Cringle v Cringle

1. [1]

   HER HONOUR: This matter involves an application by the plaintiff (Jason Kenneth Cringle) for an order pursuant to s 59 of the Succession Act 2006 (NSW) for provision out of the estate and/or notional estate of his deceased mother (Robyn Marjorie Cringle), who died on 25 December 2015 aged 72. The deceased was survived by three children: Gavin (an engineer aged 51), Marny (a registered nurse aged 49) and the plaintiff (aged 47). Without intending any disrespect, I shall refer to the parties in this judgment by their first names.

2. [2]

   Probate of the deceased’s Last Will and Testament, made on 13 November 2015 (the Will), was granted to Gavin and Marny on 20 June 2017. In the Will, the deceased gave her car, household furniture and furnishings to Jason and directed the trustees of her Will to allow Jason to live in her principal place of residence (in Bolwarra Heights) for three years following her death (subject to payment by him of payments in respect of a specified mortgage over the property, rates, taxes, insurance and other outgoings, and subject to him keeping the property in repair). The Will provided, at the end of such residency (whether by effluxion of time, default or Jason voluntarily vacating the home), for a number of specific legacies (the detail of which I will come to shortly).

3. [3]

   The three year period of residency provided for Jason under the Will is about to come to an end (and indeed, under the terms of the Will it would appear that it could already have been terminated by the executors following recent default by Jason in the making of mortgage repayments – in respect of which the bank has issued a notice of default – and other outgoings). Jason’s wish (and this was emphasised in submissions as strongly as his Counsel could – see T 32.34) is to remain living in the house at Bolwarra Heights indefinitely, by which I understand him to mean for the rest of his life (see T 31.26). In the plaintiff’s written submissions (at [13]) it is said that “Jason strongly identifies his need as to live and to continue to live in the home”. Jason seeks orders for provision out of the deceased’s estate which would enable him to do so – in essence, a life estate (the accepted outcome of which he accepts would be that there would potentially be no provision out of the estate for his siblings, who are relatively close in age to him – see T 31.15ff – since in those circumstances his siblings would only obtain their inheritance after Jason’s death and the sale of the house, assuming Jason pre-deceased them).

4. [4]

   Alternatively, it was suggested that Jason be permitted to stay in the Bolwarra Heights home for a further period of time (say, another 18 months or so) after which the legacy provided for him under the Will should not abate (as the Will provides) (see T 31.36). Such provision would have the effect that if there were to be insufficient out of the ultimate sale of the Bolwarra Heights home to meet his siblings’ legacies, one or both of them would bear the brunt of the additional provision made for Jason (whereas, under the terms of the Will, if there is insufficient to meet the specified legacies after the property is sold, the legacies to Gavin and Marny are to take priority over the legacy to Jason).

5. [5]

   The last in the descending order of Jason’s desires (see T 31.50), would be that he receive an increased legacy in an amount sufficient for him to acquire a two bedroom property in Rutherford (at a cost, it was estimated by reference to a local newspaper advertisement for such a property, of around $275,000 plus legal costs and stamp duty) the burden of which it was suggested could come out of the legacy left under the Will to Gavin (see T 32.1-28), who out of the three siblings is in the best financial circumstances (see below).

6. [6]

   It is accepted by Jason that his sister, Marny, has suffered significant injuries and disabilities and is in a position of need, but his position in these proceedings is that his needs “as an invalid pensioner of limited means” are greater than those of either of his siblings.

7. [7]

   I refer to Jason’s wishes or desires (as expressed through his Counsel) at the outset of these reasons because this illustrates the difficulty that besets many applications of this kind – that being that, by the time of the contested hearing, one factor that may prove an insuperable obstacle to the making of provision of the kind that is sought (assuming that the claimant has established that adequate provision was not made for him or her) is that of costs.

8. [8]

   As at the date of the hearing in this case (and subject to any further unpaid legal costs) the estimated value of the net distributable estate in this case was somewhere in the order of $516,000 (as I will explain in due course – see [24] below). There was nothing identified as potentially able to be designated as notional estate, notwithstanding that the summons encompassed such an application. The principal asset in the deceased’s estate is the Bolwarra Heights home (valued at around $695,000 but subject to an outstanding mortgage of around $170,000). Apart from a nominal amount of cash by reason of a small Telstra refund (less than $50), and a motor vehicle (being that which has been left to Jason under the Will), there are no assets in the estate apart from the house out of which the executor’s costs (or, for that matter, Jason’s costs of the present proceedings if an order to that effect were to be made in his favour) could be met. Nor is there any fund out of which an ongoing mortgage (or other outgoings) could be met out of the estate (say, to stave off a forced sale in the event that Jason were again to default in payment of the necessary amounts).

9. [9]

   It is therefore almost inevitable, as I foreshadowed when I reserved judgment in this matter, that the Bolwarra Heights home will have to be sold – whatever the outcome of Jason’s claim for provision out of the deceased’s estate. Whereas, as Counsel for the defendants pointed out, had there been no litigation costs to take into account it seems likely that Jason would have had a sufficient fund (a legacy of $210,000 plus a one-third share of the residue of the estate) with which to secure alternative accommodation and a three year period in which to organise his affairs in that regard.

10. [10]

    Regrettably, this is a not uncommon experience in cases in the Family Provision List. It illustrates (and I cannot emphasise this strongly enough) the need for litigants seeking provision or further provision out of a deceased estate realistically to take stock, well ahead of a contested hearing (and hopefully with the benefit of objective and considered legal advice), of the potential outcomes of the litigation as well as the alternatives to a contested hearing. In saying this, I am expressing no criticism of the legal representatives acting for Jason at the time of the hearing (who, I note, had only been instructed in the matter shortly prior to the time of the hearing). However, on any view of the facts of this matter, it should have been made apparent to Jason at a much earlier time (and perhaps it was – I am not in a position to know whether or not that was the case but Counsel for Jason emphasised throughout oral submissions the difficulty in obtaining instructions from him) that this was a small estate comprised almost wholly by the Bolwarra Heights home and that the realistic outcome of his case (absent a settlement of the claim at a very early time) was that the Bolwarra Heights home would have to be sold to meet the costs of the hearing (and any other estate expenses), whether or not his claim was successful – that being the very thing that Jason is here anxious to avoid.

11. [11]

    So be it. The following are my reasons for dismissing Jason’s application for provision.

Introduction

1. [12]

   As indicated above, Jason is one of three adult children of the deceased, each of whom survived her. The deceased’s husband had died in 2007. The Bolwarra Heights home was their family home. The deceased died of cancer in December 2015 (having been diagnosed with cancer in the middle of that year). In the period from about 2010 until her death in December 2015 (the exact time he spent there over that period being disputed by Marny), Jason says he lived with his mother at the Bolwarra Heights home. Jason had suffered a severe stroke in November 2007, about two weeks before his father’s (the deceased’s husband’s) death.

2. [13]

   There is no dispute that Jason is a natural son of the deceased and an eligible person within the meaning of s 57(c) of the Succession Act. Neither Jason nor Marny has dependants. Gavin has a son (Edan) who is the beneficiary of a small legacy under the will. Both Marny and Gavin have adduced evidence as to their respective personal circumstances, to which I will turn in due course.

3. [14]

   Under the Will, which, as I have noted, was made by the deceased on 13 November 2015, she appointed Marny, Gavin and “the Solicitor Directors for the time being of Hulin Chadwick Lawyers” as her executors and trustees. Hulin Chadwick is the firm of lawyers who had drafted the Will. The solicitor directors of that firm renounced probate on 15 January 2016 (apparently due to ongoing confrontations between the siblings, which had involved contact from the police on a number of occasions – see their letters dated 13 January 2016 to Marny and to Gavin – part of Exhibit 4). As already noted, probate of the Will was later granted to Gavin and Marny on 20 June 2017.

4. [15]

   Under the deceased’s Will, as adverted to above, the deceased bequeathed her car, household furniture and furnishings to Jason; granted to Jason a right to live in her principal place of residence for three years following her death (subject to conditions as referred to above); and, on termination of his right of residence, made the following bequests: a legacy of $15,000 to her grandson, Edan Cringle (Gavin’s son); a legacy of $100,000 to Gavin; a legacy of $155,000 to Marny; and a legacy of $210,000 to Jason, with the proviso that the payments to Gavin and Marny should take priority over the payment to Jason in the event of any shortfall (see cl 7(c)(iv) of the Will). The residue, if any, of the estate was to be divided equally between Gavin, Marny, and Jason.

5. [16]

   In evidence in the proceedings (Exhibit 4) were documents produced by the deceased’s solicitors in compliance with a subpoena that had been issued at Jason’s request for the solicitors’ files in relation, inter alia, to the making of the deceased’s “Will/s”. (I consider that evidence below at [111] insofar as it is relevant to the assessment of the adequacy of the provision made for Jason under the Will.)

6. [17]

   Relevantly, however, to the background of this matter, those documents include a handwritten file note dated 13 August 2015 which in terms records an attendance on “Cringle” (which I infer to be a reference to the deceased) and which, by its contents, is clearly referable to the preparation of the Will. The note includes the following:

7. [18]

   On the next page of the notes (corrections as per the original) there appears:

8. [19]

   It is obvious from the content of the notes that what the deceased was then contemplating was a shorter right of residence (12 months) but a larger share of the proceeds of sale of the home for Jason. Also relevant to note are the instructions recorded by the note-taker as to the $170,000 borrowing (about which I will say more in due course).

9. [20]

   A subsequent handwritten note on the file produced by the deceased’s solicitors, dated 13 November 2015, reads as follows:

10. [21]

    Pausing here, this note again attributes the $170,000 borrowing to Jason (specifically that it “is attributable to his debts” (my emphasis), not to any debts of the deceased).

11. [22]

    On a separate page there is a note dated 13 November 2015 of an attendance (seemingly a telephone attendance as it includes a telephone number) on which there are calculations which subtract $170,000 from $650,000 (leaving $480,000) and an apportionment (consistent with that for which the executed Will ultimately provided) of:

12. [23]

    A draft will (on which there are handwritten amendments including the addition of Gavin as an executor and the change to the length of the right of residence from 12 months to 3 years; as well as changes to the percentage share of residue for each of the siblings – there being no specific legacies provided for in that draft other than to Edan) is also in the subpoenaed documents. That draft included provision for there to be deducted from Jason’s percentage share of the residue the sum of $170,000 “or such other sum as is required to completely Discharge the Mortgage outstanding on the residence as at the date of its sale” (see at cl 7(c)(iv)). Two other drafts of the will are included in the subpoenaed documents but it is not necessary here to do more than note them.

13. [24]

    As at the date of the hearing, the assets of the deceased’s estate (see the affidavit affirmed 11 September 2018 of Marny in her capacity as executor) were estimated at around $697,048.42 (comprised largely of the Bolwarra Heights home with an estimated value of $695,000) and the unpaid liabilities of the estate (not including costs of these proceedings) totalled around $180,691.21 (of which the bulk is referable to the outstanding mortgage over the Bolwarra Heights property), leaving the net estate of $516,357.21 (see T 34.6-34.10). Jason’s total costs, to the conclusion of the proceedings, calculated on the ordinary basis, were estimated by his solicitor to be $65,000 (see the affidavit affirmed 13 August 2018 of Christine M Iwaszkiweicz) and the executors’ total costs, to the conclusion of the proceedings, calculated on the indemnity basis, were estimated by their solicitor to be $55,000 (see the affidavit affirmed 9 August 2018 of Nigel Peter Ross).

14. [25]

    Thus, assuming those costs are all paid out of the estate, the net distributable estate after payment of legal costs is estimated at $396,357.21 (see T 34.15) producing an obvious shortfall (assuming the home is sold for its estimated value) in respect of the legacies to be paid under the Will (which total $480,000) of around $80,000.

15. [26]

    Section 59 of the Succession Act empowers the Court to make a family provision order in relation to the estate of a deceased person if the Court is satisfied of the matters set out in s 59(1). Since there is no dispute that Jason is an eligible person, within the meaning of s 57(1)(c), for the purposes of s 59(1)(a), the relevant threshold question is thus whether I am satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made for Jason. The time at which the adequacy of provision is to be tested is the time the Court is considering the application (s 59(1)(c)).

16. [27]

    Assessment as to the adequacy of provision involves an assessment as to what level of provision was appropriate for the applicant, having regard to matters such as the applicant’s personal circumstances, the size and nature of the estate, the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate or competing claims upon the deceased’s testamentary bounty. It is not limited to an assessment of the applicant’s financial circumstances (Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA), [86] (White JA, McColl JA agreeing)).

17. [28]

    In determining the adequacy of provision regard is to be had to the impact of legal costs. In Foley v Ellis [2008] NSWCA 288, Basten JA said (at [10]):

18. [29]

    See also Gardiner v Gardiner [2014] NSWSC 435, where Robb J said (at [195]) (in the course of considering what provision should there be made):

19. [30]

    Similarly, in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 at [59], Hallen J said:

20. [31]

    If satisfied of the matters set out at s 59(1)(a)-(c) of the Succession Act, such that the power to make an order for family provision is enlivened, the Court may make such an order for provision out of the estate of the deceased as the Court thinks ought be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made (s 59(2)).

21. [32]

    Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining “whether to make a family provision order and the nature of any such order”. Those matters may be relevant to the question of inadequacy of provision (see Fulton v Fulton [2014] NSWSC 619, [309]-[311] and the authorities cited therein) as well as to the question (if the provision is found to be inadequate) whether, and if so what, order for provision should be made. Relevantly, the matters to which the Court may have regard include:

22. [33]

    It is not necessary here to revisit the debate in the authorities as to whether the same two-stage analysis as was engaged by the predecessor legislation (the Family Provision Act 1982 (NSW)), namely the test set out in Singer v Berghouse (1994) 181 CLR 201 at 210-11; [1994] HCA 40 (and approved in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11), continues to be applicable to applications for family provision orders under Ch 3 of the current Act (see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [6] (Allsop P, as his Honour then was); at [26] (Basten JA); at [82]-[86] (Barrett JA); Hogan v Hogan [2013] NSWSC 1405 at [80]-[91] (Hallen J)).

23. [34]

    In Sgro v Thompson, the Court of Appeal made clear that what is required by s 59(1)(c) is an evaluative judgment as to the adequacy of provision for the applicant’s proper maintenance, education or advancement in life having regard to all the relevant circumstances, not merely the parties’ financial circumstances; that inquiry including the taking account of matters such as the competing claims on the deceased’s testamentary bounty and the family circumstances (see White JA at [86], with whom McColl JA agreed; and Payne JA at [6]).

24. [35]

    Finally, it should be noted that it is incumbent on an applicant for provision to disclose to the Court as fully and as frankly as possible all details of his or her financial and material circumstances (see Collings v Vakas [2006] NSWSC 393 at [66]-[67] (Campbell J, as his Honour then was); Foye v Foye [2008] NSWSC 1305 at [14]-[15] (McLaughlin AsJ); Mann v Starkey [2008] NSWSC 263 at [25]; Estate of the late Anthony Marras (deceased) [2014] NSWSC 915 at [238] (Bergin CJ in Eq); and, more recently, Singh v Singh [2015] NSWSC 1457 at [152]-[154] (Black J); and my judgment in Leary v NSW Trustee and Guardian [2017] NSWSC 1113 at [53]).

25. [36]

    In Collings v Vakas, the application for family provision was dismissed in circumstances where a crucial element of the applicant’s financial situation (her income and expenditure) had not been satisfactorily proved. In that context, Campbell J said (at [67]):

26. [37]

    That observation resonates in the present case, where the defendants complain that the evidence as to Jason’s financial circumstances is incomplete (a matter to which I will return in due course).

Determination

1. [38]

   Before turning to the relevant matters referred to in s 60(2) of the Succession Act, I summarise the position as to the personal and financial circumstances of each of the deceased’s adult children.

2. [39]

   Jason, the youngest of the deceased’s three children, was born in 1971 (although in the course of oral submissions it was said by his Counsel that he is 57, that must be incorrect having regard to his year of birth – which is recorded in numerous of the medical records and consistent with the deceased’s death certificate). He is a single man; has never married; and has no children or other dependants.

3. [40]

   As adverted to earlier, Jason suffered a severe stroke in November 2007. He says that, before his stroke he was “a successful mortgage broker and ran [his] own company” (his affidavit affirmed 1 August 2018 at [10]). There is no dispute as to the fact that Jason suffered a stroke in 2007. There is, however, an issue raised by Counsel for the defendants as to the extent of Jason’s current disability (T 36.20ff). It is not disputed that Jason is “to some extent” still suffering the effects of that stroke. However, the defendants argue that the medical evidence (to which I will refer shortly) is piecemeal and vague. Jason’s case is that he has not recovered from the stroke (his affidavit sworn 27 April 2017 at [12]); that the stroke rendered him permanently disabled and that he still suffers from severe cognitive impairment. Reference was made, for example, by his Counsel in the course of oral submissions to Jason’s “mental disability, his cognitive dysfunction and his emotional instability” (T 5.43-5.44).

4. [41]

   Jason is currently in receipt of a disability support pension, which he deposes is his only income (of $967.45 per fortnight) – see Jason’s affidavit sworn 27 April 2017 (at [18]). He has deposed that he fully expends that income on living expenses and outgoings on the home (see [18] of that affidavit).

5. [42]

   Jason’s evidence is that about one week after he suffered his stroke in November 2007, he returned to reside in the family home; that about two weeks later his father died; and that about six months later he moved out of the home again (Jason’s affidavit sworn 27 April 2017 at [11]). He lived in rental accommodation for a period (see his affidavit affirmed 1 August 2018 at [11]-[12] in which he deposes that he “struggled with living independently” and that he “got kicked out of three rental properties where [he] was living due to disagreements [he] had with other people and where the Police got involved” and that the places where he could live was limited until he had “the required treatment” – quite what that treatment is said to have been is not clear). Counsel for Jason refers to this evidence for the submission that Jason’s “brain injury and loss of function have led to difficulties inter-relating with other persons in rental premises leading to a number of incidents involving the police” (supporting the submission that provision for Jason should involve him remaining at the Bolwarra Heights home or being provided with a sum with which he could acquire his own premises on the basis that he has difficulty living with other people).

6. [43]

   Jason deposes that in about 2010 he returned to reside with his mother again at the Bolwarra Heights home and he has resided there since – see Jason’s affidavit sworn 27 April 2017 at [12]; his affidavit affirmed 1 August 2018 at [14].

7. [44]

   Jason has deposed in his 27 April 2017 affidavit (at [13]) that after he moved back home and until his mother fell ill (in mid 2015) his mother cared for him, by cooking for him, washing his clothes, ensuring that he took his prescribed medications and arranging and driving him to his medical appointments. Jason deposed at [14] of that affidavit that after his mother had fallen ill, he cared for her until her death on 25 December 2015. In written submissions on this hearing it was said that he cared for his mother “until her death as best his own circumstances allowed”.

8. [45]

   I have adverted above to the medical evidence as to Jason’s disabilities, which comprised various letters from medical practitioners, discharge records and the like. There was no expert evidence adduced as to his current condition or future prognosis. In summary, Jason’s disabilities are identified as his cognitive disabilities; a vascular disorder; a disc herniation of the neck; and advanced lumber spinal disc degeneration. Reference is also made to an assessment in 2008 that Jason was at high suicide risk. I note the evidence as to those disabilities in turn.

9. [46]

   First, it would appear that the most disabling of Jason’s conditions (at least insofar as it affects his ability to work) is that which followed from his stroke – namely his cognitive disability.

10. [47]

    It appears from the medical history that Jason suffered from depression and was reported as having suicidal ideation in the year following his stroke. In evidence (annexure N to Jason’s affidavit affirmed 1 August 2018) there is a copy of a discharge report from James Fletcher Hospital relating to an admission on 6 November 2008 and there identifying current risks as “self harm”. This document refers to a review to the effect that Jason had “a chronic suicide risk that pre-dated the stroke and impaired social judgement”. As adverted to earlier, there was a report recording Jason as being a “high suicide risk” in 2008 (see report dated 23 October 2008 of John Hambridge, Senior Clinical Psychologist – annexure G to Jason’s affidavit affirmed 1 August 2018). There is, however, little later reference to any suicidal ideation other than as part of the history recorded in various other medical reports.

11. [48]

    As at 30 May 2011, Jason’s general practitioner, Dr Iain Stewart, referred Jason to a neuropsychiatrist (Dr Umesh Babu) for review (annexure G to Jason’s affidavit affirmed 1 August 2018). The history provided to Dr Babu was of “depression, hypercholesterolaemia, suicidal thoughts”. Dr Stewart noted in the referral that Jason: “still drinks to excess on occasions”; “still [has] limited insight on how to manage his poor organization”; was successfully on iamotrigene; was inconsistent in his monthly follow-up with Dr Stewart; and was not getting Centrelink payments due to poor organisation (CB 110).

12. [49]

    Dr Babu's provisional diagnosis (in his report dated 21 December 2011 – also part of annexure G) was as follows:

13. [50]

    Dr Babu advised in his report, under the heading “Treatment recommendations”, that “[y]our poor decision making is a result of stroke related brain changes; you are advised to take help of a trusted family member when having to make important decisions with finance, health, etc”. The report referred to a neuropsychological assessment to be carried out and a further review on 20 April 2011. I was unable to find any report as to that review, assuming that one was indeed carried out at that stage.

14. [51]

    The most recent report in evidence from Dr Stewart, Jason’s general practitioner, was a report dated 22 March 2017 addressed “[t]o whom it may concern” (see annexure A to Jason’s affidavit sworn 27 April 2017; a further copy being in annexure G to Jason’s affidavit affirmed 1 August 2018), in which Dr Stewart records that Jason suffered a “catastrophic cerebrovascular accident in November 2007”. Dr Stewart went on in that report to say that:

15. [52]

    Dr Stewart notes that “prior to that” (as I read it, he means prior to the stroke) Jason was not his patient and that at the time of his stroke Jason had a girlfriend in Sydney where he lived “and seemingly ran a successful finance company”.

16. [53]

    The history Dr Stewart there recorded listed: alcohol misuse, depression, hypercholesterolaemia, suicidal thoughts and “2007 Severe Cognitive impairment pos t cva”.

17. [54]

    It is not clear how much of the 22 March 2017 report (which was not tendered as an expert report and in respect of which Dr Stewart gave no acknowledgement of the kind required for the tendering of expert evidence) is based on personal observation or examination by Dr Stewart and how much is based on the history and background which Dr Stewart must have been given (presumably by Jason or others on his behalf).

18. [55]

    That is of some relevance when one comes to look at later documents in which it is clear that Dr Stewart is making observations on what must have been told to him by Jason. See, for example, the statements made in Dr Stewart’s letter dated 14 February 2018 to Dr Umesh Babu at Mater Mental Health Unit (part of annexure G to Jason’s 1 August 2018 affidavit) (in which Dr Stewart referred Jason for a “comprehensive assessment of his cognitive deficits so that grounds for ndis or other funding can be establishesd [sic]”) as follows:

19. [56]

    It is unclear on what basis Dr Stewart could have formed a conclusion about the “adversarial nature of the attitude of [Jason’s] siblings and the family estate” other than insofar as it can be inferred that this was by reference to whatever account of this was given to him by Jason (which, unsurprisingly, would seem likely to be one-sided). That said, confrontation between Jason and his siblings featured in the decision of the deceased’s solicitors to renounce probate (as referred to above) and in various of the communications noted in the solicitors’ file (both from Jason and from other family members) (see Exhibit 4).

20. [57]

    In any event, it is not disputed that Jason suffered a severe stroke in 2007 and that since then he has not been in employment (and is in receipt of disability benefits that are presumably based on him being unable to continue to work – having regard to the reports of his medical practitioners – see the inquiry made by Disability Advocacy to his general practitioner, for example annexure O to Jason’s 1 August 2018 affidavit).

21. [58]

    Second, the vascular disorder to which Counsel for Jason has referred is the existence of a “patent foramen ovale” (or open vein) which might require treatment in future. It appears that this was noted at the time of assessment of Jason after his stroke – see the letter dated 17 December 2007 from Dr Penelope Adams referring Jason to Dr Parsons at John Hunter Hospital (annexure H to Jason’s 1 August 2018 affidavit). Jason has deposed (at [80] of his 1 August 2018 affidavit) that he is currently in the care of a cardiologist due to this condition; and that he is “to have a heart operation, which will be performed by Dr Nicholas Collins”, without which operation he is at risk of another stroke “having already been admitted to hospital numerous times with shortness of breath and chest pain”.

22. [59]

    However, a report dated 27 July 2017 from the specialist to whom Jason there refers, Dr Nicholas Collins, was in evidence (annexure H to Jason’s 1 August 2018 affidavit). Dr Collins, who is a staff specialist in the cardiovascular department at John Hunter Hospital, there notes that Jason “has not had any further symptoms of stroke or transient cerebral ischaemia”. As to the patent foramen ovale, after referring to a lack of randomised data as to potential risks and benefits, and potential procedural complications, Dr Collins said that he agreed that “device closure would be reasonable, given his [Jason’s] young age, however I am certainly reassured by his lack of symptoms in the long term on medical therapy”; and Dr Collins indicates that he will “liaise should Jason elect to proceed to device closure”.

23. [60]

    At most, Dr Collins’ report establishes a potential need for surgery in the future; not any pressing need for it in the immediate future. There is nothing in the material annexed to Jason’s 1 August 2018 affidavit to suggest that such an operation is inevitable or imminent. Hence, Jason’s affidavit appears to overstate the current position.

24. [61]

    Third, as to the disc herniation and spinal disc degeneration, there are in evidence medical reports in 2002 (prior to the stroke) in relation to Jason’s cervical spine, recording a disc herniation (noting spontaneous onset of neck pain and upper limb pain and muscle wasting) (annexure I to Jason’s 1 August 2018 affidavit); and there are later reports of disc degeneration in relation to the lumbar spine in 2014 (see annexure J to Jason’s 1 August 2018 affidavit). As at March 2015, the recommendation in relation to the spinal degeneration (as Jason was “only mildly symptomatic” at that stage) was an exercise programme, simple analgesics and anti-inflammatories as and when needed (see annexure J to Jason’s 1 August 2018 affidavit). In a report dated 13 November 2014 from his orthopaedic surgeon to his general practitioner, reference was made to Jason being “excessively concerned and preoccupied” with obtaining an MRI scan “as someone [had] told him it’s good for ruling out cancer” (see annexure J to Jason’s 1 August 2018 affidavit).

25. [62]

    Jason has deposed (see his 1 August 2018 affidavit at [81]-[82]) that he suffers constant neck, arm and nerve pain requiring ongoing pain medication from the disc herniation and bulging disc; and that he is intermittently unable to walk and requires crutches to walk due to degenerative arthritis and disc degeneration in his lumbar spine, causing pain to his lower back, buttocks, legs and feet.

26. [63]

    Jason has deposed to various other ailments and conditions (see [83]-[91] of his 1 August 2018 affidavit), a number of which date back for some time, and says that he would benefit from having a live-in carer to assist him managing all his long term medical conditions ([93] of that affidavit).

27. [64]

    From the above it can be concluded that Jason may have a preoccupation as to his health conditions and a tendency to overstate the need for treatment but nevertheless that he has a number of disabilities and it is unlikely that he will be able to return to any form of paid employment.

28. [65]

    At this point it is also relevant to record that Jason was cross-examined in the course of the hearing and that he consistently responded to questions as to his financial circumstances (both before and after his mother’s death) by reference to his inability to deal with such matters following his stroke. My observation of Jason in the witness box was that he did not display great mental acuity and that he struggled at times to follow the questioning, which is consistent with ongoing cognitive disabilities. I would readily accept that he suffers from ongoing cognitive disabilities. (What that says about the reliance I can place on his affidavit evidence is, however, another matter – to which I refer shortly.)

29. [66]

    Marny suffered a number of severe injuries following a catastrophic accident in London in December 1996, which resulted in an above knee amputation of her left leg, a brain injury which required surgery, two collapsed lungs, five broken discs in her back, and severe damage to her right leg (see her affidavit affirmed 15 August 2017 at [4]). Marny continues to suffer pain and takes pain medication on average 3 times each week (with occasional spinal blocks for pain in her back) (see affidavit at [9]). She has deposed that as a result of her injuries she requires significant support in her everyday life. She is in receipt of support from the National Disability Insurance Agency which assists her to pay for house cleaning and yard maintenance and also allows her a mobility allowance to travel to work or appointments as she is unable to travel by public transport (see [6]). She has a prosthetic left leg, which needs to be replaced every five years and is due next to be replaced (at a cost of in the range of $55,000-$60,000) some time next year (see [14]).

30. [67]

    Marny has deposed that the prognosis for her future needs is extensive and that she has been advised that, as a result of her brain injury and resultant surgery, she is likely to suffer from early onset dementia or Alzheimer's disease, and has an increased risk of stroke ([7]). She has been advised that due to the injuries to her back and legs she will at some time become permanently wheelchair bound ([8]).

31. [68]

    Despite her disability, Marny works 2-3 days each week as a registered nurse and earns $2,900 per month (which includes her NDIS allowance). She is uncertain how long she will be able to continue to work in her profession due to her various health issues ([11]).

32. [69]

    Marny’s main asset is her home at East Maitland, which is encumbered by a mortgage of $100,000. She has deposed that her current expenses are greater than her income as a result of which she has had to extend the loan secured on that property to meet her living and health expenses. The details of her current expenditure do not include an allowance for other expenses such as the purchase of replacement wheelchairs. Aside from the East Maitland property, Marny has an entitlement to superannuation valued at $180,000; and negligible other assets. As at 15 August 2017, the net value of Marny’s assets was $544,600; and her monthly expenditure of $3,630 exceeded her income of $2,900 (see Marny’s affidavit affirmed 15 August 2017, Annexures A and B).

33. [70]

    It is accepted by Jason that Marny suffered a “particularly tragic incident” leaving her with permanent disabilities and needs but it is submitted that, while Marny has suffered significant injuries and disabilities, Jason is “an invalid pensioner of limited means” whereas Marny’s financial circumstances are better than those of Jason.

34. [71]

    Gavin is an engineer by occupation. He earns $9,700 per month (see annexure B to his affidavit affirmed 28 August 2017, and his affidavit affirmed 17 January 2018 at [3]). He lives at a rental property in Paddington, which he sub-lets to supplement his income. Gavin’s main asset is a property in Thornton valued at $750,000. That property is encumbered by a mortgage of $605,000 (the monthly repayments for which are $4,333, whilst Gavin’s total income from that rental and the sub-rental is $5,130 per month) (see Gavin’s affidavit affirmed 28 August 2017, Annexure B). He also has a credit card debt of $4,800. Gavin has superannuation of $200,000, but little in the way of other assets (a car estimated at $1,000 and furniture furnishings and personal chattels estimated at $5,000). He has deposed that he requires dental work at a cost of approximately $2,000 and new glasses at a cost of approximately $500 which he is unable to afford ([6] of his 28 August 2017 affidavit). He has deposed that he currently supports his son financially by paying for his food as he is a full time student at the University of Technology ([4]) and that there are currently a number of maintenance issues at the Thornton property which require attention which he is unable to afford ([5]).

35. [72]

    Jason submits that Gavin’s personal and financial circumstances are significantly better than his own noting that Gavin’s net assets were valued as at 28 August 2017 as in the order of $609,800 (referring to Gavin’s affidavit affirmed 28 August 2017 at Annexure A).

36. [73]

    Turning to address the relevant matters referred in s 60(2) of the Succession Act, I note the following.

37. [74]

    Jason’s evidence is that he had a very good relationship with the deceased (see his affidavit sworn 27 April 2017 at [7]), noting that he was the last child to leave home (at the age of 21) (perhaps not altogether surprising as he was the youngest child but then again the three siblings were relatively close in age with only about 2 years between each of the three children).

38. [75]

    Marny, in her affidavit, takes issue with the proposition that Jason had a very good relationship with the deceased. She deposes that “Jason was a source of great distress” to their mother and “was very abusive towards her” including by raising his voice towards the deceased and by using threats of self harm to convince the deceased to do what he wanted (see [4]-[5]; [8]-[9] of her affidavit affirmed 23 May 2017). She estimated that in the period between 2010 and the deceased’s death on 25 December 2015, Jason spent approximately 18 months living at the family home ([15]).

39. [76]

    Marny was not challenged on the matters to which she deposed in her affidavit but Jason clearly takes issue with the proposition that he did not have a good relationship with his mother. He adduced evidence from a friend of his (Ms Kaisa Schubel) as to her observations of Jason and his relationship with his mother when he was living with her. She deposed that the deceased was Jason’s “carer/guardian” at the time when she first met Jason (five years earlier than the time of the affidavit – that is, apparently, in 2013) (see her affidavit affirmed 30 July 2018 at [2]). Ms Schubel takes issue with Marny’s allegations as to “Jason abusing his mother, withholding medication, getting drunk” and that the deceased was scared of him; saying, apparently by reference to the time she spent as a guest in the house, that “[n]ot once did [Jason] get drunk or abuse his mother” and that “[w]hile staying at Robyn’s house, I could witness that [the deceased] did not show any fear of Jason as alleged” (see [7]). Apart from the generality of this evidence, it appears to be based on observations during one six week stay and then on the accounts given to her by Jason in Skype phone conversations after she had returned to Germany. At least in relation to the denial of Jason “getting drunk” (she says not once during her stay did Jason “get drunk or abuse his mother”), this must be balanced against the medical reports that do make references to Jason’s alcohol intake at least in the period after his stroke.

40. [77]

    That said, what is most relevant to note here is that the deceased herself recognised that Jason had a claim on her testamentary bounty. It is clear that the deceased was concerned to make provision for his welfare after her death.

41. [78]

    It may be accepted that each of the deceased’s three children was a natural object of her testamentary bounty. There is no evidence to suggest any obligation of the deceased beyond a moral obligation to her children. Although Jason deposes that the deceased told him that “the house will become yours after I pass away” and that he “thought that [he] was paying the mortgage to help safeguard Mum’s quality of life and also in part to safeguard [his] future right of occupation there” (see Jason’s affidavit of 1 August 2018 at [24]) there is no claim based on contract, estoppel or otherwise in that regard and in any event, as I will explain in due course, I cannot accept Jason’s evidence that he made “every repayment” in respect of the loans drawn down on the security of the property (see his affidavit at [18]). Moreover, the contention at paragraph [24] faces the problem that I have concluded that the original advances under those loans were applied to discharge debts owed by Jason (see below at [92]-[106]).

42. [79]

    I have outlined above the nature and extent of the deceased’s estate. It is a relatively small estate, the principal asset of which is the Bolwarra Heights home. Nothing has been identified as having the potential to be designated as notional estate.

43. [80]

    The financial resources of each of the three children have been set out in summary above.

44. [81]

    It is relevant to note, in relation to Jason, that the evidence as to his current financial position appears to be incomplete. Jason deposed only that, as at 27 April 2017, he had $300 in a bank account in his name. Annexed to his 27 April 2017 affidavit (but for the purpose of evidencing mortgage repayments which he said he had made – as to which, see below at [93]ff) were a set of bank statements for an account in his name with the ANZ between the period from December 2013 to February 2016 the balance of which varied between $100 and $1,000.

45. [82]

    In cross-examination, Jason was taken to a number of statements of a bank account operated by a company called Breathe Easy Pty Ltd (T 9.26) for the purpose of showing that those accounts were used to make mortgage repayments prior to August 2013. As at February 2014, that account had a balance of approximately $27,000 (Exhibit 2). Jason did not make reference to that account in his affidavit evidence. Jason confirmed that Breathe Easy Pty Limited “was [his] company” (T 9.21) and that he did “consulting, mortgage broking”. When asked whether the company operated a bank account, Jason said “I had a few” (T 9.27). Asked whether the company operated a credit card, he said (at T 10.8-10.12):

46. [83]

    For the defendants, the submission was that it would be difficult to make any order for payment of a small additional sum for further provision on a principled and evidentiary basis given the paucity of the financial disclosure by Jason.

47. [84]

    What is apparent from the material that Jason has adduced in evidence is that he is on a disability pension (which I am told is means tested); he has no apparent assets of note and no superannuation; he is unlikely to be able (or, perhaps, inclined – if one has regard to statements attributed to him by Marny) to obtain work in the future; he maintains that he has a bad credit rating and poor social skills (relevant to whether he could easily find rental accommodation); and he has a number of disabilities or medical issues.

48. [85]

    As to the financial resources and needs of Marny, she has significant medical issues and her long-term prospects in employment are affected by those issues. She does have superannuation and owns her own home but the equity in the home is not extensive and her income (through her earnings and her more limited disability pension) is insufficient to meet her expenditure.

49. [86]

    Gavin is in the most financially secure position as he has employment and his own home, as well as superannuation. However, he is also in the position where his expenditure currently exceeds his income and he is assisting his son financially while his son is at university.

50. [87]

    None of the children can be said to be affluent. Each has financial needs to varying degrees (and both Jason and Marny have medical needs).

51. [88]

    I am troubled by the fact that there is not a complete picture of Jason’s present financial circumstances by reference to any current bank account statements but, not without some hesitation, I have concluded that there is a sufficiently broad picture of his current assets by reference to the fact that he is currently in receipt of a means-tested disability pension; and there is nothing to suggest that before the deceased’s death he had financial assets the whereabouts of which is now not known. Rather, the evidence is to the effect that he had considerable financial debts (whether associated with his previous business or not) which was what led to the deceased taking out loans totalling $170,000 secured on the Bowarra Heights home. Whether he has any superannuation referable to the time at which he was self-employed as a mortgage broker is not known. However, (as I say, with some hesitation) I consider that there is a sufficiently broad picture of his assets and liabilities not to dismiss the claim on this basis alone.

52. [89]

    This is not applicable.

53. [90]

    I have referred above to the disabilities from which each of Jason and Marny suffers. While the extent of Jason’s medical conditions (such as his vascular disorder or the disc degeneration) seems to have been exaggerated in his affidavit, it remains the case that he has various conditions some or all of which may lead to costs in the future and, while the extent of his cognitive disability is not clear, it is obvious that he is continuing to suffer problems arising from his stroke. Both Jason and Marny are on disability support pensions by reference to their different medical conditions.

54. [91]

    This has been noted earlier. Jason is 47.

55. [92]

    The extent of any contribution by Jason to the deceased’s estate is disputed and was the subject of his cross-examination.

56. [93]

    Relevantly, Jason deposed in his 1 August 2018 affidavit that his mother had borrowed money from the bank in 2009, although he “[didn’t] really know what she did with all the money”; and that he had made every repayment and that “Mum did not pay the loans at all” (see [14]-[18]). He annexed copies of various ANZ bank statements from 16 October 2013 to 16 February 2016 said to show the history of repayments made from his personal account to his mother’s offset account from which mortgage repayments were made; and deposed that he had made more payments than what were there shown but had only been able to download statements over those three years.

57. [94]

    Those statements in his affidavit were demonstrably incorrect. To explain this it is useful to start with Jason’s affidavit evidence. He deposed that:

58. [95]

    There are a number of points to make about the above affidavit evidence.

59. [96]

    First, when challenged on the above evidence in cross-examination, Jason’s response was to the effect that his mother made all the decisions after his stroke and he did not know what had happened. That may well be the case (and would be consistent with the extent of what he claims are his cognitive disabilities) but if so there is no basis on which Jason could properly have deposed to his financial position in the terms that he did in his 1 August 2018 affidavit. His evidence in the witness box, which I accept, is that he simply does not know what the position was in relation to the payment of moneys after his stroke. I can only assume that the affidavit was drafted for Jason based on someone else’s analysis of the bank statements (though, if so, that analysis was sadly deficient, as I will explain shortly) or on the basis of assertions made by Jason that do not withstand analysis.

60. [97]

    Second, there is no evidence to support the assertion that the bank loans in question were taken out by the deceased “because she was struggling financially to pay big bills that she had incurred”. Rather, the evidence strongly suggests that the loans were taken out in order to assist in the payment of debts owing by Jason. Certainly, the instructions given by the deceased to her solicitors in August to November 2015 are inconsistent with Jason’s assertion that the ANZ loan was for his mother’s benefit (rather than to pay off his debts) (see above at [20]). In the witness box, Jason made reference on a number of occasions to a statutory declaration by his mother as to the purpose of the loans. No such statutory declaration was in evidence.

61. [98]

    The characterisation of the $170,000 loan(s) that were given to the deceased’s solicitors by the deceased is consistent with Marny’s account (in her affidavit affirmed 23 May 2017 at [10]) of being present at conversations in 2009 where Jason pressed his mother to take out a loan:

62. [99]

    Third, whether or not Jason pressured the deceased to take out the ANZ loans (as Marny attests) there was no evidence that any of the amounts drawn down were applied to any home renovations or the like.

63. [100]

    Fourth, the bank statements annexed to Jason’s affidavit do not support the contention that he made every repayment; as was demonstrated through the analysis of the (incomplete) bank statements that were in evidence and to which Jason was taken in cross-examination.

64. [101]

    Jason was taken in cross-examination to various entries in bank statements from a business account in the name of Breathe Easy Pty Limited (an account ending in the digits 5476) and to entries in his credit card account (an account ending in the digits 6284) (and to two accounts of the deceased, ending in the digits 8725 and 8717 respectively) for the proposition (ultimately put to him at T 16.9-16.23) that $62,540 was transferred into his business account from the deceased’s accounts between December 2009 and July 2013 and from those same two accounts of the deceased the sum of $11,605 was paid into his credit card account between December 2009 and November 2012; and hence that (contrary to what was said in his affidavit) he knew precisely what had happened to at least $74,000 of the proceeds of loan because it had been transferred to him. Jason’s denial of this proposition was to say that he had more money than that and he had other debts (T 16.25) and ultimately that he did not know because his mother did everything (T 16.29; T 16.46).

65. [102]

    The flavour of this cross-examination can be seen from the following exchanges (commencing at T 12.10ff):

66. [103]

    As noted earlier, there was no statutory declaration made by the deceased in evidence. Jason had with him in the witness box a folder of documents to which he started to make reference at one stage during the cross-examination and his Counsel asked that those be removed from the witness box. I can only assume that if there was indeed a statutory declaration then a forensic decision was made not to adduce it in evidence. Moreover, to the extent that any other relevant bank statements may have been in the folder I would draw the same conclusion.

67. [104]

    Whatever may be the case as to Jason’s lack of recollection in the witness box, the bank statements themselves demonstrate that transfers of not insignificant funds from his mother’s accounts to either his company business account or his credit card account occurred after the deceased drew down on the loans obtained from ANZ – which makes difficult to accept the proposition that the loans were not for Jason’s benefit. His consistent assertion in the witness box that he did not do anything and that his mother managed his finances, taken with what can be drawn from the bank statements that were in evidence, belies the proposition that he personally made every repayment of the loans. Either he did not know what was happening and left everything to his mother (in which case his affidavit evidence is his or someone else’s reconstruction of events) or his evidence in the witness box cannot be accepted. Clearly, the bank statements are inconsistent with his affidavit evidence.

68. [105]

    Suffice it to say that by the conclusion of the cross-examination I had formed the view that the matters set out in Jason’s affidavit as to financial details were unreliable and that that affidavit did not set out his actual recollection.

69. [106]

    I find, on the balance of probabilities, that the loans totalling $170,000 were taken out by the deceased in order to meet debts incurred by Jason (including, it would seem from the instructions she gave to her solicitors, debts in relation to Court cases in which he was involved) and largely if not wholly applied for that purpose.

70. [107]

    The fact that since his mother’s death Jason has met the mortgage repayments does not constitute a contribution to the estate, since that was a condition of his right of residence under the Will.

71. [108]

    The conclusion reached above as to the application of the $170,000 loans is relevant to this factor, in that what is clear is that there was substantial provision made to Jason during the deceased’s lifetime by reason of the taking out of these loans. There is still a significant amount owing under the loans, and they will be borne by the estate.

72. [109]

    Jason thus has already received substantial financial support from the deceased. He also received support from her in terms of the care she afforded him when he suffered his stroke (to which he deposed in his affidavit) and in the provision of accommodation from 2010 (albeit that it is accepted that some recompense for that was provided by some of Jason’s pension payments being applied to his mother’s offset account).

73. [110]

    Marny similarly received moral care and support at the time of her accident in London (the deceased travelling to London to care for her at that time), though there is no evidence of any financial support then or in the years leading up to the deceased’s death.

74. [111]

    The evidence of the deceased’s testamentary intentions can most clearly be drawn from the material in Exhibit 4, which records her instructions in relation to the draft wills (see above at [14]ff). It is clear that the deceased wished to make provision for each of her children; that she took into account that Jason would not be able to work due to his stroke; that Marny was in need of provision; and that their needs should be balanced with the making of some provision for Gavin and for her grandson, Edan.

75. [112]

    As to the other evidence of the deceased’s testamentary intentions, Jason has deposed to conversations with his mother in relation to her wanting to leave him the whole of the house ([13] of his 1 August 2018 affidavit) and stating that the house would be his when she passed away ([24]); and has deposed that Marny and Gavin put pressure on his mother to change her will (see [27]ff). He also has made allegations as to Marny giving his mother extra medication “and trying to get Mum to go with her to change the Will when she wasn’t so coherent” (see [49]ff). I cannot place any weight on that evidence. Apart from the fact that Jason was shown to be a wholly unreliable witness in his account of other aspects of this matter (the financial aspects of the matter), the suggestion that his mother was pressured to change her will and/or might not have been coherent when she made her final will is inconsistent with the material on the solicitors’ file which makes it clear that the deceased took care in weighing the claims against her testamentary bounty cognisant of the size of the estate.

76. [113]

    I reject the proposition that the deceased’s intention (somehow overborne by Marny or Gavin) as at late 2015 was that Jason should have the whole of the Bolwarra Heights house or an indefinite right to reside therein after her death.

77. [114]

    To some extent Jason was being maintained by his mother in the period prior to her death (after he had moved back in with her following his stroke). The reason for that appears to have been so that his mother could care for him in circumstances where he had encountered difficulties living in rental accommodation with other people after his stroke and financial difficulties due to his business debts.

78. [115]

    There is no other person who is liable to support Jason. I do note, however, that he is in receipt of a national disability support pension and it might be expected that he will continue to receive support and benefits through that scheme.

79. [116]

    I have referred above to the allegations by Marny to the effect that Jason was abusive to and manipulative of their mother before her death. I make no finding in that regard, save to note that it is no doubt the case that the deceased would have been distressed at Jason’s stroke and some of the sequelae from that stroke (as, no doubt, she would earlier have been distressed at the accident suffered by Marny in London).

80. [117]

    After the death of the deceased, there have been ongoing confrontations between the siblings as noted earlier. Jason’s 1 August 2018 affidavit contains a litany of allegations against his siblings (including: that before the deceased had even died they ransacked his and the deceased’s rooms and stole all his and his mother’s paperwork – [57]; that they started taking the deceased’s rings and jewellery off her “not even giving Mum the dignity of waiting for her to pass away” – [57]; that Gavin assaulted him – [58]; that they started a campaign to intimidate him out of the house – [58]; that they started stealing his and his mother’s belongings – [58]; that Marny cancelled his home phone and internet to isolate him “knowing [he] can’t put on the internet or phone because of [his ] bad credit after suffering a stroke” – [59]; that they took the food out of the fridge and cupboard – [60]; that they stole all his belongings and all his mother’s belongings (“only leaving things without value or were too big to transport”, even stealing his clothes leaving him with nothing to wear and stealing only one of every pair of shoes he owned, throwing the rest out in the rain – [61]); that they stole approximately $123,000 of his personal belongings from socks to computers and about $110,000 worth of property from his mother – [62]; that they redirected his mail and would take it from the letter box – [64]; that they cut access to his banking – [66]; that they cancelled the house and contents insurance and threatened to burn down the house – [67]; that they cancelled the electricity, turned off the water tap; and switched the air conditioner off ([68]-[69]); that they “constantly try and disrupt [his] life by making it hell” ([71]); that they isolated him from his mother’s friends and family by slandering him and telling lies about him ([74]); and that Gavin sabotaged and split the fuel tank in the deceased’s Citroen car so it could not be registered anymore and cannot be sold ([75]).

81. [118]

    Similar allegations were made by Jason to the deceased’s solicitors (see his email communications to them in Exhibit 4); and it appears from his evidence and the deceased’s solicitors’ notes that AVO applications were made by him against his siblings. At least one consequence of the ongoing confrontations seems to have been that the solicitors were not prepared to continue as executors.

82. [119]

    It is impossible, and would be inappropriate given the tenor of some of the allegations, to make any finding as to those allegations – the proceedings before me did not lend themselves to an exploration of those (largely peripheral) allegations and Counsel for both sides sensibly focussed on the central issues for determination, having regard to the small size of the estate and the concern as to the incurring of unnecessary costs. For present purposes it is sufficient to note that the allegations were made.

83. [120]

    Clearly, Jason regards the Bolwarra Heights house as his home (referring to it in his first affidavit throughout as “my home”); indeed the account given to Dr Stewart (noted in his 22 March 2017 “to whom it may concern” letter) seems to have been of an “adversarial attitude” on the part of the siblings . Whatever the rights and wrongs of the interactions between the siblings after his mother’s death, it seems apparent from the deceased’s solicitors notes that Jason has reacted adversely to any suggestion that he may not be entitled to remain in the home – and I would infer (as his Counsel accepted it might be inferred) that he has taken no steps to take advantage of the three year period afforded to him under the Will in order to arrange his affairs so as to be in a position to secure suitable alternative accommodation in a timely fashion and make use of the full extent of the legacy his mother left him. That is unfortunate but, as Counsel for the defendants noted, the result is that in a very real sense Jason has been the author of his current misfortune.

84. [121]

    The only relevant conduct in this regard would be that of Marny and Gavin.

85. [122]

    As to Marny, there is a dispute between her and Jason as to the assistance rendered by Marny to her mother before her death (and I have referred above to the allegations made by Jason as to Marny’s conduct before and after her mother’s death). As to Gavin, the allegation by Jason is that Gavin only visited his mother once when she had cancer (and flew over from Western Australia to do so in order to pressure his mother to change her will) – see his 1 August 2018 affidavit at [30]; though he then said that Gavin saw their mother on the days before she died on 25 December 2015 ([31]).

86. [123]

    Jason says that his mother was “distraught, crying, depressed, scared, exhausted and told [him] that she had confusing feelings with how Gavin and Marny where [sic] behaving towards her” ([32]). He has deposed to a conversation between the deceased and a solicitor, Ms Chadwick (from Hulin Chadwick Lawyers), (who the deceased had consulted in relation to the Will and a power of attorney made in late 2015), in which he says the deceased said that she was “worried about how badly Marny has been behaving towards Jason and is unwarrantedly jealous” and that she, the deceased, had been estranged from Gavin over the last eighteen months and Gavin and the deceased did not have a mother and son relationship (see [33]-[36] of his 1 August 2018 affidavit). There is no note of any such conversation on the deceased’s solicitors’ file.

87. [124]

    Jason asserts that on the basis of conversations to which he has deposed (at [37]-[39]) that his mother “did not trust Gavin to do the right thing by her health and make decisions for her in her best interest” and that his mother and Gavin did not have a close relationship and Gavin was not interested in their mother’s day-to-day rehabilitation and treatment. Again, I treat this evidence with caution. There is clearly animosity between the two brothers (having regard to the nature of the allegations made by Jason against Gavin).

88. [125]

    What is relevant is to note (as I have said before) that the deceased was obviously intent on ensuring that each of her children received a benefit from her estate. The clause ensuring precedence of payment of the legacies to Marny and Gavin (after allowing Jason a three year right of residence in the home) makes that clear.

89. [126]

    The matter of most relevance in this context is that to which I have already referred – the obstacle placed on Jason’s fervent desire to stay in the Bolwarra Heights home by the need for the estate to be placed in funds in order to meet expenses referable to the home and the legal costs of the proceedings.

Submissions for Jason

1. [127]

   Jason acknowledges that this is a small estate. Reference is made to what was said by Hallen AsJ, as his Honour then was, in Faulkner v McLeod [2011] NSWSC 92 (at [64]) namely that:

2. [128]

   It is submitted for Jason that the present circumstances are out of those ordinarily in the contemplation of community expectations and that he should be permitted to reside for a much longer period in the family home or be provided with a greater legacy from his mother’s estate (and that his legacy should not abate if there is insufficient in the residue to meet the legacies to Marny and Gavin).

Defendants’ submissions

1. [129]

   It is submitted for the defendants that the deceased made substantial provision for Jason in her Will (and comparatively more than any other beneficiary); namely by leaving to him her motor vehicle, her household furniture and furnishings, a right to reside at the property for 3 years (subject to payment of outgoings and the mortgage), a legacy of $210,000, and a one-third share of the residue of the estate. The defendants maintain that had these proceedings not been commenced, Jason would have received, at the conclusion of his right of residence, a lump sum in the order of $230,000 (more than Marny, who would have received a lump sum in the order of $175,000, and Gavin, who would have received a lump sum in the order of $120,000).

2. [130]

   The defendants argue that it can be inferred from the face of the Will that the deceased’s division of her assets was the product of considerable thought; and that the deceased had carefully weighed and considered the respective circumstances of each of her children.

3. [131]

   It is submitted that, in the context of a small estate, the deceased admirably balanced the competing needs of her respective children and her moral obligation towards each of them; and that the present is a case where “respect should be given to a capable testator’s judgment as to who should benefit from the estate” (citing Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] per White J, as his Honour then was).

4. [132]

   Even if Jason’s evidence as to the nature of his relationship with the deceased (which is disputed) were to be accepted, the defendants submit that Jason’s proposal for the division of the deceased’s estate whereby he be given an entitlement to remain living at the property is neither feasible nor realistic for the following reasons: first, that Jason at the time of the hearing was in arrears with the mortgage repayments and had failed to pay Council and water rates; and, second, in addition to the mortgage, the estate has other liabilities in excess of $10,000 as well as the costs of these proceedings and there are no assets apart from the property that can be used to pay these liabilities.

5. [133]

   It is noted that there is no obligation on a parent to provide his or her child with unencumbered accommodation, or to allow that child to remain in the family home; and that this is particularly so here, where the estate is modest; Jason lived with the deceased for a comparatively short period of time; and the other beneficiaries have significant competing claims. The defendants argue that the Court should be slow to embrace the application for additional provision where that will necessarily reduce the provision for competing beneficiaries who have real and compelling needs.

Conclusion

1. [134]

   As noted earlier, I am troubled by the incomplete nature of the evidence put forward as to Jason’s financial circumstances but I am prepared to accept that he does not have substantial assets and that he is in a position of not insignificant need due to his disabilities (the extent of which appears to be somewhat exaggerated in his affidavit evidence but which nevertheless involve a level of cognitive disability likely to make it difficult, if not impossible, for him to return to paid employment).

2. [135]

   However, taking into account all of the material before me, I am not satisfied that, considered at the time of this application, the deceased’s Will does not make adequate provision for the proper maintenance and advancement in life of Jason.

3. [136]

   To the contrary, the Will gave to Jason the benefit of a significant time to remain in occupation of the principal asset of the estate (thus deferring the receipt by his siblings of their inheritance), namely three years, within which time Jason could have made arrangements to locate and acquire a suitable property (albeit perhaps no more than a small one-bedroom unit) out of the legacy that he was to receive under the Will (of $210,000 plus a one-third share of residue) or to have obtained suitable rental accommodation (perhaps with the assistance of his disability advocates). I accept that (depending on the cost of any property he might have been able to acquire) this may not have left him with a large fund out of which to meet any contingencies for the future but it would have provided him with security of accommodation and, again, it seems likely that he would still have had (and will have) the assistance of government assistance through the national disability insurance scheme. Relevantly, Jason has also had the benefit of the $170,000 loans drawn down for his benefit during the deceased’s lifetime (the repayment of the outstanding balance of which will be borne by the estate – and hence, effectively, by a reduction in the amount available to his siblings under the Will insofar as it depletes any residue that would otherwise be available for them to share).

4. [137]

   The deceased gave to Marny a substantial legacy of $155,000 consistent with her significant needs arising out of her physical disabilities. The defendants submitted that it was “somewhat surprising” that Marny received a lesser legacy than Jason in circumstances where her health needs are at least as significant as those of Jason (and likely more significant). Whether or not that be the case, what is relevant is that the deceased clearly recognised that Marny was in need of a substantial share of the estate in order to meet her needs.

5. [138]

   As to the legacy left to Gavin ($100,000), it is not disputed that Gavin is in a stronger financial position than both Jason and Marny, but that was obviously taken into account by the deceased in the manner in which she structured the Will. Little need be said about the legacy to the deceased’s grandson (of $15,000), which is consistent with a desire to assist him in life but which was not given precedence in payment over the legacy to Jason.

6. [139]

   The position, now, of course, is that under the terms of the Will (assuming all costs of these proceedings are paid out of the estate), Jason’s legacy will be reduced (on my calculations to about $141,357.21, i.e., $396,357.21 less the amounts payable to Marny ($155,000) and Gavin ($100,000), which will abate proportionately with the $15,000 legacy to Edan, depending on the extent of the shortfall). However, that still provides him with a substantial sum (though it may not be sufficient to enable him to purchase his own home) as a buffer for contingencies in life.

7. [140]

   In the circumstances, I do not accept the proposition put for Jason to the effect that the provision made for him under the Will is out of kilter with community expectations (i.e., that being founded on the submission that the present circumstances are out of those ordinarily in the contemplation of community expectations). Faced with a small estate and three adult children of whom two have significant needs and one (though not so needy) is also currently struggling to manage his expenditure within his income while also assisting his son, the deceased in my opinion carefully balanced the competing claims on her testamentary bounty and cannot be said to have made inadequate provision for Jason by also seeking to provide for his siblings out of her estate.

8. [141]

   It has been recognised in a number of cases that it has never been intended by the legislature that freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his or her Will should have only prima facie effect, the real dispositive power being vested in the Court. See Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 (although in the context of the former Queensland testator’s family maintenance legislation) where Dixon CJ (with whom McTiernan J agreed) said (at 19):

9. [142]

   In Slack v Rogan, to which I have earlier referred, White J said (at [127]):

10. [143]

    In Sgro v Thompson, White JA (with whom each of McColl JA and Payne JA agreed) said (at [86]):

11. [144]

    I accept that in Taylor v Farrugia [2009] NSWSC 801, Brereton J (as his Honour then was) said (at [58]) that:

12. [145]

    However, in the present case, the unfortunate reality is that there are not sufficient assets available to make provision of the kind that Jason here seeks (in part at least due to his own conduct in pursuing the claim which has led to the legal costs noted above). I am not persuaded that the deceased, in making the substantial provision that she did for Jason in her Will, failed to make “proper” provision for his maintenance and advancement in life.

13. [146]

    Accordingly, I would dismiss Jason’s claim on the basis that the threshold question has not been satisfied. Were I to have been of the contrary opinion, the difficulty which would then have arisen would have been how to make adequate provision for him in the present circumstances. It is clear that he cannot be provided with a life interest in the Bolwarra Heights home as that would leave the estate with no assets out of which to pay the current debts. Nor would allowing Jason to continue to reside for a longer period in the family home be appropriate in circumstances where he has already defaulted in payment of moneys in respect of the property thus exposing the estate to further debt and where there is no basis on which I could be satisfied on the material before me that such default would not be repeated in the future. In this regard, I note that Jason has now had a month (since the hearing before me) to start (albeit belatedly) seeking to arrange his affairs and that the executors have not yet taken action to determine his residence due to default (and so under the Will he may be able to remain in the home until 25 December this year).

14. [147]

    Therefore, had I been of the view that the threshold question had been satisfied, I would have concluded that no more than an additional sum should be provided (out of the legacy provided for Gavin under the Will) by removing the proviso (only in relation to Gavin’s legacy) that it not abate if there were to be a shortfall in the amount available to pay the respective legacies. I would in those circumstances have provided that Jason’s and Gavin’s legacies should abate equally in light of a shortfall (but that Marny’s legacy still take precedence over that of Jason). I would also have considered, and sought submissions on, whether some form of protective order should be made in relation to any such provision given what was put on his behalf as to his cognitive disabilities (see for example the discussion in Carroll v Cowburn [2003] NSWSC 248 at [17]-[18] (Young CJ in Eq, as his Honour then was);McLean v Public Trustee [2001] NSWSC 970 at [19]-[24] (Macready M)). As it is, however, this does not arise.

15. [148]

    As to the issue of costs, there was no evidence before me as to the nature of the fee arrangements in place between the plaintiff and his current or former legal representatives. If the fee arrangements are on a contingency basis, such that costs (or a portion of costs) are not payable unless Jason’s claim is successful, then it would be the case that the amount distributable out of the estate would be greater than has been taken into account above. In my opinion it would be appropriate to qualify the costs order to be made in respect of Jason’s costs having regard to the possibility that there are some form of contingency costs agreements in place. If there are not, then I consider that, although unsuccessful, his costs on an ordinary basis should be paid out of the estate (so as not further to deplete the provision made for him under the Will beyond that to which his actions in pursuing this claim have already led in terms of the cost to the estate of these proceedings). If submissions are sought to be made on that contingency fee question, I will deal with them on the papers.

Orders

1. [149]

   The orders I will make are therefore that:

   1. (1)

      The plaintiff’s claim for provision out of the estate or notional estate of the deceased be dismissed.

   2. (2)

      The plaintiff’s costs (to the extent that those costs are payable under the terms of whatever fee arrangements are in place with his current and/or former legal representatives notwithstanding his lack of success in these proceedings) be paid, on the ordinary basis, out of the estate of the deceased.

   3. (3)

      The defendants’ costs be paid, on the indemnity basis, out of the estate of the deceased.