Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto

1. [1]

   HIS HONOUR: For hearing commencing on Monday, 1 July 2019 were two different actions, being proceedings 2018/99730 and proceedings 2018/124370, in which the Plaintiff, Bradley Dominic Barbuto, and James Francis Barbuto, respectively, each of whom is an adult child of the deceased, Frank Nickolas Barbuto (“the deceased”), sought, amongst other things, a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”). These reasons, and the orders made, determine both proceedings.

2. [2]

   Both are contested proceedings in which the Defendant, Jacqueline Barbuto, the widow of the deceased and the mother of each Plaintiff, has opposed the relief being sought. In relation to the claim by Bradley, her opposition is to the quantum of the provision that he seeks, whilst in relation to the claim by James, she seeks an order that his proceedings be dismissed.

3. [3]

   I have referred to Jacqueline as the widow of the deceased, even though there is no dispute that, at the date of the deceased’s death, being 23 April 2017, she was, and had been for many years, separated from him (and in a relationship with another man). However, a divorce order, in respect of their marriage, had not been made. I shall return to the nature of the relationship later in these reasons.

4. [4]

   Hereafter, I shall refer to the parties, who are family members who share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.

5. [5]

   Regrettably, this is yet another case in which there is a great deal of antagonism between the parties, which appears to be deep, bitter, and, in the case of Bradley, reasonably longstanding. It can only be such antagonism that has led to the case between adult children and their mother being allowed to be heard over four days, and to have caused the parties to incur the quantum of costs, which, on any view, are disproportionate to the value of the deceased’s estate.

6. [6]

   Pertinent to the proceedings is what I wrote in Fulton v Fulton [2014] NSWSC 619, at [1]:

7. [7]

   The proceedings by Bradley were commenced by Summons filed on 29 March 2018. He sought a declaration that a property situated at Bangor, in New South Wales (“the Bangor property”), at the date of the deceased’s death or alternatively on the date on which probate was granted in relation to the deceased’s estate, was held by Jacqueline, on trust for the deceased, and that upon its sale, one-half, or in the alternative, all, of the proceeds of sale, were held on behalf of the estate of the deceased. He also sought consequential relief. (Bradley did not, in his Summons, seek a family provision order under Chapter 3 of the Act. He sought a family provision order in an amended Statement of Claim filed on 26 June 2018, to which reference will be made later in these reasons.)

8. [8]

   On 4 May 2018, the Court ordered, in Bradley’s matter, and without opposition, that the matter proceed by way of pleadings.

9. [9]

   Bradley then filed a Statement of Claim on 15 May 2018, followed by an amended Statement of Claim on 26 June 2018. In the amended Statement of Claim, Bradley sought, for the first time since he commenced his proceedings, a family provision order. Jacqueline filed a Defence on 6 July 2018. Bradley filed a Reply on 3 September 2018.

10. [10]

    The proceedings by James were commenced by Summons filed on 19 April 2018, in which he sought similar relief to that sought by Bradley, as well as a family provision order pursuant to s 59 of the Act, and consequential orders. On 20 August 2018, following an unsuccessful private mediation held in both matters, the Court ordered, in James’ matter, and without opposition, that the matter proceed by way of pleadings. A Statement of Claim was filed on 31 August 2018, which was followed by Jacqueline’s Defence, on 21 September 2018, and then a Reply, by James, on 10 October 2018.

11. [11]

    The claims, by each of Bradley and James, other than his claim for a family provision order, respectively, by the date of the hearing, were no longer being pursued. In written submissions dated 21 June 2019, served on Bradley and James, counsel for Jacqueline wrote:

12. [12]

    (There was a suggestion, in oral submissions, by her counsel, that notice of Jacqueline’s intention to pay the net proceeds of sale into the estate, had been given in correspondence sent prior to the date the submissions were served: Tcpt, 4 July 2019, p 367(34) – p 369(6). Evidence about the correspondence may be relevant when the issue of costs is determined.)

13. [13]

    Following receipt of the written submissions, the matter was listed before me, in order to confirm that the only issue for determination that remained, in each case, was the claim for a family provision order: Tcpt, 25 June 2019, p 1(32-48).

14. [14]

    This was confirmed, again, at the commencement of the hearing, on 1 July 2019: Tcpt, 1 July 2019, p 1(31-41). The parties also confirmed that there was no longer any need to refer, in detail, to the trust aspect of each case, and that it would only be necessary to refer to the estate of the deceased, as the proceeds of sale of the Bangor property were to be treated as falling into the actual estate of the deceased.

15. [15]

    Despite these concessions, the proceedings continued over 4 days. At the hearing, Mr A G Rogers of counsel appeared for Bradley; Mr A M Gruzman of counsel appeared for James; and Ms T Catanzariti of counsel appeared for Jacqueline.

16. [16]

    A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). As will be read, there is property that may be designated as notional estate of the deceased. However, the parties agreed that there would be no need to designate such property as notional estate, as there were assets of sufficient value in the estate of the deceased for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, in both cases: s 88(b) of the Act.

17. [17]

    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 a child of the deceased, Bradley and James is each an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”).

18. [18]

    Bradley did not commence the family provision aspect of the proceedings within the time prescribed by the Act. It is unnecessary to go into the reasons why the Summons was not filed within time, because counsel for Jacqueline, at the commencement of the hearing, stated that if a family provision order is to be made, the parties to the proceedings consent to the application being made out of time: Tcpt, 1 July 2019, p 2(40-43). (Consent of the parties to the application being made out of time, is one way the Court can determine an application made out of time: s 58(2) of the Act.)

19. [19]

    James commenced the family provision proceedings 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.

20. [20]

    As the deceased had dealt with all of his estate in his Will, to which reference will be made, the parties agreed that 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.

21. [21]

    As often occurs where there are different Plaintiffs, in separate proceedings, making a family provision claim in relation to the same estate, the parties, well before the commencement of the hearing, agreed that both of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. No Notice of Motion to that effect was filed, but in the circumstances, that was not necessary. (The proceedings could not be consolidated, without leave, because different solicitors act for the different Plaintiffs.) The agreement between the parties was confirmed at the commencement of the hearing: Tcpt, 1 July 2019, p 1(13-30).

22. [22]

    In my view, that was a sensible, and appropriate course, as there are no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence; factual, and credit, issues that overlap, that are, or that may be, relevant to both claims, may be determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues; the possibility of two appeals, with potential delays if the proceedings are not heard and determined at the same time, will be avoided; Jacqueline may have been put to less expense in defending only one hearing, rather than two; the just, cheap and quick hearing of all of the matters in dispute will be facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, will be achieved. For those reasons, it was “desirable” to make such an order: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.5.

23. [23]

    Shortly after the commencement of the hearing, with the consent of the parties, and in the exercise of the Court’s discretion, I made an order to that effect: Tcpt, 1 July 2019, p 3(13-30).

24. [24]

    It is also convenient to deal with both proceedings together in these reasons for judgment.

Some background facts

1. [25]

   The following facts are either not in dispute or, where stated, are facts in dispute that I am satisfied should be resolved as stated. To the extent that any of these facts are in dispute, the facts stated should be regarded as the findings of the Court.

2. [26]

   The deceased was born in March 1948 and was aged 69 years at the date of his death.

3. [27]

   Jacqueline was born in July 1950 and is 69 years old.

4. [28]

   The deceased and Jacqueline met in mid-to-late 1966 and they were married in December 1968.

5. [29]

   James was born in July 1969 and is now 50 years old.

6. [30]

   Bradley was born in November 1972 and is now 46 years old.

7. [31]

   The deceased and Jacqueline separated in about 1995. There is evidence, to which reference will be made, that suggests they continued to have a relationship, even after their separation, and their subsequent agreement as to the adjustment of their property interests.

8. [32]

   A short time after their separation, Jacqueline moved into a property at Cronulla (“the Cronulla property”) that they had earlier jointly owned and the deceased’s interest in which was transferred to her pursuant to that agreement.

9. [33]

   Jacqueline met her current partner, Doug Anderson, in about July 1996. In June 1997, they moved to Jindabyne where they stayed for about 2 years, after which they returned to live, together, in about 1999, in the Cronulla property.

10. [34]

    James married Kellee in March 1995. They have four children, namely Mitchell, who was born in June 1996, and who is 23 years old; Blake, who was born in July 2000, and who is 19 years old; Ryan, who was born in November 2003, and who is 15 years old; and Claire, who was born in March 2010, and who is 9 years old.

11. [35]

    Shortly after completing his studies, Bradley entered into a de facto relationship with Tanya Salamon. They moved to Perth, Western Australia, together, where Bradley started a career as an Aboriginal Teaching Assistant. They separated in 2009. Their daughter, Imogen, was born in October 2006, and she is presently 12 years old.

12. [36]

    In 2010, Bradley met Nuraiman (Lulu) Saleh, while on holiday in Bali. The relationship, initially, was a long-distance one, as she experienced some difficulty in returning to Australia, with Bradley. They married in October 2013, in Perth, and remain married. They have two children, namely Dominic, who was born in August 2014, and who is presently 5 years old and Bronte, who was born in November 2015, and who is presently 3 years old.

13. [37]

    Bradley admits that in 2013, the deceased contributed $2,000 towards the costs of his wedding, at which the deceased attended, and in 2014, the deceased contributed $7,000 to assist with the costs of obtaining an Australian visa, for his wife, Nuraiman. He also admits that as an adult, the deceased “would occasionally give me small amounts of money towards payment of my bills when I was in strong financial need” which amounts “did not exceed a few hundred dollars on any occasion”: Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 99-101.

14. [38]

    In the “Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application”, dated 1 December 2014, signed by the deceased, he states that because Bradley and his wife lived in Perth and he lived in Sydney, “[I] don’t get to see them as often as I would like. However, I have been in their company for a week in Nov ’12, another 10 days in Oct,’13, 15 days over Xmas 2013, and have just spent a week with them in Nov’ 14”. He described his relationship with Bradley as “still very close”.

15. [39]

    The deceased was involved in the life of each of his grandchildren, although he seemed to have had a particularly close relationship with his grandson, Blake. James gives examples of the deceased contributing $2,000 “to help pay for Blake’s fees when he made the NSW School Boys Tour to Mackay”; of “help[ing] Blake with his driving lessons”; and the deceased being “present at all my [James’] children’s swimming carnivals, athletic carnivals, and football games”. James describes the deceased being “very generous” to his children: Affidavit, James Francis Barbuto, 18 April 2018 at par 25, 27-28.

16. [40]

    (Jacqueline gives evidence that the deceased expressed a wish that Blake be given his car if Blake cleaned the deceased’s pool, mowed the lawn of the Bangor property and got his driver’s licence. She says that she does not know if Blake has his driver’s licence, but observed that Blake did not clean the pool or mow the lawn of the Bangor property: Affidavit, Jacqueline Barbuto, 19 September 2018 at par 59.)

17. [41]

    Bradley gave evidence of the deceased having flown to Perth to attend the birth of Bradley’s first child, Imogen, and having attended her baptism: Affidavit, Bradley Dominic Barbuto, 19 May 2018, at par 51.

18. [42]

    It follows from the evidence of each of Bradley and James that the position of the deceased’s grandchildren as discretionary objects, should not, and cannot be ignored by the Court.

19. [43]

    In circumstances to which I shall come, Jacqueline maintains a relationship only with Bradley’s daughter, Imogen: Tcpt, 3 July 2019, p 248(9-10).

The properties of the deceased and Jacqueline

1. [44]

   The deceased and Jacqueline purchased the Bangor property, as joint tenants, in about June 1977, for $17,950. It remained in their joint names at the date of the death of the deceased.

2. [45]

   In about 1994, the deceased and Jacqueline purchased a unit at Cronulla which I have described as the Cronulla property for $179,000. It was purchased by way of a “Fully Drawn Advance” secured by way of a registered mortgage over the Bangor property: Affidavit, Jacqueline Barbuto, 19 September 2018 at par 15.

3. [46]

   On or about 16 October 2007, the deceased and Jacqueline entered into a Financial Agreement pursuant to s 90C of the Family Law Act 1975 (Cth). It was asserted by Bradley and James that as a result of the Financial Agreement, Jacqueline was to transfer her interest in the Bangor property, held jointly, to the deceased, and that he was to transfer his interest in the Cronulla property, held jointly, to her. It was also asserted that whilst the deceased transferred his interest in the Cronulla property to Jacqueline in October 2007, she did not transfer the Bangor property to him, then, or ever.

4. [47]

   Jacqueline asserts that she and the deceased agreed that the Bangor property would not be transferred to him despite the terms of the Financial Agreement. Her oral evidence, at Tcpt, 3 July 2019, p 257(40-44), and then at Tcpt, 3 July 2019, p 258(17-24), which I accept, was:

5. [48]

   In this regard, it is to be noted that there is no evidence at all, and it was not suggested to Jacqueline otherwise, that in the 9 years following the Financial Agreement being executed, the deceased did anything to cause Jacqueline to transfer the Bangor property to him. I shall also refer to the evidence of Mr Christopher Brown, a solicitor and long-time friend, who conferred with the deceased shortly prior to the date on which the deceased executed his Will, and to whom statements were made by the deceased about the Bangor property: Affidavit, Christopher Herbert Brown, 13 June 2019.

6. [49]

   In any event, as the proceeds of sale of the Bangor property are acknowledged to be part of the deceased’s estate, the issue is no longer a relevant one, other than perhaps on the question of costs.

7. [50]

   Upon the death of the deceased, Jacqueline inherited the Bangor property by survivorship. A Notice of Death, dated 7 June 2017, was lodged for registration, and, subsequently, the title to the Bangor property came to be held solely in her name.

8. [51]

   On 28 February 2018, Jacqueline sold the Bangor property for $1,050,000. The net proceeds of sale, after the payment of conveyancing costs, agent’s commission, and the costs of sale, were $987,135.

9. [52]

   There is evidence, which I accept, that prior to its sale, and following the death of the deceased, Jacqueline and Doug worked on the Bangor property. The improvements cost $38,714, and this amount has been repaid to them from the proceeds of sale. (Although it was not originally conceded, by the conclusion of the hearing, the deduction of that amount from the gross proceeds of sale was no longer an issue.)

10. [53]

    Although in each Statement of Claim, respectively, Bradley and James sought the removal of Jacqueline as trustee of each Trust, and also as executor of the deceased’s Will, respectively, those claims for relief were not persisted with at the hearing.

The deceased’s Will

1. [54]

   The deceased was diagnosed with cancer, and made his Will on 2 March 2017. This Court granted Probate of the deceased’s Will to Jacqueline, the executrix appointed thereunder, on 2 November 2017.

2. [55]

   The Will is a lengthy and detailed document. It comprises 27 pages. First, the deceased revoked “all previous testamentary acts”: Clause 1.

3. [56]

   Clause 2 of the Will contained “General Definitions” and “Special Definitions”.

4. [57]

   In Clause 3 of the Will, Jacqueline was appointed as the executrix and trustee.

5. [58]

   There was, then, the gift of one-half of the residue of the deceased’s estate to a testamentary trust, with Jacqueline named as the trustee and the appointor of the Trust, and her (“My spouse”), James (“the First Principal Beneficiary”), the children of James, the grandchildren of James, or any associated trustee of a trust or corporation, named as the discretionary objects of that testamentary trust ("the first testamentary Trust"): Clause 5. (Elsewhere in the Will, the trust was referred to as the “F N Barbuto No 1 Will Trust”.

6. [59]

   There was a gift of the other one-half of the residue of the deceased’s estate to a different testamentary trust, with Jacqueline as trustee and appointor of the Trust, and her (“My spouse”), Bradley (“the Second Principal Beneficiary”), the children of Bradley, the grandchildren of Bradley, or any associated trustee of a trust or corporation, named as discretionary objects of that testamentary trust ("the second testamentary Trust"): Clause 6. (Elsewhere in the Will, the trust was referred to as the “F N Barbuto No 2 Will Trust”.

7. [60]

   Clause 7 of the Will, relevantly, provided the rights and powers of the Trustee. One such power, contained in Clause 7(c), was:

8. [61]

   In the Schedule to the Will, Clause 7F permitted the Trustee to exercise any powers and discretions conferred “in such manner as if my Trustees were not trustees and under no fiduciary obligation in exercising such powers and discretions (and notwithstanding that my Trustees for the time being or from time to time shall be a sole trustee”).

9. [62]

   Clause 7N provided a power to vary the trust on certain terms and conditions.

10. [63]

    There was no dispute, at the hearing, that the practical effect of the deceased’s Will is to empower Jacqueline, as the Trustee of each testamentary trust, to determine who is to benefit, by way of capital and/or income, from the deceased's estate and that, as she, herself, is an object of each Trust, she may allocate the entire estate to herself should she so choose. (In stating this, I do not intend to imply any criticism of Jacqueline or suggest that she would not properly perform her duties as a trustee.)

11. [64]

    No distribution or payment has been made from either the first testamentary trust or the second testamentary trust to any discretionary object. This was unsurprising bearing in mind the commencement, and continuation, of the proceedings.

The nature and value of the estate and property that may be designated as notional estate

1. [65]

   The parties agreed that, at the date of death, the gross value of the deceased’s estate was $1,081,894. They also agreed that the liabilities of the estate, at the date of death, were $4,259: Ex. 1/2; Tcpt, 1 July 2019, p 4(42) – p 5(36).

2. [66]

   On the second day of the hearing, the parties agreed that the gross value of the deceased’s estate, at the date of hearing, was $1,203,854: Tcpt, 1 July 2019, p 109. The estate now consists of the net proceeds of sale of the Bangor property ($987,135) and interest accrued thereon ($22,419), proceeds of a superannuation fund ($158,007), cash in bank ($429), shares ($25,862) and a car ($10,000).

3. [67]

   (The deceased and Jacqueline also had a joint bank account in which there was $2,649 at the date of death. It is one-half of this amount, or $1,324, which may be designated as notional estate. However, as earlier noted, in view of the value of the estate, and considering the amount of provision being sought by each of Bradley and James, it was accepted, at the commencement of the hearing, that one-half of the jointly held bank account will not be designated as notional estate: s 88 of the Act: Tcpt, 1 July 2019, p 5(48) – p 6(14). Jacqueline also accepted that since she has received, and/or retained, the whole amount of the proceeds of the joint bank account, the Court may take the notional share of the deceased ($1,324) as a financial benefit she has received as a result of his death.

4. [68]

   After some discussion, and on the second day of the hearing, the parties were able to agree that there were liabilities of the estate, almost all of which were repayments to Jacqueline for amounts she has paid, and the amount accepted by counsel was that found in Ex. 1/5 ($29,818).

5. [69]

   It follows that the value of the deceased’s estate, before deduction of any costs, is estimated to be $1,174,036. It is an estate of moderate value before any costs of the two proceedings are deducted.

The Costs of the Proceedings

1. [70]

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

2. [71]

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

3. [72]

   As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]:

4. [73]

   However, 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 have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a relatively small value.

5. [74]

   Mr D Evans, the solicitor with the carriage of the matter on behalf of Bradley, affirmed an affidavit on 11 June 2019. In that affidavit, he disclosed that his firm was acting pursuant to a costs agreement, signed by Bradley, on 13 July 2017 and that the firm was acting “on a contingency basis”, meaning that Bradley’s legal fees were only payable “… on the successful outcome of his case whether this occurs through negotiation or by Court Order”. He also disclosed that the costs agreement “allows … to charge an uplift fee of 10% on the successful outcome of the matter”.

6. [75]

   Mr Evans estimated that Bradley’s costs and disbursements, calculated on the ordinary basis, at the conclusion of the 4 day hearing, would total $94,516. He did not identify, in the affidavit, what, if any, part of those estimated costs and disbursements, was the amount of the uplift fee. He estimated Bradley’s fees, calculated on the indemnity basis, at the conclusion of a 4 day hearing, to be $118,033, all of which remains unpaid.

7. [76]

   Mr S J Burns swore an affidavit on 20 April 2018, referring to James’ costs of the proceedings, calculated on the ordinary basis, up to and including the date of the mediation. He did not disclose, in that affidavit, that James had entered into a conditional costs agreement with his firm. However, in his affidavit sworn on 11 June 2019, the estimated costs and disbursements, inclusive of GST, to the date of the conclusion of the 4 day hearing, was said to total $91,000, all of which remains unpaid. Of that amount, $3,450 was described as “an uplift factor included in the calculation of the Plaintiff’s Solicitor’s costs of 10% pursuant to the Conditional Costs Agreement between the Plaintiff and the Plaintiff’s solicitors dated 23 June 2017”.

8. [77]

   Mr Burns stated that the costs are only payable pursuant to the Conditional Costs Agreement by the Plaintiff “if he obtains a successful outcome from the Proceedings i.e. by way of a Settlement or an order being obtained against the Estate”. He stated that “[T]here is no uplift on Counsel’s contingency Costs Agreement”.

9. [78]

   Mr Burns estimated the total costs and disbursements, calculated on the indemnity basis, to completion of the hearing, were $121,031, inclusive of GST.

10. [79]

    Finally, Mr Burns stated, at [11]:

11. [80]

    (I should mention that I have, now, dealt with the obligation of a solicitor to disclose the existence of a conditional costs agreement in, at least, two judgments, namely in Anderson v Hill [2017] NSWSC 1149 at [35]-[38], and at [40]-[41] and in Oxley v Oxley [2018] NSWSC 91 at [57]-[90].)

12. [81]

    In Oxley v Oxley, at [88], I wrote:

13. [82]

    Legal practitioners, particularly those that practice in this area, should, by now, be well aware of these two decisions.

14. [83]

    In relation to each matter, s 181 of the Legal Profession Uniform Law (NSW) deals with "conditional costs agreements" and states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182 provides that a conditional costs agreement may provide for the payment of an uplift fee.

15. [84]

    Because a copy of each conditional costs agreement was not in evidence, the Court is unable to state whether the conditional costs agreement, respectively, is one that complies with s 181. However, for the purpose of this aspect, I shall assume, in each case, that it does.

