Kemperman v Antonenas

These are the reasons for judgement following the two day hearing of proceedings that concern the estate of Johanna Antonia Kemperman (the deceased) and the claim brought by one of her three, now adult, children, Antonia Regina Kemperman, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act) and for her costs of the proceedings. The case provides a further example of an unfortunate legal battle, waged between the living, over the property of the dead. Regrettably, it is also one in which a major issue revolves around the character and conduct of the applicant, her relationship with the deceased, and the competing allegations concerning the causes of the state of that relationship.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, 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 The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

The deceased was born in September 1931, in Utrecht, The Netherlands. She died on 18 December 2019, aged 88 years. The deceased’s husband, Jacobus Kemperman, who was the father of their three children, died in January 1999. Their three, now adult, children are the Plaintiff, who was born in May 1955; Cecilia Mary Kemperman, who born in February 1957; and Mary Christine Blandford, who was born in September 1961. All survived the deceased.

Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to each family member, after introduction, by her first name.

The deceased left a duly executed Will dated 25 February 2015, in which she appointed the Defendant, James Antonenas, her solicitor, as executor of the Will and trustee of her estate. This Court granted Probate of the deceased’s Will to him on 15 April 2020. He played, essentially, a formal role in the proceedings.

The hearing was listed for two days and it was completed well within that time. At the hearing, Ms V Hartstein of counsel appeared for Antonia and Dr S Chapple of counsel appeared for the Defendant. I am most grateful to all of the legal representatives for the manner in which the hearing was conducted.

For reasons to which I shall come, following the completion of the evidence and the oral submissions, which occurred shortly prior to the long adjournment on the second day, I announced that I would return after the adjournment and inform the parties of the decision, then deal with the issue of costs, and would publish reasons as soon as I was able to thereafter.

Upon my return, I announced the orders that will appear at the conclusion of these reasons. Submissions, on the question of costs, became unnecessary as, commendably, the parties were able to agree upon the Plaintiff’s costs of the proceedings and the usual order for the Defendant’s costs.

Antonia filed a Summons on 24 September 2020. She seeks further provision out of the estate of the deceased. The Summons was filed within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Antonia is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

As the deceased dealt with all of her estate in the Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

An order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There was no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased hereafter.

The only eligible persons are the three children of the deceased. The only one who has brought proceedings is Antonia, although there is evidence that each of the others has been served with a notice of the application, and of the Court's power to disregard her interests in the manner and form prescribed by the regulations or rules of court: s 61 of the Act.

As will be read, each of the children of the deceased is a beneficiary named in her Will. Each of the other two children has advanced her financial circumstances, respectively, as a competing claimant, on the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.

Cecilia swore a single affidavit and Mary swore three affidavits that were read in the Defendant’s case. Each opposed the claim for provision being sought by Antonia. Each was cross-examined.

Whilst I was dealing with the affidavits, I asked counsel for the Defendant whether there was an updating affidavit from her. He then announced (Tcpt, 10 November 2021, p 08(49)-09(02)):

The request had not come as a surprise to counsel for the Plaintiff who said that there was no objection to the matter being raised, initially, without the parties and the witnesses being present in Court.

After dealing with the rest of the affidavits, I requested the parties to leave the Court room, following which counsel said (Tcpt, 10 November 2021, p 10(11-25)):

I formed the view that the matter of a beneficiary’s life expectancy, was, or may be, a matter that was relevant to the claim being made by Antonia, particularly as Cecilia had raised her financial circumstances as a competing claimant upon the bounty of the deceased. Both counsel agreed.

Some alternatives were discussed following which the Court suggested that counsel for the Defendant should confer with Cecilia and obtain instructions going to whether she was prepared to have the intensely private matter upon which she had given instructions, communicated to the Defendant, Mary and Antonia. The Court then adjourned so that the instructions could be obtained.

Upon my return to Court, counsel said (Tcpt, 10 November 2021, p 14(13-15)):

The matter then continued without any further application being made on this topic.

Relevantly, the deceased’s Will provided:

Clause 6 of the deceased’s Will provided:

The letter to which the deceased referred was, so far as is relevant, in the following terms:

It will be necessary to return to the matters stated later in these reasons.

Jacobus was born in October 1927, in Utrecht, The Netherlands. He migrated to Australia in about 1952.

The deceased and Jacobus met in Utrecht, and she came to Australia shortly after he did. They were married in December 1952.

At the date of Jacobus’ death in January 1999, they had been married for 46 years. He left a Will dated 2 August 1985 in which he appointed the deceased as the sole executrix and left the whole of his estate to her if she survived him by 30 days. On 18 May 1999, this Court granted Probate of that Will to the deceased.

Jacobus’ estate comprised a property at Willoughby, Sydney ($500,000), furniture ($5,000) and monies in different bank accounts totalling $120,445.

Interestingly, his Will provided that in the event that the deceased did not survive him by 30 days, Jacobus left his car to Antonia, and if he had more than one, it was to be the car of her choice. He also gave the Willoughby property, or any other principal residence owned by him at his death, to Cecilia, as to one half, as to one quarter to Antonia, and as to the other quarter to Mary. He also gave Cecilia the right to buy, from the estate, the Willoughby property, or any other principal residence owned by him at his death, by payment to her sisters, the value of their interest therein, such value to be determined by them, or if unable to be agreed, determined by the Valuer General for New South Wales.

On 12 October 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The deceased’s estate, at the date of death, comprised real property located in Lisarow, a suburb of the Central Coast of New South Wales, about 8 kilometres north-northeast of Gosford's central business district ($750,000), cash in bank accounts ($628,874, $194,633, and $11,078), a motor vehicle ($1,200), household contents ($5,000), and a refund from Medibank and RMS (combined totalling $922). The gross estimated value of the deceased’s estate, then, was $1,591,707.

The deceased’s estate, at the date of the schedule, comprised the real property located in Lisarow ($900,000), cash in bank accounts ($762,790), the motor vehicle ($1,200), and household contents ($5,000). The gross estimated value of the deceased’s estate was $1,668,990.

The Court was informed, from the Bar table, that the Defendant, as executor, intended to seek commission, or percentage, for his pains and trouble, as is just and reasonable, out of the estate of the deceased, pursuant to s 86 of the Probate and Administration Act 1898 (NSW). Again, from the Bar table, and without objection, the Defendant estimated the amount of commission to be $25,000.

In the event that the property at Lisarow is sold, the estimated costs and expenses of sale are estimated to be about $25,000. The legacies to Antonia, Katherine and Christine total $100,000. The estimated amount of commission ($25,000) should also be included in the amounts to be deducted from the gross value of the estate.

The only potential liabilities of the estate are the costs of these proceedings. It follows that, subject to the orders for costs that are made, the estate of the deceased, has a value, at the date of hearing, of $1,518,990. It is, therefore, an estate of reasonable value.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 at [54]:

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

I have repeated many times in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Antonia’s costs, calculated on the indemnity basis, were estimated to be $174,300 and, calculated on the ordinary basis, to be $145,275 (in each case, inclusive of GST and on the basis of a two day hearing).

Mr M J Fisher, in an affidavit affirmed on 5 October 2021, estimated the Defendant’s costs, calculated on the indemnity basis, to be $135,000 (inclusive of GST and on the basis of a two day hearing) and, calculated on the ordinary basis to be, $108,000. Costs of the proceedings, totalling $42,650 have been paid, leaving $92,350 to be paid. (Other amounts being the costs of the private mediator ($3,960) as well as costs of administration ($9,056) have been paid out of the estate).

I was unable, at the time, to determine what costs orders would be made as part of these reasons as the parties had stated that there may be documents relevant to any determination of costs: Tcpt, 10 November 2021, p 06 (09-17).) However, using the costs estimates as a guide, the amount of costs to be deducted will be $237,625. It follows that the estate out of which any order for provision could be made is in the order of $1,281,365. (Subsequently, the parties agreed on the amount of the Plaintiff’s costs at $110,000).

The principal witnesses were the three children of the deceased. Each was cross-examined. (The Defendant, who gave evidence of a formal nature, and each of the solicitors who gave evidence of costs, were not cross-examined.)

The evidence given by Antonia differs starkly from the evidence given by Cecilia and by Mary. The most significant difference between her and them related to the depiction of their family life and the causes of the relationship issues that existed between Antonia and the deceased.

The picture that Antonia sought to portray, in her affidavits, and orally, was one in which she was the victim of violence from both her father and from the deceased; that the deceased used to practice wrestling moves on her; that she was physically frightened of the deceased; that she was physically punished, regularly, for small infractions of the rules by being held in the wrestling moves and that she was punched; she was also subjected to psychological and emotional abuse, saying that she could not remember ever receiving a hug, or any comfort, from the deceased. This treatment was said to have continued from when she was 6 or 7 years old until she left home at the age of 15.

During cross-examination, when asked whether she had raised the family violence she had experienced during meetings with psychologists in 2003 and 2013, Antonia stated that she was unsure whether she had done so: Tcpt, 10 November 2021, p 36(35). However, the psychologists’ notes, which formed part of the evidence relied upon, made no mention of family violence, stating only that Antonia had been raised in a family which was not emotionally expressive and that her mental conditions “appear to have been exacerbated by systemic issues within the family and a style of non-communication”: Affidavit, Antonia Regina Kemperman, 20 October 2020, Exhibit ARK1/63.

Although the psychologist’s notes from the 2013 meetings included a reference to Antonia stating, “I have been cut out of my father’s will completely”, Antonia maintained that she did not recall discussing her father’s Will with the psychologist and that she would not have seen her father’s Will prior to these meetings: Tcpt, 10 November 2021, p 38(16-19).

In cross-examination, Antonia accepted that her parents had enrolled her in the same schools as Mary and Cecilia; had arranged a private tutor when she had appendicitis and had missed school for a period of time; had offered to pay for her to complete a secretarial course; and had purchased a motor vehicle for her: Tcpt, 10 November 2021, p 22(19-46).

When asked about actions taken by her father during her childhood, such as stopping her working part-time at a pancake shop, Antonia stated that she believed her father had done so in an attempt to make her feel guilty and reclaim his authority over her: Tcpt, 10 November 2021, p 42(24-27).

She also stated that she had “no idea” whether it was hurtful to her parents when she moved out of home as a teenager: Tcpt, 10 November 2021, p 43(48)-44(01). However, she accepted that she later apologised for doing so, in the mid-80s: Tcpt, 10 November 2021, p 45(28-30).

Antonia also sought to portray herself as a person who had attempted, more than once, to reconcile with both of her parents; that she had tried to visit the family home from time to time, but was first required to telephone and obtain permission. She wrote that, on many occasions she had made these attempts, but had been turned away. She said that she had tried, in vain, to mend her relationship with the deceased on many occasions over the years but was rebuffed. She said that she would often leave presents at the door of the family home.

By way of example, Antonia gave evidence that, in May 2018, she had texted the deceased, through Mary (Ex P2/9):

The deceased replied with the following (Ex P2/9):

Initially, Mary stated that she recalled this conversation but later stated that she could only recall a telephone call between the deceased and Antonia in 2019: Tcpt, 10 November 2021, p 93(35)-94(12).

Antonia also gave evidence that in mid-2019, she visited the deceased’s home to give her an orchid. Mary texted Antonia, shortly after, “…[Mum] says thank you very much for the beautiful Orchard [sic] and will call you hopefully by next week when she feels a bit better”: Ex P2/46. Mary, however, could not recall the gift of the orchid or the text message sent by her telephone: Tcpt, 10 November 2021, p 95(15-23).

Yet, it was not asserted by Antonia, and nor could it be, that this is a case, like some, in which an applicant for provision, prior to an estrangement, has made personal, or financial, sacrifices in caring for the deceased, or in contributing to the deceased's estate.

Exhibit P1, a receipt for $130 paid by Antonia in 1983 towards the repair of the deceased’s violin, was the only document tendered by Antonia which demonstrated her relationship with the deceased. However, Antonia gave evidence that there may have been other receipts which she had discarded: Tcpt, 10 November 2021, p 20(10-22).

The evidence given on behalf of the Defendant, principally by Mary and Cecilia, was quite different. They gave evidence that Antonia had had little contact with the deceased for the last 50 years of the deceased's life. During that time, there were significant periods of estrangement, spanning decades, at a time.

Furthermore, Mary gave evidence of having lived in the family home until 1983. The family home was a very modest three bedroom house in which 3 adults and 3 children had lived. She stated that she had never witnessed any violence directed towards Antonia. Indeed, the only violence she recalled was perpetrated by Antonia. Cecilia’s evidence was similar.

Mary gave evidence of an incident when she was approximately 8 or 9 years old, when Antonia slapped her father in the car, after being told she could not go out with friends. Mary also gave evidence of an incident, at her 21st birthday party, in 1982, when the Plaintiff pushed and shoved Cecilia and yelled at the deceased and her father. Antonia denied both of these incidents.

Mary gave evidence that, when she was approximately 9 or 10 years old, she recalled the police speaking with her father, after Antonia accused him of raping her. However, according to Mary, in 2019 she discussed this incident with Antonia, who stated “someone else raped me”.

Cecilia also gave evidence that Antonia made a rape allegation against their father and recalled the police attending the family home. Cecilia stated that Antonia later told her that this allegation was false.

The Plaintiff denied ever accusing her father of raping her, stating that she was raped by a family friend and had told her father about it, after reporting the incident to police.

When asked, in cross-examination, why she did not report her parents’ violence at the time she reported her rape, Antonia stated that “I went to the police station out of rape. It’s two different things”: Tcpt, 10 November 2021, p 29(22). She also stated that she never reported the violence because “it was normal”: Tcpt, 10 November 2021, p 29(32).

Antonia also stated that she had told her father about the rape, despite the violence, because “he was my dad”: Tcpt, 10 November 2021, p 31(38).

It was said that for a period of about 10 years, from the mid-1980s until the mid-1990s, Antonia had little, if any, contact with both of her parents. This continued until the death of the deceased. However, Antonia stated that she continued to see her parents from 1985 to 1988: Tcpt, 10 November 2021, p 48(39-40).

Antonia's evidence was that at the time of the deceased’s death she had not seen her for some three to four years and that in the final two years of the deceased's life, she and the deceased had only a few conversations. There is no evidence that any of those conversations were anything more than perfunctory, and at least one of them became openly hostile.

Antonia stated that she visited the deceased in 2014 and 2015 but then she “disappeared”: Tcpt, 10 November 2021, p 51(25). Antonia resumed contact with the deceased in 2018 by way of text messaging: Tcpt, 10 November 2021, p 51(21-22). Antonia also gave evidence of a phone call she had with the deceased in September 2019, during which the deceased became upset due to Antonia’s allegation of rape against her father and hung up: Tcpt, 10 November 2021, p 57(20-28). Antonia then sent email correspondence to the deceased, by way of Mary, in an attempt to “clarify [the] conversation”: Tcpt, 10 November 2021, p 59(43-45). This was the last correspondence between the deceased and Antonia.

I have adverted to the terms of the letter written by Jacobus, Antonia’s father, which was adopted by the deceased. Clearly, in doing so, she wished to disclose the reasons that had actuated her to make the dispositions she had made in the Will.

Mary characterised her relationship with her parents as loving and supportive. Growing up in her parent’s home, Mary described a happy childhood. After moving out of home at age 22, Mary continued to see her parents at least once per fortnight and they assisted her in caring for her children.

Cecilia also had a warm and caring relationship with her parents. In 1981, after her marriage was annulled, she returned to live with them until the deceased’s death. Cecilia was the deceased’s main carer until approximately 7 years prior to the deceased’s passing, at which point Mary commenced caring for both the deceased and Cecilia.

I deal, first, with the documentary evidence of the deceased.

Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section “includes any representation of fact whether or not in writing”: s 100(1).

Sub-section (5), (6), and (8) of s 100, provide:

Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2:

Whilst the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

Where the truth of the statements made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statements.

I have also borne in mind, also, that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 152):

Thus, that a statement is made by the deceased does not mean, necessarily, that it must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

Similarly, in circumstances where the parents of the applicant are both dead, and where neither has had an opportunity to respond to the serious allegations made against each of them, the Court must also remember that “the natural self-interest and human imperfections to which we are all prone are such that, when you get that kind of situation, great caution and even suspicion, is called for if justice is to be done and an unjust imposition is to be avoided”: Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC) at 105; [1947] NZGazLawRp 127 (Callen J).

Whilst I have carefully considered Antonia’s evidence, I am unable to accept her evidence regarding the violence and abuse she asserts against each of her parents. In this regard, I bear in mind:

I carefully observed Antonia in the witness box and the passionate manner in which she gave her evidence. In reaching the conclusion that I am not satisfied about the allegations made, I do not conclude that Antonia consciously raised the allegations, falsely, for the purpose of establishing a basis to explain her conduct during the lifetime of the deceased in order to succeed in the proceedings. I tend to the view that she has convinced herself that certain events occurred and has attributed her relationship with both of her parents, and particularly the deceased, to those events.

In any event, I have considered all of the evidence. What was written by Campbell JA (Giles JA and Handley AJA agreeing) in Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 at [79] should be remembered:

In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

His Honour added, at [86]:

In Steinmetz v Shannon [2018] NSWSC 1090, at [10], Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32] – [33], that:

I should state that Antonia does not assert that she made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased, or to the welfare of the deceased, or to other members of her family, either before, or after, the deceased's death. The only exception was, at the hearing, she produced a receipt dated 2 December 1983 for $130: Ex. P1.

Nor is it asserted, on the part of the Defendant, that provision was made for Antonia by the deceased, either during the deceased's lifetime, other than when Antonia was a child. Naturally, it was not suggested that Antonia was being maintained, either wholly, or partly, by the deceased, before the deceased’s death.

I have referred to the fact that Antonia receives $50,000 and a violin under the deceased’s Will. Counsel submitted that the fact that Antonia had received the violin from the deceased was important in determining the way in which the deceased viewed the relationship: Tcpt, 11 Nov 2021, p 106(45-48).

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Since the Plaintiff’s eligibility is not disputed, the Court must determine whether adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1)(c). 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".

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

In Stanford v Stanford [2021] NSWSC 1469, at [139]-[151], another claim by an adult child on the estate of their parent, I set out the case law which is applicable to a family provision claim:

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

The Court’s order 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 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.

In Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, at [473]-[474], I repeated the principles that relate to a claim by an adult child:

I set out the principles relevant to family provision claims in the case of estrangement in Underwood v Gaudron [2014] NSWSC 1055 at [230]–[233]. An appeal from that decision was dismissed by the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269.

As I observed in Rogers v Rogers [2018] NSWSC 1982 at [150], the summary I provided in Underwood v Gaudron has been referred to, without disapproval, and in some cases with approval, in a number of subsequent authorities.

I next repeat part of what I wrote in Underwood v Gaudron, at [231]-[233]:

In Rogers v Rogers at [152]–[154], I added:

I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 at [106]:

Ultimately, although the relationship of parent and child is important and carries with it a moral obligation reflected in the Act, nevertheless, it is an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.

In this case, there was really no dispute that the duty owed by a parent to a child to provide maintenance and advancement in life will be reduced if the relationship was dysfunctional, intermittent or reduced in some other way. That conduct is likely to reduce the amplitude of provision to be made for the applicant: Tcpt, 11 November 2021, p 107(43-48).

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

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 725 at [117]), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.

As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380 at [131]:

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [37] (White JA). They must be remembered.

But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]–[108]:

(In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that “[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave”: Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)

In addition, the formulation of principles, whilst not intended to “constitute a fetter upon the discretion not intended by the legislature”, may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

There was really not much dispute about Antonia’s current situation. She last worked, full time, in August 1991. Thereafter she had received unemployment benefits until she was given the disability pension in August 2002.

She lives in community housing and pays an accommodation contribution of $738 per month, which is deducted, automatically, from her disability pension income of $2,369 gross per month, leaving her with about $1,631. She says that she is unable to afford private health insurance and yet needs expensive medical investigations and treatment which are not covered or not completely covered by Medicare. However, over a period of some years, she has managed to save about $55,168, which together with a car ($18,000) and some household furniture, constitutes the total of her assets.

She is not cohabiting with another person, has no partner, or any other person liable to support her.

Antonia’s health is poor. Her major conditions are autoimmune disorders namely CIDP, which I understand to mean Chronic Inflammatory Demyelinating Polyneuropathy, a rare neurological disorder in which there is inflammation of nerve roots and peripheral nerves. She also suffers Sjogren’s syndrome, which I understand affects the glands in the body that make moisture, and most often causes dryness in the eyes and mouth.

She describes her symptoms as including brain fog, dizziness on and off, generalized body aches, muscle fatigue, difficulty climbing stairs, difficulty with sitting and getting out of a chair quickly, constant fatigue, altered sensation and an inability to regulate her temperature. Her motor responses are markedly reduced and she has absent ankle reflexes, which she says causes her to trip and fall, as well as being off balance when walking. She experiences burning pain, pins and needles, tingling numbness and weakness in all limbs and she drops things and knocks things over. She believes that her symptoms are progressively getting worse.

Bearing in mind her age (66 years), that her health is poor, and that she suffers from a number of different medical conditions, I accept that she has virtually no future earning capacity.

Antonia is now subject to an NDIS plan, which pays for some of her needs, although it does not pay for medical treatment. For the period from 18 June 2019 and 17 June 2020, she was approved for support totalling $89,824. For the period from 9 June 2020 to 9 June 2021, she was approved for support totalling $99,262. Under her present plan, Antonia has been approved for support totalling $95,561. Those funds may be applied as to $71,992, in respect of "core supports", which includes assistance with personal activities of daily living, including within the home, daily activities and community participation, and transport; and $23,569, in respect of "capacity building supports", which includes financial planning, funding for allied health professionals and counselling, and support co-ordination.

Antonia seeks provision to purchase a two-bedroom unit or villa with flat access and no renovation or maintenance, as she currently has no permanency of accommodation. She wishes to remain in the Marsfield area as it is central to her medical appointments and has good public transport. Antonia stated that she requires a two-bedroom apartment because she requires a carer to stay with her for 24 hours after her medical appointments and procedures: Tcpt, 10 November 2021, p 68(42-45).

Antonia maintains that her current unit is unsuitable accommodation as it requires several modifications and due to cigarette smoke from neighbouring residents: Tcpt, 10 November 2021, p 63(16-18). Antonia has been approved for a housing transfer but this is subject to a waiting list: Tcpt, 10 November 2021, p 67(13).

In future, Antonia expects that her medical conditions will worsen and she will need further care assistance and medical procedures, which she estimates will cost more than $200,000.

Antonia seeks further provision to assist her with the contingencies of life.

Mary is employed as a medical secretary and earns approximately $980 per fortnight after tax. However, her working hours are expected to be reduced in November 2021, at which point she will earn approximately $700 per fortnight. Mary is currently searching for new employment, as she does not believe she can live comfortably on $700 per fortnight. Her currently earnings and expenditure are approximately the same each fortnight.

Mary has superannuation of approximately $168,048.

Mary’s husband, David Blandford, is 60 years of age and in reasonable health. He is employed at Bunnings and earns approximately $800 per week net.

David and Mary are joint owners of their unencumbered property located at X McGrath Close, Lisarow. The estimated value of the house is $979,000.

David has approximately $200,000 in superannuation and $60,000 in savings. He also owns a vehicle worth an estimate $4,000 and some shareholdings.

Clearly, she is significantly better off, financially, than Antonia.

Cecilia is single and does not have any children. In 1981, her marriage was annulled, and she did not receive any property settlement from her ex-husband. Since the annulment of her marriage, Cecilia has lived at her parent’s property in Lisarow.

Cecilia is currently on a disability pension of approximately $1,880 per month and has no other sources of income. She has been unable to work since 1999 due to two sleeping disorders from which she suffers, namely idiopathic hypersomnia and severe obstructive sleep apnoea, which cause her to sleep up to 23 hours a day. These conditions have worsened since the deceased’s death and treatment has been unsuccessful.

Cecilia owns a 21 year old motor vehicle and has $17,000 in a savings account, which she has set aside for emergencies. She has no superannuation.

Cecilia’s current monthly expenses are as follows:

Cecilia accepted, in cross-examination, that her income exceeds her expenses by approximately $600 per month, but stated that she spends a significant amount of this treating her health complications: Tcpt, 10 November 2021, p 76(44)-77(19).

Cecilia requires funds to attend on repairs to her home, including a roof leakage in the kitchen and a major electrical problem.

Cecilia requires $8,000 for dental work as a result of an injury she sustained after falling and injuring her mouth.

In the event that Cecilia is required to sell the property in which she currently lives, which is next door to her carer, Mary, she will need to move into a nursing home, as she is unable to cook and clean for herself. Cecilia estimates the cost of a nursing home to be approximately $1,500 a week and the bond to be $400,000.

The significance of this evidence has been reduced by the oral evidence given by Cecilia at the hearing.

In any event, in view of the quantum of the provision which I have ordered, the financial and material circumstances of each of Cecilia and Mary will not be significantly altered.

Counsel for Antonia submitted that, in cases of partial estrangement between parent and child, the whole of the relationship should be considered. She referred to my judgment of Sreckovic v Sreckovic [2018] NSWSC 1597, where I wrote, at [288], “In family relationships hurts are inflicted or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life.” It is a reality and I do not depart from that view.

Counsel for Antonia submitted that the causes of the estrangement and attempts by Antonia to achieve a rapprochement are also relevant considerations. It was submitted that Antonia had been treated badly from her parents by a young age, but continued to return and attempted to achieve a warm relationship with them. The abuse alleged by Antonia was too unusual to be fabricated, and that disclosure of childhood abuse later in life is commonplace. She further submitted that, merely because Cecilia and Mary did not witness any violence, this did not mean it did not occur: Tcpt, 11 November 2021, p 102(41-46).

However, as I pointed out to counsel for the Plaintiff, there is no evidence that Antonia told anyone about the violence until she made a family provision claim on the deceased’s estate: Tcpt, 11 November 2021, p 103(06-11). Specifically, she did not mention family violence to either of the psychiatrists whom she saw: Tcpt, 11 November 2021, p 104(05-10). Nor did she mention it to either of her sisters at any time.

According to counsel for Antonia, other relevant factors include the value of the estate, which is of sufficient size to allow additional provision to be made for Antonia without greatly impacting upon the other beneficiaries; that Antonia has no person with a responsibility to maintain her; her need for funds to pay for medical bills, accommodation and future care expenses and her lack of sufficient available financial resources to meet the exigencies of life.

Ultimately, counsel submitted that Antonia should receive, by way of additional provision, a lump sum of approximately $225,000. This amount was adequate and proper because it equates to a quarter of the value of the real estate, provides a buffer for Antonia and is a considerable reduction of the amount Antonia might have expected had there been no estrangement from her family.

Counsel for the Defendant submitted that Antonia had minimal contact with the deceased for the last 50 years of the deceased’s life. At its highest, Antonia’s evidence was that, over the final two decades of the deceased’s life, she and the deceased had only a handful of conversations. Antonia’s explanation for the estrangement, being family violence, was described as fanciful. Counsel pointed to the following evidence as establishing that the violence Antonia alleged had not occurred:

Counsel for the Defendant submitted that the estrangement between Antonia and the deceased was largely, if not entirely, caused by Antonia. There was none of the love, companionship and support, present in what might be described as “normal” parent-child relationships. This factor, alongside Antonia’s untruthful evidence about family violence, was said to warrant restraining the amplitude of any provision made for her.

The extent of the estrangement between Antonia and the deceased, coupled with the intensity of feeling, meant that the deceased was justified in making no provision for Antonia and that her claim should be dismissed. However, if further provision were to be made for Antonia, counsel for the Defendant submitted that it should be in the amount of approximately $80,000: Tcpt, 11 November 2021, p 116(21).

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified should not lead to the conclusion that they have not been fully considered.

As stated, there is no dispute that Antonia is an eligible person and that she commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of Antonia has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, her material situation.

I am satisfied that adequate provision for her proper maintenance or advancement in life has not been made by the Will of the deceased for Antonia. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what she ought to have done, and in this case, actually did, in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd [1983] AC 463, 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 at 19–20 (Dixon CJ).

The Court should also make allowance for current social conditions and standards: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

In reaching my determination, I have considered all the circumstances of the case. The following factors, whilst, on their own, not determinative of Antonia’s entitlement to a family provision order, may be regarded, as of some significance:

In accordance with s 65(3) of the Act, since provision is to be made by payment of a lump sum, the orders should specify whether interest is payable on the whole or any part of the amount payable, and, if so, the period during which interest is payable and the rate of the interest.

Having examined, and considered, all of the evidence, the Court: