

    According to Graeme, Geofrey agreed to take $490,000 in exchange for his “share” in the Darkes Forest property - meaning both the 9/40ths of the property he then legally owned and the balance of what he could expect to inherit from his parents.

71. [133]

    Graeme wrote in an affidavit dated 7 August 2015:

72. [134]

    He added:

73. [135]

    Counsel for the Defendants submitted that this meant that in 2004 Geofrey, Graeme, Laurence, and the deceased entered into an agreement whereby:

74. [136]

    This version of events is supported by Geofrey’s son, Ashley Terence Moxey, who was not cross-examined, but who deposed:

75. [137]

    There is simply no reason to not accept this evidence.

76. [138]

    However, Geofrey, throughout the proceedings, maintained that the money he received from his brother was just to purchase the 9/40ths of the property which he already owned. He wrote:

77. [139]

    While the Plaintiff only mentioned having been paid $400,000 in his affidavits - the figure written on the contract for sale of land - in cross-examination he did not deny that he received $490,000 (T47)

78. [140]

    As noted, I tend to the view when Graeme loaned Geofrey $100,000 in 1999 to pay out his former wife, Kim, it was upon the understanding that from that point on, Graeme beneficially owned at least 9/80ths of the property.

79. [141]

    It follows that in 2004, when he was paid $490,000, although he legally owned 9/40ths of “Kintyre”, he only beneficially owned 9/80ths. Given that “Kintyre” was valued at $1,750,000 at that time, 9/80ths would then have been worth $196,875.

80. [142]

    But Geofrey was paid an additional $293,125 above this market value. I accept the evidence given by the Defendants that this additional amount was paid pursuant to an agreement that Geofrey would take this by way of an early inheritance, since it is not plausible that Graeme would pay his brother – with whom he never had a close relationship – such a large sum of money otherwise, especially considering that this payment required Graeme and Gail to take out a mortgage of $250,000 against “Kintyre.” This view is consistent with the changes in Laurence’s last Will of 8 June 2005, making Graeme the sole residuary beneficiary of “Kintyre”, and two letters written by the deceased in the last few years of her life (discussed below).

81. [143]

    Graeme tendered a copy of a handwritten note, said to have been written by the deceased in August 2013, which was in the following terms (without editorial corrections):

82. [144]

    Also in evidence was a two page typed document dated 5 January 2014, signed by the deceased, which is in the following terms:

83. [145]

    Graeme was cross-examined about this letter:

84. [146]

    I accept Graeme’s evidence that the original of the letter could not be found and that it was typed by Gail in the terms handwritten by the deceased.

85. [147]

    I have earlier referred to Laurence’s Will and that the deceased had made a mirror Will at or about the same time.

86. [148]

    Geofrey had not been supported by the deceased for many years prior to her death and certainly not after he left to live in Victoria.

87. [149]

    Geofrey stated that his wife, Ann, has supported him since 2002. As noted above, Ann’s financial circumstances are not much better than his. Her future earning capacity is also limited, given that she suffers from chronic back pain, scoliosis and osteoporosis. She has three posterior discs bulging at L2/3, L3/4 and L5/S1, and requires two yearly injections for her bones, daily vitamin D and Nexium for reflux caused by her hiatus hernia. She also takes Panadol and/or uses a Tens machine for her back daily.

88. [150]

    In addition, Ann has been diagnosed with two lesions on her liver and lymphatic fluid retention.

89. [151]

    Otherwise, other than the government’s obligation to continue to provide him with a pension if he is entitled to it, there is no other person with any responsibility to maintain Geofrey.

90. [152]

    I have referred to Geofrey’s conduct towards the deceased. I do not consider that there is any other conduct towards her that is otherwise relevant.

91. [153]

    As noted, I am satisfied that an agreement was reached in 2004 according to which Geofrey was paid $490,000 by way of “early inheritance”. Of course, the fact that there was an agreement in 2004 does not oust the Court’s jurisdiction to make an order since there was no release granted by him and approved by the Court.

92. [154]

    Counsel for the Defendants submitted in reference to the putative 2004 agreement that:

93. [155]

    However, as stated, there was no Cross-Claim filed on behalf of the Defendants to assert an estoppel and, as also stated, no release of rights to make a claim out of the estate of the deceased, given, or approved under s 95 of the Act.

94. [156]

    Despite this, the fact that Geofrey did receive that amount so long before the death of the deceased, is relevant to the question of the adequacy, or otherwise, of the provision made for him in her Will.

95. [157]

    I am satisfied that Graeme was a loving and dutiful son towards the deceased. There is no suggestion to the contrary.

96. [158]

    This factor is not applicable.

97. [159]

    There is no other matter that I consider relevant.

98. [160]

    Being an “eligible person” is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

99. [161]

    There is also no dispute that Geofrey commenced the proceedings within the time prescribed by the Act.

100. [162]

     I must then consider whether, at the time of the hearing, adequate provision for the proper maintenance or advancement in life of Geofrey has not been made by the Will of the deceased. As stated, there is no scope for the operation of the intestacy rules.

101. [163]

     It is clear that the provision made for him in the deceased’s Will is negligible, bearing in mind the value of the deceased’s estate. In this case, when I consider Geofrey’s current financial and material circumstances, including his lack of earning capacity, some lack of resources, such as superannuation, his age, and his physical condition, I am satisfied that the provision made for him in the Will of the deceased is neither adequate nor proper.

102. [164]

     I have also taken into account the competing financial and material circumstances of Graeme. However, with the devise of the Darkes Forest property, he will be in a far better position financially than is the Plaintiff, even if some provision is made for the Plaintiff.

103. [165]

     Graeme’s competing moral claim, his conduct in relation to the Darkes Forest property, and the fact that he is the chosen object of testamentary bounty in regard to the deceased’s interest in that property, cannot be disregarded. However, even taking into account these matters, I do not accept the Defendants’ submission that Geofrey’s claim should be dismissed. They do, however, restrain the amplitude of the provision to be made for Geofrey.

104. [166]

     Counsel for the Defendant submitted, from the bar table, that if any order was made in favour of Geofrey then the Darkes Forest property would have to be to be sold because Graeme and his wife would be unable to borrow any more money (there already being a mortgage registered in their name against “Kintyre”) (T131:15-20). However, there was no evidence of the steps, if any, taken to obtain any loan, or to determine the maximum amount of money that could be borrowed.

105. [167]

     I have borne in mind that Graeme and Gail already mortgaged the Darkes Forest property in 2004 when they borrowed $250,000 to pay Geofrey and that about $236,900 of the amount borrowed remains unpaid. Important also, was Graeme’s expectation that if they did so, Geofrey would not make a claim on the balance of the property at the time of the deceased’s death.

106. [168]

     Also relevant on this point, although of less weight, is that it is believed that the Darkes Forest property cannot be subdivided because of the way in which it is currently zoned.

107. [169]

     I have also taken into account the fact that Graeme expressed concern that if they are forced to sell the Darkes Forest property, then he will have no hope of earning income from the agistment of horses, or renting the second dwelling on the property. Whilst it is not utilised as a working farm, its use is linked to Graeme’s livelihood – his work as a farrier, and agisting horses. For Graeme and his wife to downsize would impact their income. But in view of the amount of the additional provision that will be ordered, I think sale is highly unlikely.

108. [170]

     Geofrey and his wife, on the other hand, do not appear to earn any income from their land, so they would not be affected, so far as any loss of income is concerned, by downsizing.

109. [171]

     Whilst Geofrey gave evidence that he receives income from a disability support pension of $6,685 per annum, no evidence was given about how a family provision order would affect his eligibility to receive a pension or the amount of the pension that he would receive. It follows that any capital sum received may impact on the amount of the pension that he receives.

110. [172]

     In my view, Geofrey, in addition to the provision made for him in the Will of the deceased, should receive a legacy of $125,000 absolutely. That amount should be borne out of the share of the Darkes Forest property that passes to Graeme under the deceased’s Will.

111. [173]

     This amount will enable Geofrey to pay his share of the loan owed by his wife to her sisters and her brother-in-law (about $51,000) and also provide him with an amount of about $74,000, as a capital sum for exigencies of life. Of course, he may use some of these funds to pay for medical and dental treatment and to purchase medical aids or for such other purposes as he sees fit.

112. [174]

     In my view, the deceased’s obligation to Geofrey, as an adult son, did not extend to providing any amount to pay for renovations to his, and his wife’s, home, for his wife’s debts, to supplement Geofrey’s superannuation or for the other expenses, including a new car, for which he seeks provision.

113. [175]

     Graeme should be permitted 4 months, or such other time as the parties are able to agree, to raise the amount necessary to satisfy the provision made in favour of Geofrey. In the unlikely event that the Darkes Forest property does have to be sold, an additional 3 months to enable the sale to be effected, should be permitted. Only then (after whichever time period is relevant) should interest calculated at the rate prescribed for payment of interest on unpaid legacies, be payable.

114. [176]

     To permit him a longer time would simply further delay the final administration of the deceased’s estate and the distribution of the balance of that estate.

115. [177]

     I direct the parties to prepare Short Minutes that reflect these reasons and any agreement reached on how the burden of costs is to be borne. The proceedings will be stood over for any argument as to costs and for the making of orders, which reflect the reasons for judgment, any agreement on costs, and to enable the Defendant to precisely identify the time required to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the estate. If agreement is reached and Short Minutes of Order agreed by the parties are provided to me, I shall make orders and notations in Chambers and vacate the date to which the matter has been adjourned.