16. [85]

    None of the parties made any submissions, in writing, as to the entitlement of a plaintiff to an additional amount for costs for the uplift fee, or the reasons why any such amount should be passed on to a defendant by an order for costs calculated on the ordinary basis. Perhaps, this is because counsel for each of Bradley and James were told (at Tcpt, 1 July 2019, p 9(37) – p 10(21)) of authority to the effect that an “uplift fee” is not part of the ordinary costs of a Plaintiff: G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis) at [17.55]; Stojanovski v Stojovski [2016] NSWSC 976; Page v Page [2016] NSWSC 1218, at [38]. (Although Page v Page was the subject of an unsuccessful appeal, there was no comment on the principle referred to – Page v Page [2017] NSWCA 141, per Sackville AJA, at [70]). (Also see Day v Perpetual Trustee (Supreme Court (NSW), Master Macready, 3 August 2001, unrep) in which the Court dealt, at length, with the reasons for not usually allowing the charge of an uplift factor. His Honour, in that case, regarded the uplift fee as a financing cost which should not be passed on to the residuary beneficiaries.)

17. [86]

    On the second day of the hearing, the Court was informed, from the Bar table, without objection, that the estimate of Bradley’s costs and disbursements, calculated on the ordinary basis, earlier given, had not included the uplift fee, and were $94,516: Tcpt, 2 July 2019, p 112(40-45).

18. [87]

    The Court was also informed, from the Bar table, without objection, that James’ costs, calculated on the ordinary basis, excluding the uplift factor, were estimated to be $88,406 and that the uplift fee was estimated to be $2,594: Tcpt, 2 July 2019, p 112(33-38).

19. [88]

    Ms C Homer, the solicitor for Jacqueline, with the day to day conduct of the matters, estimated Jacqueline’s costs and disbursements, inclusive of GST, calculated to the conclusion of a 4 day hearing, of both proceedings, to be $177,434. (In fact, this estimate should be reduced by $3,850, being the costs of the private mediator and mediation room, which amount has already been paid out of the estate of the deceased.): Affidavit, Cherrie Homer, 11 June 2019 at par 4-6. It follows, that the estimate of Jacqueline’s costs, for both proceedings, is $173,584.

20. [89]

    It is tragic that the costs, as set out above, of the proceedings, which, in total, amount to $356,506, are so high. There is merit in the submission that, at least, in part, the costs have been higher than they might have been otherwise, because of the trust dispute, which appears to have been kept alive until about one week before the hearing.

21. [90]

    The parties informed the Court that it would not be possible to deal with how the burden of costs should be borne as there may be documents, served by Jacqueline, which may be relevant on the issue of costs. I shall allow the parties an opportunity to consider these reasons for judgment and then if the issue of costs is not agreed, I shall list the matter for argument at a convenient date. One can only hope that further costs will not be incurred in arguing about costs: Tcpt, 1 July 2019, p 8(4-37). (If the hearing is any guide, this is likely to be no more than a forlorn hope.)

22. [91]

    Almost at the conclusion of the submissions, counsel for Jacqueline stated that “if James’ claim is dismissed, and there is no adverse costs order in relation to the matter of the Bangor property, then [Jacqueline] will not be pressing costs against James”: Tcpt, 4 July 2019, p 355(36-39).

23. [92]

    However, this concession may not determine the costs issue in those circumstances, as I apprehend that James would seek an order that, whatever the result, some of his costs should be borne by Jacqueline personally rather than out of the estate of the deceased.

24. [93]

    It should also be made clear that the discussions during the course of the hearing, and the estimates that the legal representatives have provided and which have been used by the Court, are not to be treated as having been accepted as actual costs and disbursements by the opposing parties. One, or more, of the parties, may require a formal assessment of the costs and disbursements that are ordered to be paid out of the estate of the deceased.

25. [94]

    For the purposes of the proceedings, it appears that if orders were made that all of the costs are to be paid out of the estate of the deceased, the value of the estate out of which any order for provision for each of Bradley, and James, could be made, is $817,530: Tcpt, 2 July 2019, p 112 – p 114.

26. [95]

    Based upon these estimates, the amount that would be held, on behalf of each testamentary trust, by Jacqueline as trustee, would be in the order of $408,750.

Eligible Persons

1. [96]

   There was no dispute that the only eligible persons are Bradley, James and Jacqueline. Only Bradley and James have made a claim for a family provision order. However, Jacqueline has given evidence of the bases of her claim on the bounty of the deceased. She has not raised her financial circumstances as a competing financial discretionary object. Each of the parties was cross-examined.

2. [97]

   The parties did not suggest that any of the deceased’s grandchildren was an eligible person.

3. [98]

   In an affidavit sworn by Ms Homer on 25 June 2019, a person by the name of “Nikki” was referred to as another person who may be an eligible person. Initially, investigations did not reveal her full name, or her whereabouts. In this regard, Ms Homer had made enquiries of the deceased’s brother, Natale Barbuto, and two friends of the deceased, namely Robert Coombs and Phillip Whyte, each of whom was a witness in the proceedings, but none of whom could provide any information.

4. [99]

   Subsequently, a search of the deceased’s laptop computer revealed a person called “Nikki Finch” and an email address for her. Following email correspondence, to which was attached the prescribed form of notice, Ms Homer spoke, by telephone, to Ms Finch, who stated that she was “not interested in making a claim. I’m not a blood relative”: Affidavit, Cherrie Homer, 25 June 2019 at par 14-16.

5. [100]

   In the circumstances, I am prepared to disregard the interests of Ms Finch, a person by, or in respect of whom, an application for a family provision order may be made, but who has not made an application even though the notice of the application by each of Bradley and James, and of the Court's power to disregard her interests, was served on her recently: s 61 of the Act.

Jacqueline’s silence regarding her financial circumstances and resources

1. [101]

   Although a discretionary object of each trust, Jacqueline is entitled to elect to remain silent about her financial resources and needs and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and his nomination of her, respectively, as a trustee and discretionary object, regardless of her financial resources or needs: Meres v Meres [2017] NSWSC 285, at [85]. The Act specifically provides that her interests, as a beneficiary, and I would suggest, a potential beneficiary, cannot be disregarded, even though she has not made a claim: s 61.

2. [102]

   She is entitled to rely upon the terms of the Will and her competing claim as a chosen potential object of the deceased’s testamentary bounty.

3. [103]

   Even though stated in the context of a named beneficiary, in Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles in a case where the beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

4. [104]

   Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].

5. [105]

   Even if I infer that Jacqueline has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, she is significantly better off than each of Bradley, and James, her silence does not mean that her competing claim upon the bounty of the deceased should not be evaluated. As will be read, what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of beneficiaries.

6. [106]

   As I also stated in Meres v Meres, the consequences of not disclosing a beneficiary’s financial resources and needs, simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Bradley and James, respectively, the Court will not disregard the competing interest of any discretionary object as a claimant upon the bounty of the deceased. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.

7. [107]

   Neither Bradley, nor James, has given evidence going to any of his children’s financial circumstances, respectively. Nor, it would seem, did Jacqueline seek any information, for the purposes of the proceedings, about his, or her, financial resources and needs. However, prior to the mediation, in a letter dated 12 July 2018, sent to the solicitors for each of Bradley and James, the solicitors for Jacqueline noted that there was “… some awkwardness in that objects of the testamentary trusts include your client’s children and unborn children” and suggested “that the other objects of the testamentary trusts should be separately represented at the mediation, particularly as some of them are minors. They or their legal representative may wish to attend the mediation”: Ex. 4.

8. [108]

   There is no suggestion that the course suggested by the solicitors for Jacqueline was agreed to, or taken up, by either of Bradley or James, and there is no evidence of the financial circumstances of any of the grandchildren of the deceased.

9. [109]

   James and Jacqueline, by counsel, each agreed that if provision is made for the relevant applicant, it should be borne out of the half share of the estate which passes to the relevant testamentary trust in respect of which he is a discretionary object. Counsel for Bradley took a different view submitting that the provision should be borne out of the deceased’s estate. He did not specifically state how the burden of that provision should be borne.

10. [110]

    In view of the submission made by counsel for Jacqueline that the case brought by James ought to be dismissed, the submission made on behalf of James is difficult to understand. Be that as it may, s 65(1)(c) of the Act provides, amongst other things, that a family provision order must specify the manner in which the provision is to be provided, and the part or parts of the estate out of which it is to be provided.

11. [111]

    In my view, it would be more consistent with the deceased’s intentions to ensure that any provision made for either of Bradley, or James, should be paid out of the part of the estate in which he is named as a discretionary object. In this way, if the proceedings brought by James were dismissed, the value of the first discretionary trust will not be reduced by any part of the provision made for Bradley being borne by its one-half share.

Some additional findings

1. [112]

   I am satisfied that the following facts about the relationship of the family members have been established. I have taken some of these matters from Jacqueline’s evidence, which, as will be read, I accept, in particular, where there is any conflict with the evidence of either Bradley or James.

2. [113]

   The deceased and Jacqueline kept in regular contact even after their separation and the commencement of her relationship with Doug. They would speak, on average, about once a week, following their separation, about twice a week, when she and Doug were living in Jindabyne, and more often when they returned to live in Sydney. I accept her description of their relationship as being that of “close friends”: Affidavit, Jacqueline Barbuto, 19 September 2018 at par 28.

3. [114]

   In 1999, when the deceased required surgery for prostate cancer, it was Jacqueline who provided emotional, and other, support, to him. She would take him to various doctors, specialists and hospital appointments. Whilst he was in hospital, she cleaned his house and washed his clothes.

4. [115]

   When the deceased was in hospital recuperating from liver surgery, Jacqueline would visit him almost daily, and when he was discharged from hospital, she stayed with him for a few days. She did the same when he was in hospital, for 5 weeks, for pelvic exenteration. (The deceased referred to this in his email to Bradley on 10 March 2017 to which reference will be made.)

5. [116]

   During the last weeks of his life, Jacqueline regularly visited the deceased in hospital. Whilst she was not there all the time, she was regularly in attendance, on most days, for different periods of time.

6. [117]

   In 1994, the deceased and Jacqueline borrowed $20,000, which they gave as a gift to James and his wife, Kellee. They used the amount gifted as a deposit on their new home. It was Jacqueline who made the fortnightly repayments on the loan. She was also a guarantor on the borrowing made by James and Kellee.

7. [118]

   Although James did not give any evidence about it, I accept that the deceased and Jacqueline, in about March 1994, also gave James $2,000 (by way of a term deposit with the Commonwealth Bank) towards his own landscaping business called “A Better Pave”.

8. [119]

   In February 2017, James visited the deceased at the Bangor Property, to assist him with pumping the pool and some maintenance around the property. James, in his Affidavit, 18 April 2018 at par 33, provides a description of the visit:

9. [120]

   There is little, if any, relationship, between each of Bradley, and James, respectively, with Jacqueline at the present time. That, perhaps, is demonstrated by, amongst other things, the hard fought nature of this litigation.

10. [121]

    Bradley gave evidence that he “believed the deceased was manipulated to change his Will and everything last minute”: Tcpt, 1 July 2019, p 100(34-44). (I shall return to this topic later in these reasons.) Furthermore, he appears to have had little to do with Jacqueline since about 2013.

11. [122]

    In relation to Jacqueline’s relationship with Bradley there was no dispute that they have had no meaningful contact since 2013. In cross-examination, Jacqueline asserted that the event that led to the breakdown of their relationship was as follows, at Tcpt, 3 July 2019, p 246(26) – p 247(14):

12. [123]

    (In his affidavit made 19 May 2018, Bradley indicated his relationship with Jacqueline became “estranged” due to Jacqueline “taking sides” with his former partner over a family dispute about the paternity of a child, and the stresses of his parents’ separation. The time period of these events is not specified. In any event, it is clear that there has been a long period of estrangement between Bradley and Jacqueline.)

13. [124]

    In relation to James, Jacqueline gave evidence that she considered that she had previously had a good relationship with James, although in about February 2017, they had “a little tiff”, when James had raised the deceased’s Will: Tcpt, 3 July 2019, p 242(47) – p 243(3). She had not realised the importance of this event, as it was James who had consoled her following the death of the deceased. However, thereafter, despite attempts by her to resume their contact, he had not answered her text messages or her telephone calls. She came to regard their relationship as having completely broken down, as evidenced by her not being permitted to see his children, and not being invited to one of his children’s 21st birthday party.

14. [125]

    She gave a very detailed answer, in re-examination, as to the extent of the breakdown of their relationship at Tcpt, 3 July 2019, p 263(15-40):

15. [126]

    I also accept that following the death of the deceased, and before its sale, Jacqueline cleaned out the Bangor property and that she boxed up items that she knew belonged to either Bradley or James. Although James did not return her calls, a mutual friend, Mr Whyte arranged to have James collect the boxes containing property of James, from him.

16. [127]

    (The reason for making findings about the nature of the relationship between the parties relates to a consideration of the terms of the deceased’s Will and the likelihood of each of Bradley and James receiving provision out of the deceased’s estate as a result of the exercise of discretion by Jacqueline.)

17. [128]

    I shall refer to the relationship of the deceased with each of Bradley and James later in these reasons.

18. [129]

    For completeness, I should mention that the evidence, that I accept, discloses that the deceased had a relationship with all of his grandchildren. Indeed, Mr Whyte, one of the witnesses called by Jacqueline, said in cross-examination that the deceased had discussed his grandchildren “in glowing terms”: Tcpt, 3 July 2019, p 284(15-16).

The Circumstances regarding the making of the deceased’s Will

1. [130]

   Mr C H Brown, a Partner in the firm of solicitors representing Jacqueline, swore an affidavit on 13 June 2019 and he was cross-examined.

2. [131]

   Although the affidavit was served close to the hearing, and although counsel for each of Bradley and James, initially, objected to the Court reading it, each counsel fairly conceded that if he was given an opportunity, overnight, to consider the primary documents relating to the instructions given to Mr Brown (which had been produced), no prejudice would be suffered: Tcpt, 1 July 2019, p 39(50) – p 42(21).

3. [132]

   Uniform Civil Procedure Rules 2005, r 10.2(1) provides that a party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises. Uniform Civil Procedure Rules 2005, r 10.2(2), provides that a party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.

4. [133]

   Because the affidavit of Mr Brown was served late (on 14 June 2019), I consider that it was not served a reasonable time before the occasion for using it arose. However, in circumstances where the evidence of the conversations said to have occurred were, realistically, unlikely to be able to be challenged, in any significant way, by either of Bradley or James, and where Mr Brown was available for cross-examination, I granted leave to read his affidavit.

5. [134]

   In the affidavit, Mr Brown gave evidence that he had known the deceased for more than 50 years. They met in High School; they played rugby together for many years, until about 1983; and they had met at various school reunions both before, and after, that date. He gave oral evidence that he had not seen the deceased for, perhaps, 20 years, before February 2017, when the deceased and Jacqueline attended at his office.

6. [135]

   Until February 2017, Mr Brown had not been engaged by the deceased to provide legal services to him.

7. [136]

   Mr Brown gave the following evidence in his affidavit:

8. [137]

   Mr Brown also gave evidence of the discussion regarding a will that created testamentary trusts (which it is not necessary to repeat). He then wrote, in the affidavit:

9. [138]

   The handwritten Will, which was duly executed by the deceased and dated 28 February 2017, revoked all former Wills, appointed Jacqueline as the sole executrix and trustee and left to her the whole of the deceased’s estate: Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure A.

10. [139]

    In an email dated 3 March 2017, the deceased wrote to Ms M Inglis, the solicitor who was to prepare the Will including the testamentary trusts, attaching “a list of my assets and how I would like to see them dispersed. These are not set in concrete and were a guideline for Jacqui to think about”.

11. [140]

    The attachment was in the following terms (Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure C):

12. [141]

    I should refer, next, to the cross-examination of Mr Brown. Importantly, Mr Brown, in cross-examination, gave evidence that:

13. [142]

    Neither counsel for Bradley, or James, suggested that Mr Brown’s evidence should not be accepted. I am more than satisfied that I should accept his evidence and I do so. Importantly, I accept that it was Mr Brown who suggested that the deceased reduce to writing his thoughts and feelings.

The deceased’s letter of “Regrets”

1. [143]

   For reasons to which I shall come, there is a dispute about the role that Bradley and James assert the deceased played in the creation, or amendment, of the letter. I shall return to that topic shortly.

2. [144]

   What follows, under this heading, is what I am satisfied has been established by the evidence.

3. [145]

   The deceased is said to have written a letter which is headed “Regrets”. The copy letter in evidence is undated, but it was sent, as an attachment, from the deceased’s computer, on 6 March 2017, with an email, to Jacqueline.

4. [146]

   I shall not set it out in full, but so far as is relevant, it provides:

5. [147]

   There is no suggestion that a copy of the letter was sent to either Bradley, or James, prior to the death of the deceased.

6. [148]

   For reasons to which I shall come, I am satisfied that Jacqueline played no part in the creation, or revision, of the “Regrets” letter. I accept her evidence that she first saw the letter when it was sent to her as an attachment to the email of 6 March 2017. Bradley, and James, each disputed that the letter was written by the deceased. Counsel for each cross-examined Jacqueline about the letter. I shall return to the reasons why I consider that the “Regrets” letter was written by the deceased later in these reasons. I shall also refer to the weight to be given to the “Regrets” letter later in these reasons.

Credibility of the party Witnesses

1. [149]

   Counsel for Jacqueline made lengthy submissions concerning the credibility of each of Bradley and James, whilst each counsel for Bradley and James, respectively, submitted that Jacqueline should not be believed about parts of her evidence.

2. [150]

   At the outset, I state that I have no hesitation in accepting Jacqueline’s evidence where it conflicts with the evidence of each of Bradley and James, neither of whom did I find to be a satisfactory, or credible, witness. Whilst each appeared intelligent and articulate, I did not find either to be candid with the Court about his financial circumstances, and particularly in relation to his gambling activities. I considered that each was conscious of the effect of his evidence upon the case being advanced.

3. [151]

   On the other hand, I found Jacqueline to be forthright, and responsive to the questions asked of her, and on only one occasion, did she display high emotion about a particular question. In my view, she was endeavouring to, and did, give, truthful evidence. I found each of Bradley and James to be a far less credible and reliable witness than Jacqueline.

4. [152]

   In reaching this conclusion, I have focussed upon the inherent plausibility, or implausibility, of the evidence, particularly regarding gambling, having regard to the undisputed, or indisputable, evidence, the contemporaneous documents, and the summary, in each case, that was tendered.

5. [153]

   In Collings v Vakas [2006] NSWSC 393, a case decided under the Family Provision Act 1982 (NSW), Campbell J (as his Honour then was) stated at [66]-[68]:

6. [154]

   A similar approach was taken by McLaughlin As J in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote, at [14]-[15] and [41]:

7. [155]

   This view was repeated in Mann v Starkey [2008] NSWSC 263, in which case, White J (as his Honour then was) noted, at [25] and [29]:

8. [156]

   Hammerschlag J, more recently, in Stone v Stone [2019] NSWSC 233, wrote at [60]-[66]:

9. [157]

   The references in Stone v Stone to s 56 of the Civil Procedure Act 2005 (NSW) are particularly relevant in respect of the case brought by James. It is necessary to digress to discuss an issue concerning his gambling activities, in relation to which his credit was materially undermined.

10. [158]

    During the course of the afternoon on Friday, 28 June 2019, the Court received an email from Jacqueline’s solicitor, Ms Homer, relating to the production to the Court of a tender bundle of documents. In the email, a reference was made to the “betting records” of James, which were said to comprise in excess of 1,400 pages, which were to be relied upon, and which had been produced by James in answer to a notice to produce. (It had not been suggested that the notice to produce, or the documents produced, had no legitimate forensic purpose.)

11. [159]

    Upon receipt of the email, I sought the attendance of the legal representatives, as, it seemed to me, that reliance upon this number of documents might extend the duration of the hearing. The legal representative of each party appeared and discussion took place as to the best way to deal with those documents.

12. [160]

    I made reference to s 50 of the Evidence Act 1995 (NSW), which provides that the court may, on the application of a party, direct that the party may adduce evidence of the contents of 2, or more, documents in question in the form of a summary, if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. I suggested that, perhaps, a summary could be prepared on behalf of Jacqueline and served on each other party, and that an opportunity could be given to each of other party’s legal representative, to examine the summary and the documents (although in the case of James, they were his own documents). I hoped that by preparing the summary, there would be practical assistance given to the Court in being able to understand the documents. It would also promote the efficient use of court time.

13. [161]

    Although I did not make directions in respect of s 50 of the Evidence Act on that occasion, the suggestion made appears to have been complied with over the weekend. On 1 July 2019, Ms Catanzariti, counsel for Jacqueline, produced a summary of the documents produced, to which Mr Gruzman objected as not being an accurate summary. (Mr Rogers also objected, but on the basis that he wished to consider the summary overnight.): Tcpt, 1 July 2019, p 48(36) – p 52(41).

14. [162]

    Mr Gruzman, in discussion with the Bench, accepted that a very significant volume of documents had been produced, following service of a notice to produce; that it had not been not disclosed to Jacqueline’s legal representatives that the documents that were produced were inaccurate, in any way; Ms Catanzariti had then taken steps to inspect those documents and had prepared the summary that formed the basis of the summary ultimately tendered; and that there were further documents, which James wished to produce, during the course of the hearing, that were not previously produced, and which were said to demonstrate inaccuracies in the documents that had been produced and summarised.

15. [163]

    Then, in his oral evidence, for the first time, James stated that the documents, that he had produced, revealed flaws in the betting system and that double bets had been recorded in the documents that had been provided to him, which he had provided to Jacqueline’s legal representatives. He went on to state, also for the first time, that not all the losses appearing in the documents produced, were his losses, not all the wins were his wins, and that he placed a lot of bets for “the punter’s club” and people that he knew at the pub, whom he had encouraged to bet on his account: Tcpt, 2 July 2019, p 190(48) – p 191(18).

16. [164]

    Needless to say, there was no witness who gave evidence corroborating the statement that James placed bets for him, or her, using James’ own betting account. One might have thought that earlier consideration would have been given to this aspect, as well, had the documents, in the possession of James, revealed an inaccurate picture of his betting expenditure.

17. [165]

    None of Bradley’s affidavits reveal the historical extent to which he gambles, how much he bets, how much he wins and how much he loses: Affidavit, Bradley Dominic Barbuto, 19 May 2018 at Annexure E; Affidavit, Bradley Dominic Barbuto, 8 June 2019 at par 15; Tcpt, 1 July 2019, p 83(15-45), p 84(1-9). In fact, despite this being a real issue in the case, he conceded, in cross-examination, that he did not know how much he bets; what his average bet was; how much he wins; and how much he loses: Tcpt, 1 July 2019, p 64(29-30), p 65(3-10), p 66(30) – p 67(3), p 67(30-31), p 71(47-49).

18. [166]

    Bradley's bank accounts disclose his ATM Touch, Crownbet, and newsagency withdrawals, total $16,306 in 2017-2018. Notably, this trend continued in 2018 to 2019, even after he started his proceedings. His bank accounts disclose apparent betting in the order of $17,814 in the period April 2018 to April 2019: Ex. 3/170F, 170G, 171-178.

19. [167]

    This puts in doubt his evidence that he had included his gambling expenses in the category of expenses "Miscellaneous": Tcpt, 1 July 2019, p 64(15-16). That estimate amounted to $1,300 per year (Affidavit, Bradley Dominic Barbuto, 19 May 2018, Annexure E), whereas, evident from the amounts described earlier, documents produced revealed his actual gambling expenses to be over $15,000 per year.

20. [168]

    Bradley asserted that he used his TAB Touch account as an ATM facility to withdraw cash to pay for household expenses, food and drink: Tcpt, 1 July 2019, p 70(14-18); 71(14-19); 75(26-37). Whilst it is possible, it seems somewhat unlikely that he would do so, making four or five withdrawals in one day of $50 to $100 on each occasion.

21. [169]

    As was stated at the time, I am unable to accept the evidence given by James, or by Bradley (such as it is), on the topic of the extent of his gambling. I do not accept Bradley’s evidence that he gambles “now and again”. Bradley did not suggest any error in the summary that was tendered.

22. [170]

    Nor am I prepared, in the case of James, to treat the summary documents as error-ridden. I reject James’ explanations as to the level of his gambling. In my view, he significantly understated the extent of his gambling.

23. [171]

    Ultimately, a summary agreed to, in respect of each of Bradley and James formed part of the evidence: Ex. 3; p 170F, 170G, 171-178 and Ex 3; p 170B, 178A, 179-184, 184A, 184B, 184C, 184D, 184E, 185-190. I am satisfied that each of the summaries that was tendered, provides a realistic economic analysis of the effect of the gambling of each of James and Bradley.

24. [172]

    The expenditure on gambling also leads to doubt, in the case of Bradley, about his assertion of “substantial frugality”, “living day to day, with the income barely covering expenses”, being “worried about my future and concerned that I will be unable to pay for my family’s ongoing living expenses” and being “concerned about the costs of raising my four minor children”: Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 116-118.

25. [173]

    In the case of James, I have grave doubts about the truthfulness of his assertion that “I am not presently able to afford to be a member of a Health Fund as I do not receive enough disposable income to effect health insurance”. One might consider that if he is able to gamble in the way that he does, he would be able, if he chose, to afford membership of a health fund.

26. [174]

    It is clear from the evidence given by each of Bradley, and by James, that he disputes the description of him, respectively, given by the deceased. Importantly, Bradley denied he was a gambler (other than one who places bets occasionally and not in any significant amounts). It is fair to say that whilst James appears to be a more sophisticated gambler (by which I mean his gambling appears to be on a more regular and structured basis) that does not mean that the deceased’s description of each was wrong. I am satisfied, on the balance of probabilities, that each of James’ and Bradley’s interest in, and expenditure on, gambling, is more significant than he admitted.

27. [175]

    However, it should be said that there is no medical evidence that suggests that either Bradley, or James, has a pathological addiction to gambling.

28. [176]

    To form a picture of Bradley’s character, and his conduct towards the deceased, from other evidence, it is necessary to refer to a chain of email correspondence between the deceased and Bradley that was not disputed as having been received and sent, in early March 2017. It is to be remembered that this chain of emails passed between them when the death of the deceased was imminent. It is important also to note that Bradley understood that the deceased had suffered a 15 year battle with cancer, and that in about January 2017, the deceased told him that “his cancer had spread and that his treating doctors had told him that he [had] about three months to live”: Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 62.

29. [177]

    Bradley wrote, in respect of the email correspondence to which I shall refer (Affidavit, Bradley Dominic Barbuto, 21 November 2018 at par 85-86):

30. [178]

    I set these emails out hereunder (with editorial corrections).

31. [179]

    The first email in time is an email sent on 7 March 2017 by the deceased to Bradley (Affidavit, Jacqueline Barbuto, 19 September 2018, Annexure J):

32. [180]

    The next email is sent by Bradley to the deceased on 8 March 2017:

33. [181]

    The next email is another, from Bradley to the deceased, sent on a date not disclosed:

34. [182]

    The deceased responded to Bradley in an email sent on 10 March 2017:

35. [183]

    Then there is then an email from Bradley to the deceased sent on 11 March 2017:

36. [184]

    Some of the matters alleged by Bradley in a number of these emails about his and James’ childhood are inconsistent with Bradley’s written evidence on this topic. For example, in his second affidavit made in May 2018, Bradley stated that he recalled “a generally happy home life”; that the family always celebrated occasions such as birthdays and Christmas, as a family; that his parents “worked hard to support us”; that “each year we would take a family holiday to Lake Tabourie on the South Coast of New South Wales” and that these holidays “form some of my favourite childhood memories with my father”. He also acknowledges in the affidavit that “his parents worked hard to support us and made sure our basic needs were met”.

37. [185]

    In his affidavit in reply, made in November 2018, in giving evidence of the work schedule of his parents, when he was a minor, he states that he and James were left to fend for themselves. Like many other children, he and James came home from school and were alone until one or other of his parents came home from work. This can hardly be regarded as a criticism when the evidence (including his own evidence in his May 2018 affidavit) reveals how hard his parents were working at the time to ensure the financial stability of the family.

38. [186]

    None of the emails referred to earlier, sent by Bradley to the deceased, paint Bradley in a favourable light in relation to his conduct towards the deceased when the latter was facing imminent death. None of the emails is supportive, or loving, and all display what appear to be strong feelings of anger towards Jacqueline, which should not have been raised at that time, other than for the purpose of encouraging the deceased to change the terms of his Will.

39. [187]

    Despite the above chain of emails, Bradley asserted that he contributed to the deceased’s estate and to his welfare. Whilst he might have done so as a child, I do not accept, on the evidence before me, that he did so, in later life, to any great extent.

40. [188]

    By way of a further example of evidence that I do not accept, Bradley gave evidence, in his affidavit in reply, that he obtained a loan, with the deceased, to purchase the Cronulla property (if by that it is meant he repaid the loan, in whole or in part). He annexes a copy of a number of Home Loan Bank Statements, covering a period from 11 May 2004 until 13 September 2007 and says that the documents show “the repayments we made”.

41. [189]

    Whilst addressed to the deceased and Bradley at the address of the Bangor property, all of the copy Bank Statements refer to loan repayments, and are in the form “Loan Repayment Barbuto FN/J”. I infer that the reference to FN/J is to each of the deceased and Jacqueline. There is no information in any of the documents that Bradley, himself, made any loan repayments. I note also that by 2004, Bradley had moved to Western Australia.

42. [190]

    The evidence on this topic is also inconsistent with the evidence given by Jacqueline. Furthermore, the agreement that Bradley says that he had with the deceased about the Cronulla property being for him is inconsistent with the undisputed evidence that Jacqueline moved into the Cronulla property not long after her separation from the deceased; that she and Doug moved back there, after they returned from Jindabyne; and it is inconsistent with the terms of Financial Agreement, upon which each of Bradley and James relied, pursuant to which the Cronulla property was transferred to Jacqueline in 2007.

43. [191]

    Whilst Bradley stated that he “was open to reconciling with my mother and encouraging a relationship between my mother and my children” (Affidavit, Dominic Bradley Barbuto, 19 May 2018 at par 67), there was no evidence of any steps taken to do so. I do not accept this evidence either.

44. [192]

    Bradley gave evidence, in his affidavit made 19 May 2018 at par 103-104, that the deceased told him, in the final weeks of the deceased’s life, at “around the time the last Will was drafted”, that “[T]he family home at Bangor will always be there for you and your brother. In case you ever fall on bad times, you’ll always have a place to live.” Bearing in mind the other evidence, particularly the evidence given by Mr Brown, I do not accept Bradley’s evidence on this topic.

45. [193]

    There are no emails in evidence from James to the deceased or from the deceased to James.

46. [194]

    Despite other evidence about family life as a child, James described his family upbringing until about 1983 as being “quite dysfunctional”. That description is followed, in his affidavit made 18 April 2018, at par 10-11, with:

47. [195]

    James then went on to confirm his “fond memories of spending a lot of time” with the deceased who played a big part in his junior and senior sporting activities and describes the other aspects of family life, which appears to have been enjoyable.

48. [196]

    It seems to me that the value of the estate would not be as it is but for the efforts of the deceased and Jacqueline. Having read all of the evidence given by each of Bradley and James, I do not accept the description given by James. The criticism made of each parent appears to be quite unjustified.

49. [197]

    James gave evidence of a conversation with the deceased in February 2017, in which the deceased told him that the whole of his estate was going to Jacqueline but that each of Bradley and James would receive $5,000. James does not go on, in his affidavit, to state his response to learning this information.

50. [198]

    The deceased told Jacqueline that “…all James seems interested in is his inheritance and what I am leaving him. He made me angry the way he questioned me about it all, especially when he didn’t even bother to ask me how I am or couldn’t be bothered to visit more than twice while I was in hospital”. She was not cross-examined about her conversation with the deceased and I accept that it took place.

51. [199]

    She also said that she called James on 7 February 2017, and he responded that he was busy at work and would call her later, but never did. She could not remember saying to James that “You can go and sort this out with your Father and do a new Will with him.”

52. [200]

    James, in his affidavit in reply, gave evidence of the assistance provided by his son, Mitchell, to the deceased. However, neither Mitchell nor Blake gave any evidence in the proceedings. I give little weight to this evidence so far as it concerns the application made for provision by James.

53. [201]

    James did not dispute that Jacqueline reimbursed James and Kellee, who had paid for Bradley to travel to Sydney to visit the deceased ($3,152).

54. [202]

    Although James stated that it was his belief that no provision would be made for him whilst Jacqueline was in control of the first testamentary Trust, evidence, in the form of an annexure to his affidavit in reply, revealed that her solicitor had sent a letter, dated 22 June 2017, to his solicitors, confirming that Jacqueline was the trustee of that trust; that James was a discretionary object, together with others of the Trust; and that Jacqueline “will, of course, at all times act in accordance with her duties as trustee of the Trust.” The letter concluded:

55. [203]

    There was no dispute that James, by his solicitors, did not respond to the request for that financial information: Tcpt, 2 July 2019, p 140(7-50) – p 141(30). No explanation was given for the lack of response to legitimate questions made on behalf of the trustee of the trust, the answers to which might have resulted in an exercise of discretion in favour of James.

56. [204]

    (A letter in similar terms was also sent to Bradley’s solicitor but it, also, was not responded to, on behalf of Bradley.)

57. [205]

    Both Bradley and James, respectively, gave specific instructions to his counsel that it was not the deceased who had written the “Regrets” letter. James stated in his first affidavit, at par 36, that “I do not believe that my Father wrote this Note … The Note was sent 4 days after the date of the Will and is not consistent with the contents of the Will.” The assertion was that Jacqueline had written, or had participated in writing, the letter.

58. [206]

    I am not persuaded by the evidence tendered by James about the date of the letter having been created. There is some evidence that a Word document headed “REGRETS” was created at 8:44 a.m. on 24 February 2017: Ex. 3/286-291B. The document created, appears to have been revised 9 times between that date and 6 March 2017. However, there is no evidence about what the document included, when it was first created, or the nature, or extent, of each of the revisions that were made, at different times, to the letter.

59. [207]

    Then, with that in mind, there was really no legitimate basis for the assertion made, principally by James. Firstly, no reason was put to Jacqueline for her having written, or having input into, the letter. No reason was suggested during submissions, counsel for James acknowledging that to suggest a reason would be speculation: Tcpt, 4 July 2019, p 337(31) – p 339(6).

60. [208]

    Secondly, when Jacqueline was asked by counsel for James about the statement in the letter that the deceased’s “worst regret is that I have been a lousy parent”, she stated (at Tcpt, 3 July 2019, p 233(42-49):

61. [209]

    It is hardly likely that Jacqueline would have written, or participated in writing, something about the deceased which made her sad to read, and with which she disagreed. Perhaps more importantly, it is unlikely that she would have written, or participated in writing, something about the deceased that may not have assisted any defence in a case brought by each of their children.

62. [210]

    Thirdly, even if the letter, or part of the letter, was written, as alleged by James, before the deceased met with Mr Brown on 28 February 2017, there would have been no need to have sent it to Jacqueline, since the contents appear to have confirmed much of what the deceased had disclosed to Mr Brown on 28 February 2017. The sentiments expressed in the letter in relation to each of Bradley and James, were stated to Mr Brown.

63. [211]

    Fourthly, the contents of the letter, so far as it relates to Bradley and James, is corroborated by other evidence and my overall impression of each of them.

64. [212]

    Fifthly, having read the letter, it has the poignancy of having been written by a parent, knowing death was imminent, who wishes to relieve himself of the burden of regrets that he has, particularly in relation to family members.

65. [213]

    Finally, as I have written, I accept Jacqueline as a witness of truth, and, therefore, I am satisfied that her evidence that she did not know about the letter until she received the email from the deceased to which a copy was attached on 6 March 2017, and that neither she, nor Doug, had any input into that letter, is truthful.

Credibility of witnesses other than the parties

1. [214]

   Bradley called Mr Ian Porteous, a close friend of each of Bradley and James, who had also known the deceased and Jacqueline, as a witness. He gave evidence that he had not seen the deceased after 17 February 2017 and had not seen a copy of the letter until after the death of the deceased: Tcpt, 2 July 2019, p 197(5-6).

2. [215]

   Mr Porteous confirmed that he had not had any discussions in which the deceased had referred to either Bradley, or James, as he had in the letter. They had never discussed the gambling habits of either Bradley or James, and the deceased had never mentioned any disappointment that he felt in relation to either of his two sons: Tcpt, 2 July 2019, p 197(47-50).

3. [216]

   Mr Porteous asserted, in his affidavit made 21 November, that the deceased “struggled with his computer skills”. However, the precise nature of the deceased’s “struggles” was not identified. If by the evidence, he meant that the deceased could not use a computer, I do not accept the evidence of Mr Porteous. There is more than enough evidence, including the email correspondence between Bradley and the deceased, to demonstrate that the deceased was able to type and send emails.

4. [217]

   Mr Porteous acknowledged that he did not know whether the deceased had typed the “Regrets” letter. However, in response to a question from the Bench, and although, it appeared, slightly hesitantly, Mr Porteous confirmed that, in their discussions, the deceased had referred to James as “Jamie”: Tcpt, 2 July 2019, p 207(43) – p 208(8). (I note that in the discussions that the deceased had with Mr Brown, he had also referred to James as “Jamie”.)

5. [218]

   James relied upon an affidavit from Mrs N Edson, his mother-in-law. She disputed, in the affidavit, statements made in the “Regrets” letter as being in the words of the deceased. However, when cross-examined, she acknowledged that the deceased had never written her a letter. It was then put to her that her statement that the regrets letter was not consistent with what the deceased would write, was not correct and she gave the following evidence (Tcpt, 3 July 2019, p 220(42-50)):

6. [219]

   Another aspect of her evidence that is difficult to accept relates to her conversation with the deceased about his two sons. Bradley’s counsel asked some questions about any conversation that she had with the deceased about Bradley, to which she responded (Tcpt, 3 July 2019, p 217(1-10):

7. [220]

   As is obvious, nothing in the answer reflects anything, positive or negative, about Bradley. However, in answering the next question, she said (Tcpt, 3 July 2019, p 217(12-14):

8. [221]

   Having observed Mrs Edson give her evidence, I had the impression that she was endeavouring to assist James and Bradley, and that her relationship with the deceased was not particularly close. This is evidenced by her evidence that in the last two months of the deceased’s life, she saw him about 5 times and her statement, made during cross-examination, “Why would I see him more?”: Tcpt, 3 July 2019, p 220(30). It is not at all surprising that the deceased did not speak to her about his relationship with his sons, one of whom was her son-in-law.

9. [222]

   However, one piece of her evidence was instructive. The following evidence was given by her: Tcpt, 3 July 2019, p 224(23-31)

10. [223]

    I accept Mrs Edson’s evidence that between 2016 and 2018, she was repaid, by Kellee and James, amounts totalling $2,285, and that these amounts were those which she had paid on their behalf.

11. [224]

    Jacqueline relied upon the affidavit of Natale Barbuto, the deceased’s brother. He was cross-examined. He gave evidence of the deceased’s complaints to him about the gambling of each of Bradley and James, and the way which they were treating Jacqueline.

12. [225]

    In cross-examination, Natale said that the deceased did not complain to him about the treatment of James and Bradley towards him (the deceased) and that when he saw Bradley at the hospital, visiting the deceased, Bradley’s conversations with the deceased were “civil”.

13. [226]

    Natale gave the following evidence in relation to James at Tcpt, 3 July 2019, p 278(37-49):

14. [227]

    Overall, I accept Natale’s evidence about his conversations with the deceased. However, he had no independent knowledge of the deceased’s relationship with either Bradley or James in the months prior to his death.

15. [228]

    Jacqueline relied upon the evidence of Mr Coombs, a close and long-time friend of the deceased. He, too, confirmed that the deceased had told him that he would not be leaving any money to Bradley or James as each “have gambling and social problems”. He did not ask, and was not told, about the nature of the “social problems”. The deceased also told Mr Coombs that he trusted Jacqueline to “look after Bradley and James and the grandchildren as she sees fit”. It was Mr Coombs who had suggested that the deceased confer with Mr Brown, who was a close friend.

16. [229]

    Mr Coombs gave evidence that the deceased “was absolutely paranoid about anything to do with gambling”: Tcpt, 3 July 2019, p 292 (3-8).

17. [230]

    Finally, Jacqueline relied upon an affidavit of Mr Whyte, another friend of the deceased. Whilst the deceased did not speak to Mr Whyte about the relationship with his sons, he did tell Mr Whyte that he was leaving his whole estate to Jacqueline.

18. [231]

    Mr Whyte also gave evidence that, in December 2017, James showed him a copy of the “Regrets” letter and asked whether Mr Whyte had read it before. Mr Whyte responded that he “was aware that this letter existed” but had not read it. He also told James, that he believed “your father wrote it some time ago.” James responded that he “was surprised when I was reading the letter, especially in relation to the tone of the letter and the comments he made about me. I can’t believe he admitted he was a poor parent!”

19. [232]

    Mr Whyte was also cross-examined about some of the evidence on this topic given by James at Tcpt, 3 July 2019, p 287(3-36):

20. [233]

    In cross-examination by counsel for James, Mr Whyte also gave evidence that he did not agree with the deceased’s statement that he had been “a lousy parent”. Mr Whyte gave evidence that he disagreed, “because one of the things that all the way through that I’ve known Frank and since he’s really, like when his children were younger, the two go out and support them in both their, all of their sport, and their holidays, in the holidays that we used to have away. And I think the, the lousy parent may have only come in very late in his life when he sat down and thought about it. But until that, his attitude was that he was doing the right thing by his children”: Tcpt, 3 July 2019, p 285(9-16).

21. [234]

    Mr Whyte also gave evidence of discussions with the deceased about gambling. He said, in cross-examination by counsel for James at Tcpt, 3 July 2019, p 285(35) – p 286(3):

22. [235]

    In addition, Mr Whyte gave evidence that he told James that he “would like to do everything I possibly can to get you and your mother together to talk about this” and that James said “That’s not going to happen!”

23. [236]

    I have no hesitation in accepting the evidence of Mr Whyte where it conflicts with the evidence of James. He is a witness who has no interest in the result of the case, and as was obvious from the statement made to James well before the hearing, and not the subject of dispute, his hope was to have James and Jacqueline talk to try to resolve their differences. That hope proved futile and even at the hearing any suggestion of resolution of their differences was spurned.

The Situation in life of Bradley

1. [237]

   Bradley asserted that he and the deceased shared a close relationship. In his evidence, he stated the deceased “owed me the obligation of a father to his son” (Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 69).

2. [238]

   So far as is it was disclosed, the financial and material circumstances of Bradley are as follows:

3. [239]

   Bradley resides in rented accommodation with his wife, Nuramain, and three of their children (two of whom are Bradley and Nuramain’s children, and one of whom is Nuramain’s child from a prior relationship), in Butler, Western Australia. The children are dependent upon him.

4. [240]

   Bradley gave evidence of Nuramain’s financial circumstances. Her assets total $145, being the contents of a Westpac Bank savings account, and “nominal” household contents and personal effects which were not assigned a monetary figure. Nuramain is said to have superannuation entitlements totalling $1,048. She works, on a casual basis, as a cleaner, and has a fortnightly gross income of $302, and a yearly gross income of $7,855. As is obvious, they do not own a home, and do not have any joint assets or liabilities.

5. [241]

   As has been stated, Bradley is 46 years old. By his own evidence, he is in good health.

6. [242]

   Evidence of the deceased’s provision of financial assistance, during his lifetime, to Bradley, has been discussed earlier in these reasons.

7. [243]

   There was no suggestion that Bradley was being maintained by the deceased before the deceased’s death, and the nature of the deceased’s Will, in terms of its provision for Bradley, has already been covered extensively in these reasons.

8. [244]

   The deceased’s testamentary intentions have also been raised earlier in these reasons.

9. [245]

   The only other person who may be liable to support Bradley is his wife, Nuramain, although it seems that she does not have the financial capacity to do so.

10. [246]

    I have already noted Bradley’s relationship with the deceased during his lifetime, and the poor conduct by Bradley towards the deceased, particularly in the month or so before the deceased died.

11. [247]

    In writing, Bradley, by his counsel, submitted that a “proper order in the circumstances would be that the Plaintiff receive no less than half of the residuary estate of the Deceased”. On the final day of the hearing, there was some discussion between the Bench and the Bar about the possibility of provision for Bradley being made to assist in the repayment of his debts, by way of provision being paid directly to Jacqueline’s solicitor, or a public trustee, via an undertaking: Tcpt, 4 July 2019, p 318(5) – p 319(32).

The Situation in life of James

1. [248]

   James asserted that he and the deceased shared a close relationship. In his affidavit evidence, he did not identify any specific obligations owed by the deceased, to him. Indeed, under the heading marked “any obligations owed by deceased to the Plaintiff”, he wrote “not applicable”.

2. [249]

   So far as is disclosed, James’ financial position may be summarised as follows:

3. [250]

   James resides with Kellee and their children in their home in Sutherland which, as evidenced above, they jointly own. There is evidence, by James, of Kellee’s financial and material circumstances, of which her assets are said to total $707,940 and liabilities $269,063. In his evidence, James asserted he and Kellee jointly meet the family’s financial needs and expenditure. Kellee works as a Nurse, and is said to have a monthly net income of $6,478.

4. [251]

   As has been stated, James is 50 years of age. James gave evidence he has high blood pressure, irregular back pain, and problems with a neck/disc injury, though no medical evidence of those conditions was provided. In 2010, he was diagnosed with, and subsequently had treatment for, prostate cancer. I accept that, given the strenuous physical nature of his jobs, and the likelihood of injury as he gets older, James may have more difficulty working in the future: Tcpt, 4 July 2019, p 364(50) – p 365(9).

5. [252]

   James did not produce any specific evidence going to any contribution, by him, to the deceased’s estate, or the deceased’s welfare, other than his assertion of his “close relationship” with the deceased. He gave evidence he completed some maintenance work on the Bangor property, and performed other activities such as pumping out the pool at the Bangor property. He did not really elaborate on the nature and extent of the work completed by him (Affidavit, James Francis Barbuto, 18 April 2018).

6. [253]

   Evidence of the deceased’s provision of financial assistance, during his lifetime, to James has been discussed earlier in these reasons.

7. [254]

   There was no suggestion that James was being maintained by the deceased before the deceased’s death, and the nature of the deceased’s Will, in terms of its provision for him, has been dealt with extensively in these reasons.

8. [255]

   The deceased’s testamentary intentions have been discussed earlier in these reasons.

9. [256]

   The only other person who may be liable to support James is his wife, Kellee.

10. [257]

    In writing, James, by his counsel, submitted that “proper provision from the Estate of the Deceased would be a bequest of half of the residuary estate which would provide him with a reduced mortgage, and a fund for the contingencies in life”. On the final day of hearing, there was some discussion between the Bench and the Bar in relation to the possibility of any provision for James being made to reduce his mortgage, with an undertaking that “for example, for a 12 month period no application would be made to increase the mortgage, or something like that”: Tcpt, 4 July 2019, p 353(28-42). This is discussed later in these reasons.

The Law

1. [258]

   Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

2. [259]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.

3. [260]

   Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254, at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297, at [40], citing Manuel v Lane [2013] NSWCA 61, per Emmett JA, at [9].

4. [261]

   As stated, under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA), at [6].

5. [262]

   Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration.

6. [263]

   An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]:

7. [264]

   In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed:

8. [265]

   “Provision” is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54, at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime”. Neither is the word “maintenance”, nor the phrase “advancement in life”, defined in the Act.

9. [266]

   In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words “maintenance”, “support” and “advancement”:

10. [267]

    In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (as his Honour then was) (with whom Basten JA and Handley AJA agreed), wrote, at [18]:

11. [268]

    In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575:

12. [269]

    In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

13. [270]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

14. [271]

    These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

15. [272]

    Their Lordships went on to state, at 478:

16. [273]

    Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

17. [274]

    In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ, at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

18. [275]

    In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502, citing Pontifical Society for the Propagation of the Faith v Scales at 19:

19. [276]

    In Vigolo v Bostin, Callinan and Heydon JJ wrote at 114:

20. [277]

    Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

21. [278]

    In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

22. [279]

    His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [123]:

23. [280]

    In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

24. [281]

    As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

25. [282]

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

26. [283]

    In Boettcher v Driscoll (2014) 119 SASR 523, at 530; [2014] SASC 86, at [41], David J added:

27. [284]

    I wrote in Jodell v Woods [2017] NSWSC 143, the following passages which were recently approved in the Court of Appeal in Strang v Steiner [2019] NSWCA 143, by Macfarlan JA, at [70]:

28. [285]

    Sackville AJA pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that “the assessment of an applicant’s needs is not a mechanical process. In Andrew v Andrew, Allsop P observed that “[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)”. That observation applies to the concept of “financial needs” embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person’s age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person’s financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act”.

29. [286]

    As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes “adequate provision” for the “proper maintenance” of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.

30. [287]

    If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

31. [288]

    (The question of the process by which the Court is required to implement s 59(1)(c) and s 59(2) of the Act, revived by the Court of Appeal in Sgro v Thompson, has been compendiously dealt with by Robb J in Maynard v Maynard [2018] NSWSC 1961 at [121]-[163].)

32. [289]

    I shall adopt the approach that I referred to in Vidler v Ivimey [2013] NSWSC 1605, in which I considered, in some detail, the history of this controversy to that point in time at [38]-[40], and [68]-[84] and concluded at [84]:

33. [290]

    The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision has been answered in the applicant’s favour.

34. [291]

    Section 60 of the Act provides:

35. [292]

    It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

36. [293]

    In Chapple v Wilcox (2014) 87 NSWLR 646, at 649; [2014] NSWCA 392, at [7], Basten JA wrote:

37. [294]

    The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. In some cases, one or two factors may have a decisive influence on the outcome. Yet, none of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

38. [295]

    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

39. [296]

    A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

40. [297]

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

41. [298]

    In In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318, at [321], Jordan CJ described “disentitling conduct”, in the context of s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), as “character or conduct relevant to the purposes which the 1916 Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default”.

42. [299]

    There is no equivalent provision that refers to character or conduct such as to “disentitle” the applicant to the benefit of a family provision order. Character and conduct may be considered under s 60(2)(m) of the Act, which is in broader terms, without employing the word “disentitling”. As I have written in other cases, the Act requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619, at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780, at [120]-[124]; Page v Page [2016] NSWSC 1218, at [112].

43. [300]

    I have dealt with the relevant matters identified in s 60(2) of the Act in relation to each of Bradley and James, respectively, earlier in these reasons.

44. [301]

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

45. [302]

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

46. [303]

    In this case, s 65(1)(d) is relevant, as each of Bradley and James accepted that if provision is made for him, it could be subject to a condition that it be used to reduce debts. That proposition has also been discussed earlier in these reasons.

47. [304]

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

48. [305]

    Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the Will: s 72(1)(a) of the Act.

49. [306]

    Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820-821; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].

50. [307]

    Yet, 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: Dobb v Hacket & Ors (1993) 10 WAR 532, at 540. Bearing in mind the conclusion reached regarding notional estate, this is an estate with a small value.

Some Additional Principles

1. [308]

   Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.

2. [309]

   The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].

3. [310]

   Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

4. [311]

   As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

5. [312]

   In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:

6. [313]

   Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

7. [314]

   In In re Coventry [1980] Ch 461, at 474-475, Oliver J wrote, speaking of the UK family provision legislation:

8. [315]

   In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

9. [316]

   In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:

10. [317]

    Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

11. [318]

    In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].

12. [319]

    The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].

13. [320]

    In relation to the claim by each of Bradley and James, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

14. [321]

    A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62].

15. [322]

    The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

16. [323]

    In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

Qualifications on “Principles”

1. [324]

   As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

2. [325]

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

3. [326]

   It is necessary for the Court, in each case, after having had regard to the matters that the Act permits it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts.

4. [327]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon [2019] NSWCA 114, at [37]. They must be remembered.

Objects of a Discretionary Trust

1. [328]

   As stated earlier, Bradley, and James, is an object of the Second Discretionary Trust, and the First Discretionary Trust, respectively, which, as has been read, is a discretionary trust. I have earlier referred to the attachment to the email sent to Ms Inglis, which revealed the guidance provided by the deceased to Jacqueline in how to administer each Trust. However, as stated by the deceased, it was no more than “a guideline for Jacqui to think about”: Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure C.

2. [329]

   With a discretionary trust, until the trustee exercises the discretion in his or her favour, a discretionary object’s interest is merely an expectation or hope. As such, other than in respect of distributions already made, and it is not suggested that there have been any, each of Bradley and James has no enforceable right to either the capital, or the income, of the relevant Trust. Each is reliant, for any future benefit, upon the exercise of discretion of Jacqueline in his favour, in circumstances where she, too, is a discretionary object of each Trust.

3. [330]

   I dealt with the question of the nature of the testamentary discretionary trust created by a deceased’s will in Hedman v Frazer [2013] NSWSC 1915. For the benefit of the parties, I repeat what I wrote then.

4. [331]

   In Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416, Campbell JA wrote (at 206 [71]):

5. [332]

   In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was said (at pp 10-12):

6. [333]

   Gregory v Hudson was followed by Master McLaughlin (as his Honour then was) in Gill v Permanent Trustee Company Limited [1999] NSWSC 394); in McCullum v Permanent Trustee [1999] NSWSC 1219; Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251; and Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107, and by Macready AsJ in Tucker v Tucker [2012] NSWSC 1302.

7. [334]

   In Taylor v Farrugia, Brereton J (as his Honour then was) wrote, at [62]:

8. [335]

   The point raised by these decisions was more recently, and succinctly put, in Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215, in which Buss P wrote, at [188]:

9. [336]

   Mead v Lemon (As Executor of the Estate of the late Michael John Maynard Wright) and Leonie Angela Maynard Baldock and Alexandra Odette Burt and VOC Group Limited [2018] HCATrans 152, was the subject of a special leave application, which was refused upon the basis that there were insufficient prospects that the appeal would succeed.

10. [337]

    More recently, in Bkassini v Sarkis [2017] NSWSC 1487, Robb J, before quoting what I had written in Hedman v Frazer, wrote, at [304] that a discretionary object’s “fate in the present case is an exemplar of the proposition that discretionary testamentary trusts will usually provide an inappropriate mechanism for ensuring that a beneficiary under a will receives adequate provision”.

11. [338]

    An earlier example of such a view is Shepherd v Shepherd [2010] NSWSC 167, at [53]-[55], in which McDougall J concluded that a will had made inadequate provision for an adult beneficiary, a son of the deceased, who had no vested entitlement to income and who was entirely dependent upon the trustees (his brother and sister) exercising their discretion in his favour from time to time.

The gambling issue

1. [339]

   A significant part of the case advanced by Jacqueline was that Bradley and James each acknowledged that he gambles and that this was a relevant matter to consider in determining the form of provision that the deceased determined should be made for each of them. In the case of James, the gambling seems to be conducted on a more regular and structured basis.

2. [340]

   As I understood the submission, Jacqueline’s case was not that gambling was misconduct that would deprive an order being made, or that each of Bradley and James should not gamble if he chooses to, bearing in mind gambling is not an illegal activity. The submission was that neither should look to the deceased’s estate, in his claim for a family provision order, to indirectly supplement funds dissipated in engaging in that activity, by making provision for “needs” that could be met, otherwise, in whole, or in part, if each did not gamble. In other words, the Court should take into account the gambling conduct of each where it is said to have a direct, or an indirect, effect on the fortunes of each, and that of their respective families. It was submitted, by way of example, that an adult child who suffers an illness, or a disability, in mid-life, is one thing; an adult child who squanders his, or her, money gambling, is another. (In my view, it is also relevant that there is evidence that the deceased disapproved of each of Bradley and James gambling.)

3. [341]

   In Green v Perpetual Trustee Co Limited (10 July 1985, unrep), Hodgson J wrote that the Court could not "have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order" which was made, and that "such consideration could suggest that there should be terms attached to the order to prevent dissipation".

4. [342]

   In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Powell J referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour wrote, at 43:

5. [343]

   Reliance was placed on what Campbell JA wrote in Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359, at [97]-[102]:

6. [344]

   Hampson v Hampson was a case involving the applicant’s use of marijuana, and was not one involving gambling.

7. [345]

   Yet, the Court remembers the words of Lord Hoffmann in Reeves v Commissioner of Police [2000] 1 AC 360, at 368, albeit in a different context:

The undertakings proffered by each of Bradley and James

1. [346]

   During the course of the hearing, there was discussion regarding whether any condition should be imposed by the Court in relation to the manner in which any family provision order: s 65(1)(d) of the Act. Each of Bradley and James consented to a condition being imposed.

2. [347]

   Each of Bradley and James was prepared to give an undertaking to the Court, in relation to any provision out of the estate that was made for him. The type of undertaking that might be given was discussed during submissions but, at that time, no undertaking was proffered by either of them.

3. [348]

   In the case of Bradley, the Court was informed that he was prepared to give the following undertaking to the Court:

4. [349]

   On 16 July 2019, by email sent on behalf of Bradley, by his solicitor, the undertaking set out, in essence, was that any lump sum ordered to be paid out of the estate of the deceased should be paid into the trust account of the Plaintiff’s lawyers, Armstrong Legal; and that, thereafter, it be used to pay the debts to HSBC, Macquarie Leasing, and Centrelink, in whole or to the extent possible.

5. [350]

   (The document also contained an undertaking given by Bradley, in relation to not using any provision made for him on gambling. That portion of the undertaking has been set out earlier in these reasons.)

6. [351]

   After the hearing had concluded, in the case of James, the following document was provided, without opposition, by his legal representative, to the Court:

7. [352]

   The form of undertaking was not precisely in the terms that had been discussed at the hearing. In view of the conclusion to which I have come in relation to the claim by James, this does not matter.

Determination

1. [353]

   As stated, there is no dispute that each of Bradley and James is an eligible person. James commenced the proceedings within time and Jacqueline consents to the time for the making of Bradley’s application being made out of time. Accordingly, in the case of Bradley, the extension of time for the making of the application is not an issue.

2. [354]

   Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of each has not been made by the Will of the deceased.

3. [355]

   Bearing in mind the terms of the deceased’s Will, there is a prospect that each of Bradley and James might receive nothing by way of income, or capital, out of the deceased’s estate. Whether each does, depends entirely upon the exercise of discretion, in his favour by Jacqueline. To date, neither has received any distribution from the relevant trust, but I do not regard this as indicative of what might occur in the future.

4. [356]

   The contingent nature of the disposition to each of Bradley and James under the deceased’s Will, arising from the discretionary nature of each testamentary trust, without more, might compel the conclusion that the provision in the Will for each of his children by the deceased was not adequate for that child’s proper maintenance or advancement in life.

5. [357]

   As earlier stated, a court cannot describe, in terms of universal application, what adequate provision for the proper maintenance or advancement in life will entail for a parent in respect of an adult child. In many cases, as has earlier been said, adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his, or her, life.

6. [358]

   But every case will depend on its own facts, and in my view, the facts of the two claims are very different.

7. [359]

   Overall, whilst Bradley has not disclosed what he spends on gambling, I am satisfied that he has disclosed, in broad terms, his financial circumstances. However, his expenditure on gambling, as disclosed in the summary document, does lead to the view that his claimed needs are not as great as he alleged, or if they are, that some of those needs could be alleviated by spending less on gambling.

8. [360]

   In relation to gambling, the Court is morally neutral. However, there is merit in the submission made on behalf of Jacqueline that Bradley should not seek provision out of the deceased’s estate to effectively supplement what he spends on that activity. The Court may take his gambling into account where it has a direct, or indirect, effect on the family fortunes.

9. [361]

   Counsel for Jacqueline submitted that the Court should make an order for provision that enables him to pay off his debts: Tcpt, 4 July 2019, p 349(8-13). At the hearing, counsel for Jacqueline agreed that those debts (being the debts from Centrelink, Macquarie Leasing, HSBC and Bradley’s car loan) totalled “around [$]110[,000] to [$]120[,000]” and that the amount should be updated as at the date of any orders that were to be made: Tcpt, 4 July 2019, p 349(15-35).

10. [362]

    I note that it had earlier been agreed that Bradley’s debts arising from Centrelink, Macquarie Leasing and HSBC, and not the car loan (which Bradley’s affidavit evidence indicates has been put on hold), totalled in the order of $81,337: Tcpt, 4 July 2019, p 318 (23-26).

11. [363]

    On behalf of Jacqueline, it appears to have been accepted that some provision should be made for Bradley with a number of conditions which were raised on the final day of the hearing, to all of which Bradley, in the undertaking subsequently received by his legal representative, appears to have agreed.

12. [364]

    The first condition was that he should disclaim any future interest in the second testamentary trust, in which he is a discretionary object. The second condition was that the lump sum should be paid to Bradley’s solicitors upon the basis that they would pay Bradley’s debts to the extent they were able to out of the lump sum provision that is made. The third condition was that to the extent that there was any surplus, that surplus should not be used to pay the difference between any costs recovered and any costs that Bradley was required to pay his solicitors pursuant to the conditional costs agreement.

13. [365]

    (I note that, in the correspondence received by the Court on 16 July 2019, Bradley’s solicitors also forwarded correspondence from Jacqueline’s solicitor, in which it was asserted that the undertaking provided by Bradley’s legal representative was, in their view, “not sufficient”. They deemed it appropriate that the undertaking should be coupled with an order that any provision made should be held on trust and a copy of the undertaking should be provided to the trustee; but that if the Court deemed the undertaking to be sufficient, then the orders and undertakings should expressly make clear any provision made should not be used for the costs of the proceedings, and that the undertaking should specify what provision would be used for, rather than what it would not be used for gambling).

14. [366]

    I am satisfied that some provision ought to be made for Bradley and, in my view, the lump sum of $90,000 should be provided out of the estate of the deceased, upon the condition that it be used to repay his debts in whole or in part. An additional condition to be imposed is that he should disclaim any further interest as a discretionary object. In reaching my conclusion regarding the quantum of provision, I have, naturally, borne in mind the relevant matters in s 60(2) of the Act.

15. [367]

    I do not accept that the lump sum provision should be enough to enable the payment of all of his debts (if they are, in fact $110,000 to $120,000.) In my view, that would exceed any obligation owed by the deceased to him.

16. [368]

    The burden of the provision made for Bradley should be borne out of the Second Discretionary Trust. In this way, the deceased’s desire to ensure that any provision made in favour of one or other of his children be borne out of one half of his estate will be achieved.

17. [369]

    In relation to James, Jacqueline submitted that the Court could not be satisfied that the provision made for him in the Will of the deceased was inadequate, for three reasons, namely that he had failed to make full and frank disclosure about his financial circumstances, and, in particular, his gambling; second, that he had no “needs” that could not be met from his own resources; and third, that to the extent that he has a “need”, such “need” is the result of James’ own choices. In those circumstances, his claim should be dismissed.

18. [370]

    Respectfully, I agree. I am simply not satisfied that James gave what I regard as a broadly complete picture of his financial circumstances. To the extent that he did disclose his circumstances, considering his situation in life, at the present time, I am not satisfied that adequate provision for his proper maintenance, education or advancement in life had not been made by the Will of the deceased. In particular, he is secure in accommodation; he and his wife have an income that is sufficient to meet their expenditure; and he also has superannuation to protect him from some of the exigencies of life. Whilst he does have the burden of a debt secured by mortgage, he has been able to pay the debt in the usual manner out of his and his wife’s income.

19. [371]

    Even if he has some "needs", that is not all that the Court is required to consider. Merely because financial relief could be given to assist him, does not mean that there is justification for judicial interference with the dispositions made in the Will of the deceased. The question whether “adequate” provision has been made “directs attention, not merely to an applicant’s financial needs, but also to the size and nature of the deceased’s estate, the relationships between the deceased and the applicant and others with claims upon his bounty, and the circumstances and needs of those other persons. The evaluation involved in deciding whether ‘adequate’ provision has been made is to be guided by applying the Court’s assessment of what would, in the circumstances, be right and appropriate, according to prevailing community standards and expectations”: Squire v Squire [2019] NSWCA 90, per Meagher JA (with whom Macfarlan JA and Simpson AJA agreed), at [10].

20. [372]

    As well, the Court must not forget the word “proper”, which is also used in the section, the meaning of which has been discussed earlier in these reasons.

21. [373]

    Furthermore, to the extent that he does have any needs in the future, he will remain an object of discretion of the First Discretionary Trust and, depending upon his disclosure of such needs to Jacqueline, and her consideration of other competing discretionary objects at that time, she may exercise her discretion in his favour.

22. [374]

    All of these considerations led me to find that there was no failure, on the part of the deceased, to make adequate provision for James. Accordingly, his claim fails at the jurisdictional stage. That finding concludes the matter and leads to the dismissal of the proceedings.

23. [375]

    But, if (contrary to my foregoing conclusion), I were satisfied that James had been left without adequate provision for his proper maintenance or advancement in life, I would have turned, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for his maintenance, education or advancement in life having regard to the facts known to the Court at the time the order were made.

24. [376]

    All of the considerations that need to be made at that stage, also produces the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for him. In this regard, I do not overlook the fact that the Court is not invested with a discretion to remake a deceased’s Will upon some principle of fairness or to achieve equality amongst various claimants.

25. [377]

    As Kitto J wrote in McCosker v McCosker, at 580:

26. [378]

    Whilst James might feel a sense of grievance, or hurt, as a result of the unequal disposition of the deceased’s estate, he has not established, to my satisfaction, that further provision for him out of the estate ought to be made. In this regard, by his own failure to properly disclose his financial circumstances, he is the author of his own misfortune.

27. [379]

    Accordingly, the claim by James for a family provision order should be dismissed.

28. [380]

    In the circumstances, in light of the dispute between Bradley and Jacqueline as to the terms of the undertaking, now that the quantum of the provision is known, I invite the parties to discuss the precise form of the undertaking to be given, or alternatively, the condition regarding payment of the lump sum. The order for provision for him should be made “in lieu of the provision” made for him in the Will of the deceased.

29. [381]

    The parties, within 7 days, should provide a form of orders, in each case, to reflect these reasons.

30. [382]

    The matter will be listed for argument on the form of orders, if there is any dispute, and for the argument on costs.