Wise v Barry; The Estate of Robyn Margaret Wise

HIS HONOUR: These are very unfortunate proceedings concerning the estate of Robyn Margaret Wise (“the deceased”), who died on 10 April 2011. The Plaintiff in the proceedings is Shane Colin Wise, an adult child of the deceased and one of the executors to whom this Court, on 25 March 2013, granted Probate of the deceased’s Will made on 20 September 1998.

The Defendant named in the proceedings is Stephen Gregory Barry, a person with whom the deceased was living in a de facto relationship at the time of her death and the other executor to whom Probate was granted. He filed a Cross-Summons seeking a family provision order out of the estate of the deceased. These reasons relate to the proceedings commenced by the Plaintiff and the Cross-Summons filed by the Defendant.

Without intending any disrespect, I shall refer to the parties, and other family members, in these reasons, by his, or her, first name.

Shane commenced the proceedings by Summons filed in the Probate List on 28 November 2017, which provided a return date, before Senior Deputy Registrar L Brown, on 11 December 2017. (The Summons was actually filed in the Probate matter in which Probate of the deceased’s Will had been granted.) On that date, counsel appeared for Stephen (presumably mentioning it for the Plaintiff). Leave was granted to Shane to file and serve an amended Summons by 29 January 2018, and an order was made that Stephen file and serve any Cross-Summons, supporting affidavits and/or Statement of Claim, by 12 February 2018. The matter was listed, again, in the Registrar’s Probate List, on 19 February 2018.

Shane filed an amended Summons on 24 January 2018, in which the claims for relief were reduced to the following orders (with editorial amendments):

(At the hearing, counsel for Shane described the claim for an occupation fee as a claim for mesne profits.)

Stephen filed a Cross-Summons on 12 February 2018, in which he sought the following relief:

On 19 February 2018, Senior Deputy Registrar Brown made the following order, notation and directions (with editorial amendments):

The proceedings were then listed in the Family Provision List on 13 April 2018. On that day, directions were made for the service of further evidence and for the appointment of a single expert to value the deceased’s property at Wentworth Avenue, Nelson Bay, in New South Wales (“the Nelson Bay property”).

The proceedings were next listed on 11 May 2018, on which occasion, an order was made under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rule 42.32 (a "Smyth order"), that each party's legal representative serve upon the party he, or she, represented, a notice that specified an estimate of the best outcome that the party is likely to achieve if the party is successful, an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful, and an estimate of the largest amount by way of costs that the party may be ordered to pay if the party is unsuccessful. This order was made in light of the nature and the estimated value of the deceased’s estate and in the hope that the parties might realise the folly of having the matter proceed to a contested final hearing. Regrettably, it was a forlorn hope.

The Smyth order was also made as part of the arsenal of steps available, and often taken, in the Family Provision List, to ensure that the parties are, and the Court is, fully aware of the costs of the proceedings, particularly in a case where the estate is of modest value. Also see, Practice Note SC Eq. 7, paragraphs 6(c), 9.5, 17.1 and 17.2.

Apparently, the direction was complied with, but receipt of the notice did not lead to the disputes between the parties being resolved. Neither party tendered a copy of the notice that was served in compliance with the direction.

On 25 May 2018, the matter was set down for hearing with an estimated duration of 1 day. More recently, having read the contents of the Court file, subject to objections, the legal representatives were informed that it seemed to me likely that the hearing would go into a second day. They confirmed that the hearing would conclude within the time allocated, but, regrettably, as was anticipated, it continued into a second day. Further costs were thereby incurred.

At the hearing, Mr G Rich of counsel appeared for Shane and Mr D M Flaherty of counsel appeared for Stephen. Other than each of the parties, only the solicitor for each gave evidence on the question of costs. Only the parties were cross-examined. Then oral submissions were made.

Due to the number of issues, the submissions took almost as long as the cross-examination had taken. Even then, it was necessary to allow an opportunity for each counsel to file and serve supplementary written submissions on the issue of the Plaintiff’s claim for the occupation fee.

There was no dispute that Shane was entitled to bring the proceedings for possession.

Stephen’s claims, by way of Cross-Summons, are to be decided under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (“the former Act”), which was repealed, effective from 1 March 2009.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as person with whom the deceased was living in a de facto relationship at the time of her death, Stephen is an eligible person within s 57(1)(b) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased.

As the deceased left a valid Will, the subject of a grant of Probate, 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.

A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). There was no property that could be designated as notional estate. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

Stephen did not commence the proceedings for a family provision order within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act. As read, in the Cross-Summons, he sought an order that the time for the making of his application be extended.

The time for making the claim is calculated from the date of death of the deceased to the date of filing of the Summons in the Court Registry: s 58(3). Shane’s Cross-Summons was filed just under 6 years out of time. As Shane does not consent to the time for the making of the application being extended, Stephen must show "sufficient cause" for the Court to "otherwise order".

(The Act was recently amended by the Justice Legislation Amendment Act 2018 No 4 (NSW), which was assented to on 21 March 2018. Section 58(2) of the Act commenced, as amended, on 2 July 2018. The amendment permits an order extending the time for the making of an application to be extended by the consent of the parties.)

Without a family provision order being made providing for the whole of the Nelson Bay property to pass to Stephen, it seemed to be accepted by the parties that Stephen had no legal right to remain in occupation. Indeed, it was accepted as “probably right” that “no matter what happens in this case the property is going to be sold. … [Stephen] does not have the financial wherewithal to pay the costs and everything else that need to be paid. He has had seven years of effectively rent free accommodation, although he has reduced the amount that was payable from the estate, but he hasn't had to pay $118,000 in rent whilst he has lived there … and there's no reason why [Shane] shouldn't be the person entitled to sell the property.”: T85.25 – T85.50.

I shall return to the evidence giving rise to this position later in these reasons.

In claims such as these, factual context is necessary. It is convenient to begin with a short statement of some of the background facts, since these provide the context in which the issues arise. Many of these facts are taken from the affidavits read in the proceedings, or in evidence given during the case, which are uncontroversial unless otherwise stated.

The deceased was born in November 1950 and, as I have mentioned, died, at the age of 60 years, in April 2011.

The deceased married Robert Wise on a date not disclosed in the evidence. Shane is one of the two children of their marriage. He was born in September 1973. The only other child of the marriage is Craig Andrew Wise, who was born in September 1975. He did not play any part in the proceedings (although some evidence of his financial circumstances was provided, without objection, by Shane).

The deceased’s marriage was dissolved in about 1992. Shane gave evidence, and Stephen did not dispute, that there had been an adjustment of matrimonial property interests, as a result of which the deceased received $100,000 and a car. The evidence reveals that $94,338 was deposited into a bank account, in the name of the deceased, on 2 June 1993. As at 30 June 1996, the amount shown in the deceased’s bank account referred to above was $25,511. How the difference in the two amounts had been spent, was not disclosed in the evidence.

Stephen was born in January 1954. He met the deceased in March 1994. They commenced a de facto relationship in about 1996, when Stephen moved into the Nelson Bay property, which the deceased was renting at the time.

The deceased’s last Will was one duly made by her on 20 September 1998. In that Will, the deceased:

This Court granted Probate of the deceased’s Will to Shane and Stephen, as the executors appointed under the Will, on 25 March 2013. It is now over 5.5 years since Probate was granted and the estate is yet to be fully administered.

It appears that the deceased purchased the Nelson Bay property for $90,000 in about July, or August, 1998. Stamp duty, mortgage insurance and legal fees associated with the purchase totalled $4,774.

Following its purchase, there was registered on title to the Nelson Bay property, a mortgage to the Greater Building Society Limited (“the first Mortgage”). The stamp duty imprint on the copy of the first Mortgage indicates that the total amount advanced was $74,800 and there was no dispute that the amount was borrowed. The first Mortgage referred to the deceased alone, as the mortgagor.

There is evidence that there was a second Mortgage, dated 19 June 2000, also to the Greater Building Society Limited, registered on title to the Nelson Bay property (“the second Mortgage”). The stamp duty imprint on the copy of the second Mortgage indicates that the total amount advanced was $37,650. This amount was borrowed and used to pay for some renovations and repairs to the Nelson Bay property. The second Mortgage, also, referred to the deceased alone, as the mortgagor. (It was asserted by Stephen that the loan was, in fact, made to the deceased and to him and that he contributed to its repayment.)

It appears that the second Mortgage also secured a loan made to the deceased and Stephen, by way of a $25,000 line of credit, taken out jointly by them: Ex. 2. However, it seems that the amount borrowed under the line of credit increased, during the deceased’s lifetime, to about $50,000. The circumstances of the increase are unknown: T44.28 – T46.01; T72.01 – T72.07.

Since the date of death, Stephen has used the line of credit as he sees fit. However, the amount owing at the date of the deceased’s death, and currently, is about the same.

There was a dispute about whether the amount of the line of credit was used during the lifetime of the deceased in the business conducted by Stephen, was used by the deceased and Stephen for her, his, and their, needs, or otherwise. I shall return to this topic later in these reasons.

In the Inventory of Property attached to the Probate document, the property owned solely by the deceased, at the date of her death, consisted of the Nelson Bay property ($245,000), cash in bank ($1,172), and jewellery, clothing and personal effects ($2,000). The total gross value of the deceased’s estate was estimated to be $248,172. There was also said to be property, jointly held with Stephen, being furniture and personal effects ($50,000). In an affidavit made by Stephen, he disputed the value attributed to the furniture and personal effects. Nothing really turns on the value of the furniture and personal effects as the parties, throughout the hearing, made no reference to it. Clearly, the deceased’s only asset of any real value is the Nelson Bay property.

(In all of the amounts, referred to above, I have omitted any reference to cents and will continue to do so. This will explain any seeming mathematical errors.)

There were no liabilities disclosed in the Inventory of Property. However, in an affidavit sworn on 19 March 2018, Shane disclosed that “the principal liabilities of the estate as at the date of mum’s death comprised three mortgages to Greater Building Society registered over mum’s property totalling $114,524”. There were three different loans referred to, being what came to be described as the Home Purchase Loan (then $45,304), the Home Extension Loan (then $18,742) and the Line of Credit Loan (then $50,478).

The net value of the deceased’s estate, at the date of her death, was estimated to be $133,648: T3.22 – T3.44.

By the commencement of the hearing, the parties agreed that the gross estimated value of the Nelson Bay property was $320,000: T3.46 – T3.50. A Valuation Report, dated 26 April 2018 (Ex. A) from Mr Ross Skinner, a Certified Practising Valuer, described the Nelson Bay property as an “Attached Strata Title Residential Unit”, comprising “2 bedrooms, 2 bathrooms, living, dining, kitchen and utility room” with attached enclosed car spaces. The improvements were said to have been constructed “for approximately 36 years and appear to be in sound condition”. Otherwise, the condition of the Nelson Bay property was described as either “satisfactory” or “fair”.

At the date of hearing, the amount due under the Home Purchase Loan was $15,452; the amount due under the Home Extension Loan was $843; and the amount due under the Line of Credit Loan was $50,180: T3.46 – T4.09.

As stated, there was a dispute about whether any, and if so, what, part of the debt incurred by the use of the Line of Credit, particularly after the death of the deceased, should be treated as a debt of the deceased. (The amount owing on the Line of Credit loan had been slightly reduced between the date of death and the date of the hearing.)

On the second day of the hearing, counsel for Shane accepted that there was an absence of evidence to enable the Court to conclude that the Line of Credit Loan should not be paid out of the deceased’s estate upon the basis that it had been used solely by Stephen. Nor was there evidence to make any allowance for amounts that had been claimed as having been withdrawn from the deceased’s bank account prior to her death for the benefit of Stephen.

The parties also agreed, as there had been a reduction of the amounts owing under the three loans between the date of death and the date of hearing, Stephen had paid $48,047, out of his own funds: T102.01 – T102.16. I shall refer to the consequence of this acknowledgement later in these reasons. (However, in light of the other conclusions hereafter, it is not necessary for the estate to repay any part of this amount to him.)

When the Nelson Bay property is sold, the estimated costs and expenses of sale will be about $10,000. Counsel for Shane suggested that it might be more, but, for the purposes of the determination of the proceedings, the agreed amount has been used.

In addition, there was evidence from Shane that the costs of finalising the administration of the deceased’s estate were estimated to be $12,000. This estimate was not disputed by Stephen. There is also an amount of $2,500, repayable to each of them, being an amount contributed by each to administration costs. They are testamentary expenses and should be repaid from the deceased’s estate.

The only eligible persons are the two children of the deceased, their father (a former spouse) and Stephen. Only Stephen has made a claim for a family provision order. There is evidence that Craig had been served with a notice of Stephen’s application and of the Court's power to disregard his interests in the manner and form prescribed by the regulations or rules of Court. There is no evidence of the notice having been served on Robert Wise, but since he and the deceased settled any matrimonial property adjustment dispute, and considering the nature and value of the deceased’s estate, I am satisfied that the service of any such notice upon him is unnecessary: s 61(2)(b) of the Act.

There was evidence read in the proceedings from Shane going to his, and to Craig’s, financial resources and needs. Relevantly, the Act, specifically, provides that the interests of each, as a beneficiary, cannot be disregarded, even though he has not made a claim: s 61. Each is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the Will. I shall return to the evidence later in these reasons.

On 15 December 2010, Stephen was made bankrupt. He was discharged from bankruptcy, by operation of law, on 16 December 2013. A copy of an extract from the National Personal Insolvency Index dated 12 February 2018 reveals that he is “no longer bankrupt under this administration”.

On 26 June 2016, Stephen married Ms Yen Barry. He had met her in Vietnam and she had come to Australia, alone, first in late 2015 (for 3 months) and then in early 2016 (for a month). On each occasion that she came to Australia, she stayed with Stephen in the Nelson Bay property. She returned to Vietnam, because of visa conditions, and came back to Australia, with her children, when she and Stephen married. Ms Barry has two children by a prior relationship. Since about the middle of 2017, all of them have lived, and continue to live, with Stephen, in the Nelson Bay property.

Ms Barry was present in Court throughout the proceedings. However, she did not swear, or affirm, any affidavit read in the proceedings. No explanation was advanced for her failure to provide any direct evidence of her financial circumstances as a person with whom the Defendant (as applicant) was cohabiting. Stephen, however, without objection, did give some oral evidence updating his wife’s current income.

Stephen did not inform Shane of the marriage or that he, his wife, and her children were living in the Nelson Bay property, until about 6 months prior to the hearing. It was not suggested that she had an independent legal right to reside in the Nelson Bay property with her children.

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of 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 his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate.

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

However, as I have repeated many times, this statement does not mean that parties should 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; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

I also do not forget that “the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute” or that “[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order”: Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].

Nor should parties assume that in an estate, with an extremely modest value, as this one is, that all of the costs will be borne by the estate of the deceased. I have previously written that in small estates particularly, the Court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Harkness v Harkness (No 2), at [18]. I tend to the view that, perhaps, in this case, there has been both obstinacy and unreasonableness, on both sides. A fuller picture may be presented in any argument about costs.

In an affidavit sworn on 14 August 2018, by Shane, his costs and disbursements, including the costs of mediation, calculated on the indemnity basis, to the conclusion of a 1 day hearing, were estimated to be $56,998. In addition, there was an estimated expense of $2,000 for “travelling and accommodation”.

He also gave evidence that he had personally paid $2,000, on account of his costs and disbursements, in relation to the proceedings. The total of these costs and disbursements, therefore, is about $61,000: T6.39 – T7.12.

Whilst no evidence was provided to the Court as the matter continued into a second day, counsel for Shane stated from the Bar table, without objection, that an amount of $12,000 should be added as the costs and disbursements of the second day, making the total estimate of $73,000: T110.17 – T110.25. The amount was, apparently, calculated by adding counsel’s fees and the solicitor’s costs and disbursements, including staying overnight, in Sydney.

In an affidavit affirmed on 11 April 2018, Ms R D Wallbank, solicitor, revealed that the estimated costs and disbursements of Stephen, up to and including the mediation were $37,632. Despite directions having been made when the matter was listed for hearing, no updating affidavits as to Stephen’s current financial resources, or his costs of the proceedings, were served in accordance with those directions.

The failure to comply with the directions had been pointed out to counsel for the Defendant at the pre-trial directions on 12 September 2018 but the lack of evidence was not remedied. The importance of parties complying with the directions of the Court has been stressed on many occasions, as has the importance of an applicant disclosing fully, and accurately his or her financial circumstances: see, for example, Chu v Ngar [2015] NSWSC 1505, at [126] – [128] and, more recently, Cringle v Cringle [2018] NSWSC 1558, per Ward CJ in Eq. at [35] – [36].

At the hearing, counsel for Stephen stated, from the Bar table, that Stephen’s costs and disbursements had increased by $5,000 (inclusive of GST), making a total estimate of $42,632: T7.46 – T7.49. Later on, during the first day of the hearing, he endeavoured to file an affidavit of Ms Wallbank, but it was obviously inaccurate in several respects and counsel for the Plaintiff objected to it being filed. In the circumstances, I did not accept it for filing.

On the second day of the hearing, counsel for the Defendant, without objection, sought to file in Court another affidavit of Stephen’s solicitor. In the circumstances, I granted leave to do so.

In this affidavit, which was affirmed on 16 October 2018, a very different picture of Stephen’s costs and disbursements was disclosed. Firstly, the costs and disbursements, calculated on the indemnity basis, for a 1.5 day hearing, were estimated to be $79,502 inclusive of GST. Calculated on the ordinary basis, the costs and disbursements were estimated to be $54,202, inclusive of GST.

Ms Wallbank also disclosed, in this affidavit, that Stephen had paid $62,087 of his rendered costs, disbursements and counsel’s fees to date. No prior evidence had been given about this aspect in the costs affidavit referred to earlier, or by Stephen himself. The Court was given no explanation for this omission.

One cannot help but conclude, if the estimates prove accurate, that there has been a complete lack of proportionality, which seems to support the earlier statement regarding obstinacy and stubbornness.

Bearing in mind the encouragement given to the parties to resolve their differences without the need for a contested hearing, with all its attendant costs, including making a Smyth order, I shall consider limiting the costs and disbursements of one, or both, parties after the conclusion of the proceedings and will require the parties to make submissions on the issue of costs, unless agreement is otherwise reached. I shall also consider making an order under s 98(4) of the Civil Procedure Act 2005 (NSW) in order to avoid the expense, delay and aggravation involved in arguments arising out of any protracted debate about costs or the assessment of costs: Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121, at [4] – [7].

All of these matters were raised with the legal representatives of the parties during the hearing. They requested me not to deal with the question of costs as there may be a document, or documents, that will be relevant to how the burden of costs should be borne. I shall abide the request and when these reasons are delivered, the way in which the Court should deal with the issue of the burden of costs will be determined.

I should mention that Stephen has consulted, and has been advised, by four firms of solicitors namely Rankin and Nathan in 2012, David Bicknell in 2015, Ian Vasey of Lawson solicitors in Foster in 2016 and his present solicitor. However, it appears that only his current solicitors have been involved in the proceedings.

Subject to the claim for an occupation fee, to which I shall return, the parties were agreed that if one deducted from the gross value of the estate ($320,000), the costs and expenses of sale of the Nelson Bay property ($10,000), the debts secured by the mortgages ($15,452, $843 and $50,180, making a total of $66,476), the additional costs of the administration of the deceased’s estate ($12,000), and the amount to be repaid to each of the parties on account of administration costs (in total $5,000), the net value of the estate, without any deduction of costs, was $226,524: T107.40 – T108.15.

The parties also agreed that if the total estimated costs of both parties ($127,202) were also deducted ($73,000 and $54,202 respectively), the net available estate out of which any provision could be made for the Defendant, if an order extending the time for the making of his application were made, would be $99,322: T110.35 – T110.42.

If such amount were distributed in accordance with the terms of the deceased’s Will, again omitting the claim for mesne profits or an occupation fee, Stephen would receive a lump sum of $49,661, and each of Shane and Craig, would receive about $24,830.

As stated, in his amended Summons, Shane claimed an occupation fee because Stephen has remained in occupation of the Nelson Bay property since the date of the deceased’s death.

There could be, and was, no dispute that implicit in the deceased’s Will was the requirement that the Nelson Bay property be sold. There was not a devise of that property to Stephen, Shane and Craig, absolutely, but rather a share of the “value of my home” given to each of them.

Stephen, since the date of death, has remained in occupation of the Nelson Bay property. He has not vacated the Nelson Bay property, despite having no entitlement, under the Will, or otherwise, to do so, and despite being orally requested to vacate, by Shane and Craig, the first time, a few weeks after the death of the deceased.

It should have been obvious that Stephen had no legal entitlement to remain in possession of the Nelson Bay property, and that he should have vacated possession thereof, particularly once there was a grant of Probate. Furthermore, as an executor to whom Probate was granted, he was in a fiduciary relationship and was under an obligation not to prefer his own interests to those of the other beneficiaries.

To make matters even worse so far as unauthorised occupation is concerned, in 2017, Stephen’s current wife and her two children moved into the Nelson Bay property. They, also, had, and have, no legitimate basis for being, or remaining, in occupation. Stephen did not seek the permission of Shane and Craig for that to occur. Indeed, until relatively recently, he had not informed Shane, as his co-executor, that it would be occurring.

Furthermore, Stephen, at no time, commenced proceedings, by Statement of Claim, for a declaration of trust over the Nelson Bay property. He did not assert in the Cross-Summons that the Nelson Bay property was held on trust for him. He did not assert that he had any legal entitlement to remain in occupation of the Nelson Bay property.

Nor did Stephen attempt to obtain any order from the Court, by way of interim provision under s 62 of the Act, which permits the Court to make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. Indeed, he did not even make a claim for a family provision order until nearly 7 years after the death of the deceased. (As I have mentioned, this means that his claim was filed just less than 6 years out of time.)

By not vacating possession, it was submitted that Stephen had prevented the estate from having access to, and from dealing with, by sale, or other disposition, the most substantial asset in the estate of the deceased. The estate did not obtain any income from the Nelson Bay property either. In other words, Stephen had wrongfully interfered, or denied, the estate’s property rights.

There was evidence as to the reasonable letting value of the Nelson Bay property and agreement on the total gross amount that could have been received between April 2011 and 2018. The parties agreed that the total gross amount based upon the estimated rental was $118,000. The estimate was based upon the agreed Valuation Report referred to earlier.

The parties also agreed that if the total gross amount for the reasonable letting value was ordered to be paid, then, what had been paid out of Stephen’s own funds towards the three loans ($48,047) would be reimbursed to him out of the gross sum. That would mean that $69,953 (without interest accrued thereon) would be the net amount left to be paid to the estate: T101 – T102; T108.17 – T108.30.

The parties also accepted that if the gross amount was ordered to be paid as an occupation fee, and if there were no order for costs to be paid out of residue, Stephen would be entitled to a one third share of the net amount remaining, as one of the three residuary beneficiaries. That, of course, would be subject to how the burden of costs was to be borne and the income tax liability, if any, payable thereon.

Neither counsel included any submissions in relation to the entitlement to an occupation fee from Stephen, with the result that it became necessary to allow each an opportunity to file supplementary written submissions.

On the day on which Shane’s submissions on the topic were due, the Court received an email in the following terms from his counsel:

Thus, Shane, representing the estate, may be taken to have abandoned the claim for an occupation fee.

Despite this, it is clear from the evidence read, that the estate has been deprived of income which it could have received from renting the property. It is equally clear that Stephen has received a significant benefit by remaining in occupation since the death of the deceased. He made it clear, during his cross-examination, that despite the correspondence passing between the lawyers, and the discussions held between himself, Shane and Craig, he was not prepared, at any time, to vacate the Nelson Bay property. Indeed, it will require an order of this Court for that to occur.

Even though no claim for an occupation fee is now being pursued, the Court is entitled to, and will, take into account the benefit that Stephen has received, following the death of the deceased, in remaining in occupation of the Nelson Bay property without any legal entitlement to do so. The quantum of the reasonable letting value, even calculated from shortly after the date of the grant of Probate, would be reasonably significant.

I have earlier set out the Plaintiff’s claims for relief. In relation to those claims, the following matters of fact are not in issue.

The deceased died almost 7.5 years ago. This Court granted Probate about 5.5 years ago.

For some time after the death of the deceased, Shane and Stephen had little contact. In October 2011, Shane received correspondence from solicitors acting for Stephen. Shane gave instructions to his own solicitors. Discussions then took place between solicitors; there was a change of Stephen’s solicitors; and in January 2013, the necessary Probate application was signed by the parties.

Shane, in his affidavit of November 2017, acknowledged that “[B]oth prior to and since the grant of probate, negotiations took place on behalf of myself and Craig and the Defendant as to the disposal or acquisition by the Defendant” of the Nelson Bay property.

Stephen’s then solicitors (Rankin Nathan Lawyers) wrote a letter dated 23 August 2012 (Ex. B) to the solicitor (John Edmunds) acting for Shane and Craig, which it is not necessary to repeat in detail, pointing out that Stephen “has available to him a family provision claim under the Succession Act and a resulting or constructive trust over the Property”. The letter went on to note that “[O]nce the loans are repaid and the other estate expenses are met, the net value of the estate will only be about $120,000 to $130,000.” An offer was then made without prejudice except as to costs, that “each of your clients be paid the sum of $5,000 by Stephen and the balance of the estate be transferred to him, together with all estate liabilities”.

Mr Edmunds sent a letter dated 28 August 2012 (Ex. 5), which is also not necessary to repeat in detail, but in which it was pointed out that Shane and Craig “accept that the net value of the estate would not exceed $130,000” and that they proposed that “they pay to your client the sum of $65,000 in consideration for which the subject property will be transferred” to them on the basis that simultaneously with the transfer, they would discharge the loans secured over the Nelson Bay property. This letter was also said to be “without prejudice except as to costs”.

The Defendant’s solicitors wrote again a letter dated 26 September 2012 (Ex. 1). A further offer of $15,000 to be paid to each of Shane and Craig was made. Again, the letter was said to be without prejudice except as to costs.

In May 2013, the Plaintiff’s solicitors wrote to the Defendant confirming that Probate had been granted and that “it is appropriate to finalise the distribution of the estate”. The letter continued (with editorial amendments):

The next letter that included an offer that was tendered (Ex. 4) was one dated 14 December 2014, from Mr Edmunds to Stephen himself. The letter referred to a proposal made in May 2013 “putting a proposition for the disposal or transfer of the property…”. It referred to subsequent attempts by Shane and Craig “to negotiate an amicable resolution with you without success”. The letter also referred to “the executors and the trustees of the estate being yourself and [the Plaintiff] have an obligation to finalize the estate without delay”. An offer was then made that the Plaintiff and Craig (or one of them and/or their family members) would “acquire your interest in the property for the sum of $120,000; or that you acquire my clients’ interest in the property for the sum of $100,000. In either event, the party acquiring the property would also be required to discharge or refinance existing mortgages”. The letter described this offer as the Plaintiff’s “final attempt to resolve the matter”.

There is no evidence of any response by Stephen, or by any solicitor on his behalf, to this letter.

In addition to the offers made, there is evidence that in March 2014, Shane and Stephen agreed to list the Nelson Bay property for sale. In late March, 2014, a Sales Inspection Report and Exclusive Agency Agreement was entered into with Nelson Bay Real Estate Pty Limited to sell the Nelson Bay property.

A letter, dated 25 February 2015, was sent by Nelson Bay Real Estate advising of a sale of the Nelson Bay property for $340,000. Stephen refused to proceed with the sale.

There were other negotiations, attempted by Shane, that did not result in any sale of the Nelson Bay property or completion of the administration of the deceased’s estate.

In late May 2015, Shane and his wife offered to purchase the Nelson Bay property at the selling price. They signed a Contract for the sale, but Stephen did not do so and gave oral evidence that he did not read, or even open, any related correspondence as he “wasn’t interested”: T69.03 – T69.11.

Somewhat surprisingly, some negotiations between Shane, Craig and Stephen continued thereafter, the precise nature of which are not disclosed in detail, but no settlement was reached.

Stephen’s evidence about his occupation should be noted. I had some difficulty accepting, as truthful, some of this evidence. For example, he stated that he had not been permitted by Shane to live in the Nelson Bay property after the deceased’s death but that “[T]he pair of us lived there together, Robyn and I. And when she passed away I was to stay there”: T69.26 – T69.35. Of course, the terms of the deceased’s Will suggest otherwise.

He stated that he “could not recall” being asked to vacate the Nelson Bay property (despite the fact that he had stated in an affidavit that “[W]ithin weeks of the deceased's death the Plaintiff and his brother Craig started demanding that I vacate my home, the Nelson Bay home unit”): T74.50 – T76.14. He also stated that when he married, he did not seek the consent of anybody for his wife, or her children, to move into the Nelson Bay Property because he “did not think of it”: T70.04 – T70.07.

Furthermore, in his oral evidence, he frankly maintained that the Nelson Bay property would never be sold whilst he was living there and even though he had signed the authority with the agent to sell the property, he had “no intention of selling”: T64. He also accepted that he would “make sure” that the Nelson Bay property was not sold and that his intention was that it not be sold: T71. These are not matters that he appears to have communicated to Shane as his co-executor.

Even now, title to the Nelson Bay property remains registered in the name of the deceased and the debts secured by the mortgages or otherwise payable out of the estate remain unpaid. The estate should, and could, have been administered without delay. It has not been.

Yet, I must also bear in mind that there is a measure of reciprocity in the way Shane acted. No proceedings were commenced by him, after Probate was granted, and it was only in late 2017 that these proceedings were commenced. The explanation may be that the commencement of legal proceedings would result in significant costs being incurred (as they have in any event).

It is because of Stephen’s determination to remain living in the Nelson Bay property that these proceedings have been necessary and, at least in part, the significant delay in the administration of the estate has occurred.

It is clear that the administration of the deceased’s estate should have been simple. The duties of Shane and Stephen, as executors, in administering the deceased’s estate included collecting, and realising, the deceased’s assets, and paying the deceased’s creditors. Specifically, the administration of the estate required the sale, or other disposition, of one asset, being the Nelson Bay property, which was of modest value, and the repayment of debts, funeral, and testamentary expenses, which would have required the repayment of debts secured by the mortgages registered on title. The net proceeds of sale of the Nelson Bay property could then have been distributed in accordance with the terms of the Will.

There is prejudice to Shane and Craig in the delay in having final distributions, made to them. Against that, the Court must weigh up the fact that there has been an increase in the value of the Nelson Bay property in the years Stephen has remained in occupation. However, that is not because of Stephen.

It was accepted by the parties that it was necessary to proceed on the basis that their executorial duties have not been fully completed, and that the jurisdiction to be exercised by the Court, on the Plaintiff’s application, is one under the Probate jurisdiction (involving an application for a revocation order and a fresh grant of administration) rather than that under the equity jurisdiction (an application for removal of a trustee): Estate of Webster [2016] NSWSC 580, per Lindsay J, at [22].

There is also no dispute that the Court has an inherent power to revoke a grant of probate. The relevant principles were stated in Bates v Messner (1967) 67 SR (NSW) 187, at 189 and 191 – 192. Also see Mavrideros v Mack (1998) 45 NSWLR 80, at 101 – 102; [1998] NSWCA 286.

In Bates v Messner, Asprey JA wrote, at 191 – 192:

Needless to say, the exercise of the Court’s discretion will depend upon the facts of the particular case. The Court’s jurisdiction is a supervisory and a protective one. Its exercise is not to be undertaken lightly. The wishes of the deceased, where possible, should be honoured. A relevant consideration in its exercise will be the stage the administration of the estate has reached by the time the application for removal is made. What will best safeguard the interests of the beneficiaries and the due and proper administration of the estate, according to the terms of the deceased’s Will, is the yardstick to be applied in any such application.

An executor who is shown to be guilty of inexcusable delay, one who otherwise impedes the due administration of the estate, or who obdurately refuses to do something necessary for the administration of the estate without sufficient reason may be removed. The dereliction of the executor’s duty, whether born of intent, of carelessness, or incompetence does not really matter.

A breakdown in the working relationship between the executors, frustrating the process of administration of the estate, may also suffice for the exercise of the Court’s jurisdiction: Estate of Webster, at [26], as may the existence of an actual, or potential, conflict of interest, taken with a failure to recognise such a conflict, or potential conflict. Yet, it is not necessary to make any finding of misconduct, or default, on the part of any person.

In the case at bar, Shane submits, with some justification, that the due and proper administration of the deceased’s estate has been prevented by reason of acts or omissions on Stephen’s part. The fact that these proceedings have not been able to be resolved by them, and that each party has persisted to conclusion by reasons for judgment makes it seem more likely than not that there is no realistic expectation that they will be able to work together in the interests of the due administration, and final distribution of the estate.

The sale could, and should, have been able to have been completed promptly, and the share of the proceeds of sale distributed to each of the beneficiaries entitled to share those proceeds. It has not been. Therefore, what must be considered are the interests of all of the beneficiaries, the security of the Nelson Bay property, and the efficient and satisfactory execution of the trusts in the deceased’s Will.

In my view, the welfare of all the beneficiaries is opposed to Stephen’s continued occupation of the office of the executor. An order should be made that Stephen be removed as an executor and the grant of Probate should be revoked with an order that there be a grant made to Shane alone, so that the final administration of the estate can conclude promptly. Vacant possession of the Nelson Bay property should be given within 28 days of these reasons being published and a writ of possession should be made. There will also be the need to make an order that the balance of the Summons, so far as it relates to the order sought for an occupation fee and consequential relief in respect thereof, should be dismissed.

I shall require the parties to provide Short Minutes to reflect these reasons.

In order to place into context the reasons for the Court’s decision, it is, next, convenient to consider the statutory regime and the legal principles that govern the circumstances in which the Court can exercise the discretion under the Act. The legal principles are not in dispute.

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 are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

As stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application. Clearly, permitting the Court to “otherwise order” was included in the legislation to avoid the section becoming an instrument of injustice.

Yet, “[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380, at [98]. (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.)

In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [23] – [24], Pembroke J put it more strongly:

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] – [90], I set out the applicable legal principles relating to an application to extend the time, as follows:

In Moore v Randall [2012] NSWSC 184, at [39], White J (as his Honour then was) wrote that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.”

In Stone v Stone [2016] NSWSC 605 at [36], Brereton J (as his Honour then was) made the following observations about the operation of s 58(2) of the Act:

However, a slightly different view seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in the Court of Appeal, in which Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

With great respect, I respectfully agree that the meaning of “sufficient cause” is sufficient, in all the circumstances, to justify the granting of an extension of time.

Unlike the legislation in some other States, in New South Wales, the application for provision under the Act and an application for an extension of time within which to make an application are not discrete and separate applications. Thus, to refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant.

As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]:

Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].

Meagher JA also noted in Verzar v Verzar [2014], at [33] – [35]:

Gillard J in Valbe v Irlicht [2001] VSC 53, had written, at [31]:

I repeated part of this statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]:

In Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, Basten JA, at [89], stated that the factor of prejudice:

Stephen addressed his delay in bringing the proceedings by way of Cross-Summons in his affidavit affirmed 12 February 2018, much of which evidence, when read at the hearing, was rejected, or was allowed to be read only as a submission.

In respect of his admissible evidence, he stated, at [45] – [49]:

(It is to be noted that “my home” must be read as the home in which Stephen lived. He had never been a registered proprietor of the Nelson Bay property.)

Stephen then continued, which evidence was allowed as a submission, only, at [49]:

Stephen’s evidence that he was “never advised to commence any legal proceedings” was, at least in part, incorrect, as demonstrated by the correspondence from Rankin Nathan Lawyers, which was tendered during the hearing and revealed he had sought some advice in respect to his rights under the Act: Ex. B; Ex. 1. Stephen also, gave oral evidence that he first received legal advice after the death of the deceased in “early 2012” and accepted that he had instructed Rankin Nathan Lawyers to send a letter (Ex. B) to the solicitors for the Plaintiffs: T76.21 – T77.12.

In cross-examination, various questions were put to Stephen in respect of his understanding of the deceased Will and his attempts to resolve the proceedings. He accepted that he understood the terms of the Will “meant that unless there was some agreement reached between you and the children of the deceased that the house had to be sold”: T64.01 – T64.07. In response to whether he was happy with what was set out in the Will, he stated “it was fair”: T64.15 – T64.17.

Relevantly, also, the following questions were put, at T66.05 – T66.14:

However, after a question from the Bench going to whether he understood that now the proceedings had been commenced and were being heard that the property has to be sold, Stephen conceded, “Yes, it is unfortunate”: T66.17 – T66.21.

As stated, Stephen sought, and received, legal advice from a number of solicitors during the 7 years following the death of the deceased in relation to her estate. He failed, or neglected, to commence any proceedings until after these proceedings were commenced by Shane. It is hard to believe that he was given no advice in relation to his rights to commence proceedings for a family provision order in circumstances where the issue of family provision relief was raised in correspondence from his then solicitors and where there is no evidence given by any solicitor supporting that assertion. There was no evidence explaining the failure to adduce that evidence.

I have earlier referred to Stephen’s evidence of his intention to not sell the Nelson Bay property. Despite his evidence, I think it more likely that because he wished to remain in occupation, and because he realised that once proceedings were commenced, it was more likely than not that the Nelson Bay property would have to be sold, he made a conscious decision not to commence such proceedings until he was forced to do so.

I do not believe that it was a lack of awareness, or inadvertence, or inattention, but rather a deliberate choice that he made, with a total disregard of his obligations as a joint executor, or what was in the interests of all the beneficiaries.

Finally, Stephen was asked the following questions in respect of costs of the proceedings (at T66.32 – T66.35, and then at T67.03 – T67.11):

(The response that he was unaware of the costs of the proceedings is difficult to accept, remembering that a Smyth order was made, and I was informed by counsel, for each party, that the order had been complied with.)

Stephen provided what was said to be an explanation for not commencing the proceedings within time, namely that there were ongoing negotiations being conducted between the parties. That is, undoubtedly, true, on the evidence, although it was made clear that the Court has not been informed of all of the evidence on the topic.

However, I am more than satisfied that whilst there were “ongoing negotiations”, it was Stephen’s clear, but uncommunicated, intention, that the Nelson Bay property was not to be sold and that he was going to remain living in it as long as he possibly could. That was not made clear to Shane but negotiations were allowed to continue. It is difficult to know what would have occurred had he done so but it is unlikely that Shane would have waited as long as he did to commence the proceedings.

Furthermore, I do not accept the submission that there was no unconscionable conduct on the part of Stephen. The failure to communicate what seemed to be his, apparently, non-negotiable position, whilst continuing negotiations, in my view, gives rise to unconscionable conduct on Stephen’s part. He should either have disclosed his intention to not agree to the sale of the Nelson Bay property since that would mean he would have to vacate, or to, himself, commence proceedings for a family provision order well before he did so, in early 2018, some 7 years after the deceased’s death, and a little less than 6 years after the expiration of the time required by the Act for the making of an application.

I am satisfied, also, that there is prejudice suffered by both of Shane and Craig in that each has been kept out of his entitlement under the deceased’s Will. This is a less important matter since Shane now does not wish to proceed with the claim for an occupation fee, which I regard as a relevant consideration. There are also the costs and expenses, financially and emotionally, in conducting negotiations, none of which were likely to lead anywhere bearing in mind Stephen’s uncommunicated intention to not permit the sale of the Nelson Bay property.

I do not accept the submission made on Stephen’s behalf that to the extent there has been any prejudice to Shane and Craig that it has been as a result of Shane’s own inactivity. Whilst there were negotiations persisted with, it appears that avoiding the costs that undoubtedly would be incurred if it was necessary to bring proceedings, was a consideration, without knowledge of Stephen’s intention.

Furthermore, I am satisfied, on a preliminary consideration, that Stephen does not have a claim for a family provision order that would succeed. Accordingly, I propose to dismiss his application without a full consideration of the circumstances of the claim other than to set out the basis for this conclusion.

Whether the provision, if any, made for the applicant is “adequate” for his, or her, “proper” maintenance or advancement in life, involves not only scrutiny of the “needs” of the applicant for maintenance or advancement in life, but also an examination of the totality of the relationship between the applicant and the deceased. It also requires a consideration of the value of the estate.

In this regard, I should note that Stephen owns a business that manufactures and distributes saw blades. He is the only person employed by his business. He earns an estimated net amount of $520 per week. Relevantly, he also gave evidence of his wife’s income, after superannuation and tax, which was estimated to be $660 per week. He did not provide any evidence of the value of the business.

Stephen did not file an affidavit updating his financial resources. However, at the hearing he orally deposed that circumstances have changed, as his wife now only works three days per week and earns $441: T55.46 – T55.50. Therefore, Stephen and his wife have a combined weekly income of about $961.

(In cross-examination, Stephen admitted that “some … expenses are paid through the business” each fortnight: T58.32 – T 58.38. It was not clear what expenses are paid from his business accounts, although when it was put to him that his motor vehicle expenses come out of the business he replied “they probably do, yes”: T58.40 – T58.46.)

Although Stephen gave evidence of the estimated weekly expenditure of his family, excluding business expenses and credit card payments, in the circumstances of this case, I cannot see that the deceased had any obligation to take into account the fact that he has a new family and that his expenditure had increased accordingly. (In any event, the family’s weekly income appears to exceed its expenses by about $265.)

Stephen gave evidence that he estimated his current assets, including assets he holds jointly with his wife, comprise household goods and personal possessions ($5,000), a car ($10,000) and business assets ($6,000). Stephen also gave updating oral evidence that he received $22,800 from a private insurance shoulder claim: T55.34 – T55.44. (Although he had a half share in a boat, this was sold and the proceeds of sale used to fund a part of his legal expenses.) His only liability appears to be a credit card debt ($1,800).

Of course, it is to be remembered that Stephen has an entitlement under the Will of the deceased. (I earlier estimated this amount to be $49,661, assuming the relevant debts, liabilities and the estimated costs of both parties are paid from the deceased’s estate. It will be more if the costs are not deducted.)

Whilst it is true that Stephen will need a place to live following the sale of the Nelson Bay property, this need can be satisfied out of his, and his wife’s, own resources. There is no evidence that they cannot afford to rent. In this regard, there will be no further need to pay any amount for the Line of Credit Loan.

There was little evidence about the nature of Stephen’s relationship with the deceased. However, it was not suggested, bearing in mind its duration, that it was other than a close one. Furthermore, I have considered his contributions, both financial and non-financial towards the deceased, and to her estate since her death.

Stephen advanced no evidence in respect of any physical, intellectual, or mental, disability. He is in full time occupation and has an earning capacity.

Shane gave evidence of both Craig’s, and his own, current financial and material circumstances. It is necessary to consider their competing claims.

Shane is employed as a plant operator and has a weekly wage of about $1,677. He also earns an additional amount for “overtime” and “shift allowances”, which “fluctuates but sometimes anywhere up to $2,600”: T50.30. Shane’s wife, Melinda, earns approximately $14,000 per year. Shane and Melinda have two dependent children, Tori, who is 18 years old, and Maddison, who is 12 years old.

Shane and Melinda have estimated assets comprising a home in Boat Harbour, New South Wales ($650,000) (“the Boat Harbour Property”), Shane’s superannuation ($300,000), cash in bank ($2,000), an investment property ($440,000), and a share portfolio ($20,000).

Shane and Melinda have estimated liabilities comprising a debt secured by mortgage over the Boat Harbour Property ($230,000) and a mortgage over their investment property ($335,000). They also have an obligation to repay a loan ($50,000) that was used to purchase the share portfolio.

Although there was no affidavit filed that updated Shane’s financial circumstances, he gave oral evidence that this was the “correct” financial position: T49. However, he conceded that the estimated value of each of his properties was a guess formed by reference to “what was selling in the area” and also from “websites”: T49.24 – T50.16.

In response to the suggestion that the Boat Harbour Property was actually worth $740,000, Shane replied, “Well I am not sure what it is worth, around $600 or $700, $750, who knows”: T50.20.

At the time that Shane swore his affidavit of 21 March 2018, Craig was employed by Telstra and had a base salary of $90,000 per year. His wife, Naomi, was employed by the Department of Human Services and earned $55,000 per year. They have two dependent children, Blake, who is 16 years old, and Kade, who is 11 years old.

Shane gave evidence that Craig was told that his position would be made redundant on 30 June 2018 and he has “no employment after that date and will not receive a redundancy payment”. However, he gave subsequent oral evidence that Craig is now employed as a service technician earning approximately $82,000: T34.43 – T35.03.

In response to a question that Craig’s wife’s income “is about $65,000 per annum”, Shane replied “around about that mark”: T51.16 – T51.17.

Craig’s and Naomi’s only disclosed asset is a home in Adamstown, New South Wales, with an estimated value of $600,000. It is subject to a debt secured by mortgage of $420,000. (Shane accepted that their property may increase in value when renovations are complete. Then, the value of the property could be in the order of $750,000 to $800,000: T51.31 – T51.37.)

It is fair to say that the financial circumstances of each of Shane and Craig are better than that of Stephen. However, when one considers the provision made for Stephen in the Will of the deceased, the size of the deceased’s estate, and the fact that Stephen has remained in occupation of the Nelson Bay property for so many years, and that, now, he is not being required to pay any occupation fee, the Court cannot be satisfied, on a preliminary view, that adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased.

Of course, I have also considered that the parties agreed Stephen has paid $48,047 out of his own funds, this payment having reduced the amount owing under the three loans secured against the Nelson Bay Property. However, as I have also mentioned, this amount was significantly less than the potential rental income that would have accumulated by letting the Nelson Bay property, even when considering it may not have been occupied by a tenant for the entire period between April 2011 and 2018.

There was no evidence that each of Shane and Craig did not have a good relationship with the deceased, or that either was estranged from her. It is to be remembered that they were her only children and were chosen objects of her testamentary bounty. Their claims on the estate were based on the ordinary ties of blood and familial affection.

In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, Lord Hughes wrote at [47]:

Furthermore, I am bound by what has been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]:

In this regard, there were three claimants on the bounty of the deceased, being, Stephen, Shane and Craig. Perhaps, because of their relationship, Stephen’s claim was the greatest, at least so far as it related to the Nelson Bay property, a matter that the deceased, herself, had recognised by giving him the greatest share of the “value” of that property.

Although it is not the test, I mention that Stephen, himself, acknowledged that he regarded the terms of the deceased’s Will as “fair”: T64.15 – T64.22. The importance of this admission is that it suggests that he believed that the deceased had fairly considered the interests of the three people with a claim on her bounty.

Taken all of the circumstances of the case to which reference has been made, I am not satisfied that the deceased's Will fails to make adequate provision from her estate for the proper maintenance or advancement in life of Stephen. That he has received accommodation in the Nelson Bay property since the death of the deceased is relevant. Accordingly, there is no reason to extend the time for the making of his application.

It follows that Stephen’s claim under the Act must be dismissed. An order ought to be included that the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

I shall allow the parties to prepare Short Minutes of Order reflecting these reasons both in relation to the Summons and the Cross-Summons. The matter will then be adjourned to enable orders to be made and to have any further argument on costs.