Pilatos v Whillier

Mr William Warren Hemmings (William) died on 11 July 2023 at the age of 81. By Summons filed on 10 July 2024, the plaintiff, Ms Renee Yvonne Pilatos (Renee or the plaintiff), seeks an order that provision be made for her maintenance, education and advancement in life out of William’s estate under Ch 3 of the Succession Act 2006 (NSW) (the Act).

As is the usual course in these types of proceedings, and without intending any disrespect or overfamiliarity, the deceased, the parties and other protagonists in this dispute will be referred to by their first names.

Renee is the youngest of William’s three daughters. Renee’s eldest sister, Ms Sonja Astrid Ringstad, was the primary beneficiary of their father’s estate receiving 50% of it under William’s will dated 29 May 2023 (the 2023 Will). Her other sister, Mrs Dallas Lee Nolan, received the same provision as Renee, being 15% of William’s estate (each). [1] The executor appointed under the 2023 Will and the defendant in these proceedings, Mr Warran Craig Whiller (Warren or the defendant), was a friend of William and received 20% under the 2023 Will.

The deceased’s former spouse and mother of Renee and her sisters, Ms Karen Ringstad, received notice of these proceedings, but has not taken part.

The final hearing of this matter took place on 21 and 22 July 2025. Ms L Sewell of counsel appeared for the plaintiff. Mr P Menadue of counsel appeared for the defendant. Each of Ms Sewell and Mr Menadue provided opening written submissions (PWS and DWS respectively), made oral submissions, and Mr Menadue provided final closing written submissions (DCWS).

References to the transcript will be indicated by TR.

For the reasons which follow, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Renee has been made by the 2023 Will. The Summons must therefore be dismissed.

As is often the case, before the Court in these proceedings are different versions of events provided by witnesses, and competing testimonial evidence given years after events took place, not supported by contemporaneous documents. On the task of a trial judge in needing to evaluate witness and other evidence and make factual findings, McGrath J in Toppi (No 3) stated (at [18]-[19]):

The process of assessing credibility of witnesses at trial has been said to be “multi-faceted” and to involve a “complex synthesis”. On this issue, the Court of Appeal in Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264 at [41]-[42] (Stern JA, Bell CJ and Gleeson JA agreeing) stated:

These principles summarised and set out above are respectfully adopted and applied.

To the extent submissions were made as to witness credibility or reliability, or I otherwise considered the issue relevant, I will address these issues below as they arise in my consideration of the evidence.

In the course of fact finding undertaken by the Court, there may be circumstances where the Court will draw inferences of fact from the failure of a party to call a particular witness. Justice Windeyer in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) at 320-321; [1959] HCA 8 described some such circumstances in which inferences may be drawn. His Honour described the drawing of those inferences in the circumstances his Honour described as “plain commonsense” (at 321).

Justice Hodgson (with whom Beazley JA agreed) in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [16] said that the case of Jones v Dunkel was a particular application of the principle in Blatch v Archer (1774) 1 Cowp 63 (Blatch v Archer) at 65; 98 ER 969 at 970. Whilst the Court in Jones v Dunkel did not directly refer to Blatch v Archer, it cited Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 178 (Isaacs J); [1929] HCA 25 which in turn had cited the case and had quoted Lord Mansfield CJ’s well-known maxim from 1774 that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v Archer at 65 of 1 Cowp 63).

On the issue of the drawing of inferences, and the what might be called the “rules” in Jones v Dunkel and Blatch v Archer, the Court of Appeal in SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175, (Stern JA, Ward P and Price AJA agreeing) at [158]-[165] stated:

The significance of the rule in Blatch v Archer as providing a more fundamental “principle of judicial reasoning” was more recently referred to by the Court of Appeal in XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133 at [45] (Kirk JA, Payne and Adamson JJA agreeing) when considering the issue of evidentiary and “tactical” onus. At [45], Kirk JA stated:

The plaintiff read and relied on five affidavits, each sworn by Renee herself, on the following dates: 4 October 2024, 4 April 2025, 11 April 2025, 3 July 2025, and 15 July 2025. A costs affidavit was also provided by Renee’s solicitor, Angela Garner, sworn on 8 July 2025.

Renee was required for cross-examination.

Renee’s husband, Eleftherios Pilatos (known as Terry), did not give evidence in the proceedings, with any documents relevant to Terry’s circumstances attached to Renee’s affidavits or with evidence of Terry’s circumstances otherwise given by Renee. That Terry did not put on affidavit evidence, and thus was not available for cross-examination, was the subject of submissions by Warren.

I note that Renee was on notice as to Warren’s likely submissions as to her omission to call Terry and Terry’s mother to give evidence, at the very least from the commencement of the proceedings (see TR P4 L49-50 (regarding Terry) and P7 L18-19 (regarding Terry’s mother) and onwards).

In the context of the defendant clearly foreshadowing that submissions were proposed to made at the close of evidence in relation to Terry, and Terry’s mother, not giving evidence, I note no specific explanation was provided by Renee on this issue, short of stating she had complied with obligations under the Practice Note and “under s 60(2)” (see, for example, TR P4 L42-44). Accordingly, to the extent it may be relevant to Warren’s submissions as to any inferences to be drawn from their absence, I consider Terry and Terry’s mother’s absence was, at a general level unexplained.

The defendant read and relied on six affidavits that were provided by the following witnesses on the following dates: Warren (sworn on 25 November 2024 and 24 June 2025), Sonja (sworn on 13 February 2025 and affirmed 23 June 2025), and affidavits provided by Warren’s solicitor, Sean Wilkins (sworn on 13 February 2025, 10 July 2025 and 21 July).

Sonja and Warren were each required for cross-examination.

What follows is a background of the relevant history. This background represents the Court’s findings, except where it is indicated that only the parties’ allegations are being recorded. For reasons of economy, this background does not always include reference to versions of the facts that have been rejected.

There was little evidence before the Court of William’s early life or his work life. William was said to be a builder, to have worked on building sites, and to have lived in a home in Bronte (sometimes also referred to as Waverley). It became apparent during the final hearing that William also worked for Qantas at some point in his life. At a social level, there was evidence that William was an involved member of the Bronte Surf Life Saving Club and that he spent many evenings and weekends there. During the patrol season, William spent many weekends participating in surf carnivals and other club activities.

William was married to Karen Ringstad and together, as already mentioned earlier in these reasons, they had three daughters. William and Karen separated in or around 1988 when Renee was aged 11. They later divorced.

On separation, Karen left the family home together with the three children. A short time after this, Sonja, who by this time was around 20 years of age, moved out on her own, and Dallas returned to live with William within a year. Renee left her mother’s home when she turned 18.

In 2009, Renee married Terry. They have two children: the first child, born in 2010, and the second child, born in 2013. They live together with Terry’s mother, who is 89, in Kingsford.

Renee’s evidence is that she had a “difficult and dysfunctional relationship” with her father, and that this reflected their “family’s dynamic as a whole”. This began in childhood, and while there were periods of increased familiarity and affection, eventually their relationship broke down and they had no contact with each other from late 2010.

From the time when Karen and William separated, Renee says she saw her father for visits on the weekend and during school holidays but rarely stayed overnight. She stopped visiting William on a regular basis when she was about 15 years of age but continued to ring him about once a month.

Renee continued to have contact with William into her early twenties, however, she gave evidence that if she were to have any relationship with William, that it was on her to make it happen.

By the time of the birth of her first child in 2010, Renee believed she had forged a strong bond with William, even if it was not an emotionally strong bond. In this, Renee referred to celebrating many family occasions together, eating out, and spending Father’s Days and Christmases together. At Renee’s wedding to Terry in 2009, William walked her down the aisle, sat at the main bridal table, and gave a speech at the reception.

After the first child was born in 2010, Renee stated that her relationship with her father “deteriorated rapidly”. Of the incident that provided the trigger for the deterioration (the incident), Renee deposed in her affidavit sworn 4 October 2024 :

I will refer to the account of the incident at paragraph [27] of Renee’s affidavit sworn 4 October 2024 as the Terry to Renee version. I note this version is silent as to whether William was also present when the incident occurred.

I also note that William’s version of the incident as recounted at paragraph [26] of Renee’s affidavit sworn 4 October 2024 (the William to Renee version), may suggest William was not present when the incident occurred, given he said, “Karen said …”.

It was not suggested to Renee in cross-examination that the Terry to Renee version and William to Renee version were not told to Renee as deposed.

Warren also gave an account of the incident (the William to Warren version), where he deposed in his affidavit sworn 25 November 2024 the following:

The William to Warren version indicates that William was present and had observed the incident, and that the words that were said by Terry were words that were said to both Karen and William (given, on Warren’s account, William said Terry told “us” what Terry allegedly said). Warren was not cross-examined on this evidence of what William told him in relation to the incident.

In cross-examination, Renee denied there had been an “altercation” between Terry and Karen at the hospital. In answer to counsel’s questions about the physical contact between Terry and Karen, the following exchange took place (at TR P24 L5-17):

Renee was also pressed on whether any attempts were made by Renee to explain to William what had occurred (at TR P24 L19-P25 L26):

It will be noted that all three versions of this incident, being the William to Renee, Terry to Renee, and William to Warren versions, involved Terry making physical contact with Karen (either Terry shaking Karen’s shoulders or Terry grabbing Karen’s neck or Terry choking Karen), as well as words spoken by Terry. It was thus common ground between versions that there was physical contact between Terry and Karen and words were spoken by Terry.

The Terry to Renee version and William to Warren version also involved Terry telling Karen, or telling both Karen and William, that Terry would be taking responsibility for Renee, and inferentially, if not directly, that their assistance and support would not be required. In keeping with this, of the words putatively said by Terry, in the Terry to Renee version, Renee stated in cross-examination (TR P25 L36-39):

I will refer to these words spoken as the responsibility communication, which essentially accepts Renee’s evidence as to the words spoken by Terry.

There are clearly hearsay issues with all three versions of the interaction (to use a neutral term) between Terry and Karen. None of the evidence of the various versions was objected to.

There does not appear to be any dispute that physical contact occurred between Terry and Karen. However, what is inconsistent between the versions is the nature and seriousness of that contact. I do not consider I am required to make a finding as to which version of the physical contact actually occurred, and the parties did not submit otherwise.

The evidence as a whole thus leaves unresolved whether William was present and personally observed the physical contact between Terry and Karen, whether the words spoken by Terry were directed to William as well as Karen, or just to Karen, and what exactly was said by Terry. In the absence of cross-examination or submissions on this issue, I do not consider I am able to make a finding as to whether William was physically present or not. I am satisfied, however, that William was well aware that the incident had occurred, which included both physical contact and the responsibility communication, and was, to some extent, upset by it.

Of the three versions, I am of the view that the Terry to Renee version is most sympathetic to Renee’s case in that it is likely to involve physical contact of a lesser degree of seriousness. I note, however, that the physical contact between Terry and Karen, even on the Terry to Renee version, was still serious as it involved one person (Terry) actually holding someone (Karen) by the shoulders and shaking them, coupled with saying “I’m always going to be there to look after Renee, you need to look after Dallas and Sonja. … You’re driving me crazy.”

At no point, either in her affidavit evidence or in her oral evidence, did Renee engage with the likelihood that whatever form the physical contact between Terry and Karen and words spoken by Terry actually took, and whether William observed the incident or was told about it, that as a matter of ordinary human experience, it was understandable that knowledge of the incident would cause upset (or disquiet) to William.

Further, at no point did Renee seem accept that it was within her power, being married to Terry, who was the perpetrator of the physical contact and words spoken (on any version), to attempt to provide some form of explanation to William and otherwise seek to allay her father’s upset (or disquiet). For example, when it was put to her in cross-examination that William clearly wanted an explanation as to what happened, she replied, “[n]o, he didn’t ask me anything. He was just telling me that’s what he was told.”

To the extent that the Terry to Renee version, as provided by Renee in her affidavit, was amended in her oral evidence through Renee’s suggestion that Terry shook Karen “in a joking way”, I do not accept this further evidence. This otherwise important evidence had not been included in Renee’s affidavit and was raised by her for the first time during cross-examination (as was squarely put to her in cross-examination). In offering this explanation of the shaking of Karen, I find that Renee was willing to give evidence that she considered assisted her case, being to minimise the seriousness of the physical contact in the shaking of Karen whilst holding her shoulders. Counsel for Renee did not refer to, or otherwise rely on, Renee’s evidence that the shaking was “in a joking way” in her closing submissions.

Renee and William had no contact, or limited contact, after the incident. Renee deposed:

Following the incident and Renee’s attempt to visit William around Christmas in 2010 as set out above, Renee gave evidence that she tried reaching out to her father by phone over the subsequent years, with no response. No evidence accounting for these phone calls was tendered, nor was Renee’s evidence on this challenged. The Court is therefore willing to accept this evidence.

Renee also gave evidence that in 2013, when her second child was born, she sent her father a card to let him know that he had a new grandson. Renee said that she found the card she had sent in William’s residence after his death, together with a number of other cards. It was not suggested to Renee in cross-examination that she did not send this card to her father at the time it was sent, and the Court accepts Renee’s evidence that it was sent contemporaneously with her second child’s birth.

Renee also gave evidence, in her second affidavit, that she “ran into” her father at a shopping centre in Bondi Junction while she was heavily pregnant with the second child, wherein she was walking out a door and William was walking in. Renee claimed that the two made eye contact, that she froze momentarily, that she moved towards her father, but that he scowled and wrinkled his nose, then turned and walked quickly away.

It was put to Renee in cross-examination that this encounter did not happen, and that the encounter was intended to convey the impression that William knew of the second pregnancy, and the impression that her father rejected her when he never did so. Renee denied this and maintained that the encounter did occur.

To the extent that the Court is required to make a finding as to whether Renee’s version of the encounter occurred, the Court accepts that the encounter occurred as subjectively experienced by Renee. The Court does not accept, however, that the subjective observations of William by Renee could provide a proper basis for a submission that William actively rejected Renee at this time. In assessing Renee’s evidence on this, the Court has had particular regard to the legal principles in relation to witness reliability, set out above.

However, to the extent this encounter provided evidence that William knew about the second pregnancy, the Court notes that Renee has provided evidence of knowledge of the later birth of the second child by way of the card sent to William in 2013.

In the last years of his life, William lived alone. In about January 2022, William was diagnosed with pancreatic cancer. He was treated with chemotherapy and his condition remained stable for about six months.

In the latter part of 2022 William’s health deteriorated and by the start of 2023, William’s health was at a point where the treatment was no longer working.

From this time, Warren and his wife Dot, Sonja, and various others increased their care and support of William. At this point Warren would go to William’s home every three or four days, and otherwise assist William, with the assistance of Dot.

Warren asked William if he wanted him to contact Renee or Dallas, and William said no.

In cross-examination, Warren was challenged as to the extent that he assisted William, by way of William’s own recording of events in his diary (TR P64-71, see also P101, P103). Whilst the Court accepts that there may have been times when William’s diary did not record all instances of contact that may otherwise have been inferred from Warren’s evidence, or that Warren’s recall was not exact, overall, the Court accepts Warren’s evidence. The evidence as a whole supports a finding that Warren, his wife, and Sonja were amongst the closest people to William at the time of his death, and that they cared for and supported William through his illness and up until his death.

It is not accepted, as submitted by Renee, that Warren “tended to exaggerate the extent of care and assistance he was giving the deceased” (TR P103 L25-26). There is no dispute that Renee and Dallas simply were not there at those times, which explains why Renee was forced to rely upon William’s diary entries to obtain some insight into the assistance that was given to William by others in her absence. However, the diary entries of a sick and dying man might not record all instances of contact and support. Having regard to the whole of the evidence, there can be no serious dispute that, whilst others were also involved in his care, Warren (and Dot) and Sonja comprised William’s inner circle of care and support when he was in his most need.

On the issue of Warren being close to William, and the significance of the diary entries, Warren submitted that “[y]ou don’t take someone into your house for two weeks when they’re on the verge of death if you are not close to them. William was only returned to the hospice on the last day before he died” (TR P123 L49-124 L3). The Court accepts this submission.

For her part, soon after William was diagnosed with cancer, Sonja took long service leave from her nursing job in conjunction with annual leave so as she could help with his care, however, she eventually left the job as she could not handle the stress of the job and being available for her father (TR P80). She often discussed William’s care with Warren, noting that William’s independence was paramount to him and that they respected that.

Sonja was with William when he died.

Sonja is a registered nurse and has nursing qualifications. Whilst not employed at the time of the hearing, Sonja gave evidence that she has worked for nearly all of her life, despite the many health issues of which she gave evidence.

Sonja was married but had been separated for around 10 years at the time of the hearing. Sonja’s husband had been dependent upon her during their marriage, and as far as she was aware, he did not have any substantial assets. She does not have any children.

Sonja deposed that she had an ongoing and close relationship with William, which became increasingly close over the course of his life. This included caring for him during his illness toward the end of his life.

The evidence of Warren corroborated that of Sonja on these issues.

At the time of the hearing Warren was around 60 years of age, was married with two children, and worked as a firefighter. Warren’s father died when he was five and he was raised by his grandparents.

Warren has lived in Bronte for most of his life, and his father grew up with William around Bronte. Warren’s grandfather was a brick layer and did work for William. After Warren left school, he was an apprentice to his grandfather and then later to William. Warren saw William as a father figure, and they remained close up until the time of William’s death.

Two of William’s wills were before the Court: a will executed on 12 August 2020 (the 2020 Will) and the 2023 Will. For the 2020 Will, Warren recalls William asking him to be the executor and telling him that “Sonja will get it all. She is going to have a lot of ongoing issues with her health which will cause her a lot of trouble”. Warren also recalls that there was some discussion about possible claims by Renee and Dallas, with William stating, “I do not have any relationship with them. I don’t want them to get anything”.

In the period after the 2020 Will was made, William is said to have had several conversations with Warren and said words to the effect, “I have been told that Renee and Dallas can make a claim on my estate”, and “I am worried the girls will make a claim”.

William eventually told Warren that he had made a new will and showed him a copy of the 2023 Will. Warren asked him why he had made him a beneficiary, and William replied, “[t]hat’s what I want”.

For her part, Renee says that in her late twenties or early thirties, that she recalled conversations where William said words to the effect, “[m]y will is an equal split between you girls”. No will earlier than the 2020 Will was before the Court.

The validity of the 2023 Will has not been challenged. Clause 4 of the 2023 Will provides that 50% of the estate is to be given to Sonja, 20% to Warren, and 30% to Renee and Dallas in equal shares as tenants in common (ie 15% each). Any residue is to be given to Sonja and Warren in equal shares as tenants in common (clause 5).

Clause 6 of the will provided the following declaration:

Under the 2020 Will, Warren was again the nominated executor (clause 2). Under this will, William left the whole of his estate to Sonja (clause 6). The 2020 Will therefore made no provision for either Renee or Dallas.

Warren deposed that the gross distributable estate as at 24 June 2025 was $2,994,929.28 (estate assets). This was mostly comprised of cash held in a term deposit, and two smaller sums held in a bank account and a solicitor’s trust account.

As at 25 November 2024, a total of $110,431 testamentary and other expenses had been paid out of the estate in the following manner:

As of 24 June 2025, $25,300 had also been paid out of the estate on account of Warren’s legal costs in these proceedings. Thus, without any legal costs being deducted, the value of the pre-litigation distributable estate (pre-litigation estate) would be $3,030,229.28.

Using the pre-litigation estate as a guide, had litigation not been commenced, Renee would have received an estimated legacy of $453,034.39 (being 15% of $3,020,229.28).

At the commencement of the hearing, both parties agreed that, for the purposes of the proceedings, the net distributable estate by the end of the hearing was likely to be $2,907,229.28, allowing for the estimated legal costs of the defendant on an indemnity basis.

Probate of the 2023 Will was granted to Warren on 8 January 2024. The major asset of the estate was William’s home, having been sold since his death, leaving all estate assets in cash.

In the course of cross-examination, various actions (or omissions) of Warren as executor were called into question, including in relation to his fiduciary duties. The line of questioning was objected to, and I raised with counsel my own concern as to the relevance of the evidence, noting also that the sums of money involved were relatively small, and further noting that there had been no notice that questions as to the conduct of the executor were to be raised as part of Renee’s case.

Counsel for Renee stated that the conduct of the executor was a relevant consideration under s 60(2)(n) of the Act, and that it had not been raised earlier as it was being left for cross-examination (TR P58 L14). Counsel later suggested that at paragraph [60] of PWS, the issue of the conduct of both Warren and Sonja after William’s death was indeed raised as relevant (TR P59 L19) (however on this it is noted the conduct of Warren referred to in that paragraph was that Renee was not informed of William’s death for nearly four weeks). At this point counsel submitted that “it’s entirely up to your Honour as to what weight, if any, you will place on that” (TR P59 L22-23).

In closing submissions, it was again raised that the conduct of Warren as executor was a relevant factor (TR P101-103) and the Court was invited to make further provision largely, if not entirely, from Warren’s share (TR P103 L37-39). The Court raised with counsel the seriousness of the allegations that were being made against Warren, in relation to breaches of his duties as an executor and fiduciary, and that the allegations had not been particularised, and its concerns about procedural fairness. On this issue the following exchange took place (TR P110 L39-49):

In reply, counsel for the defendant made a number of submissions, including the following (TR P112 L1-11):

Counsel for the defendant then made submissions in relation to the alleged breaches, and continued (TR P113 L49-P114 L6):

The Court accepts the submissions of the defendant that the Court is not in a position to make findings in relation to Warren’s conduct as executor, and ought not to make such findings, for the reasons submitted. It is further accepted that even if the Court were to make findings, that any findings would be of a “minor and marginal” nature. Counsel for the plaintiff inferentially admitted as much, apparently being the reason that a separate equity suit was not undertaken. As such, and in the absence of making any findings, the Court does not give the issue of Warren’s conduct as executor weight in determining the issues before it.

For clarity, it is noted that Renee had cited other post-death conduct of Warren (and Sonja) in her opening submissions (at PWS [60](n)), being that Renee was not informed of William’s death for nearly four weeks. This conduct was clearly identified in written opening submissions, as distinguished from the conduct the subject of the allegations cited immediately above.

Unless otherwise stated, all references to statutory provisions will be to the Act.

An application for a family provision order is made under Pt 3.2 of the Act. Such applications 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 or the parties to the proceedings consent to the application being made out of time: s 58.

Only eligible persons may apply for a family provision order, as defined in s 57 (Div 1 of Pt 3.2):

Division 2 of Pt 3.2 governs the determination of applications for family provision orders. Relevantly, ss 59 and 60 provide:

If the Court is satisfied that adequate and proper provision has not been made with reference to s 59(1)(c), and decides it ought to make an order in accordance with s 59(2), s 65 sets out what a family provision order must specify, including the amount and nature of the provision, as well as the parts of the estate out of which the provision is to be provided:

How the above sections of the Act work together, and the legal principles underpinning their application, was described by the Court of Appeal in Bassett v Bassett [2021] NSWCA 320 at [78]-[87] (Bell P, Leeming and Payne JJA) (Bassett), which are respectfully adopted and applied:

The principles were more recently considered by the Court of Appeal in Alexiou v Alexiou [2025] NSWCA 164 (Free JA, Payne and Stern JJA agreeing) (Alexiou CA), where the Court made further and associated observations (at [50]-[56]):

In relation to the operation of s 60(2) within the statutory framework, whilst the terms of s 60(1) provide that a Court may have regard to the matters set out in s 60(2) for the purposes of determining eligibility with reference to s 57(1), and whether to make a family provision order in accordance with s 59(2) and the nature of any such order (per s 65), the Court of Appeal has made clear that s 60(2) matters may also be considered when making the “jurisdictional” determination under s 59(1)(c). For example, in Blendell v Blendell [2020] NSWCA 154 the Court stated at [7]-[8] (Meagher JA, Gleeson and Leeming JJA agreeing):

When the Court comes to consider a family provision claim made by an “adult child” of a deceased person, there are a number of principles that offer guidance in making any determination. In Limberger v Limberger [2021] NSWSC 474 (Limberger), for example, Hallen J stated at [473]-[474]:

The legal principles to be applied when a Court comes to consider the issue of “estrangement” have recently been referred to by the Court of Appeal in Alexiou CA, which dismissed an appeal against a decision of Lindsay J in Alexiou v Alexiou [2024] NSWSC 1340 (Alexiou). The principles applied in Alexiou by Lindsay J, and associated principles, have recently been recently summarised by McGrath J in Toppi v Toppi (No 3) [2025] NSWSC 733 (Toppi (No 3)) at [469]-[482], which summary is gratefully adopted and applied:

Notwithstanding the guidance offered by the “principles” often cited by the Courts, including those cited above, the Court also has regard to the reminder by Hallen J in Limberger (at [492]-[495]) as to the limitations of such principles:

In these proceedings, it is common ground that Renee is an eligible person, being the child of William (s 57(1)(c) of the Act) and that the application by Renee was made within time (s 58 of the Act).

What remains in dispute and requires determination by the Court are the following issues:

The role of the Court in determining a family provision application has been described by Lindsay J in Broadus v Cradduck [2025] NSWSC 402 at [3] in the following way:

It is thus the duty of the Court to apply the statutory text, having regard to “all of the circumstances” of the case, which includes the circumstances as referred to above and below. As part of considering all of the relevant circumstances, those matters set out in s 60(2) of the Act will be considered as part of the overall narrative, to the extent they are applicable.

In accordance with the relevant legal principles set out above, the Court has endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence and circumstances as a whole.

Having undertaken a “multifaceted evaluative” assessment in relation to the totality of the evidence in all of the circumstances, the Court is of the view that adequate provision for the proper maintenance, education or advancement in life of Renee was made by the 2023 Will.

Renee expressed some doubt about the security of her family’s ongoing living arrangements. She stated that her mother-in-law was in deteriorating health, and that it was unclear how long she can live at home. Renee asserted that if or when her mother-in-law goes into aged care, their family will need to find alternative accommodation.

Over the course of the proceedings, there were assertions made by both parties about the current house in which Renee’s family are living. Valuations made by real estate agents engaged by the parties indicate that the property, which is owned outright by Terry’s mother, is valued between $2,400,000 and $3,000,000. Terry is one of four children.

Renee deposed that she experiences ongoing mental health issues, including anxiety and depression, for which she has struggled to find treatment. She stated it was “almost impossible” to find an appropriate psychologist who bulk bills in the city or eastern suburbs of Sydney, and the few who do bulk bill are not accepting new patients. She said she could not afford to pay the gap between the Medicare rebate and the private consultation fees.

Other than her subjective descriptions of her mental health, Renee did not include in her evidence any medical reports going to her mental health or of any past or present mental health diagnosis.

Renee also deposes that the first child has struggled with mental health difficulties, saying that he suffered from anxiety, learning difficulties, and suspected attention deficit hyperactivity disorder (ADHD). These difficulties are asserted to be ongoing, and to have caused difficulty at home, as well as making it difficult for Renee to find work.

No medical or other health professional report was before the Court to support Renee’s claims in relation to the first child’s various diagnoses, with Renee accepting in cross-examination that the first child has never actually been diagnosed as having a “mental health issue” (TR P30 L23-24). Before the Court was a mental health care plan, referring to “behavioural problems”, and a referral to a psychologist .

Renee stated that whilst the first child struggled to cope during primary school, he has begun to “thrive” after starting high school, and that she and Terry continue to provide additional learning and support.

In her updating affidavit sworn 3 July 2025, Renee deposed she had a gross monthly income of approximately $3,345, and that she estimated her net monthly income as approximately $2,995 (ie, $35,940 annually).

In the same affidavit, Renee stated her only source of income was payments from Centrelink, which totalled $1,544.24 per fortnight (ie, $40,150.24 annually).

These sums were clarified with Renee in cross-examination (TR P41 L1-6), where she indicated she was not sure of why there was a difference between her monthly estimate of $2,995 and the total of the fortnightly payment from Centrelink, and suggested the difference may be because of tax, but she was not sure (TR P41 L8-20). What Renee was able to positively confirm was that she received $1,544 per fortnight (TR P40 L24).

Monthly expenditure for the family was said to be $3,030 (ie, $36,360 annually). Given the clarification by Renee in the witness box, it would seem that Renee’s own regular income (without considering Terry’s income) exceeds the expenditure of her family, even before taking into consideration potential income from further sources, as is detailed below.

Renee provided a table of her Assets and Liabilities as at 3 July 2025 indicating her sole assets having an estimated value of $41,646; Terry’s sole assets at $7,420; further joint assets at $9,409; totalling $58,475. Renee’s sole liability was a “HECS-HELP debt” of $8,500.

The evidence was unclear as to the extent to which Renee’s income extended beyond the Centrelink payments, as during cross-examination Renee stated that, “we [Renee and Terry] at times would take drawings from the business if there was money in the account from the business to help us basically for living costs”: (TR P33 L46-48). Renee’s reference to “the business” is a reference to a small business owned together by Renee and Terry as a family partnership (the Partnership). It was also revealed in cross-examination that an additional sum received by Renee from the Partnership may have been in the order of $15,000 (TR P40 L20-22), however, the evidence on this was not clear.

Renee conceded in cross-examination that she had not otherwise disclosed that she had withdrawn money from the Partnership for personal expenses: (TR P37 L36-38).

Renee stated she was not currently employed, and that she was not actively seeking work at the moment as she was caring for her children. She stated that the first child, in particular, needed a higher level of care and support with his mental health and learning difficulties.

Renee said she wants to have some money as a “buffer” for any unexpected emergencies or contingencies in life. Renee has approximately $38,857 of superannuation.

In relation to Terry, Renee gave evidence that Terry’s current monthly and net income was approximately $1,500 per month (i.e. $18,000 annually). Renee said that Terry was self-employed and that he worked in the Partnership. She said the Partnership had started in January 2019, although Terry had commenced his own photography business shortly after the birth of their first child which transitioned to an eBay business prior to her joining: (TR P39 L28-45). The Partnership buys and sells used cameras and photographic equipment on eBay. Renee said that Terry stopped full-time work in 2010 after the first child was born to help care for her and for the first child.

As already noted, there was no evidence directly from Terry, with all evidence as to Terry’s circumstances led through Renee.

In cross-examination, Renee was taken to a “Westpac Life” account document from 2022, in Terry’s name, which recorded an opening balance at that time of $34,986.76. Renee confirmed it was Terry’s money, and while she was unable to explain where it had come from or how long he had had it for, she stated it was there as their “buffer” (TR P31 L9-20).

Of this same account, Renee was asked about withdrawals made from it in 2024. She stated she could not remember each transaction, but went on to explain, “we [her and Terry] were also supplementing our business, which is what we run together, our partnership, so it could have had something to do with putting, injecting funds into our business” (TR P31 L41-43).

The Partnership was the subject of considerable cross-examination, with the evidence disclosing that in the past few years the Partnership either made a loss (the tax returns prepared for the Partnership showed a $15,663 loss for 2022 (TR P35 L16-17), and a $9,322 loss for 2023 (TR P38 L18-20)) or a very slim profit (eg, $2,285 profit for 2024 was recorded on the tax return for the Partnership for that year (TR P38 L26-28)). Given the losses and very slim profit of the Partnership, the following propositions were put to Renee (TR P38 L30-L32):

Given the losses of the Partnership, counsel also put to Renee that, “in a sense you’d be better doing absolutely nothing”, to which Renee responded, “[n]o, because we’re actually building our skills. …” (TR P40 L1-2).

The following propositions were put to Renee in relation to “outside” employment (TR P38 L36-P39 L19):

The evidence of Renee is that the reason she currently does not seek employment outside the home is because she would like to stay home to care for her children. This oral evidence appears to clarify Renee’s affidavit evidence, which was unclear as to the timing of when mental health issues impacted upon employment: “I suffer from anxiety and depression, which is debilitating at times. My mental health issues have made it difficult for me to find and keep employment, especially after [the first child] was born” (emphasis added).

Further, it is Renee’s evidence that the reason that Terry does not seek outside employment is to support Renee, while she supports the children, and otherwise support the children himself.

Supporting Terry’s mother is also a part of the home support that is provided by both Renee and Terry.

Sonja also gave evidence, as a daughter of William and countervailing major beneficiary of the will, and raised both her relationship with William and her medical and housing needs as relevant factors in the determination of Renee’s family provision application.

Sonja suffers from serious medical issues, which includes Encephalotrigeminal Angiomatosis, which is also referred to as Sturge-Weber syndrome (SWS), of which she gave the following evidence at [9] of her affidavit sworn 13 February 2025:

It was not contested by Renee that Sonja suffers from that condition (TR P18 L4-9), and that she will have increasing medical needs in the future (TR P101 L15-16).

Sonja also gave evidence that she has suffered from epileptic seizures from the time she was born up to the age of 18 months old, which she was “cleared of” when she was around 10 years of age, however, that her medical prognosis is that she is at risk of developing epilepsy again as she gets older. She said she was also at risk of other neurological complications such as spontaneous brain haemorrhage.

Sonja stated that she had been diagnosed with glaucoma when she was 5 years old and treated for that condition since that time. From the age of 10 she underwent the first of multiple eye operations over a period of almost 10 years, with resulting total permanent loss of vision in her right eye. During that period, she suffered eight retinal detachments, haemorrhages and eye implant rejections, followed by multiple ophthalmic plastic surgery procedures to stabilise the eye. The medical advice she received was that the chronic pain she was suffering would only be cured by removing the eye, however this was not done as she was at high risk of uncontrollable haemorrhaging due to her SWS.

Sonja provided further detail of significant and associated medical conditions, and associated pain, from which she suffers, and the likelihood of their future progression. She provided medical reports that referred to her medical conditions and continuing need for treatment from treating doctors.

Sonja deposed that she has a private health fund, which covers some of her medical treatment and that most of her medical care is not covered by Medicare (from which it might be inferred that Sonja has to bear at least some of her own medical costs directly). She deposed that she expects the cost of her treatment to increase as she ages.

Sonja deposed that she is trained as a registered nurse but was not working at the time of the hearing.

After the death of her father, Sonja sold her house in Blacktown and moved out of Sydney. The Court accepts her evidence that this move was something she had been planning to do for some time.

Sonja was cross-examined on the issue of the sale of the house in October 2023 being so soon after the death of her father in July, and Renee submitted that, as part of considering Sonja’s post-death conduct (in accordance with s 60(2)(n) of the Act), “Sonja changed her financial position since the deceased’s death by selling her property and is currently living off the proceeds of sale as she waits the benefit of her inheritance. Had she waited to receive her inheritance before selling, she would likely be in an improved financial situation” (PWS [60](n)(ii)).

To the extent the inference is sought that Sonja was intentionally seeking to diminish her financial situation (which was not explicitly put), the Court declines to draw such an inference. While the Court may have regard to post-death conduct under s 60(m)-(n) of the Act, the Court does not accept the submission that Sonja’s conduct in selling her house, which may have had the consequence of a changed financial situation, is a material fact in considering the issues before the Court. The explanations given by Sonja as to why she sold the house when she did are reasonable and accepted and the Court does not consider that those reasons reflect negatively upon her.

In terms of her financial position, Sonja said she had approximately $199,000 in the bank (which had reduced to $159,000 closer to the hearing date), and $371,745 in superannuation. She explained that the money in the bank was mainly what was left over from the sale of her house, which was sold for $842,000. The sale costs were around $15,000, the sum required to pay off her outstanding home loan was $313,360, and further sums were expended on other items, including on buying a new car and in caring for her dogs. These explanations are accepted as to why Sonja’s bank account was reduced over time.

Sonja said she was not working at present, and that she was very stressed by the dispute over her father’s will. She said she has always been a worker and that she would get another job, even if it is not in nursing, which is a very demanding job. She would like to buy a property so she will have secure accommodation as she gets older. She said will need a house with a back yard for her dogs, which are her companions and part of her family. She has not been able to have children.

Of the beneficiaries to the 2023 Will, only Sonja has raised her “financial, material and other” circumstances as a competing claimant (see paragraph 18.12 of the Practice Note SC Eq 7).

Beneficiaries (who are not also making a family provision claim) are entitled to elect not to make disclosure about their financial resources and material needs. On this issue, in Papantoniou v Foundouradakis [2023] NSWSC 1374, Meek J explained the following at [124]-[126]:

More recently in Liosatos v Liosatos [2025] NSWSC 44 at [79]-[152], Meek J discussed the importance of Notices of Claim when it comes to considering the terms of s 61 of the Act, in the context of a Court potentially disregarding the interests of persons who are not beneficiaries and may have made a claim, but have not.

Having regard to the above authorities, I note that there was no obligation on Warren to raise his financial or other circumstances in these proceedings, and importantly, consider he is entitled to look to this Court to not disregard William’s freedom of testamentary disposition and William’s preferable disposition to him as beneficiary, regardless of Warren’s financial position or needs.

The Court accepts that William had a moral duty to make some provision for Renee, as she submitted. However, the Court is of the view that he discharged that duty in the provision that was made for her under his final will, the 2023 Will. As Warren submitted, if this application had not been made, that provision would have been in the order of approximately $450,000. The Court further accepts Warren’s submission that this amount will go some way in meeting many of the claimed needs of Renee, which Renee summarises as a “need [for] secure accommodation and a motor vehicle, as well as funds for retirement and a buffer against contingencies” (PWS [65(c)]).

It is obvious that the amount of about $450,000 would not, of itself, provide “secure accommodation” for Renee. However, the Court finds that Renee did not establish, by way of evidence before the Court, that she does not currently have secure accommodation.

The basis of the submission as to the insecurity of her accommodation appeared to be that Renee lives at Terry’s mother’s house and should Terry’s mother need to move into an aged care facility, then the house would likely have to be sold to cover those costs. That possibility rises no higher than speculation. Renee gives evidence that she and Terry currently provide care for Terry’s mother. As Renee and Terry do not work in outside employment, an alternative possibility could include that if Terry’s mother’s needs increase, Renee and Terry will continue to be able to provide home based care and thus remain in the home where they live. The Court concludes that each of these possibilities are speculation and do not assist the Court in its assessment of the evidence put before it.

Even if Renee had established a lack of secure accommodation, the Court would still not have found that adequate and proper provision had not been made for Renee. As the authorities have suggested, with which the Court agrees, the community does not expect a parent to look after their children for the rest of the child’s life, especially where there is someone else, such as a spouse, to do this. In Renee’s circumstances, there is no doubt that each of Terry and Renee understood that Terry had a responsibility to look after Renee, and noting the “responsibility communication”, as much was communicated to William.

This latter evidence also goes to William’s assessment of Renee’s needs as a wise and just testator, having been informed, directly or indirectly, that Terry had declared that Renee’s family were no longer responsible for her.

In closing submissions, Renee clarified that she was not seeking funds for an unencumbered property, but rather, “a greater sum to be able to pay towards a deposit on a property that they [presumably, Renee and Terry] would be likely to obtain a mortgage if required” (TR P97 L26-29). Having regard to the objectively established facts in this matter, together with the apparent logic of events and probabilities of human behaviour, it is not accepted that this proposal provides a proper basis for the Court to find that adequate and proper provision has not been made for Renee, nor that further additional funds from William’s estate ought to be provided to Renee to form a part of a deposit on a property.

Renee’s evidence is that she wished to continue to live in the Randwick area, and that a two-bedroom unit would, on her estimate, cost around $950,000-$1,050,000. She estimated the rent for a similar property to be $750-$820 per week for a property of similar size and location, however, she also said that she and Terry “will likely struggle to obtain a lease on a rental property given our modest income and employment status”.

Given this acknowledgement by Renee that she and Terry would struggle to obtain a lease, the available inference to draw from this is that she and Terry would also struggle to secure a loan, given their “modest income and employment status”, notwithstanding any deposit otherwise available. Further, if they were to obtain a loan, no evidence has been provided which would suggest that they would be able to service that loan, as well as service the “hidden expenses” which come with owning residential property such as council rates and insurances.

The authorities have stated that, where funds allow, a testator might provide a child with a start in life, such as through funding a deposit on a home. I do not consider that the circumstances of this case fall into that category. First, although this might be considered a moderately large estate, the competing claims, in particular that of Sonja, are strong. Second, the circumstances in which Renee finds herself are not that which would reflect further provision giving her a “start in life”. Renee has an established family and has an established lifestyle based upon her own choices, which include that both she and Terry have made the choice to not work outside the home. In these circumstances, the Court does not consider that William’s estate, and thus the other beneficiaries of the estate, should bear the burden of Renee and Terry’s lifestyle choices.

The importance of applicants providing a “sound evidentiary foundation” when claiming accommodation as a “need” was highlighted by the Court of Appeal in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [85] (see also [84]) (Sackville AJA, Macfarlan and Ward JJA agreeing), as was the importance of distinguishing between what is “desired” as opposed to what is “needed” more generally (at [85]). The Court is not satisfied that Renee has provided a sound evidentiary foundation for her claim she does not have secure accommodation, and in relation to her claim for funds towards a deposit.

I also accept Warren’s submission that it was “expected or natural” for Renee to have put on evidence from Terry’s mother on this issue, and that she has failed to do this. That is, I find there is an unexplained failure by Renee to call Terry’s mother on the issue of the security of Renee’s tenure in her (Terry’s mother’s) home, and I draw the inference that the uncalled evidence would not have assisted Renne’s case. In drawing this inference, I note I am not permitted to infer that the uncalled evidence would have been positively damaging to Renee’s case and that the inference will not fill any evidentiary gaps.

Having drawn that inference, I do not think that inference takes the matter any further, given that, for the reasons already explained, I am not satisfied in the first place that there was a proper evidentiary basis to positively find that “Renee does not have security of accommodation” as submitted by Renee (PWS [65(a)]). Such was the risk of relying on indirect and second-hand evidence, the peril of which was highlighted by Stern JA in SSABR at [165].

I do not accept that Terry’s failure to give evidence on this issue (ie, security of accommodation) falls into the same category, as Terry’s views and understandings will only be secondary to those of Terry’s mother, who is the owner of the property, and thus might not rise higher than a wish or speculation on his part.

The details of Renee’s financial circumstances are set out above.

Regarding those financial circumstances, the defendant has criticised Renee for not calling Terry to give evidence, and as part of this relies on the requirements of applicants for family provision to make full and frank disclosure (DCWS [38]-[41]).

The Court notes these criticisms; however, it is also noted that even taking Renee’s evidence of her financial circumstances at their highest, the Court does not consider that they support a finding that William had not already made adequate and proper provision for Renee in his will. Having regard to the evidence Renee put before the Court, clarified when she gave oral evidence, it has been found that Renee’s income through her Centrelink payments is greater than the family’s expenses, and this is before taking into account Terry’s income or any extra funds that may be potentially available from the Partnership (although the tax return for the years in evidence suggest that little if any surplus would be available from this source). The Court does not consider this evidence establishes a need that would lead to a conclusion other than that Renee was adequately and properly provided for in the 2023 Will.

On the issue of future provision by Terry’s mother, Warren submitted that Terry “will surely receive a substantial inheritance from him mother. If not, he will have an excellent claim for family provision” (DCWS [11]).

I do not accept either of those propositions. As to the first proposition, as Terry’s mother is still alive, and as far as is known by the Court, has mental capacity to make a will and change a will, the Court cannot conclude that Terry will receive a substantial inheritance, or any particular inheritance at all. This issue was addressed by Hallen J in Neale v Neale [2013] NSWSC 983, where it was stated (at [13]-[14]):

In relation to the Jones v Dunkel inference sought by the defendant in the context of Terry’s mother not giving evidence, it was said there was a “clear inference is that Terry will benefit in some way” (TR P116 L25-32). I do not propose to draw this particular inference for the reasons set out above. Further, to draw this particular inference as sought would be to impermissibly supply missing gaps and to infer in a way positively damaging to Renee’s case.

As to the second proposition, I do not accept that a Court ought to give any weight to any potential claims for family provision at a future stage, given the uncertainties of the evidence before the Court, but mostly, given that any potential claim is a matter of speculation. As much was eventually conceded by counsel for the defendant (TR P117 L14-37).

Renee submits that any further provision should be borne solely by Warren (PWS [65(b)]), a submission which implicitly acknowledges the strong claim by Sonja. In making this submission, Renee asks the Court to give weight to the allegations she has made in relation to Warren’s conduct as an executor (TR P103 L32-33). As explained above, the Court has determined not to give weight to the allegations made in relation to Warren’s conduct as executor. Renee also asks the Court to accept that Warren tended to exaggerate the extent of care and assistance he was giving William: (TR P103 L25-26). As explained above, the Court has declined to accept this proposition.

Renee initially submitted that William owed no moral obligation to Warren (TR P94 L16). However, she later clarified that her submission was that “the greater moral obligation” owed by William was owed to his daughters (TR P108 L32-33). On the issue of moral obligation, the Court has already found that Warren (and his wife Dot) provided care and support to William when he was in his most need. The Court also accepts the submissions of Warren extracted below (TR P123 L36-42):

Consequently, even if further provision was ordered, the Court does not consider that it would be borne by Warren’s share alone (an issue relevant to the making of an order under s 65 of the Act).

The Court does not accept the submission that the evidence supports a finding that Renee has “fallen on hard times”. There is no suggestion that there is anything new or changed in Renee’s circumstances, but rather, that Renee’s current circumstances are a continuation of a fairly consistent lifestyle for a large portion of her adult life. But for the birth of Renee’s second child in 2013, the Court accepts the submission of Warren that there have been no significant changes in the material or financial circumstances of Renee between 2010 and 2023.

If the Court were to have found that Renee had fallen on hard times, the community may expect that parents provide a “buffer against contingencies” where assets are available, and some other “provision for their retirement where otherwise they would be left destitute” (Limberger at [473(c)]). However, in these circumstances, the Court still would not have found adequate and proper provision had not been made. Given the size of the estate and the competing calls upon it, the assets cannot be considered as “available”. The Court also does not consider that, if Renee is not provided further provision for her retirement, she would be left destitute.

Moreover, whilst it was submitted by Renee that she had “fallen on hard times financially, due to limitations with her mental health that prevent her from working outside the home” (TR P97 L3-4), Renee’s own evidence provided in the course of the hearing would not allow the Court to make such a finding. Renee’s evidence is that the primary reason she does not work in outside employment is because she wishes to care for her children, rather than any limitation imposed by any mental health conditions.

To the extent Renee wished to rely on any mental health condition as being a barrier to employment, or as otherwise being a material matter for the Court to have regard to, the only evidence before this Court was self-reported, as opposed to medical reports from health professionals.

This is not to say that the Court has not taken into account Renee’s self-report of past mental health issues and their past impact on her life, and current mental health issues and their impact on her life at the time of the hearing (neither of which were challenged). That is, the Court has taken this evidence into account to the extent the probative value of self-report evidence will allow.

Renee submitted that “one of the biggest issues in this case is the issue of estrangement, or lack of contact as Kunc J has started referring in his decision of Rada v Smith” (TR P97 L48-49) (the decision referred to by Renee is Rada v Smith [2024] NSWSC 273 (Rada v Smith)). Renee did not dispute that she and William were not in any meaningful contact from the end of 2010 and stated that what was disputed was the statement made in clause 6 of the 2023 Will. It was submitted that, “[i]n somewhat childish terms, he indicates that Renee has chosen to be estranged from him. He alleges a complete lack of concern, or contact with him, with no attempt to reconcile” (TR P98 L2-4).

The Court accepts that the terms of what William has set out in clause 6 will go to the assessment of William’s “broad appreciation of the relationship” between himself and Renee, and that his broad appreciation, as therein set out, can be taken to have formed a part of William’s own due consideration of Renee’s moral claim on his estate.

In Girotto v Girotto [2025] NSWSC 616 (Girotto), Kunc J considered notes that had been made by a deceased testator that were said to provide evidence of the testator’s “broad appreciation of the relationship” with her sons, but where one son claimed the notes contained errors and inconsistencies. In relation to the use of that evidence, Kunc J stated (at [88]-[89]):

Having regard to the terms of clause 6, and in the context of the findings made above, the Court is of the view that William’s “broad appreciation” of his relationship with Renee, as reflected in clause 6, was not demonstrably materially incorrect, and the Court therefore declines to infer that William did not soundly evaluate Renee’s claims upon his bounty. For this reason, the Court gives weighted consideration to the testamentary intentions of William as contained in the 2023 Will (Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] (White J)).

Having considered the terms of clause 6, and in particular, the reference to having not made “further” provision for Renee, the Court finds that this is an implied reference to the provision that has already been made by William, being 15% of his estate, and that this clause indicates that William had already made an assessment as to Renee’s moral claim. The Court finds that William made a deliberate decision as to the proportion of his estate that he would provide to Renee, with clause 6 explaining why that provision was not greater. In this, the terms of the 2023 Will itself are evidence that a consideration of Renee’s moral claim had been undertaken and, moreover, that the consideration resulted in provision to Renee. It will be noted that no submission is made that the provision for Renee in the 2023 Will was a “token” amount.

Furthermore, when considering the leading cases of estrangement, there is a near uniform commonality between them in that the plaintiff has received no provision at all under the relative deceased’s final will. The primary cases relied on by Renee, being Underwood v Gaudron [2014] NSWSC 1055, Burke v Burke [2015] NSWCA 195, Hunter v Hunter (1987) 8 NSWLR 573, Rada v Smith, and Toppi (No 3), were all were cases where the plaintiff received either no provision or such token provision that it should be regarded as being of no provision (see Toppi (No 3) at [487] where the provision of shares to the plaintiff were, effectively, worthless). But that was not so in the present case. William, did in fact make provision in his will for Renee, with the statement at clause 6 of the will explaining why he did not leave even further provision.

The Court is also of that view that William was not “demonstrably materially incorrect” to have considered that Renee had “chosen to be estranged”, that there was a “complete lack of concern or contact”, and that she had made “no attempt to reconcile”. By her own evidence, Renee admitted that she had made no effort to reengage William, other than the occasional attempt at calling him over the course of several years. She certainly never sought to visit him again or to check in with him as he aged (TR P26 L31-P27 L7). In this context, the Court does not consider the terms of clause 6 to be demonstrably materially incorrect.

Renee also relied on the decision in Seymour v Seymour [2024] NSWSC 699 (Seymour) in support of her claim to inform the lack of contact issue. Of the significance of this case, Renee submitted (TR P95 L39-47):

I do not accept that the commentary referred to in Seymour is applicable to the facts of this case. Seymour was a case where no provision at all had been made for the plaintiff, and where the family context is eminently distinguishable. On the issue of community values and expectations of parents, Slattery J stated the following at [80]:

Having regard to the factual background outlined above, there is no basis to find that the separation and later divorce between Karen and William was a “bitter” marriage breakdown, and there is no evidence to support a finding that the three children were forced to choose between their parents, nor that the children have suffered emotional injury from the breakdown. It is in this context Slattery J in Seymour suggested that “parents should take responsibility to break down emotional barriers created by the parents conduct and not rely upon child to do so”.

In any event, the plaintiff in Seymour had received no provision under the will, and it was in those circumstances that Slattery J found that the “distant relationship with the deceased does not neutralise his claim”. It was William’s own assessment of the circumstances that suggest that he, like how a wise and just testator would have viewed the situation, was of the view that the lack of contact with Renee did not neutralise her claim, resulting in him making the provision he did.

In all of this, there can be no dispute that Renee was not available to William in the last 13 years of his life to provide the care and support that is a feature of some child/parent relationships, especially when a parent is aging.

The Court does not accept that the issue of estrangement is one of the biggest issues in this case. It is one of a number of matters that is properly considered. However, in and of itself, it is not dispositive.

The primary focus of the Court in this case is that, without more, William left 15% of his estate to Renee, which amounted to close to half a million dollars at the time of his death, and which, in the Court’s view, represented adequate and proper provision.

Another material issue is that both Terry and Renee have made lifestyle choices not to take up employment outside their home, with the consequence that they predominantly subsist on Centrelink payments, and thus their assets and income are modest, at best. Aside from the desire to be at home with their children, there is no evidence that Terry and Renee are currently not capable of obtaining gainful employment outside the home. As Terry and Renee have made this election, with the clear impact that that decision will necessarily have upon their resulting assets and income, the Court is not persuaded that William (and now William’s estate) had a moral obligation to put them in a position that they themselves had not chosen to prioritise. In stating this, the Court does not criticise Renee and Terry for making the decision to remain at home and care for their children. Rather, that decision and its necessary consequences are not a basis on which to ask this Court to find that William did not make adequate and proper provision for Renee in his will.

In applying the framework set out in Alexiou CA (at [50]ff (Free JA, Payne and Stern JJA agreeing)), it was for Renee to establish an affirmative case for displacement by the Court of the testator’s clearly stated testamentary wishes (Alexiou CA at [51] (Free JA, Payne and Stern JJA agreeing)). The Court is of the view that Renee has not established such an affirmative case, and that there is therefore no proper basis for this Court to displace William’s wishes.

In forming the opinion that adequate provision for the proper maintenance, education or advancement in life of Renee was made by the 2023 Will, the Court has had regard to Renee’s financial and material needs, but also to a broad range of matters, including those matters listed in s 60(2), which included the provision already provided to Renee, competing claims, and the nature and extent of the estate, together with the nature of Renee’s relationship with her father. The nature of that evidence included that Renee was not in contact with her father for the last 13 years of his life and, as a consequence, was not available to provide care, comfort and support to William as he aged and suffered an illness that led to his death.

In the event the Court has erred in reaching its conclusion under Issue 1, in utilising the power of discretion under s 59(2) of the Act, the Court will still not make an order for further provision for Renee out of William’s estate. In declining to exercise this discretion, the Court affirms the matters considered and raised in Issue 1, being facts known to the Court at the time of the hearing, including those matters listed under s 60(2).

The relief sought for further provision for Renee out of William’s estate is therefore declined.

The Court has the jurisdiction to order that the costs of family provision proceedings be paid out of the estate or notional estate of a deceased person in such manner as the Court thinks fit: s 99 of the Act. This correlates with the Court’s broad power to award costs under Civil Procedure Act 2005 (NSW), s 98.

The costs principles to be applied in family provision proceedings, in contexts where the plaintiff has been successful, as well as unsuccessful, have recently been summarised by Meek J in Pethers v Pethers (No 2) [2025] NSWSC 561 (Pethers No 2), which is repeated and gratefully adopted (footnotes omitted, emphasis added):

If successful in her claim, Renee sought an order for her costs (TR P104 L41).

Warren submitted that Renee’s application should be dismissed with costs, and that those costs should be charged against her entitlement under the will (TR P125 L11-14).

Having regard to the legal principles set out above and noting that costs are to follow the event unless it appears to the Court some other order ought to be made, the Court sees no reason to depart from costs following the event. While there are instances where an unsuccessful applicant for family provision will not be ordered to pay the costs of the defendant, the Court is not of the view this is not one of those instances. This was not a case which could be considered “borderline” in terms of merit, nor are there other factors that in any material way would justify a relaxation of the usual costs order.

Costs payable by a plaintiff in these circumstances are generally paid on the ordinary basis and will be so in this instance.

In coming to this conclusion, the Court is mindful of what was said recently by the Court of Appeal in Howitt as Executor of the estate of the late Margaret Norma Howill v Bosschieter [2025] NSWCA 179 (Howitt) in relation to a Court potentially having regard to any putative impact of legal costs and potential costs orders may have on the financial position of a plaintiff. At [115] of Howitt, Free JA (with whom Ward P and Kirk JA agreed) stated:

In relation to the nature of the costs of the executor-defendant, the Court is of the view that his costs were reasonably incurred and as representative of the estate he is entitled to those costs being paid on an indemnity basis. For the avoidance of doubt, these remaining costs are to be paid out before any distribution is made to any of the beneficiaries, and is inclusive of the plaintiff’s original 15% before deduction of ordinary costs.

For the reasons set out above, the Court makes the following orders: