Bohen v Mitchelmore

1. [1]

   BASTEN AJ: This judgment should be read with the earlier judgment concerning the estate of Caterina Felice Bohen (the testator) who died on 6 August 2021. [1] That judgment dismissed a claim by Robin Etherton seeking to have a handwritten document signed by the testator on 27 December 2020 accepted as an alteration to her Last Will and Testament signed on 10 August 2016 (“the 2016 will”). The dismissal of that claim left intact the 2016 will which left a bequest to Mr Etherton, items of sentimental value to the testator’s daughters and the residue of the estate to those of her grandchildren who survived her and reached the age of 35 years. Her daughters, Tina Louise Bohen and Angela Marie Bohen, have jointly applied for provision from their mother’s estate under Pt 3.2 of the Succession Act 2006 (NSW).

2. [2]

   The application for provision was resisted by the executor of the estate, Dean Joseph Mitchelmore. Of the five grandchildren, four are minors, for whom a tutor was appointed to represent their interests. The Court was informed that the tutor had had discussions with the executor and had decided not to be joined in the proceedings, presumably on the reasonable assumption that the executor would defend the interests of the grandchildren under the 2016 will. The fifth grandchild is 19 years of age and has also not participated in the proceedings.

3. [3]

   It may be noted in passing that had Mr Etherton’s claim succeeded, it would have excluded the grandchildren from any interest in the testator’s estate. The grandchildren could not have made a claim for provision under s 59, not being eligible persons within s 57(e)(ii) of the Succession Act. The grandchildren would no doubt have benefited both directly and indirectly from family provision orders made in favour of their mothers.

4. [4]

   Before turning to the assessment of the daughters’ claims, it is necessary to provide further details of the 2016 will and the circumstances in which it was executed and then to identify the relevant legal principles.

5. [5]

   The parties sought a direction that evidence in each of the probate and family provision proceedings be evidence in the other. Such a direction is made, subject to the relevance of the particular evidence.

Circumstances of 2016 will

1. [6]

   The three dispositive provisions of the 2016 will read as follows:

2. [7]

   There was no dispute that the furniture and contents of the home left to the daughters was of no financial value. The residue of the estate was a bank account of some $106,000 and, by August 2023, a term deposit with the Commonwealth Bank being primarily the proceeds of sale of the Croydon Park property owned by the testator at the time of her death, in an amount of some $1.2 million.

3. [8]

   One further provision of the 2016 will should be noted. Although the provision for the grandchildren was to be postponed until each reached the age of 35 years, the executors had powers to advance moneys in accordance with cl 9, in the following terms:

4. [9]

   In order to explain the circumstances in which the daughters were excluded from the testator’s estate, it is necessary to refer to two earlier wills.

5. [10]

   So far as the evidence revealed, the testator made her first will on 11 March 1997 (the 1997 will). The 1997 will was made on a form bearing the logo of the Public Trustee. The testator had separated from her husband, John Bohen, in 1989. In March 1997 Tina Bohen was 21 years of age and Angela Bohen was 20 years of age. Both daughters were excluded from the 1997 will: the whole of the estate was to pass to charity. Tina Bohen gave evidence with respect to events prior to the making of the 1997 will. She said that attempts before her departure for the UK in January 1996 to have her mother help her obtain an Italian passport which would have allowed her to work in Europe were rebuffed because her mother saw it as assistance for her daughter to “abandon” her. [2] Angela Bohen suffered rejection in January 1997 when her mother appeared to believe that she was being abandoned, and ordered her younger daughter to “get out”. The 1997 will was made 10 years before the daughters received legacies under their uncle’s will. There were, of course, no grandchildren in 1997.

6. [11]

   The testator made a second will on 13 March 2015 (the 2015 will). It was witnessed by Mr Mitchelmore and named him as one of two executors, the other being an accountant, who was also named in the 2016 will but renounced probate. The scheme of distribution was the same as in the 2016 will, with two differences. First, the bequest to Mr Etherton was in the smaller sum of $100,000. Secondly, the residue was to be divided between the grandchildren who survived her and attained the age of 30 years (not 35 years). Otherwise, the same provision was made for the daughters to have the furniture and other contents of the home.

7. [12]

   The 2015 will was accompanied by a statement, commonly referred to as a “section 100 statement”, not because that section of the Succession Act confers power to make such statements, but because it renders the contents admissible in evidence if direct oral evidence by the deceased would have been admissible. The statement read:

8. [13]

   The 2016 will was also accompanied by a statement, which contained more detail than the statement made some 17 months earlier:

9. [14]

   For reasons which will be explained below, I am satisfied that the contents of paragraphs 3 and 4 of the 2016 statement were largely false.

10. [15]

    The other document which should be identified in this context is that which was the subject of the probate proceeding brought by Mr Etherton. On 27 December 2020 the testator passed to Mr Etherton what he said the testator described as “a note” in the following terms:

11. [16]

    Although not accepted as an alteration to the 2016 will, this document should be accepted as a statement admissible in the family provision proceedings pursuant to s 100 as explaining the bequest to Mr Etherton made in the 2016 will.

12. [17]

    Before considering the evidence of the claimants, it is convenient to set out the principles to be applied in addressing a family provision claim under s 59 of the Succession Act.

Legal principles

1. [18]

   The statutory scheme for family provision orders is found in Pt 3.2 of the Succession Act. It commences by identifying classes of “eligible persons” who may make such an application: s 57. The classes include a child of the deceased person: it is not in dispute that the daughters were thus eligible persons pursuant to s 57(c).

2. [19]

   The Court may make such an order if satisfied that, at the time the Court is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person … has not been made by the will of the deceased person”: s 59(1)(c). If so satisfied, the Court is empowered to make “such order” as it thinks “ought to be made for the maintenance, education or advancement in life of the eligible person”: s 59(2).

3. [20]

   In determining whether an order should be made and, if so, in what form, the court is empowered to have regard to matters set out in s 60(2) of the Succession Act. Those matters provide guidance, but are not exhaustively stated. Importantly, they inform the content of what may be considered “adequate” provision and “proper” maintenance, education or advancement in life. These matters require the Court to consider the family relationship between the applicant and the deceased person, “including the nature and duration of the relationship” (par (a)); “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the … estate” (par (b)); “the nature and extent of the … estate” (par (c)); “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant” and of any beneficiary of the estate (par (d)); “the age of the applicant” (par (g)); “evidence of the testamentary intentions of the deceased person” (par (j)); “the character and conduct of the applicant before and after the date of the death of the deceased person” (par (m)); and “any other matter the Court considers relevant” (par (p)).

4. [21]

   The following observations, pertinent to the circumstances of the present case, should be made. First, the terms “proper” and “adequate” do not invoke any precise or immutable standard. As explained in Singer v Berghouse, [3] the standard will depend on all the circumstances of the case, including those matters now set out in s 60(2). Nor does resort to concepts such as “community standards” or “community values” provide much by way of assistance. [4]

5. [22]

   Brereton JA stated in Steinmetz v Shannon: [5]

6. [23]

   Brereton JA repeated an earlier observation in Alexander v Jansson, [6] that “‘proper maintenance’ is not limited to the bare sustenance of a claimant …, but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility”. Brereton JA continued (in Steinmetz):

7. [24]

   Secondly, both s 60(2)(a) and (m) invite attention to the relationship between the applicant and the deceased and the character and conduct of the applicant, which may include conduct towards the deceased. These criteria have salience in circumstances where there has been some form of estrangement between the applicant and the deceased. The statements made by the testator in written documents prior to her death suggested both estrangement and an element of abandonment on the part of her daughters in their conduct towards her.

8. [25]

   It has been observed on more than one occasion that though the courts use the term “estrangement” as a relevant consideration in determining a family provision application, the word describes a situation and not the conduct which caused it. The conduct may be important in evaluating the relationship. Bryson J said in Gorton v Parks [7] (some 35 years ago), with respect to the relationship between a father and son:

9. [26]

   Further, as observed by Holland J in Kleinig v Neal (No 2) [8] and cited with approval by Ipp JA in Palmer v Dolman: [9]

10. [27]

    In Foley v Ellis [10] the Court of Appeal dealt with a claim by an adult daughter with respect to her mother’s estate which had originally been divided equally between the applicant and her two siblings but was later varied so that her one-third was to be shared between herself and her two children. In the result the applicant had received a one-ninth share of the residue. There was no doubt that there was estrangement between the applicant and her mother which effectively dated from the applicant’s separation and divorce from her husband (Tad), whom the applicant said her mother treated like another son. The circumstances were described and analysed by Sackville AJA in the following terms:

11. [28]

    As will be seen below, there were undoubtedly elements of disharmony between the testator and her daughters, to varying degrees and over varying periods of time. It will be necessary to consider whether the evidence supported a conclusion that there was abnormal estrangement and, if so, whether the daughters behaved callously towards their mother, or whether she was equally responsible for the elements of estrangement or, indeed, primarily responsible for them. As I suggested in Andrew v Andrew, [11] where largely natural processes are “kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience”.

12. [29]

    Thirdly, there is a question as to the nature of the needs which are relevant in assessing an applicant’s claim. Ms Tina Bohen was cross-examined by counsel for the executor to the effect that her real interest in the estate was to obtain money for the benefit of her own children. As Sackville AJA noted in Smith v Johnson: [12]

13. [30]

    The needs of a person in providing for his or her own children are to be taken into account. Further, in the present case, the residuary beneficiaries under the 2016 will were the testator’s grandchildren. Grandchildren, unless directly dependent on the deceased, are not eligible persons under s 57 of the Succession Act. A claim by a grandchild may be seen as “generation skipping”, because the primary obligation to maintain a child is generally that of a parent or guardian, and not a grandparent. In Chapple v Wilcox [13] the Court of Appeal considered a claim by a grandson for provision from the estate of his deceased grandfather. Under the grandfather’s will, his whole estate passed to his daughter, being his only child and the claimant’s mother. An appeal from an order for provision to the grandson was allowed and the order set aside. In additional concurring reasons I suggested:

14. [31]

    I agreed that it was necessary as a first step in such a case, to address the matters identified by Hallen AsJ in Bowditch v NSW Trustee and Guardian, [14] the first of which was expressed as follows:

15. [32]

    The present case is the reverse of Chapple v Wilcox; it is the parents (or at least the mothers) of the grandchildren who are seeking provision in circumstances where under the will the residuary beneficiaries entitled to the bulk of the estate are the grandchildren.

16. [33]

    This circumstance has two facets. On the one hand the testator must be understood to have reversed the normal order of things and to have conferred testamentary recognition on a second generation for whose welfare the first generation (the mothers) have primary responsibility but have been deliberately excluded. On the other hand, any provision in favour of the mothers, accepting as I do, each to be a responsible and devoted parent, would in fact benefit the grandchildren, both directly and indirectly.

17. [34]

    Fourthly, there is the question of the weight to be given to the intentions of the testator. On the one hand, recent judicial statements reject the proposition that the statutory scheme for family provision, being an interference with the freedom of testamentary disposition, should only be exercised in unusual circumstances. In Steinmetz, Brereton JA noted that “testamentary freedom” is not a factor referred to in s 60(2) of the Succession Act. However, he continued: [15]

18. [35]

    Judges are wisely urged to be conscious of the difficulty in identifying the full circumstances of a family situation in the absence of direct testimony from the deceased person whose disposition of the estate is in dispute and given the difficulty in knowing where the truth lies in characterising a relationship which may have been formed over many years and even decades.

19. [36]

    The tensions facing the Court were addressed in the following statement of principle by White J in Slack v Rogan, (subsequently approved by the Court of Appeal in Steinmetz [16] ):

20. [37]

    In the present case, as noted above, the testator left her personal belongings to her daughters. She thereby demonstrated recognition of the fact that they were her daughters and had a continuing call on her conscience. The question is whether she in fact gave due consideration to their claims on her estate; if not, the respect which should be given to her exercise of judgment will be diminished if not vitiated.

The claimants’ evidence

1. [38]

   The evidence in the claimants’ case fell into two categories, namely (i) evidence given by each daughter of her relationship with her mother (the testator), and (ii) evidence of financial needs. It is convenient to deal with the evidence in that order.

2. [39]

   Both daughters gave evidence in the course of the proceedings, Angela Bohen being present in person and her sister, Tina, giving evidence by AVL from London. Both were impressive witnesses and I accept their evidence unreservedly. In keeping with the tone of their affidavits, neither demonstrated any resentment of her mother’s erratic and unstable behaviour, although each was emphatic in dismissing the untrue elements in the section 100 statements.

3. [40]

   Ms Tina Bohen gave evidence of her mother’s own background, to the best of her knowledge, in the following passage in her affidavit of 21 March 2023:

4. [41]

   The testator married her husband, John Thomas Bohen, in about 1973, with her older daughter Tina being born in April 1975, and the younger daughter Angela being born in February 1977. Both daughters said that their parents separated in late 1989; Tina Bohen thought they were not divorced. [17]

5. [42]

   Angela Bohen gave evidence that her father was employed as a fitter and turner/diesel mechanic and worked on the XPT trains, sometimes being away from home for days at a time. It is clear that Angela had a close relationship with her father and enjoyed trips to his mother’s house in Boggabilla. Both daughters gave evidence of their Aboriginal heritage, which was through their father’s family.

6. [43]

   In her affidavit of 17 March 2023, Angela Bohen gave the following evidence:

7. [44]

   Angela Bohen gave oral evidence in response to cross-examination that her father now lived with her family in Brisbane, when he was not travelling. [18]

8. [45]

   Both daughters gave evidence of their mother being erratic, at times highly protective, expressing affection and, at other times, inflicting violence. Angela Bohen stated: [19]

9. [46]

   Tina Bohen described her childhood in the following terms:

10. [47]

    While Tina Bohen’s evidence of violent behaviour by her mother was not limited temporally, I accept Angela Bohen’s evidence that the treatment became worse after her parents separated in 1989.

11. [48]

    Both daughters gave evidence of emotional rejection shortly after each left home. Tina Bohen’s account was in the following terms: [20]

12. [49]

    Angela Bohen gave evidence of a similar incident in the following terms:

13. [50]

    After finishing university, in January 1996, Tina went to the UK on what was planned to be a two-year working holiday. However, later in the year her mother had a hysterectomy, and Tina flew back from the UK to be with her mother. She further stated: [21]

14. [51]

    Angela Bohen’s evidence included a reference dated November 1995 from the principal of her school in Ashfield, also signed by two other teachers. She was clearly an outstanding student with a wide involvement in school activities. The principal concluded:

15. [52]

    I accept the daughters’ accounts of their experiences; although they explain the testator’s actions in excluding them from her estate in her 1997 will, in neither case was the mother-daughter relationship ruptured.

16. [53]

    Tina Bohen gave evidence that she moved to Adelaide in March 2011 to live with her partner (and now father of two children with her) Sean Hayes. In December 2011, they went to live in London. She stated: [22]

17. [54]

    In about September 2012, Tina Bohen and her partner called the testator to say that she was pregnant and in February 2013 they returned to live in Adelaide. Her first son, William, was born on 14 March 2013. From February 2013 to March 2014, the family lived in Adelaide and Tina said that she called her mother every day although they did not always speak because sometimes her mother did not answer the phone. [23] They visited her mother for five days in December 2013. Whilst they were in Sydney, they obtained four quotes for repairs to her mother’s house. The repairs did not eventuate. When they returned to London, between March 2014 and October 2015, she continued to call her mother weekly although, again, they did not always speak. She sent her mother “Moonpig” cards with photos of the family, in May 2014, September 2014 and flowers on 16 May 2015. (Each of these events were confirmed by a receipt exhibited to the affidavit.) On 17 or 18 May 2015, she said she called her mother to make sure the flowers arrived and to tell her she was pregnant again. Her second son Maxwell (Max) was born on 20 November 2015. Following the birth by caesarean section, Tina spent 11 days in Ashford Hospital in Adelaide and spoke to her mother once or twice every day, “[s]ometimes for a few minutes other times for up to an hour”. [24]

18. [55]

    Although all knowledge of Max’s birth was denied by the testator in her 2016 statement, Tina Bohen’s evidence was confirmed by unchallenged evidence from her sister-in-law (Sean’s sister, Natalia McGlade) who visited her several times while she was in hospital. I accept their evidence.

19. [56]

    In July 2016 (one month before the 2016 will was executed), she told her mother that she and Sean had decided to move back to the UK with the children. Her mother had responded: [25]

20. [57]

    She again visited her mother on 13 August 2016 (three days after execution of the will) when she flew from Adelaide to Sydney with the children and stayed with her mother in her mother’s home for three days. She said that she “paid for everything during our stay, including groceries, lunches and dinners out” and, when her mother complained she was “struggling with money” gave her $1,000 in cash. [26] Nothing was said about the will.

21. [58]

    She described contacts following her return to the UK: [27]

22. [59]

    When, in 2017, she was unable to contact her mother for several days she asked a friend who lived in Chatswood to check if her mother was alright.

23. [60]

    From 15 February 2018 (her mother’s birthday) through to 7 May 2021 (Mother’s Day) she sent flowers and cards to her mother. (Ten receipts were exhibited to her affidavit.) None of this evidence was challenged, yet the executor submitted that in August 2021 Tina Bohen exhibited callous disregard with respect to her mother’s burial.

24. [61]

    Tina Bohen’s affidavit gave further details of the contacts with her mother during the lockdown period of early 2020, conversations in June 2021 and July 2021. She gave evidence of the content of conversations on 24 July 2021 and 31 July 2021 in which both she and the children spoke to her mother by telephone before she was due to go on a family holiday to Antigua on 16 August. [28] She said that she called her mother on 7 August although her mother did not answer the phone. When she had not heard from her mother by 23 August, she contacted a friend in Chatswood by text; copies of the distressed exchange were annexed to her affidavit. Her friend’s enquiries led to the police contacting her to advise her of her mother’s death.

25. [62]

    In response to the testator’s statement accompanying her 2016 will, Tina Bohen stated:

26. [63]

    The cross-examination of Tina Bohen addressed the relationship with her mother in only one respect: the bulk of the cross-examination was intended to demonstrate that she was living comfortably without assistance from her mother’s estate. The one respect in which her relationship was challenged concerned her conduct after learning of her mother’s death.

27. [64]

    The thrust of the cross-examination was that Tina Bohen had made only desultory and inadequate attempts to organise her mother’s funeral, with the result that the body remained at the morgue until September 2022. The executor gave evidence that he had had a telephone conversation with Tina Bohen on 6 September 2021 and had received an email from her on 14 September 2021. [29] At that stage, Ms Bohen was trying to get on “an emergency repatriation flight” to Australia, which was proving difficult, and she asked that the funeral arrangements be delayed until she had more information from the Australian Embassy. On 16 November 2021, the executor received a letter from Duncan Scott solicitor who advised he was acting for the daughters in relation to the estate.

28. [65]

    On 21 September 2022, the executor was contacted by Mannings Funerals of Rozelle asking him to complete the necessary forms to enable a cremation to take place.

29. [66]

    In her evidence, Tina Bohen indicated that there were three reasons for the delay, namely (i) her unsuccessful attempts to return to Australia, (ii) her understanding from her mother that she did not wish to be cremated, and (iii) her mother’s wish to be buried near her own mother. In cross-examination, she gave evidence as to her attempts, from the UK, to establish where her maternal grandmother had been buried. She had been in touch with Mannings Funerals in Rozelle from 15 July 2022 in relation to a funeral and burial service for her mother.

30. [67]

    The cross-examination focused on an email from the executor to Mr Scott of 22 April 2022 expressly seeking information as to whether Tina, being recorded on the records with the morgue as being the next of kin, was going to organise a cremation. She agreed that at least from 22 February 2022 she was aware that the executor was asking about whether she was going to arrange a cremation and answered: [30]

31. [68]

    The cross-examination continued: [31]

32. [69]

    The cross-examination concluded with the following exchange: [32]

33. [70]

    Based not only on Tina Bohen’s sworn evidence, but also on the patent distress expressed in texting her friend in Sydney when she was trying to determine in August 2021 whether anything had happened to her mother, I reject the implication in the last two questions. The evidence satisfies me comfortably that at all stages Tina Bohen was doing what she understood to be the steps her mother would have wished to be taken in relation to her burial. Given the absence of any challenge to any other aspect of Tina Bohen’s evidence concerning her relationship with her mother, the suggestion put to her had no reasonable basis.

34. [71]

    I am comfortably satisfied that Ms Tina Bohen had a strong relationship with her mother up until the time of her mother’s death. No doubt the testator was distressed that her daughter was living in the UK; but that arrangement was not an unreasonable abandonment of her mother. The passages critical of Tina Bohen in the statement accompanying the 2016 will were patently false. That finding will have consequences when considering whether the testator duly considered the just claims of her daughter in making her 2016 will.

35. [72]

    Angela Bohen did not have quite the same relationship with her mother as did her older sister. However, she stated in her affidavit: [33]

36. [73]

    Cross-examination of Angela Bohen by the executor was directed primarily to emphasising the degree of estrangement between Angela and her mother.

37. [74]

    Angela Bohen met her current partner Robert (Jason) Murphy in early 2002 and introduced him to her mother by telephone. They physically met in 2005 and got on well. It is clear that until the end of 2013 Angela and her mother maintained an unremarkable relationship, if fraught at times by what appears to have been her mother’s erratic behaviour and outspoken statements. Angela Bohen stated:

38. [75]

    Angela further stated that she had arranged and paid for flights for her mother to visit her in Brisbane in June 2011, at which stage her second child, Ruby, was approximately 18 months. She arranged a second visit by her mother in September 2011.

39. [76]

    There was undoubtedly a rupture in the relationship in December 2013 which was the subject of submissions based on estrangement, and it is convenient to set out the account given by Angela Bohen in her affidavit:

40. [77]

    With respect to subsequent years she stated: [34]

41. [78]

    Angela Bohen also gave express answers to the passages concerning her in paragraph 3 of the testator’s statement accompanying her 2016 will, in the following terms:

42. [79]

    I accept each of these explanations. In other respects, Angela Bohen’s account of her relationship with her mother is plausible, consistent with the evidence of her sister, and largely unchallenged. It is accepted.

43. [80]

    The testator’s allegation (in the s 100 statement) that Angela had said to her “I do not want to receive any of your money” is immaterial, although denied. Tina Bohen gave evidence of emotional statements by her mother wishing to leave her large sums so the grandchildren could have a better life than she had had. It is quite possible that similar statements were made to her other daughter and the natural response, to brush such statements away with embarrassment, was either misunderstood or deliberately misinterpreted for the purposes of the section 100 statement. In any event, that aspect of the statement is of no consequence.

44. [81]

    The further statement that she had had “no contact from my daughter Angela” but that she had tried to make contact with her, though unspecific as to time, seems implausible and I reject it. That is in part because the more precise statement that she had “not spoken to [Angela] more than five or six times in the last 20 years” was palpably false. There are two possible explanations for it. On the one hand, if the testator believed it to be true when she signed the document, there must be some doubt as to whether she was of full testamentary capacity. The alternative explanation, namely that she made no attempt to give a truthful statement again casts doubt on her being a person who gave proper consideration to the claims on her estate when making her wills in 2015 and 2016.

45. [82]

    The unchallenged evidence of contact between Angela Bohen and her mother was extensive until the last eight years of her life; thereafter the contacts were sporadic, but continuing. The one who did not respond regularly was the testator. Further, Angela’s third child, Violet (called “Dingo”) was born in 2015. In about February 2019, she travelled with Dingo to Sydney and stayed with her mother for about three days.

46. [83]

    Clearly there was not a complete rupture of the relationship, perhaps because any antipathy on the testator’s part was ameliorated by her wish to maintain contact with the grandchildren. However, Angela Bohen also stated that “there has not ever been one time when mum contacted me and I did not return her call”.

47. [84]

    I accept the evidence of ongoing contact from 2013 to 2016, not infrequently rebuffed by the testator, and reducing thereafter. I accept Angela Bohen’s evidence of the visit with her third child in February 2019. Angela Bohen’s relationship with her mother involved a degree of estrangement from December 2013; she did not suggest otherwise. It is not possible or appropriate to measure and apportion blame. Angela made appropriate attempts to maintain the relationship, which were on occasion rebuffed. However, nothing in Angela Bohen’s conduct would warrant any diminution in the amount of provision otherwise appropriate.

Financial needs of claimants

1. [85]

   As noted above, in the statements accompanying both her 2015 and 2016 wills, the testator referred to the fact that each daughter had received a legacy in her brother’s will. Angela Bohen described the matter in the following terms:

2. [86]

   Tina Bohen gave evidence of two properties she or her partner owned or had owned in South Australia, one of which, an investment unit in Glenelg, had been sold to pay off the mortgage on that property. The second was a property at Morphett Vale south of Adelaide, which had been their home in South Australia before they left for the UK, and from which they obtained a rental income of $25,000 gross per annum. The expenses on the property appear to have been variable, with a history of tenants failing to pay rent and causing damage. In oral evidence, Tina Bohen stated that that property was in the name of her partner. Further, both his parents and his sister had at unspecified times made loans totalling some $50,000, to help with payments on the Morphett Vale property. They had not been repaid, and there was a challenge in cross-examination as to whether her partner’s family was likely to enforce the loans, although one might infer that they would be repaid if the property were sold. The Morphett Vale property was valued at $580,000.

3. [87]

   Apart from superannuation, which they were not able to access before retirement, Tina Bohen and her partner had joint assets of approximately $750,000, with liabilities (including the family liabilities to her partner’s family), of some $90,000. Allowing for repayment of the loans and the costs of sale and any GST payable on a sale, the realisable joint assets other than the value of the Morphett Vale property were in the order of $50,000-80,000.

4. [88]

   Tina Bohen gave evidence, in an updating affidavit of 29 January 2024, that she and her partner had a combined net annual income of approximately $208,000 and expenses of $193,000 per annum. The expenses included, as might be expected, significant amounts directly or indirectly beneficial to their children.

5. [89]

   Tina Bohen was cross-examined as to her need for financial assistance on three bases. The first was that in her principal affidavit (of 21 March 2023), she had stated her needs as being to purchase a home in the area in London where they were currently renting. That was an oversimplification of her claim. She stated in her affidavit:

6. [90]

   She also stated in her updating affidavit that neither she nor Sean had a motor vehicle but that “as our boys grow older it would be helpful to have a car to drive them to their various activities”. She estimated the cost at $51,300-$64,600. [35]

7. [91]

   Secondly, counsel suggested that in her first affidavit (which was not in evidence) she had not identified any need; and that she had been content to rent in London for several years although, if she and her partner had sold the Morphett Vale property, they might have obtained additional cash in the order of $550,000 with which to buy in the UK, had they so intended. She agreed that she and her partner were able to pay the day-to-day expenses of raising a family and paying rent. [36]

8. [92]

   Thirdly, it was put to Ms Bohen that, although she had given evidence of two or three properties which might be suitable in the area in which they lived in London, neither she nor her partner had made any real attempt to purchase a property.

9. [93]

   At the time of her affidavit of 29 January 2024, Angela Bohen had two daughters (aged 8 and 14 years) living at home and the eldest, Charlotte, aged 19 years, living with her boyfriend, but with possessions at the family home.

10. [94]

    As to the family income, her partner remained in full-time employment with a net annual salary of approximately $68,000 and, although she had worked as a teacher for some years, she had left her employment due to current health problems, combined with the emotional challenges of working with difficult children and being subject to verbal and physical abuse. She stated that she now devoted most of her time to her younger daughters, one of whom is a state and national gold medallist in athletics and is seeking world ranking in her sport of women’s javelin. She is currently ranked no 1 in Australia for her age. Ms Bohen gave evidence of the time and money required to support her talent and ambition, being sporting achievements which appear to be emulated by her younger sister.

11. [95]

    As with her sister, Angela Bohen’s summary of annual expenditure for the household included payments entirely related to the children’s activities ($33,000) and other household and living expenses which were both directly and indirectly beneficial to the children. She estimated her net income for the current financial year to be between $25,000 and $40,000, which, with rent from the investment property, gave a joint net income of between $109,000 and $124,000, with expenses totalling $121,000. The expenses included a mortgage and other payments associated with the investment property totalling $37,000, as against the rental income of a little over $16,000 per annum.

12. [96]

    It is clear that Angela Bohen’s own income is precarious, given her health and her commitment to supporting her children’s activities. Should it be reduced further, the family expenses would likely exceed the family income.

13. [97]

    Angela Bohen has, however, assets. She owns the family home in Newtown, Queensland, valued at $500,000, with no mortgage. At one stage, she and her partner jointly owned two investment properties, referred to in the evidence as Bergin Street and Gladstone Road. In early 2023, they sold the Gladstone Road property and applied the settlement funds to reduce the mortgage on the Bergin Street property. Nevertheless, according to her affidavit of January 2024, the mortgage payments on Bergin Street were $32,000, and the rental income $16,230. A further investment property is owned by a superannuation fund of which they are the joint beneficiaries with a current joint net benefit assessed at $491,000. Each of them is a member of a superannuation fund associated with her and his employment. The present balance of Angela Bohen’s fund is in the order of $43,000 and her partner’s is significantly lower. Her partner owned two motor vehicles paid by way of lease payments deducted from his salary.

14. [98]

    The challenge to Angela’s needs was based primarily on the proposition that she and her partner jointly owned the house in which the family lived, and had a further investment property, together with an investment property in a superannuation fund. No doubt, as counsel for the executor submitted, the family had reasonable provision for their retirements through their superannuation funds, although their total current net value is only 12% more than the value of their home. It is also true that some benefit may be obtained from the negative gearing of the investment property, although it is currently a drain on the family’s income. In summary, the family would be in a difficult position if it lost Angela Bohen’s income, a loss which could not be satisfactorily off-set from the sale of one investment property subject to a mortgage.

Assessment of claims

1. [99]

   The following general proposition should inform the disposition of the present proceedings. First, for reasons already explained, the evidence does not permit the conclusion that the testator properly considered the claims of her daughters on her estate when making any of her three wills. While she was entitled to take into account the bequests in her brother’s will in favour of her daughters, that was of limited significance, for two reasons. The first is that I infer that it played little part in her decision-making. The daughters were excluded from her first will, which predated her brother’s bequests by 10 years. That position was later varied only in a minor way (by allowing them her personal effects and furniture) and then only after she had seen a solicitor. The second reason is that the bequests had limited significance unless there were competing claims on her own moral obligations with respect to her estate. I accept that Robin Etherton was a person for whom it was proper for the testator to make some provision in her will, but the bequest of $200,000 plus a motor vehicle, being roughly equal to the expectation of each grandchild, appears generous in the light of the quite limited domestic assistance he provided, even with some allowance for the purely social contact with an aging woman with no immediate family in Sydney and no other close friends, so far as the evidence revealed her situation. To the extent that the family provision claims could impinge on the bequest to Mr Etherton, I do not propose to take that step. Accordingly, the claims of the daughters can only be weighed against the interests of their own children. That leads to the second issue.

2. [100]

   The second issue concerns the comparative claims of the daughters and their children and the testator’s preference for leaving the whole of her residuary estate to the grandchildren. The Succession Act, by not permitting family provision claims by grandchildren unless they are dependent on the testator, demonstrates acceptance of the social norm that parents are primarily responsible for the education, maintenance and advancement in life of their children. Family assistance can be expected by way of meeting specific expenses or providing resources so that the parents can meet the necessary expenses. However, during her lifetime, the evidence indicates no attempt by the testator to meet the expenses of her grandchildren beyond the ordinary birthday and Christmas presents. Rather, her daughters were expected to pay all the expenses of the families when visiting her and indeed other expenses such as the purchase of tickets and payment for food and dinners out.

3. [101]

   In these circumstances, the proper inference is that the testator made both her 2015 will and her 2016 will in a way to punish her daughters for living elsewhere. Nor was it the case that in requiring the grandchildren to attain the age of 30 or 35 years before becoming entitled to their shares of the estate, the testator was acting on a view that younger people were not capable of responsibly managing money, but rather indulging an intention to ensure that such benefits as they did receive from her estate would vest at a time when their parents were no longer primarily responsible for their upkeep. That inference derives from the fact that the share of any grandchild who did not survive for a sufficient period, passed to a greatgrandchild, who would take on attaining 21 years of age. Whether the testator understood that her intentions in that regard could be undermined by the conferral of power on the executor to make advances to the grandchildren cannot be known: there was no evidence from the executor (who drafted the wills), nor any statement by the testator indicating how she intended (or expected) the discretion to be exercised.

4. [102]

   Provision for the maintenance, education and advancement in life of the grandchildren was and would remain the responsibility of their parents. In the course of cross-examination of Tina Bohen, counsel for the executor referred to a passage in an affidavit (not read in evidence) which suggested that she wanted provision from the estate to help look after her children, but that noted there was power under cl 9 of the 2016 will to obtain advances of money for the benefit of her sons. Little more was made of it in the course of submissions, but the needs of the grandchildren were an entirely proper focus of the daughters’ claims. There were, as a practical matter, no significant competing claims on the testator’s estate.

5. [103]

   Thirdly, while it is true that the daughters have each established successful careers, maintained employment and stable relationships, and raised children, that is not to say that they have no financial needs. Further, Brereton JA noted in Steinmetz that financial need is not the sole criterion by which the making of an order is to be determined, nor is it in terms a precise standard. As Sackville AJA observed, the criteria in s 60(2) of the Succession Act are not comprehensive and an important need of any parent is to have adequate resources for the education, maintenance and advancement in life of his or her children. Indeed, in making submissions with respect to each of the daughters’ financial circumstances, counsel for the executor relied upon statements of expenses which included items specific to the children (including the numerous expenses involved in schooling and extra-curricular activities) and expenses which also included the children (such as groceries and holidays) and which assisted the children indirectly (accommodation expenses).

6. [104]

   A complicating factor in resolving the claims by both daughters was the absence of any determination by the trustee of the TelstraSuper fund as to the person or persons to whom a death benefit under a policy in the name of the testator would be paid. There was evidence that the available amount was a little over $250,000.

7. [105]

   There were three claimants with respect to payment from the fund, namely the daughters and their father; there was no nominated beneficiary. None claimed to be financially dependent on the testator at the time of her death. Accordingly, the trustee has a discretion governed only by the terms of the policy (which were not before the Court) and relevant provisions of the Superannuation Industry (Supervision) Regulations 1994 (Cth). The parties accepted that the benefit payable did not form part of the estate, but that the trustee could make a payment to the executors for the beneficiaries of the estate. It was assumed that the amount would then form part of the residuary estate.

8. [106]

   The executor submitted that the Court would need to know how the trustee proposed to distribute the benefit before making orders. That was because, if moneys were paid to the executor, the residuary estate would be increased by that amount. Alternatively, if moneys were paid in part to one or both of the daughters, their needs would be reduced accordingly.

9. [107]

   None of the parties was able to give any indication as to when the trustee was likely to make a decision and the broad approach suggested was to delay the determination of the proceedings until the decision of the trustee is known. That course is possible, but undesirable. Not only is the timing of any decision unpredictable, but awaiting the decision would invite the reopening of submissions and the incurring of further legal costs. To the extent possible, it is desirable to avoid that course.

10. [108]

    Counsel for the executor submitted that there was no evidence of financial need on the part of Tina Bohen and the Court should dismiss her application. Counsel submitted that her failure in her first affidavit (which was not in evidence) to state any need reflected the true position and that her subsequent claim was based upon a mere wish to purchase a property in circumstances where she had been satisfactorily renting for 12 years. In the event that some provision were to be made it should be in the order of $100,000 to $150,000.

11. [109]

    It was not in dispute that Tina Bohen was an “eligible person” for the purposes of s 59(1) of the Succession Act. It was also not in doubt that the testator had made no financial provision for her in any will since Tina left the family home at age 22. Nor did the evidence disclose that the testator made any other financial provision for her daughter after she left home; indeed the contrary appears to be the case.

12. [110]

    I find that Tina Bohen maintained a close and supportive relationship with her mother throughout her adult life, sought to ensure her mother had contact with her grandchildren whenever practicable, sought to support her mother financially and maintained a deep emotional connection even whilst living overseas. She was an entirely appropriate person to obtain provision under the will, but no provision was made. In my view, such provision ought to have been made.

13. [111]

    So far as the amount is concerned, she has one child who is due to start high school later this year and a younger child who is still in primary school. I have no doubt that the needs of both children are of paramount importance to their mother as indicated by her wish to buy a house in the area which would allow them to continue established friendships and go to local high schools with a good reputation. It is common knowledge that as children get older they eat more, and make more demands in terms of educational needs and family support, often extending beyond the formal age of majority.

14. [112]

    Tina Bohen and her partner are currently living in the UK, but he has family in South Australia and it is entirely reasonable that he should retain the residential property in Morphett Vale. Despite the cross-examination challenging her proposed purchase of a home in the UK, I have no reason to doubt that, if adequate funds are available, Ms Bohen and her partner will take that step. There was some criticism of the evidence they provided as to available houses, the relevant price range and their ability to meet mortgage payments. It is not necessary to explore the calculations or the assumptions on which they were based.

15. [113]

    A significant factor in seeking to purchase a home was clearly the benefits which would accrue to the children as well as the parents. It was the testator’s intention to benefit the children and the most valuable course in that regard is to make the provision sought by their mother from the estate.

16. [114]

    For reasons explained further below, in my view the same provision should be made for each of the daughters and each should obtain an amount equivalent to one-third of the net residuary estate. The only competing interests are those of their own children when they reach 35 years. For reasons already explained, no weight should be given to the purpose underlying the delayed benefit provided in the 2016 will.

17. [115]

    Based on current estimates of the size of the residuary estate, after deduction of costs, one-third would be, in round terms, $300,000. If two-thirds of the death benefit under the life insurance policy were paid into the estate, her provision would be increased by approximately $80,000. If that amount were to go directly to the claimant, it would not affect my analysis of the appropriate provision from the estate. The proposed outcome will require Tina Bohen and her partner to make careful calculations as to an affordable house and car. It will partly satisfy their reasonable needs for care of their children and Tina’s own advancement in life.

18. [116]

    Counsel for the executor submitted that Angela Bohen’s case was weaker than that of her sister and that the application should be dismissed. If the Court took a different view, any payment by way of provision should be a “modest amount” and “under $100,000”. [37] The proposed dismissal of the claim was in part based upon her fractured relationship with the testator and in part upon the lack of financial need.

19. [117]

    In my view, neither of these factors is decisive, nor does either provide a basis for dismissing the claim. There was no real challenge to the relationship between Angela Bohen and her mother until the end of 2013 following the “Lion King” incident. As summarised above, Ms Bohen maintained communication with her mother and facilitated her mother’s contacts with the grandchildren. I infer that the testator, however, maintained her view that she had been abandoned by her daughter, in part because she understood that Angela had maintained contact with her father.

20. [118]

    However, it is significant that, two years after making the 2015 will, the testator visited Angela Bohen in Brisbane and stayed with her daughter “for a couple of days”. The contact between daughter and mother between 2001 and 2014 was entirely consistent with the maintenance of a caring relationship between an adult daughter and her mother, despite the concededly erratic emotional responses of the mother. There is no doubt that the relationship deteriorated from December 2013, but there was clear evidence supporting Angela Bohen’s testimony as to her attempts to maintain contact between the children and her mother. She stayed with her mother in 2019 when visiting with her third child. Appropriate provision under the testator’s will should not be affected by the testator’s own behaviour with respect to her daughter’s attempt to engage her in a family visit to a musical.

21. [119]

    In terms of income security, Angela Bohen’s circumstances are more uncertain than her sister’s. Her health, and the demands of her younger daughters, are likely to limit her income earning capacity. Although she and her partner have more assets, and in particular own their house, it is clear that both she and her daughters will benefit from provision of the same order as Tina Bohen. Further, in one sense, her family was to take a 20% greater share of the residuary estate under the 2016 will, because she has three children to Tina’s two.

22. [120]

    It may thus be seen that Angela Bohen’s needs differ from those of her sister, but no reason was put forward by the plaintiffs in favour of provision other than in equal amounts to each. In my view that approach is justified by their respective needs and should be accepted. Accordingly, the appropriate provision for Angela Bohen should be the same as that for her sibling, namely one-third of the net residuary estate.

Costs

1. [121]

   The daughters’ costs of the proceedings in this Court should be borne out of the estate, as agreed or assessed on the ordinary basis. The executor’s costs should also be borne by the estate and assessed on an indemnity basis.

2. [122]

   It is my intention that the orders will finally dispose of the proceedings. I do not anticipate (nor encourage others to anticipate) any need to take a different view in light of the outcome of the trustees’ exercise of discretion with respect to the death benefit under the testator’s life insurance policy. Nevertheless, I will grant leave to the plaintiffs and the defendant to make application by way of notice of motion in these proceedings supported by an affidavit, limited to a variation to take account of the trustee’s decision, such motion to be filed within 28 days of the party obtaining notice of the trustee’s decision.

Orders

1. [123]

   The Court makes the following orders:

   1. (1)

      Direct that evidence in each of the probate and family provision proceedings be evidence in the other, subject to relevance.

   2. (2)

      Declare that provision ought be made from the estate of Caterina Felice Bohen (dec’d) in favour of her daughters, Tina Louise Bohen and Angela Marie Bohen.

   3. (3)

      Order that, in addition to the provision made for her in the will of the deceased dated 10 August 2016, each of Tina Louise Bohen and Angela Marie Bohen be paid one-third of the net residuary estate (after deduction of liabilities, including costs of these proceedings and the probate proceeding).

   4. (4)

      Order that –

   5. (5)

      Grant leave to a party who wishes to make application for a variation of these orders in light of the decision of the TelstraSuper trustee as to the distribution of the benefit payable in respect of the death of the deceased, to file a notice of motion, supported by an affidavit, within 28 days of the party receiving notice of the terms of the trustee’s decision.