Stockwell v Beaumont;; O’Donnell v Beaumont

This judgment resolves two proceedings in relation to the estate of the late Graham Albert Stockwell (“Graham”), who died on 19 April 2017 at the age of 79. Without disrespect, I shall refer to the plaintiffs and others who feature in these reasons by their given names.

Graham had been married three times, but only had children with his second wife, Joanna Bridson. He was married to Joanna from 1965 to 1988 and they had three children: Adam Stockwell, Nina Stockwell and Samantha Stockwell. He was married to his third wife, Margaret O’Donnell, from 1989 to 1999.

Graham’s second child, Nina, is the plaintiff in proceedings 2017/264114. Graham’s third wife, Margaret, is the plaintiff in proceedings 2017/332082. The defendant in both proceedings is Graham’s third and youngest child, Samantha. The Court ordered that evidence in one set of proceedings was to be evidence in the other.

Graham’s third and final will in evidence was duly executed and witnessed on 1 October 2007 (the “Will”). Save for some small legacies, the Will left all of Graham’s assets to Samantha. Probate of the Will was granted to Samantha on 21 August 2017.

By summons filed on 30 August 2017, Nina applies for provision out of Graham’s estate. By summons filed on 2 November 2017, Margaret applies for provision out of Graham’s estate. Both of these claims are brought under s 59 of the Succession Act 2006 (NSW) (the “Act”).

Mr A Hill of Counsel appeared for Nina, Mr J.E.F. Brown of Counsel appeared for Margaret, and Samantha appeared for herself. Samantha has put her own circumstances in issue in answer to both Nina’s and Margaret’s claims. No other potentially eligible claimant has sought to take part in the proceedings.

The sworn value of Graham’s estate for probate was $1,638,570, including his home at Cherrybrook (the “Property”) then valued at $1,250,000, and $366,000 in cash. By the time of the hearing, the sole asset of significant value was the Property, in which Samantha was living with her children. Samantha had applied the cash in the estate either to her own needs or for what she said was necessary work on the Property.

Just as this judgment was days from delivery (something of which the parties were, of course, unaware) the matter was urgently relisted on 4 December 2019 at the request of Nina and Margaret. This was because they had discovered that Samantha had sold the Property on 2 December 2019 and relocated to Queensland.

I granted leave to Samantha to reopen her case to file an updating affidavit in relation to this development and as to the latest value of the estate. The sale of the Property had two consequences for these proceedings:

Margaret, in particular, submitted that Samantha was not entitled to pay out the cash of the estate in the way she had done and that she should account for those amounts and the interest the estate is said to have foregone (said to be approximately $50,000 at Supreme Court rates). Given the view to which the Court has come, it is not necessary to pursue that aspect further, save to say that the Court has taken into account in favour of Samantha the cash amounts she paid out of the estate for her own benefit of approximately $193,000.

There was some dispute about the value of the Property at the hearing. This has been resolved by the recent sale, which the parties accept was a bona fide arm’s length transaction. The Property was sold for $1,450,000 (after a $10,000 allowance for termite damage) with the net proceeds being $1,423,179.72 after disbursements. Samantha’s updating affidavit affirmed 3 December 2019 states the net distributable value of the estate at that date was $1,318,102.52 (which I understand to be exclusive of the parties’ legal costs).

The parties’ legal costs up to and including the hearing (not including the latest relisting) are $86,000 on the ordinary basis for Nina, $97,000 on the ordinary basis for Margaret and $57,583 on the indemnity basis for Samantha (for the period when she had legal representation). When these are deducted from the figure in the previous paragraph, the current net distributable value of the estate for the purposes of these proceedings is $1,077,500. This figure does not include the approximately $193,000 already applied by Samantha to herself or the estate funds she applied to the Property. However, the Court has taken the former amount into account in exercising its discretion under the Act.

There was no dispute that Samantha was entitled to the majority of the estate. However, the Court accepts that the nature of Nina’s and Margaret’s claims when considered with the size of the estate warrant some provision being made for them. In Margaret’s case the Court also accepts that there are factors warranting her application (primarily leaving Graham with less than she would have likely received in a family law settlement and his assurance of a legacy for her in his will).

However, the size of the estate and Samantha’s greater moral claim also mean that Nina and Margaret are not entitled to the full provisions they seek. The Court has determined that:

Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are “eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person”. Section 58(2) requires an application for a family provision order to “be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown”.

Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are:

In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

By reference to the language of the Act, the questions and issues which the Court must take into account are:

Having identified what I consider to be the correct approach under the Act to an application of this kind, I will next set out the facts. The dispotive facts were not relevantly in dispute.

The various figures which follow take into account the information provided by Samantha in her updating affidavit affirmed 3 December 2019.

The sworn value of Graham’s estate for probate was $1,638,570, including the Property then valued at $1,250,000, and $366,000 in cash. With the exception of a legacy of $10,000 and a motor vehicle to Graham’s granddaughter, Rachel, the estate was left to Samantha under the Will.

By the time of the hearing the sole asset of significant value was the Property, in which Samantha was living with her children. This was sold on 2 December 2019 for $1,450,000 (after a $10,000 allowance for termite damage). After disbursements this left net proceeds of $1,423,179.72. Samantha and her children have subsequently relocated to Queensland.

Since the grant of Probate, the estate has made distributions of $238,966 to Samantha, the majority of which was used to pay off Samantha’s credit card debts. Those distributions also included a $20,000 repayment of a loan made to Samantha by Adam, a further repayment of a personal loan of $25,000 made to Samantha by Mr James Elliott, the payout of two motor vehicle leases – one of $30,000 and another of $19,496, and relocation expenses of $13,369.

In addition to the distributions made to Samantha, money has been paid out of the estate to pay rates and other outgoings relating to the Property ($26,179), and also to pay for renovations and repairs at the Property ($131,056 – I have included in this an amount of $22,139 which is to be reimbursed to Samantha’s friend Mr John Avgenicos who provided a loan to fund some of the repairs but which has not yet been repaid).

Margaret, in particular, submits that Samantha was not entitled to pay out the cash in the way she did and that she should account for those amounts and the interest the estate is said to have foregone (said to be approximately $50,000 at Supreme Court rates). Given the view to which the Court has come, it is not necessary to pursue that aspect further, save to say that the Court has taken into account in favour of Samantha the cash amounts she paid out of the estate for her own benefit rounded to $193,000. The payments for rates, outgoings and the renovations and repairs enure for the benefit of the estate.

Samantha’s updating affidavit affirmed on 3 December 2019 stated that the net distributable value of the estate at that date, allowing for the sale of the Property and distributions and disbursements of the kind I have identified in the preceding paragraphs, is $1,318,102.

The parties’ legal costs up to and including the hearing (but not including the most recent relisting) were $86,000 on the ordinary basis for Nina, $97,000 on the ordinary basis for Margaret and $57,583 on the indemnity basis for Samantha (for the period when she had legal representation). Based on the figure propounded by Samantha set out in the preceding paragraph, after allowing for legal costs (assuming them to be payable from the estate), the current net distributable estate for the purposes of these proceedings is $1,077,500 (rounded).

Nina was born in September 1968 in Melbourne and is the second child of Graham and Joanna. At the time of the hearing Nina was 50 years of age.

Nina lived with her parents until about 1986 or 1987. During this time the family lived in various places including Melbourne, Townsville, Melbourne again and finally Sydney from 1976 onwards. Nina deposed that up until 1982 her family had been close. She had a loving and caring relationship with her father as a child.

In 1984 Nina graduated with her School Certificate and attended Metropolitan Business College, obtaining a secretarial certificate.

Nina moved out of her parents’ home in 1986 or 1987 when she was 17 years old. She commenced working at Prime Appointments Pty Ltd as a secretary some time in1987.

Nina maintained regular contact with both her parents after their separation and divorce and often visited Graham and Margaret at their home, first at their home at Carlingford (the “Carlingford Property”) and later at the Property. They also met at restaurants. Nina’s mother Joanna also had many family occasions at her house to which she invited Graham.

In 1987 Nina commenced work as a secretary for the foreign exchange desk at Macquarie Bank Limited. In that year Nina went on holidays with Graham and Margaret to Thredbo and Graham paid for all expenses. In the same year Graham, Margaret, Nina and her then boyfriend Daniel (Danny) Compagnon also holidayed together in Surfers Paradise for several weeks.

Nina married Danny in 1988. Graham gave Nina away and contributed $2,000 to $3,000 to the cost of the wedding. Graham and Margaret also gave the newlyweds a Johnson Brothers dinner set.

In 1989 Nina and Danny moved to Cairns to begin a new life. Nina left full time employment. Danny started a tree lopping and garden mowing business.

In 1989 Nina attended Graham’s marriage to Margaret. During her time in Cairns, Nina’s evidence was that she spoke to Graham approximately once a week by telephone and occasionally corresponded by letter.

Nina and Danny’s first child Nicholas was born in June 1990. They returned to Sydney in August 1990 and moved into the Carlingford Property while Graham and Margaret had a vacation in Europe. Nina also cared for her grandmother Daisy for this period. Daisy, Graham’s mother, resided with Graham and his family at the Carlingford Property from about 1979 until her death in 1992. When Graham and Margaret returned from Europe, Nina and Danny moved into a house in a neighbouring suburb to Graham and Margaret and visited them once or twice a week.

There was in evidence before me an undated, unexecuted copy will which I infer was prepared by Graham without legal assistance between September 1989 (when Margaret and Graham married) and 1992 (when Daisy died) (the “First Will”). I draw that inference because it refers to Margaret as his wife and leaves a legacy to Daisy. The First Will in effect gives a life estate in the Carlingford Property to Daisy and thereafter to be sold with the proceeds to be divided between Margaret, Adam, Nina and Samantha. The residue of the estate was to be divided equally between Daisy, Margaret, Adam, Nina and Samantha.

In February 1992, Nina and Danny’s second son Louis was born.

After some domestic incidents relating to Danny’s drinking and drug taking, Nina separated from Danny in August 1993 and moved with her children to Townsville. During her time in Townsville Nina kept in touch with Graham by phone once or twice a week.

In 1994 Nina completed a Certificate in Horticulture at Townsville TAFE. In that same year Graham and Margaret visited her in Townsville for a holiday.

In 1994 Nina commenced a relationship with Matthew Finegan. Together they had a son, Patrick, who was aged 21 years at the time of the hearing.

Between 1995 and May 1996 Nina completed a retail sales course and commenced working at a jewellery shop in Townsville.

Between 1993 and 1996 Nina deposed that she kept in regular weekly contact with Graham by phone but was unable to return to Sydney due to lack of funds and the demands of raising two toddlers.

In 1996 Nina and Matthew moved to Kilkivan, a small rural town in Queensland and went into partnership with Matthew’s parents, starting a cattle and olive farm.

In December 1997 Nina and Matthew bought a house in Cinnabar, near Kilkivan, Queensland.

In January 1998 Nina and Matthew’s son Patrick was born.

Nina visited Sydney on several occasions during 1998 including for Samantha’s wedding, Matthew’s brother’s wedding and Christmas. On each occasion she visited Graham. Graham did not visit Nina as he told her she lived too far away.

Between 1999 and 2000 Graham was diagnosed with bowel cancer. Joanna advised Nina of the diagnosis and Nina spoke with her father at this time after his radiation treatment.

Nina and Matthew separated in 2002. Samantha also separated from her husband in the same year and the sisters travelled overseas for three weeks. Graham gave Nina $500 towards the trip.

In December 2002 Nina moved to Toowoomba and commenced a Bachelor of Nursing degree. She continued to phone Graham about once a week. Once Graham’s treatment had finished, he showed no further symptoms of cancer.

Between 2003 and 2006, Nina continued studying for her Bachelor of Nursing degree whilst working part time and caring for her three children as a single mother. During this time Nina deposed she had long telephone conversations with her father, some calls lasting from two to five hours. If Nina did not call him weekly Graham would become irritated and say “Who are you?”. Also between 2003 and 2006 Nina drove 11 hours to Sydney on several occasions during her mid semester breaks and at Christmas to visit her parents. Nina would spend time with both parents. Nina’s evidence was that Graham did not like it if she spent time with or stayed with Joanna at these times and she would feel pressured to stay with Graham.

There was in evidence before me an unsigned copy will prepared by Graham dated 5 January 2004 (the “Second Will”). This appointed Samantha executor (or Nina in her stead) and, in effect, left his estate (including the Property) equally between Samantha and Nina.

In December 2006 Joanna organised a 40th birthday party for Adam, Nina’s brother who had lived overseas for many years. Adam and Graham had had a difficult relationship for many years and they had drifted apart. Joanna had encouraged Adam to reconcile with his father and Adam initiated phone contact with Graham before returning to Australia for his 40th birthday. The 40th birthday celebration was to be held at Joanna’s house and Joanna had also organised a family dinner the evening before. Graham had been invited to both the party and the family dinner.

On the evening of the family dinner Graham did not turn up. Joanna rang Graham in front of Nina and Adam and asked Graham if he was coming to the family dinner. After the phone call Joanna told Nina and Adam:

Adam was sitting next to his mother during the phone call. Nina says that Adam had tears in his eyes and was very upset and disappointed. Joanna and Nina were both upset and angry at Graham’s conduct.

Contact between Nina and Graham ceased after this incident and, save for one short encounter in 2014, Nina did not speak to her father again during his lifetime. Graham also made no effort to contact Nina.

Between 2007 and 2012 Joanna told Nina on several occasions that Graham did not want anything to do with her or Adam and that Graham had written her out of his will. Nina deposes her mother knew this because Samantha had discussed it with her. This is consistent with the Will, which was made on 1 October 2007. The Will includes in its final clause (N): “I do not wish to leave any bequests to my son Adam Stockwell or my daughter Nina Stockwell as they have treated me with total contempt over the years and deserve nothing from me”.

From 2007 onwards Nina enquired about her father’s wellbeing through her mother.

In January 2007 Nina commenced full time employment with Queensland Health as a registered nurse in Toowoomba.

In about 2008 Nina travelled to Amsterdam and stayed with Adam who was living there at the time. Since 2008 there has been little contact between Nina and Adam and Nina describes their relationship as estranged.

In 2012 Nina completed a post graduate degree in intensive care nursing.

In 2014 Nina moved to the southern highlands in New South Wales and also commenced a relationship with Paul Alexander. Despite being close to Sydney, Nina did not make any attempt to call or visit Graham. Nina and Paul moved to Tasmania in October 2016. Nina and Paul remain a couple.

Nina attended her niece’s birthday party in 2014 at Samantha’s house in Killara. Graham was present at this party and Nina said hello but her father only responded hello and then turned away and avoided her for the rest of the evening.

On 3 November 2014 Nina received a text message from Samantha advising her that Graham had throat cancer. Nina replied that she was thinking of him and asked Samantha to give Graham her love.

Between 3 November 2014 and 19 April 2017 Nina had no contact with her siblings and was not aware of her father’s deteriorating health. Nina and Graham’s estrangement continued during this period.

In April 2017, approximately two weeks before Graham died, Joanna contacted Nina to say that she had visited Graham in hospital and he discussed wanting to go home to die. Joanna told Nina that the doctors indicated Graham could live up to three months.

Graham died on 19 April 2017. Samantha rang Nina to tell her of his death and they spoke for some time. Samantha also told Nina she had moved into Graham’s house two weeks before he died. Samantha told Nina there would be no funeral, only a wake and that she was meeting with the funeral director and would advise Nina accordingly.

When Nina did not hear from Samantha she organised flights to Sydney with Paul between 23 to 26 April 2017 and advised Samantha. She then was told by Samantha that the wake would be held the day after Nina and Paul returned home.

Nina and Paul drove to the Property on 24 April 2017 and spent four to five hours with Samantha. During this time Samantha asked Nina if she would like to take anything from the house; she also gave Nina the Will. It was then that Nina became aware she had not been included and that Samantha was the only beneficiary.

Nina deposed that she suffers anxiety brought on by her father’s death and a stressful working environment as an intensive care nurse. Nina took bereavement leave for about 10 days after her father died. She returned to work on 16 May 2017 at Launceston General Hospital as a specialist intensive nurse but had to leave that day as she was distressed and crying. Her manager suggested Nina seek counselling through the Employee Assistance Program and Nina commenced seeing a psychologist weekly for three weeks. Upon the psychologist’s suggestion Nina resigned from work on 1 June 2017. Nina has now obtained a tourism qualification and works in a winery.

There was no dispute about Nina’s financial circumstances.

Nina and her partner Paul co-own a house in South Launceston which they purchased in 2016. The home is encumbered by a mortgage of approximately $200,000. Nina and Paul have already spent $61,105 repairing and renovating the home. Nina deposed that the home is in need of further urgent repairs and renovation which is estimated will cost $115,510.

Nina’s assets are $284,363 comprising savings of $37,314, an offset account of $113,248 against her and Paul’s home in Launceston, superannuation of $129,301 and a Mazda van worth $4,500. Nina’s only liability was a credit card debt of $230.24. Paul’s assets totalled $200,040 comprising savings of $5,245, an offset account of $22,331 and superannuation of approximately $172,000. His only liability was a $1,251 credit card debt. Nina and Paul’s joint assets totalled $354,233 comprising their property worth $310,000, household contents of $6,000, shares in public companies of $23,083, a joint expenses account of $1,150 and a 2016 Polo TSI vehicle valued at $14,000. Their joint liabilities comprise of their mortgage totalling $202,348. Nina’s total net assets, including joint assets with Paul, are $360,355. Paul and Nina’s combined net assets are $634,807.

Nina was unemployed from 1 June 2017 until 3 January 2019. She currently works on a casual basis at a winery and earns an average gross wage of $450 per week or $1,800 per month. Paul works as a bus driver for a tour company. This work is seasonal. In the financial year ending 30 June 2018 Paul earned a gross salary of $64,596. Nina’s affidavit of 4 February 2019 deposed to a net household yearly expenditure of $68,347 which is more than what Nina and Paul earn in a year after taking taxation into account. Both Nina and Paul have used their savings accounts to top up their weekly expenditure.

As I have already set out, Joanna was Graham’s second wife and is the mother of his three children, Adam, Nina and Samantha. Graham’s first wife was a woman named Beth, to whom he had been married between 1960 and 1962.

There was a property settlement between Graham and Joanna around the time shortly before Graham married Margaret, the circumstances of which were the subject of this evidence from Joanna (T85:31-T86:6):

Joanna was cross-examined by Samantha. In relation to Nina’s claim, Joanna confirmed Nina’s difficult relationship with Graham and the reasons why she discontinued contact after the telephone call in relation to Adam’s 40th birthday party.

Nina sought provision in the sum of $350,000 (excluding legal costs), made up of $200,000 to discharge her mortgage, a further sum of $115,000 to carry out repairs and renovations to their home and a sum of $35,000 for contingencies. It was said this would provide Nina with a mortgage free renovated home and allow Nina to pursue other study or job opportunities and allow her to have a modest but comfortable lifestyle.

Nina’s counsel submitted that Nina has demonstrable need. Counsel submitted that Nina and Paul’s household income of $86,196 gross was modest, they are both now in their fifties and needed to be saving toward their retirement.

As referred to above at paragraphs [4], [38] and [53], Graham made three wills. In both the First Will and the Second Will Graham made provision for Nina. In the Will there was no provision for Nina. The Will was made several months after the incident referred to at paragraph [55] above which resulted in Nina’s estrangement from her father. Nina’s counsel submitted that this followed a pattern of Graham falling out with one or more of his children and, as a result, disinheriting them.

Whilst Nina did not have a relationship with Graham for eleven years before his death in 2017, up until late 2006 she had had a close and loving relationship with him. Nina’s contact with Graham was usually via long telephone calls as she lived interstate for most of her adult life before their estrangement, she was raising three children, often as a single mother, and also studied and worked full time.

Nina’s counsel argued that Nina’s claim for $350,000 was a modest amount which would not only provide Nina with financial security but would also ensure that Samantha was left with the vast majority of the estate.

Margaret was born in October 1956 in Shannon, County Clare, Ireland and at the time of the hearing was aged 62 years.

Margaret is the third wife of Graham and they were married for 10 years.

Margaret completed a secretarial course in Ireland in 1976 and then travelled from 1977 and worked in various places including London, Switzerland and Miami. She then worked on a cruise ship between 1979 to 1981.

In 1982 Margaret moved to Australia with a friend where they lived in Bondi.

Margaret first met Graham in 1985 when she was 29 years of age and Graham was 47. Margaret was working as a waitress at a restaurant in Kings Cross, called Pinocchio’s. Graham was a regular customer and Margaret would serve him and his friends when they came to the restaurant.

In September 1985 Graham approached Margaret at Pinocchio’s and asked her to go out with him, to which she agreed. At the time Graham had separated from Joanna.

When Margaret commenced dating Graham he was in partnership with Joanna and a friend Andre, in a business called Chillblast which manufactured and sold ice cream for the Norgen Vaaz brand.

Margaret and Graham’s relationship developed quickly and within three months Graham asked Margaret to move in with him. Margaret moved into the Carlingford Property in late 1985 or early 1986. Margaret deposes that she gave $200 per week to Graham towards the running of the house and groceries from the time she moved in until the couple separated, but that they otherwise kept their finances separately. They never had joint bank accounts.

As I have already noted, Graham’s mother Daisy was also living at the Carlingford Property. Margaret, along with Graham, helped to assist Daisy and do her weekly shopping. Daisy was also offered meals which Margaret and Graham had cooked. They would also take her on outings to the RSL and on trips to Narooma to visit her sister.

In 1987 Graham proposed to Margaret.

In 1988 Margaret resigned from her waitressing job at Pinocchio’s and began a job at Il Vicolo, a restaurant in Ryde that was closer to the Carlingford Property.

Margaret and Graham married on 8 September 1989 in the garden of the Carlingford Property. All of Graham’s children attended the wedding and Margaret’s family also attended travelling from Ireland, the United Kingdom and the United States.

During their courtship and marriage Margaret and Graham shared many experiences together, including weekends away on Graham’s motor bike, skiing trips, going to the movies, entertaining and listening to music. They also travelled extensively overseas during their time together including to America, Bali, Hong Kong, Japan, England and Ireland and many European countries.

Margaret deposed that she and Graham tried to have a family of their own. Margaret had initial fertility tests however Graham did not want to have any more children and due to the pressure this put on their relationship Margaret did not pursue the matter. In Mr Brown’s cross-examination of Joanna, she confirmed that Graham had told her (Joanna) that he did not want any more children (T85:12-18):

In about 1990 or 1991 Graham retired from Chillblast.

In 1992 Margaret commenced employment with Westpac Bank in Parramatta.

Also in 1992, Daisy died. Graham was depressed and upset for about 6 months after his mother’s death.

In 1993 Nina moved to Townsville and Graham and Margaret visited her there. They also had two holidays in Surfers Paradise with Nina and another holiday in Surfers Paradise with Samantha.

In 1993 Graham and Margaret discussed selling the Carlingford Property and moving into a smaller property that did not need as much upkeep. The Carlingford Property had a swimming pool and a large garden and following Daisy’s death there was no need of a granny flat. They started looking at various areas to live including closer to the city around Rozelle and Balmain, but ruled these areas out as prices were too high and the properties were too small. Graham particularly liked a place in Blacktown but Margaret did not want to live there as she did not like the area and it would be difficult for her to commute to work. In the meantime they listed the Carlingford Property for sale in early 1994 and it was sold within a month. They had six weeks to find a property.

Around this time Margaret arrived home from work to find Graham very excited about a property he had viewed that day at Cherrybrook. He and Margaret viewed it the next day and both agreed they would be happy to live there.

Graham purchased the Property in 1994 for $350,000 unencumbered by a mortgage. Margaret acknowledged that she did not make any financial contribution to the purchase price of the Property. Graham made all the arrangements and Margaret’s affidavit evidence was:

Graham purchased the Property in his own name and lived there until his death. Margaret had some savings which, with the high interest rates of that time, grew to become the deposit on the unit that she eventually bought in Ryde. If she had any surplus she contributed it to their joint holidays or towards visits to Ireland to see her family.

Margaret claims that the first time she realised she was not on the title of the Property was after a visit from Adam’s then partner, Cathy, in about August 1994. Cathy asked if they had purchased the Property together to which Graham replied “I bought the house”. Cathy then asked “So it is only in your name” to which Graham replied “Yes”.

After Cathy left Margaret confronted Graham and asked why he had not included her on the title deeds. Margaret says Graham responded:

Margaret said that after this conversation the relationship was strained.

I interpose that there is no evidence Graham ever made a will leaving Margaret “over $300,000”, at least in terms. The First Will, the copy of which that was in evidence was unsigned and undated but obviously made between 1989 and 1992 had, in effect, made provision for Margaret in equal shares with all three of Graham’s children and included a life estate to Daisy in the Carlingford Property. There is no evidence which would enable the Court to determine the value of Margaret’s legacy under the First Will. After their divorce Graham prepared the Second Will in 2004 and left his entire estate in equal shares to Nina and Samantha. Given the passage of time, and the absence of a specific legacy to Margaret for $300,000 or any other amount in the First Will, I am not satisfied that Margaret’s recollection is to be relied upon that Graham ever mentioned a specific figure. On the other hand, I accept that it is highly likely Graham would have told Margaret he had left her a substantial legacy as his wife and find accordingly.

After moving into the Property, Margaret and Graham continued to have friends and family over for dinner parties and barbeques.

Margaret deposes that, during the time before and during their marriage, she enjoyed a good relationship with all of Graham’s children. Margaret and Graham often entertained at home and had barbeques and dinner parties which the children attended. Christmas was often held at their home and Joanna would be invited so that Graham’s children would have both parents present. Joanna, under cross-examination by Mr Brown of Counsel, agreed that Margaret had a good relationship with her children (T:84:50-T85:6):

Margaret and Graham also attended functions at the various children’s homes and baby sat Adam’s daughter Rachel on many occasions. Graham’s children also lived with the couple at different periods during their marriage. Adam lived with them for six months in 1993. When Nina and her then husband returned to Sydney in August 1990 they moved into the Carlingford Property for three months while Graham and Margaret had a vacation in Europe. Nina also lived with them for two months in 1992 and Samantha for a short period before travelling to Europe in 1990.

In 1994 Margaret commenced working for Optus Communications in North Sydney.

In 1996 Margaret’s car lease was about to expire and she discussed with Graham whether she should buy out the car or purchase another car. They decided the buyout price was too high and Graham agreed to lend Margaret $15,000 to purchase a car. Margaret agreed to pay Graham $100 per week to pay off the loan. At the time of their separation in 1997 Margaret still owed Graham $8,000.

Margaret’s evidence is that from about 1996 Graham started to become reclusive, spending most of the day on his computer and not wanting to go out to socialise. Margaret found herself visiting friends on her own and she became lonely in the marriage. Margaret discussed her unhappiness with Graham.

Things came to a head in August 1997 when Graham and Margaret had an argument in the car on the way to the shops to purchase new bedroom furniture. The following conversation occurred:

I repeat my observations in paragraph [109] above in relation to the assertion of a $300,000 legacy.

Margaret brought up the topic of separation a couple of days after this conversation. After some discussion Graham agreed to take the dogs and told Margaret she could keep the car and that she did not have to repay him the $8,000 she still owed.

Margaret decided she would buy her own apartment but needed extra time to be able to do this. She asked Graham if she could stay at the Property for a further four months until Christmas while she searched for a property. Graham agreed.

Margaret found an apartment in Ryde which she purchased at the end of 1997. She moved into the apartment between Christmas 1997 and January 1998.

On 24 October 1999 Margaret and Graham divorced after 10 years of marriage. Margaret says that, except for Graham forgiving her car loan (an amount of $8,000) she did not receive a property settlement. Samantha contends that Graham gave Margaret $22,342.54 as a divorce settlement. In support of that Samantha tendered a printout of computerised accounts which I accept were maintained by Graham. This shows an outgoing on 1 September 1997 of $22,342.54 marked “divorce settlement”. As is apparent from the preceding paragraph, this is about the time Margaret was moving out and I find that she did receive that amount which bore the character of a divorce settlement. It follows that I do not accept Margaret’s evidence that she did not receive anything other than the forgiveness of the car loan.

As set out in paragraphs [107] and [116] above, Margaret claimed that during their marriage Graham had promised that she would be looked after in his will. I accept that he did so, although I do not accept that he specified $300,000 for the reasons set out in paragraph [109] above. This promise, along with Margaret feeling fragile at the time of their separation and not wanting to further upset Graham, are the reasons why Margaret says she did not press for a property settlement at the time of their divorce.

Samantha cross-examined Margaret on this point (T119:14-34; T120:10-42):

Margaret is a single woman of 62 years of age at the hearing. She lives in her own home in Shannon, County Clare, Ireland. In her affidavit filed 19 February 2019 Margaret set out her assets and liabilities in both Euro and Australian dollars. For the purposes of this judgment monetary amounts will be in Australian dollars.

Margaret’s net fortnightly income at the time of hearing was $2,909.66 and her fortnightly expenditure $3,945.53 (including an amount of $657.60 for her mortgage repayments). Her evidence was she used her credit card to make up the difference. She gave evidence that if she had to balance her budget she would probably have to forego her holidays during the year including an annual trip to the United States.

Her assets totalled $282,548.45, the majority of which was represented by her home which was valued at $238,500, a mobile home valued at $15,900, cash at bank of approximately $4,500, and jewellery, furniture, personal items and a motor vehicle totalling approximately $22,000. Margaret and her five siblings were also in the process of selling their mother’s home in County Clare, Ireland, which had been left jointly to the six children on their mother’s death. The value of the home was $230,550 which would equate to approximately $38,425 for each sibling, excluding sales and other costs such as tax.

Margaret’s’ liabilities were approximately $99,000 comprising two mortgages totalling approximately $87,000 and credit card debt of approximately $12,000. Her net financial position was $183,584 excluding the approximately $38,425 she may have received or is to receive from her mother’s estate.

In relation to superannuation entitlements Margaret has an amount of $39,371.62 in a transition to retirement fund with AMP Australia which she cannot access until she retires. She also has a superannuation account in Ireland valued at $190,766 which she also cannot access until retirement at 66. Under her current contract of employment she must retire at the age of 66. Once she turns 68 she will be entitled to a government pension in Ireland which is currently $365.70 per week.

Margaret has high blood pressure, which is controlled by medication. She also requires dental implants.

In her affidavit filed 15 February 2019 Margaret claimed the following:

On the final day of the hearing Margaret’s Counsel gave a range for what he submitted would be adequate provision (T310:18-28):

Samantha was born in October 1970 and at the time of the hearing was 48 years of age. The preponderance of the evidence, which I accept, is that she generally enjoyed a good and close relationship with Graham throughout her life. She was the only child of Graham’s who had not fallen out with him by the time of his death, and spent all special occasions such as birthdays and Christmas’ with him as is demonstrated by the many photos and Facebook entries exhibited in her evidence. Samantha was the only child who lived in Sydney; Nina had lived interstate for most of her adult life and Adam had lived overseas for most of his adult life.

During her secondary school years, Samantha was, notwithstanding a high IQ, diagnosed with low self-esteem and a reactive personality type. After Graham and Joanna separated, Samantha lived with her mother due to the proximity of her mother's apartment to the Sydney CBD and her friends.

Her school years included a year on student exchange in the United States. On returning to Australia from exchange, Joanna asked Samantha to move out of her home. At that stage Samantha was 17 years of age and working as a data entry clerk for the Macquarie Bank.

There then followed some years of casual employment and heavy drug use. For example, Samantha admits that she attended Graham and Margaret's wedding in 1989 at the Carlingford Property while under the influence of drugs.

Samantha moved to Queensland and attempted to complete year 12 in a local school. However, she was unsuccessful. She moved back to Sydney and then undertook a long overseas trip. This included spending time together with Graham in London.

Sometime after returning from that trip, Samantha commenced a bridging course at university, which was itself then interrupted by working in a café owned by Joanna. In 1995 Samantha returned to studying and took up a TAFE course to complete her HSC, while obtaining part time employment as a bank teller. She remained in regular phone contact with Graham.

Samantha subsequently commenced studying a Bachelor of Business degree while living with her boyfriend, and later first husband, Terry. She continued to work part time and later commenced studying a Diploma of Financial Planning as part of her Bachelor of Business degree.

In April 1998 Samantha married Terry. She was given away by Graham. Graham subsequently lent Samantha and Terry $100,000, which they applied to purchasing their first home together. Samantha continued her studies while working.

After Margaret and Graham had divorced, Samantha's evidence is that she became Graham's "closest friend". She adduced evidence of Graham listing her as his next of kin on important documents such as his passport.

In mid-2000 Graham told Samantha that he had been diagnosed with bowel cancer. Over the next several months he underwent chemotherapy, radiation and surgery. Samantha visited as often as she could. In that year she completed her diploma and degree and enrolled in a certified financial planning programme. She continued to work as a financial planner while visiting Graham every two to three weeks.

According to Samantha, towards the beginning of 2001 Graham told her that he was changing his will to leave everything to her.

In April 2002 Samantha separated from Terry. The $100,000 loan which Graham had made to Samantha and Terry was ultimately repaid to Graham when Samantha and Terry sold their home. In October 2002 Samantha established her own financial planning business.

In September 2004 Samantha met Jeff, who was to become her second husband. They began co-habiting and had their first child, Alex, who was born in August 2005. In December 2006, Samantha's second son, William, was born. Her third child, Grace, was 0 years old at the time of the hearing.

Samantha's evidence was that between 2008 and 2014 she continued to maintain a close relationship with Graham and gave him regular assistance. Her evidence was this included taking him to medical appointments, shopping, assisting sometimes with his personal care, occasionally mowing his lawn, cleaning his house and buying groceries for him. Given that she was, at the same time, raising three small children, I have taken into account the possibility of some degree of exaggeration on her part. However, even allowing for that possibility, the other parties have presented no evidence which would detract from the basic truth of the proposition that she provided Graham with assistance and was his first point (and for many of those years, only point) of contact with his family.

In November 2014 Graham was diagnosed with advanced oesophageal cancer. Samantha ceased work in order to be able to look after Graham. This is corroborated by her tax returns, which show a taxable income of $180,960 in 2014 and only $5,356 in 2015. During 2015 Samantha continued to care for Graham, including Graham spending a period of several weeks living at Samantha and Jeff's home.

After surgery and various treatments, from mid-2015 Graham's health improved somewhat. In August 2015 Samantha commenced managing a large restaurant in Manly that Jeff had acquired a year earlier. However, at this time Samantha's marriage to Jeff was failing. Samantha had exhausted her personal savings when she stopped work to care for Graham.

In mid-2015 Graham lent Samantha about $36,000 to help her with car repayments. In September 2015 Samantha and Jeff separated, but continued to live under the same roof. In December 2015 Samantha purchased the restaurant from Jeff. She began working seven days a week in the restaurant while Jeff cared for their children.

In April 2016 Samantha leased a three bedroom apartment for $850 a week in Seaforth while Jeff rented an apartment in Manly. By private agreement, Samantha had 50% custody of the children.

Throughout 2016 Samantha's financial circumstances and mental health deteriorated. Jeff was not paying any child support. The restaurant continued to run at a loss.

From February 2017 Graham's health continued to deteriorate. Samantha's evidence was that she was suffering extreme financial distress, her rent was in arrears, and Jeff was not paying regular or significant child support. She eventually decided that it would be in everyone's interest if she relocated her family to the Property so that she could care for Graham. She agreed with Jeff that she would move to the Property with their children Grace and Will, whereas their son Alex would stay with Jeff until he finished year 6. Caring for Graham meant that Samantha was unable to properly attend to the affairs of the restaurant. Graham's health continued to deteriorate and 26 March 2017 was the last day she worked at the restaurant. By early April, Samantha and her children were living at the Property while she was nursing Graham at home, including what became palliative care. Graham died on 19 April 2017.

At the time of the hearing, Samantha had $58,674.68 in assets (mostly comprised of her car valued at $41,850 and including almost no cash) and superannuation of $87,917. She had been attempting to sell her car to pay down debt and provide further funds. Jeff owed her $59,014.50 in child support, but last made a payment of only $110.15 in October 2018. According to Samantha, Jeff claims he does not have the capacity to pay child support and that he is on the verge on bankruptcy.

Samantha's liabilities comprised credit card and ATO debt totalling $39,097.73.

Samantha's net monthly income was $3,262.04, comprised entirely of various government allowances and payments. Her monthly expenses are $7,201.00, leaving a monthly deficit of $3,938. She has been meeting that deficit with payments from the estate, using her credit card and selling unwanted household and personal items.

At the time of the hearing, her children were 13, 12 and 9, being in years 8, 7 and 3 respectively. Samantha is their sole carer.

Samantha has had a complex medical history, including difficult pregnancies. In 2018 she was diagnosed with depression and anxiety, which she attributed to a number of factors including these proceedings, her years of caring for Graham (including at the end of his life and witnessing his death), caring for her children who themselves have behavioural and emotional issues, her very poor financial situation, her inability to find employment, her separation and divorce from Jeff, the failure of her company and her inability to borrow money due to the poor credit history relating to her failed business and unemployed status.

Samantha suffers from chronic digestive issues, including having had colon surgery in 2011. She requires annual colonoscopies and her gall bladder was removed in 2015. She has had several episodes of kidney stones requiring hospitalisation and suffers from unstable thyroid hormones. She had a total thyroidectomy in 2011 and has difficulty in maintaining an appropriate hormone balance necessary for normal functioning. She has episodes of anxiety, decreased mental function and extreme lethargy.

Her son Will suffers from oppositional conduct defiant disorder and is being treated by a psychologist. He has also been referred to a psychiatrist for other mental health issues. Her son, Alex, also suffers from oppositional conduct defiant disorder and is being treated by a psychologist.

Samantha called as witnesses Paul Howitt and Doreen Howitt who had been close friends of Graham and Joanna when they were still married and who also knew Margaret before and after she married Graham.

Doreen gave evidence by telephone. In her affidavit Doreen deposed the following.

Doreen had met Graham and Joanna in 1978 when she worked for them at their company Chillblast. At the time she met Graham and Joanna she was married to another man. The couples were friends outside of work as their children attended the same primary school. Doreen left Chillblast in 1980 to run her own business. Her marriage broke down in 1983 and in early 1984 Graham introduced Doreen to Paul who was a friend of Graham’s. They became engaged at the end of 1984.

Graham and Paul both had a love of motorbikes and the two couples would often go away on biking weekends. The two couples would also drive their motorbikes to Pinocchio’s restaurant in Kings Cross every Thursday night and have dinner there. Margaret was working as a waitress at Pinocchio’s at that time and Doreen recalls meeting her for the first time in 1985.

Graham and Joanna were witnesses at Doreen and Paul’s wedding in May 1986. Later that year, Graham and Joanna’s marriage broke down.

Doreen recalls that Margaret moved into the Carlingford Property with Graham sometime in 1987. Doreen and Paul attended their wedding in 1989. Doreen recalls that Graham told her and Paul that Margaret came into the marriage without any monetary contributions and the house belonged solely to him. Doreen also deposed that Graham told her that Margaret kept all her wages for herself and did not contribute towards the day to day expenses of the home.

When Graham and Margaret divorced in September 1999 Graham told Doreen and Paul that he had given Margaret “the car and $20,000 and she was happy with that arrangement”.

Doreen and Paul kept in touch with Graham over the years. In 2002 they attended Graham’s 65th birthday party which was organised by Samantha. They lost touch after 2002 and did not see Graham again although they occasionally spoke to him on the phone, up to six months before his death. Doreen deposed that in some of their telephone conversations Graham told her, among other things, that Samantha had been looking after him and had moved in.

Mr Hill cross-examined Doreen in relation to her knowledge of Graham’s will (T179:33-T180:4):

Paul’s evidence was essentially in the same terms as his wife Doreen and was also given by telephone. The only difference was that Paul, unlike Doreen, deposed that “Graham at no stage of our relationship discussed the contents of his will with us”.

John Avgenicos is Samantha’s current boyfriend. The closeness of their relationship and the extent to which the Court should take into account John’s capacity to assist Samantha were very much put in issue by the plaintiffs.

John and Samantha met on 4 March 2017 at a party. Approximately two weeks before meeting Samantha, John had separated from his de facto partner of seven and a half years and property settlement proceedings were still being finalised at the time of the hearing.

John has two adult sons from his first marriage and has no children with his recent de facto partner.

Subpoenas were issued for John’s financial records to determine if John was assisting Samantha financially and to determine if she was dependent on John.

On the first day of the hearing, 4 March 2019, Samantha had filed a motion to set aside the subpoena in relation to John’s financial records. The Court declined to set aside the subpoena but limited access to the material only to the plaintiff’s legal advisors for the purposes of the proceedings.

John lives in his own home in Lane Cove and works in Rhodes as an IT Manager.

In his affidavit of 27 February 2019, John deposed that he and Samantha had been “casually dating, intermittently since June 2017”. However in his earlier affidavit of 18 June 2018 John recorded the assistance he gave to Samantha and Graham in the weeks before and after Graham’s death on 19 April 2017. It seems clear that some sort of relationship had commenced soon after their meeting in March 2017.

John also deposed in his affidavit of 27 February 2019 that he did not live with Samantha, was not in a de facto relationship with her and had no plans to cohabit with Samantha. During his cross-examination, John assented to my suggestion that his relationship with Samantha could be described as “friends with benefits”.

Mr Hill drew attention to the fact that Samantha had in November 2018 appointed John as a director of her company Moneywatch Pty Ltd. However, there is no suggestion that company is trading.

John’s evidence was that he does not support Samantha financially but would do things such as make dinner for Samantha and the children when he came over to her place and on those occasions he would purchase food from the supermarket on his way to Samantha’s house. John would also occasionally take the family out for dinner.

Subpoenaed bank records and credit card statements showed that John frequently purchased both petrol and groceries in the Cherrybrook area. The statements showed a frequency of purchases in the Cherrybrook area of approximately twice a week which is consistent with John’s testimony that he visited Samantha at her home once or twice a week and would contribute by bringing food and wine. Most of the purchases of groceries were under $100. The only exception was during the Christmas and New Year period of 2018 and 2019 when John made large purchases for a camping trip he went on with Samantha and her children and his children. The majority of John’s purchases occur outside of the Cherrybrook area, including places close to his apartment in Lane Cove and his place of employment, situated at Rhodes.

John has also paid for Samantha for several holidays. In June 2017 John paid for Samantha to travel to Vietnam with him on a holiday which he had planned before they had met.

One matter which emerged during the final relisting was that John had advanced funds to Samantha for work to be done on the Property. Some of this was yet to be repaid to him. Mr Brown submitted that this was another sign of the closeness of the relationship between Samantha and John. Samantha denied this and said that the amounts were advanced by John as short term loans on his credit card in the time between her decision to sell the Property in September and the settlement in December.

John and Samantha are clearly in a romantic relationship. However, I accept their evidence that they are not cohabiting and that their relationship does not have the permanent character of mutual support that would warrant the Court taking the possibility of John supporting Samantha into account for the purposes of exercising the Court’s discretion. I am satisfied that John’s contributions do not amount to support for Samantha, rather his bank statements indicate he purchases groceries and wine when he visits Samantha’s home and will pay for dinners. John also appears to pay the majority of the costs of holidays that he has taken Samantha and her children on, which is generous and reflective of the reality that if he wishes to take Samantha on holidays then her children must come as well. There is no evidence that John pays any of Samantha’s utilities, loans or credit card debts or that Samantha was dependent on him at the time of the hearing.

Rachel Cresswell is the daughter of Adam, the granddaughter of Graham and Joanna and the niece of Nina and Samantha. Rachel also knew Margaret when she was married to Graham.

It is clear from her affidavit that she had, and continues to have, a very close relationship with her aunt Samantha and has at various times lived with her. Rachel was also close to Graham, as is evidenced by the fact she was the only other beneficiary in his will besides Samantha.

Rachel’s evidence was generally corroborative of Samantha’s. It is not necessary to recite its detail.

Because Nina is Graham’s daughter, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Graham’s death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [18] above are all answered “yes”.

The Provision referred to in the question posed in sub-paragraph [18(5)] above is nil.

Because Margaret is Graham’s former spouse, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Graham’s death. It follows that the questions set out in sub-paragraphs (1) and (2) of paragraph [18] above are all answered “yes”. The Provision referred to in the question posed in sub-paragraph [18(5)] above is nil.

Because she is Graham’s former spouse, the answer to the question set out in sub-paragraph (4) of paragraph [18] above also requires consideration of the requirement in s 59(1)(b) of the Act, whether the Court is satisfied that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

The parties agreed that the leading authority on the question of “factors warranting” is the decision of the Court of Appeal in Lodin v Lodin [2017] NSWCA 327. The relevant statements of principle are to be found in the judgment of Sackville AJA (with whom Basten and White JJA agreed) (citations omitted):

The following are the factors which the Court is satisfied warrant the making of Margaret’s application:

In reaching this conclusion, I have not overlooked Doreen’s evidence that Graham had told Doreen that Margaret was “happy” with the arrangement of being given the car and the payment. This is the untestable hearsay evidence of a deceased person. I regard it as less persuasive than Margaret’s direct evidence of why she did not seek a property settlement, including the promise of a legacy in Graham’s will. In the ordinary course, that is a probable explanation for the objective fact that at the time Margaret accepted an amount likely to be considerably less than what she would receive after a ten year marriage had she sought a family law property settlement.

It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [18(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Nina and Margaret is not adequate for their respective proper maintenance, education or advancement in life. If that question is answered “yes” in relation to either or both of them, then the Court’s discretion to make a family provision order is enlivened in relation to whichever of them the question is answered in the affirmative.

In Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523 (“Verzar”), Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry:

In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children.

I also respectfully adopt what was said by Ward CJ in Eq in Grant v Roberts, Smith v Smith, Roberts v Smith, Curtis v Smith [2019] NSWSC 843:

Most recently, in Olsen v Olsen & Ors [2019] NSWCA 278, White JA (with whom Meagher JA and Emmett AJA agreed) said:

What White JA said in those paragraphs of Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 (“Steinmetz”) was:

Like White and Brereton JJA in Steinmetz at [44] and [109] respectively I am respectfully of the view that to the extent it is necessary to do so, applying a concept or standard of “moral duty” is to be preferred to “community standards”.

Applying the principles just set out, the Court is satisfied that the nil provision for each of Nina and Margaret is not adequate for their respective proper maintenance, education or advancement in life. The question posed in sub-paragraph [18(6)] above is answered “Yes”. The reasons for this conclusion are set out in the following paragraphs.

Two preliminary observations should be made.

First, it is helpful to recall at the outset that the Court must look at the situation as it is at the time it is considering the question. The starting point is the size of the available estate. As I have set out in paragraph [12] above, after allowing for legal costs that is $1,077,500. For the purposes of the statutory analysis it is also necessary to add back in the $193,000 which Samantha has advanced herself out of the estate for her own benefit. This gives a figure of $1,270,500.

Second, both in relation to the jurisdictional question and in relation to provision, neither Nina nor Margaret suggested that Samantha was not entitled to the greatest share of the estate. Their point was, however, that they each had a moral claim which the estate was large enough for some provision to be made for them, even when allowing for Samantha’s strong, competing claim. I agree.

At the time of hearing, Nina was 50 years old. Her circumstances are set out in paragraphs [72] to [75] above. While she and Paul have some years of working life left, they still have a significant mortgage, their respective incomes are not substantial and they are having to use savings to make ends meet. Insofar as there was any estrangement between her and Graham, the Court is satisfied that was attributable to Graham rather than anything that reflects adversely on Nina. Before the events set out in paragraph [55] above, she had a good relationship with her father. As an adult daughter who, if not having fallen on hard times, is in a far from secure financial position for now and the future, I am satisfied that the size of the estate is such that for Graham to have left her nothing was not adequate provision, even after allowing for Samantha’s very strong moral claim and Margaret’s claim.

At the time of the hearing, Margaret was 62 years old. Her circumstances are set out in paragraphs [124] to [129] above. The basis of her moral claim is the same matters as comprise the factors warranting her application set out in paragraph [191] above. Margaret is four or so years away from retirement and still does not own her own home free of a mortgage. Nor is there anything about her behaviour towards Graham either during their marriage or after their divorce which could be said to be adverse to her claim. In those circumstances I am satisfied that the size of the estate is such that for Graham to have left her nothing was not adequate provision, even after allowing for Samantha’s very strong moral claim and Nina’s claim.

I will consider this question by reference to the various matters identified in s 60(2) of the Act.

Nina’s relationship with Graham is set out in paragraphs [28] to [67] above.

Margaret’s relationship with Graham is set out in paragraphs [88] to [121] above. For present purposes I note that Margaret and Graham divorced nearly 20 years ago and Margaret has returned to Ireland to make her life there.

In relation to Nina, I repeat what I have said in paragraph [204] above.

In relation to Margaret, I repeat what I have said in paragraph [205] above.

In relation to Samantha, I am of the view that Graham owed a considerable moral obligation to her for her many years of care and support, especially during his earlier cancer and his final illness. I particularly take into account the fact that Samantha’s decision to stop work and care for Graham at various times is in part responsible for the difficult financial circumstances in which she finds herself. I accept her evidence that she had to expend her savings, and was unable to attend fully to her restaurant business, because of her decision to care for Graham.

For present purposes the estate can be taken to have been reduced to cash in the sum of $1,270,500, including the amount which Samantha has already applied to her own benefit.

In relation to Nina, this is set out in paragraphs [72] to [75] above.

In relation to Margaret, this is set out in paragraphs [124] to [128] above.

In relation to Samantha, this is set out in paragraphs [152] to [155] above.

Margaret is the closest to retirement age, followed by Nina. I accept Samantha’s evidence that, conformably with her primary obligation as the sole parent of three children, she wishes to return to the workforce and that, as her children grow older, she will return to full time employment. However, I also accept her submission that, without retraining, it is highly unlikely she will return to the high level of earning which she has enjoyed in the past as a financial planner. I consider I am able to take judicial notice that the financial planning industry has undergone very significant change in the last few years. She has been out of that industry for some time. Given her age, psychological health issues and parenting obligations, I am satisfied that while she remains capable of earning an income and intends to do so in the future, the evidence does not permit me to draw any conclusion about what her future income is likely to be. I am, however, satisfied that it is unlikely to be as much as she earned at the peak of her previous career.

Insofar as assets are concerned, both Nina and Margaret own their own homes, albeit subject to mortgages. Samantha has no real property and has three school aged children to house and feed.

For the reasons set out in paragraphs [174] to [182] above, the Court is satisfied that Samantha is not cohabiting with John.

Nina suffers from anxiety. Margaret has high blood pressure which is controlled by medication and requires dental implants.

Samantha’s physical and mental circumstances are set out in paragraphs [156] to [158] above. For the purposes of the exercise of the Court’s discretion, I give these matters only minimal weight. I had the advantage of observing Samantha as she conducted these proceedings over several days, as well as noting the thoroughness and high quality of her written submissions. While she has undoubtedly suffered misfortune and hardship, she struck me as a highly intelligent and capable woman whose capacity to represent herself in the challenging and unfamiliar environment of court proceedings did not appear to be impaired by any physical or psychological difficulties.

At the time of the hearing, Nina was 50 years old, Margaret was 60 years old and Samantha was 48 years old.

Nina made no contribution to the acquisition, conservation and improvement of the assets which comprised the estate, including the Property. Until the estrangement, which the Court is satisfied was of Graham’s making, Nina did have a good relationship with Graham and stayed in contact with him. It is no criticism of her that in the last years of Graham’s life she did not have any occasion to contribute to Graham’s welfare.

Insofar as Margaret is concerned, she accepts that she made no contribution towards the acquisition of the Property. However, there can be no doubt that during the course of the marriage she contributed to Graham’s welfare, not least through her weekly financial contribution, but as Graham’s wife in what appears for many years to have been a happy marriage.

In 1987 Graham paid for Nina to have a ski trip to Thredbo, in 1988 he made a $2,000 to $3,000 contribution towards her wedding and in 2002 he made a $500 contribution towards an overseas trip.

For the reasons set out in paragraph [121] above, the Court is satisfied that Margaret was forgiven an $8,000 loan in relation to her car and received $22,342.54 when she separated from Graham.

With one small exception, Graham left the entirety of his estate to Samantha. During his lifetime Graham forgave a debt Samantha owed him of about $26,000 in September 2016. In addition, Graham gave Samantha:

In my respectful view, the best evidence of Graham’s testamentary intentions are the Will, both as to leaving the entirety of his estate to Samantha and offering his reasons as to why he left nothing to Adam and Nina. By reference to the evidence adduced in these proceedings, the Court does not accept that the reason given by Graham in the Will for not benefiting Nina is accurate, fair or reasonable. I give some, but not dispositive, weight to Graham’s freedom of testation, but respectfully agree with White JA (see paragraph [198] above) that freedom is subject to the Act.

Neither Nina nor Margaret was being maintained by Graham before his death.

Nina’s financial circumstances with Paul are set out in paragraphs [72] to [75] above. In exercising the Court’s discretion, I have taken into account that, as Nina’s husband, Paul has an obligation to support her, as well as his capacity to do so by reference to the evidence of his occupation, income and assets.

It does not appear that any other person is liable to support Margaret, who has lived alone since her return to Ireland.

Until, respectively, estrangement or divorce, Nina and Margaret appear to have had positive and appropriate relationships as daughter and wife with Graham. There is nothing about the character or conduct of either of them which the Court considers to be materially adverse to either of their applications.

The fundamental strength of Samantha’s moral claim arises from her close and supportive relationship with Graham over many years, including the care she provided to him during his illnesses, in particular his final illness. Much of this was undertaken to her personal and financial cost.

This consideration is irrelevant.

A matter which I consider particularly relevant is that unlike Nina and Margaret, Samantha owns no real estate and still has a number of years of parental responsibility ahead of her, including for at least two children who have their own psychological difficulties. Housing, feeding and caring for her children is obviously a considerable priority, which would also impact upon her earning capacity in the short to medium future.

I have carefully considered all of the above factors and how they impact upon the relative strengths of the claims of each of Nina, Margaret and Samantha to the estate. As I set out in paragraph [203] above, I accept the submissions made on behalf Nina and Margaret that, while Samantha is clearly entitled to the majority of the estate, their respective moral claims on the estate and the size of the estate permit of their claims being recognised.

However, that same consideration of the size of the estate, when coupled with what the Court is satisfied is both Samantha’s greater moral claim and a greater need when compared to that of Nina and Margaret, means that it would not be an appropriate exercise of the Court’s discretion to make provision in the full amounts each of them claims.

Weighing all of the foregoing matters in the balance, the Court concludes that it is appropriate that each of Nina and Margaret should be given provision sufficient to discharge their mortgages so as assure the security of their accommodation. For Margaret there should also be a small additional provision to allow for expenses and contingencies. There is no further discretionary reason why provision should not be ordered.

This means that the Court will order provision for Nina from the estate of $200,000 and for Margaret of $150,000. The answer to question [18(8)] above is therefore $200,000 (Nina) and $150,000 (Margaret).

Subject to hearing the parties as to any special costs orders that may be sought, the Court will order that the estate pays Nina’s and Margaret’s costs on the ordinary basis and Samantha’s costs on the indemnity basis.