Baldwin v Favre

1. [1]

   McHUGH JA: The plaintiff, Florencia Baldwin (also known as Rosabelle), was for over two decades the de facto partner of the late William “Bill” Harvey Fisher (the Deceased), who died on 30 April 2023. She seeks an order for family provision from his estate pursuant to s 59 of the Succession Act 2006 (NSW) (the Act).

2. [2]

   The defendant, Nerida Jean Favre, is one of the Deceased’s daughters and the executrix and one of four equal residuary beneficiaries under his Will (the Will).

3. [3]

   The plaintiff brings her claim in circumstances in which (1) the Will provides for the plaintiff to have a “portable” life interest in the house in which they both lived at Pindimar, on the Central Coast in New South Wales (Pindimar), and (2) the Deceased directed that the plaintiff receive a substantial superannuation benefit. The focus of the case is Pindimar; there is no complaint about the superannuation.

4. [4]

   The plaintiff claims that the Will failed to make adequate provision for her proper maintenance, education or advancement in life by leaving her a life interest in Pindimar, rather than an absolute devise of the Deceased’s apartment at Breakfast Point, in Sydney (Breakfast Point). Expressed in summary terms rather than the precise language of the statute, that claim has two basic elements.

   1. (1)

      First, that the home that the Deceased should have left to the plaintiff is Breakfast Point, rather than Pindimar.

   2. (2)

      Secondly, that the Deceased should have given the plaintiff an absolute devise of that home, rather than a portable life estate in it.

5. [5]

   I accept the first element, but not the second.

6. [6]

   I am satisfied that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the Will, such that the power in s 59 is engaged. I have concluded that the Court should order by way of provision out of the estate that a portable life interest in Breakfast Point be substituted for the portable life interest in Pindimar.

7. [7]

   Important context for the plaintiff’s application and the defendant’s resistance to it is the fact that the Deceased was far from a model father or partner.

8. [8]

   There was also a large amount of evidence led relative to the issues of substance. This included 6 affidavits made by the plaintiff and 7 affidavits by the defendant. Much of that evidence was not directly concerned with issues of real significance for the disposition of the summons, but rather with relatively peripheral matters to which the other party then responded. The evidence included a large amount of material directed to undermining or supporting the plaintiff’s truthfulness and reliability. In what follows, I have endeavoured to identify and resolve the disputed issues of significance for the disposition of the summons.

9. [9]

   I have adopted the following structure.

   1. (1)

      Matters of background: the estate, the Will, the plaintiff’s financial position and the provision she seeks.

   2. (2)

      Uncontroversial matters about the plaintiff and her relationship with the Deceased.

   3. (3)

      Events following the Deceased’s death.

   4. (4)

      Credit.

   5. (5)

      Findings on the following contested topics:

   6. (6)

      The other beneficiaries’ relationships with the Deceased, their financial position and their needs, the detail of which I address in a Schedule.

   7. (7)

      Applicable principles.

   8. (8)

      Whether the provision made in the Will was adequate.

   9. (9)

      What provision the Court should order.

Matters of background

1. [10]

   The assets of the estate, estimated to have a value as at 11 September 2024 of about $4.325 million, were as follows:

2. [11]

   The Deceased also had a superannuation fund in which the plaintiff has an interest entitling her to a pension benefit. As at 13 September 2024 the balance of the fund was $568,993.50. The plaintiff’s evidence was that the superannuation benefit has been paid to her monthly in the sum of $8,184.80.

3. [12]

   The defendant’s solicitor gave an estimate (on an indemnity basis) of outstanding costs (including counsel’s fees and disbursements) as follows: the defendant’s costs of an unsuccessful application in the Court of Appeal ($50,000); costs of administration ($20,000); the defendant’s costs of defending the family provision application ($68,500); the defendant’s further legal costs of the three-day hearing before me ($66,000); being a total of about $205,000.

4. [13]

   The estate has a liability for a costs order made in favour of the plaintiff in the Court of Appeal in an amount that has not been assessed. As at 18 September 2024, the plaintiff had paid $13,532 in legal costs. Her outstanding unpaid legal fees and disbursements (which include her costs of her appeal in the Court of Appeal) were estimated as totalling $144,900, and her estimated costs of the hearing were $50,000. The total of those figures is a little less than $210,000.

5. [14]

   The sum of the defendant’s outstanding legal costs and the plaintiff’s legal costs is thus in the order of $415,000.

6. [15]

   The Deceased made the Will on 23 July 2015. Pursuant to clauses 6.1 to 6.7, the plaintiff is given a portable life interest in Pindimar. The mechanism by which the life interest is to be given effect is that the defendant is to hold the Deceased’s interest in Pindimar on trust. The plaintiff has the right to reside at Pindimar for the rest of her life, subject to payment of home expenses. She also has the right to direct that Pindimar be sold and that the proceeds of sale be applied to purchase an alternative property (to be held on the same terms), be used to obtain an interest in aged care accommodation, and/or be invested, with the income payable to her over the balance of her life.

7. [16]

   The residue of the Deceased’s estate is to be held on trust equally for four primary residuary beneficiaries: the Deceased’s children Nerida Favre (the defendant), Louise Anne Gaggin and William “Billy” Stanley Fisher, and the Deceased’s granddaughter Madison Jade Fisher, who is the daughter of the Deceased’s son Stuart Fisher who died in 2010. For convenience, and without disrespect, I will refer to the beneficiaries as Nerida (or the defendant), Louise, Billy and Madison.

8. [17]

   Under the Will, upon the plaintiff’s death, her portable life interest in Pindimar is to pass in equal shares to Nerida, Louise, Billy and Madison.

9. [18]

   It might be noted that under the Will as it stands, the principal assets constituting the residue of the estate available for immediate realisation will be Breakfast Point (with an estimated value of between $1,785,000 and $1,900,000) and the HUB24 account ($759,176.48); i.e., approximately $2.54-$2.66 million. On the assumption (which remains to be tested) that the estate met the legal costs of both parties (totalling about $415,000 as discussed above), the balance after realisation costs should be somewhere in the order of $2.1 million.

10. [19]

    For present purposes I will proceed on the basis that in the event that the plaintiff is wholly unsuccessful in her application, each of the four residuary beneficiaries will receive a distribution in the near future of at least $475,000 and probably closer to $525,000. Upon the death of the plaintiff at some unknown time in the future they will each also receive one quarter share in Pindimar (or whatever asset the plaintiff has directed the proceeds of Pindimar be used to acquire).

11. [20]

    In addition to her monthly superannuation pension payment of $8,184.80, the plaintiff receives a monthly Centrelink benefit of $1,666.40. Her monthly expenses are $2,382. The relative modesty of this figure is due in part to the fact that since the Deceased died, the plaintiff has been living at Pindimar, and more recently at Breakfast Point (in circumstances to which I will return below), without paying any occupation fee.

12. [21]

    As at 18 September 2024, the plaintiff’s assets consisted of furniture and personal items with an estimated value of $5,000; a 2002 Toyota RAV4 motor vehicle with an estimated value of $1,500; a Westpac Choice bank account with a balance of $25,475.63; and a Westpac Life bank account (which the plaintiff said she forgot to include in the list of assets in her 18 September affidavit) with a balance of $5,022.23 as at 31 August 2024. Although the plaintiff was cross-examined about her initial failure to disclose the Westpac Life account, and although there is certainly room to criticise the lack of attention given in the preparation of evidence to these matters, it was not suggested that the plaintiff had any other substantial assets.

13. [22]

    The plaintiff seeks the following provision:

    1. (1)

       in lieu of the provision made for her to have a portable life interest in Pindimar under clause 6 of the Will, a devise of Breakfast Point to her absolutely;

    2. (2)

       the sum of $25,000 for the cost of a used 2018 Toyota RAV4.

14. [23]

    In light of the substantial superannuation benefit that she receives, the plaintiff does not otherwise seek financial provision from the estate.

15. [24]

    In summary, the plaintiff founds her claim on the basis that she believed Breakfast Point “was my property” (affidavit of 18 September 2024 at [57]); that the Deceased had made representations to her to that effect; that she does not wish to live at Pindimar where she is remote from her sons, her community and services; and that her relationship with the defendant is characterised by conflict such that she does not wish to have the defendant hold her accommodation on trust for her.

16. [25]

    It might be noted that in the event that the plaintiff succeeds in her claim, the principal assets constituting the residue of the estate will be Pindimar ($1,550,000) and the HUB24 account ($759,176.48), i.e., approximately $2.31 million. On the assumption that the estate met the legal costs of both parties (totalling about $415,000 as discussed above), the balance after realisation costs should be somewhere in the order of $1.8 million. For present purposes I will proceed on the basis that in that event, each of the four beneficiaries will receive a distribution of at least $400,000 and probably closer to $450,000.

The plaintiff and her relationship with the Deceased

1. [26]

   The plaintiff made six affidavits; the defendant seven. Significant parts of the plaintiff’s evidence were challenged. It is however convenient to set out first some general background about the plaintiff and her relationship with the Deceased to provide the context in which those challenges fall to be addressed.

2. [27]

   The plaintiff was born in the Philippines. She is 64 years old. She attended school in the Philippines until the age of 11 when she commenced work on the family farm. She has no formal educational qualifications. English is her second language.

3. [28]

   The plaintiff met her first husband, Robert Baldwin, who was a ship’s captain, in Manila. He sponsored the plaintiff to live in Australia, to which she immigrated in June 1989. She married Robert Baldwin on 15 July 1989 and they had two children, Scott Baldwin (born in 1989) and Mike Baldwin (born in 1990), to whom I will refer without disrespect as Scott and Mike. The plaintiff and Robert Baldwin divorced in 1993, with the plaintiff receiving no assets in the divorce.

4. [29]

   From 1993 to 2000, the plaintiff had various jobs including casual housecleaning, working in coffee shops and at a restaurant. From 2000 to 2002, she worked at the Burwood RSL club as a casual bar attendant. There she met the Deceased in 2002, and they formed a relationship.

5. [30]

   The Deceased was 22 years the plaintiff’s senior. He was estranged from his wife, Jeanette, who is the mother of Nerida, Louise and Billy. The plaintiff gave evidence, which I do not understand to be controversial, that in 2002 the Deceased was the owner of four properties: two houses in the same street in Putney, one of which was his former matrimonial home which he owned together with Jeanette; an investment property in Eastwood; and Pindimar.

6. [31]

   In 2002, the plaintiff was living with her sons in a rental property at Wareemba. The Deceased began providing financial support for her. When the plaintiff and the Deceased had been in a relationship for approximately six months, she left her job at the Burwood RSL club and she and her two sons moved into the Deceased’s home in Putney. The plaintiff gave evidence, which I accept, that from 2002 until the Deceased’s death he supported her financially and she was dependent upon him. The plaintiff had some casual employment in the period 2002 to 2011 at KinCare and working at the creche at a gym in Eastwood, but she has not worked outside the home since 2011 and was wholly financially dependent upon the Deceased since that time.

7. [32]

   The plaintiff gave evidence in her affidavit made 9 October 2023, which I accept, that in this period she was responsible for cooking and cleaning for the household and that she looked after the Deceased when he was ill.

8. [33]

   The plaintiff also gave evidence in her affidavit, which I do not accept in this unqualified form in light of the cross-examination to which I refer below, that the Deceased “was a loving partner ... . We had a happy family home.”

9. [34]

   In 2006, the Deceased sold the home at Putney in which he had been living with the plaintiff and her two sons. The contract had an extended settlement. There is a dispute about the circumstances in which the Deceased purchased Breakfast Point in 2008, to which I will return below. For present purposes, it suffices to note that the purchase was completed in August 2008 and the Deceased, the plaintiff and her two sons moved into Breakfast Point, which is a two-bedroom apartment.

10. [35]

    The plaintiff gave evidence, which I accept, that in 2009 the Deceased told her that he wanted them both to move to live in his house at Pindimar. The plaintiff did not want to go, particularly because her sons would be in Sydney.

11. [36]

    In about 2009, the Deceased moved to Pindimar. The plaintiff’s sons remained living at Breakfast Point (where they both stayed until 2024, Scott still living there as at the date of the hearing). The plaintiff at first divided her time between spending two weeks at Pindimar with the Deceased and one week at Breakfast Point with her sons. I accept the plaintiff’s evidence that the Deceased paid the rates, body corporate fees, water rates and telephone expenses for Breakfast Point and gave the plaintiff $500-$600 cash for expenses when she went to Breakfast Point.

12. [37]

    Over time, the plaintiff’s visits to Breakfast Point became less frequent. She gave evidence in her affidavit that the Deceased said to her words to the effect, “I am getting older now. I need your help here. The boys are okay.” I accept that evidence.

13. [38]

    From 2012, the plaintiff lived permanently with the Deceased at Pindimar. I accept the evidence given in her first affidavit that she cooked and cleaned for the Deceased, that she did not obtain any paid employment once she moved to Pindimar permanently, and that she was required to assist with manual labour working on the property. I also accept the plaintiff’s evidence that she was the Deceased’s driver, nurse and housekeeper, and that she cared for him through various illnesses and hospitalisations which the Deceased suffered in the time they were living at Pindimar.

14. [39]

    In the years shortly after the plaintiff moved to live permanently at Pindimar, the Deceased made two important financial decisions which are consistent with his having a strong relationship with, and sense of responsibility for, the plaintiff. First, on 14 April 2014, the Deceased executed a binding determination directing the trustee of his superannuation fund to hold the fund for the benefit of the plaintiff. Secondly, on 23 July 2015, the Deceased made the Will, making provision for the portable life estate to which I have referred above.

15. [40]

    However, the overall picture of their relationship is more complicated than the plaintiff had sought to present in her evidence until it was contradicted and she was challenged on it. As will be seen, the plaintiff was cross-examined on a number of matters which suggest that at times the Deceased did not trust her, and that more generally their relationship was at times volatile and violent. I will address some of this evidence in detail below. But it is convenient to summarise these matters as follows.

    1. (1)

       In 2004 — relatively early in their relationship — the plaintiff and the Deceased entered a binding financial agreement (the final terms of which are not in evidence). Since the Deceased had acquired most of his wealth prior to his relationship with the plaintiff, this appears to have been designed to protect him from claims she might make if they separated.

    2. (2)

       The Deceased does not appear to have wanted the plaintiff to know that in late 2011 he appointed Nerida his enduring guardian and attorney. Nerida gave evidence in her 7 May 2024 affidavit that her father said to her words to the effect, “There is no need for Rosabelle to know about this.” Although the plaintiff responded in her affidavit of 7 June 2024 to other aspects of that affidavit, she did not respond to that evidence.

    3. (3)

       In about 2014, the Deceased reported the plaintiff to the police, alleging that she had stolen money from him.

    4. (4)

       The Deceased had an affair or affairs.

    5. (5)

       On several occasions the police were called because of physical altercations.

    6. (6)

       The Deceased said contemptuous and racist things about the plaintiff, at least when talking to others about her.

16. [41]

    The defendant drew attention to those matters largely, as I understood it, as vehicles through which to attack the plaintiff’s credit for the purpose of undermining her evidence that the Deceased had made representations to her about Breakfast Point. The defendant also relied on these matters as having a negative bearing on, at least, the assessment of the plaintiff’s relationship with the Deceased: s 60(2)(a). But it seems to me that the greater significance of the volatility and conflict between the plaintiff and the Deceased is that she remained with him despite it. These matters powerfully demonstrate the extent of her dependence upon him.

17. [42]

    The plaintiff gave evidence that she suffers from a number of health issues which affect her ability to perform activities of daily living, including diabetes, high blood pressure, depression, anxiety and panic attacks. I did not understand those matters to be in dispute. Nor was there any dispute that the plaintiff is taking six medications of which she gave evidence.

Events following the Deceased’s death

1. [43]

   After the Deceased’s death on 30 April 2023, the plaintiff remained at Pindimar until mid-2024.

2. [44]

   There was a good deal of evidence directed to conflict in this period between the plaintiff and the defendant, including about a confrontation in July 2023 at Pindimar. The circumstances of that incident are contested, but I have found it unnecessary to resolve the contest. It suffices to say that the relationship between the plaintiff and the defendant has been generally hostile since the Deceased died. That gave rise to an issue at the hearing about whether the provision made for the plaintiff in the Will would be proper if it effectively forced the plaintiff and the defendant to remain in a relationship that might give rise to conflict over an indefinite period.

3. [45]

   The defendant gave evidence that she has no particular desire to remain trustee of the plaintiff’s portable life interest under the Will once she has fulfilled her immediate role as executrix. She undertook to the Court that, provided that a replacement trustee was a suitable person, she would consent to an independent trustee being appointed. However, she also said that she would consent to remaining trustee, on the understanding that realistically the role would be limited to ensuring that insurance, outgoings and maintenance on any substitute property were paid, attending to any tax return and paying any income to the plaintiff. Notwithstanding the past hostility between the plaintiff and the defendant, I am satisfied that if it were not possible to find a suitable replacement trustee, the defendant would discharge her duties in accordance with the requirements of the trust established by the Will.

4. [46]

   The plaintiff gave evidence, which I accept, that she was frightened by two intruders walking along the upstairs veranda next to her bedroom at Pindimar around midnight on 22 July 2023. She said that the two people fled when she turned on the lights but that she was too scared to go back to sleep. She also gave evidence that in October 2023, the water supply to the house at Pindimar stopped working because the water delivery line had been manually cut off. The plaintiff said that this scared her.

5. [47]

   On 23 November 2023, the plaintiff’s solicitors wrote to the then solicitor for the defendant, stating that Pindimar was not suitable for her needs. The plaintiff gave notice that she would seek an order that Breakfast Point be transferred to her, and sought the defendant’s agreement that Breakfast Point be substituted for Pindimar under clause 6 of the Will.

6. [48]

   The defendant’s solicitor responded on 8 February 2024, inviting a proposal that the plaintiff or her sons in effect contribute any difference in value between Pindimar and Breakfast Point. That letter also advised that the plaintiff’s sons’ continued occupation at Breakfast Point was a trespass.

7. [49]

   This appears to have prompted the plaintiff to file a notice of motion seeking orders for interim provision in relation to Breakfast Point. On 17 June 2024, Kunc J refused that application, but granted an interlocutory injunction the effect of which would have been to permit the plaintiff and her sons to occupy Breakfast Point. Those orders were stayed pending an application for leave to appeal to the Court of Appeal.

8. [50]

   On 18 July 2024, the plaintiff by her solicitors gave notice to the defendant pursuant to clause 6.4 of the Will that she no longer wished to reside at Pindimar and consented to its sale. Although as at 20 September 2024 the defendant had appointed an agent for the sale of Pindimar, it was necessary to undertake work to bring the sewage system up to council standards before the sale could proceed.

9. [51]

   On 30 July 2024, the plaintiff by her solicitors gave notice that she had vacated Pindimar. That letter did not disclose that when the plaintiff vacated Pindimar on 25 July 2024, she moved into Breakfast Point. Since that time, the plaintiff has been living at Breakfast Point with her son Scott, her son Mike having moved out to live with his partner in Caringbah.

10. [52]

    On 3 September 2024, the application for leave to appeal from Kunc J’s decision was refused with costs, on the basis that there was little utility in granting leave to appeal when the Court was in a position to hear the matter in October 2024.

11. [53]

    In the circumstances I have outlined above, I give little weight to the fact that the plaintiff has been in occupation at Breakfast Point since 25 July 2024. But it is a matter of some significance that she exercised her rights under clause 6.4 to direct the defendant to sell Pindimar, consistently with her position that Pindimar was not a suitable home for her.

The witnesses: credibility and reliability

1. [54]

   Before making findings about the significant issues in dispute, it is necessary to say something about the witnesses’ credibility and reliability.

2. [55]

   Save for the plaintiff, whose evidence I will have to address in some detail below, I had no reservations about the credibility or general reliability of any of the witnesses.

3. [56]

   Ms Glennise Bottomley, a friend of the plaintiff from Pindimar, gave evidence, although only very briefly, in a clear, forthright and precise manner that certainly had the ring of truth to it. Her evidence was not as to matters of significance for the disposition of the summons.

4. [57]

   The plaintiff’s son Mike was an impressive witness. He was careful, thoughtful, direct and prepared to make concessions fairly required. His answers were generally responsive and to the point.

5. [58]

   Madison was also an impressive witness. She paid close attention to the questions and answered responsively.

6. [59]

   The defendant Nerida was a forthright witness who presented as rightly proud of her independence and self-reliance. She was occasionally emotional in answering (for which I make no criticism of her or her evidence). Although she tended to want to give reasons explaining the matters about which she was being questioned, I did not find her to be evasive.

7. [60]

   Billy seemed slightly overawed by the courtroom environment. He was a straightforward witness who appeared to answer directly to the best of his ability. He did have some trouble at times following the distinctions drawn in the questions, for example the difference between the exact words and the gist of what was said, but not in a way that ultimately caused me to have any concerns about his evidence.

8. [61]

   Louise presented as somewhat anxious. But again I found her direct and I had the impression that she was answering the questions to the best of her ability.

9. [62]

   As already noted, the plaintiff made six affidavits in the proceeding. Her truthfulness and reliability were the subject of a sustained attack in cross-examination, almost the whole of which was directed in one way or another to her credit. It was put to her repeatedly that her evidence was invented, and at times that it was a deliberate lie. Both parties provided written submissions addressing whether the Court should accept her evidence. Given that much of the detail of the credit attack was bound up with cross-examination about the substantive matters relevant to disposition of the summons, I will deal with the former as required in the course of addressing the latter. It is, however, appropriate at this stage to make some general observations about the plaintiff’s manner of giving evidence. Although I have read the parties’ submissions closely, I do not consider it necessary or appropriate to resolve the many disputes over matters of peripheral significance about which submissions were made, such as whether at the time the Deceased died the plaintiff was (as she said) holding his hand, or was instead in the hospital car park.

10. [63]

    English is not the plaintiff’s first language. Although she has lived in Australia for many years, and plainly has a strong functional level of English, she was at something of a disadvantage when being cross-examined. That was clear when it came to drawing distinctions or where the question had more than one element. Her affidavits were drafted in sophisticated language, but it became apparent in the course of her cross-examination that at times she did not understand the whole question — although she would, at least at first, not say so. She had particular trouble when the cross-examiner spoke at speed.

11. [64]

    At times the plaintiff became emotional (for which I make no criticism of her or her evidence), and it was necessary to take a short adjournment so that she could recompose herself. It was submitted for the plaintiff that the nature of the attack on her evidence was debilitating, and that given her poor levels of education, that English is her second language, and the fact that she has suffered panic attacks as a consequence of her interactions with the Deceased’s family and the litigation, it is understandable that she had difficulty focusing on direct answers to questions. While there is some merit in that submission, it overstates the position.

12. [65]

    Even allowing for the stresses of the litigation and of giving evidence, and for the inevitable difficulties that matters of language, and possibly differences in cultural background, can cause in cross-examination, the plaintiff was not on the whole an impressive witness. She did not always appear to be paying full attention to the question, instead being distracted by her affidavits or whatever document she was being cross-examined on. She did not always engage directly with the question, but instead gave answers that stated her general position on a topic. At other times the plaintiff’s answers were simply non-responsive, or appeared to be selective in the part of the question to which she responded. On some of the occasions on which she said she did not understand questions, I had the impression that she was unsure what answer was best for her case.

13. [66]

    Her evidence was at times self-serving. For example, the unqualified picture that she painted in her first affidavit of a “happy family home” was seriously incomplete, in light of evidence that emerged that from 2002 to 2008 the plaintiff had a violent home life with the Deceased; that the police were contacted on at least three occasions; that in December 2007 the Deceased claimed that the plaintiff had pulled a knife on him, and the police were called; that in August 2007 the Deceased assaulted the plaintiff because of a dispute over a woman’s underwear; that in 2004 the Deceased had also assaulted the plaintiff; and that the “turbulent times” did not stop after 2008, including because the Deceased had affairs with other women (Tcpt, 8 October 2024, 41.26 ff). An incident of particular significance as to the nature of the couple’s relationship was the one in 2014 (addressed in detail below), in which the Deceased made a complaint to the police that the plaintiff had stolen money from him. I do not accept the submission, made with respect to the plaintiff’s unqualified evidence describing a happy home life, that it was “a plausible worldview even if domestic violence is inconsistent with that according to community standards”.

14. [67]

    Given the passage of time, some of the plaintiff’s evidence — particularly of conversations — was plainly reconstructed in important respects, and she had trouble remembering matters on some subjects until she refreshed her recollection from an affidavit. That is not to say that such evidence was necessarily deliberately untruthful. A witness can reconstruct events in a way that is most favourable to the witness while genuinely believing that that reconstructed account is true. Here, the plaintiff generally gave her evidence, particularly on matters on which she was challenged, with apparent conviction.

15. [68]

    But the passage of time and the natural human tendency to reconstruct while eliding the distinctions between what one heard, what one understood, and what one felt one deserved, make it difficult to place weight on the apparent sincerity of the plaintiff’s evidence. The objective circumstances provide a stronger foundation from which to draw inferences about what occurred many years ago. For example, I do not accept the accuracy of the plaintiff’s evidence of what the Deceased said to her on various occasions about Breakfast Point where it is inconsistent with inferences to be drawn from other evidence about the attitude and conduct of the Deceased at the time in the circumstances of their relationship.

16. [69]

    The plaintiff also gave evidence that her memory had been affected, particularly in the two or three months leading up to the hearing (i.e., not at the time she had filed most of her affidavit evidence), by the medicines she was taking. She was asked:

17. [70]

    Later, the following exchange took place:

18. [71]

    Although I raised the question of an interpreter with the plaintiff’s counsel, no application was made to use one. While I accept that the plaintiff sometimes had difficulty in understanding questions because of matters of language, and in remembering details, in this exchange she did not appear to be making a genuine attempt to engage with the questions. She attributed her difficulties to her medications, of which she had given evidence at [130] of her 9 October 2023 affidavit, but no evidence was led from a medically qualified source as to their likely effect on memory or cognition.

19. [72]

    The plaintiff often reflexively began her answers with the word “Yes”, even when she did not necessarily agree with the proposition being put to her. An example was her evidence at Tcpt, 8 October 2024, 43.26-36:

20. [73]

    Despite the “Yes” in the answer to the first question, it was clear to me that the plaintiff was not agreeing with the proposition that she had deliberately omitted something from her affidavit. She did not respond to that part of the question at all. She was instead agreeing that the Deceased had had an affair, which the plaintiff then sought to play down (“just a short time”). On this occasion, I did not have the impression that the plaintiff was being evasive, but rather that she was focusing on what she perceived to be the main issue (i.e., the affair, as opposed to how her affidavits had been prepared).

21. [74]

    As to the second question in that passage, it was again clear that despite the “Yes”, the plaintiff was not agreeing with the proposition that the reason she had not mentioned the affair in her affidavits was because she thought it would hurt her case. To the contrary, she said, “I didn’t think about that”. So much was a responsive answer. But again, the plaintiff then sought to play down the significance of the affair (“but I told you he is a very nice and kind person”), and in effect to blame the other woman.

22. [75]

    The plaintiff’s tendency to begin her answers with the word “Yes” without necessarily meaning to convey agreement means that one must approach what may appear in transcript to be a concession with a degree of caution. An example is the exchange immediately following the one set out above at Tcpt, 8 October 2024, 43.38-44:

23. [76]

    Notwithstanding the second unqualified “Yes” answer, I had the impression that the plaintiff had not understood that she was being asked whether she had been consciously selective in excluding matters from her affidavits.

24. [77]

    Even the cross-examiner acknowledged at times that a “Yes” answer she had obtained had no value. The following exchange occurred in relation to a draft 2004 deed (I will shortly return in some detail to the evidence about the draft deed):

25. [78]

    That is not to say that none of the plaintiff’s answers should be understood as making concessions or agreeing with the proposition put. Far from it. But each answer has to be understood in its context, and with an awareness of the possibility that the plaintiff might not always have understood or have been concentrating on what she was asked.

26. [79]

    The overall picture of the plaintiff’s evidence is thus complex. There are several reasons for approaching the accuracy of her evidence, particularly about conversations many years ago, with care. But it is not possible to make any blanket finding as to her truthfulness or reliability that can automatically be applied to every answer.

27. [80]

    I will now turn to the evidence about the disputed issues of significance.

The 2004 draft Property (Relationships) Act 1984 (NSW) deed

1. [81]

   Very late in the preparation of evidence, the defendant exhibited to her affidavit of 17 September 2024 three documents which she described as “ones recently found.”

2. [82]

   The first was an unexecuted copy, stamped DRAFT, of a deed bearing the date 2004 between the Deceased and the plaintiff, which was directed to the financial consequences of any future separation. The draft deed recited:

   1. (1)

      at (a), “Bill and Florencia have been living in a de facto relationship for approximately 5 months” — I note that as at 2004 the couple had in fact been cohabiting for approximately two years;

   2. (2)

      at (d), “The parties have no present plans to become married but wish to live in a de facto relationship”;

   3. (3)

      at (d)-(g) that the Deceased owned the two houses at Putney, the property at Pindimar and a boat repair business;

   4. (4)

      at (h), “Certain questions have arisen between the parties concerning their future welfare and property and the rights of their children to inherit property from their parents”; and

   5. (5)

      at (j)-(l), that the parties had considered the independent advice given to them by separate legal representatives concerning various matters, including the effect of the deed on their rights under the “Property (Relationships) Act 1994” (apparently a reference to the 1984 Act of the same name) and the “Family Provision Act 1982”, and that the deed was intended to operate in substitution for their rights under those Acts.

3. [83]

   The operative provisions of the draft deed included the following.

   1. (1)

      Clause 2: “In the event that the parties shall separate permanently then Bill will be entitled to the exclusion of Florencia to retain all assets which he presently owns subject to all liabilities which will remain his responsibility.”

   2. (2)

      Clause 3: “In the event that the parties shall separate permanently then Florencia will be entitled to the exclusion of Bill to all property which she owns subject to any liabilities attaching thereto which will remain her responsibility.”

   3. (3)

      Clause 4: “In the event that the parties shall separate permanently then all property acquired by the parties since the date of cohabitation commenced shall be sold and the proceeds thereof divided between the parties equally unless otherwise agreed between the parties.”

   4. (4)

      Clause 5: “In the event that the parties shall separate permanently then both parties shall indemnify the other concerning their liabilities.”

   5. (5)

      Clause 6: “In the event that the parties shall separate then neither shall be required to pay maintenance to the other.”

   6. (6)

      Clause 7: “The parties agree that it is their present intention to continue living together in a de facto relationship indefinitely.”

   7. (7)

      Clause 8: “So far as practicable Bill will pay all living expenses including food and other essentials and for any holidays that they may take together until the parties cease to cohabit as de facto partners.”

   8. (8)

      Clause 9: “Bill will be entitled to all income earned from his business and to all income derived from assets and financial resources held in his name. Florencia will be entitled to all income earned from assets and financial resources held in her name.”

   9. (9)

      Clause 10 gave mutual releases for purposes of the Property (Relationships) Act, and clause 11 provided that if any part of the agreement was not approved by the Supreme Court of New South Wales pursuant to s 31 of the Family Provision Act 1982 (NSW), the rest of the agreement was intended to remain valid and enforceable.

4. [84]

   The second of the three documents annexed to the defendant’s affidavit of 17 September 2024 was a copy of a letter from David Pain & Co Solicitors to the Deceased dated 14 April 2004, the body of which was as follows.

5. [85]

   Given the correspondence between clause 7 of the draft deed which is in evidence and the description of the “substitute clause” in this letter, it is probable that the draft deed in evidence either was the “further draft of the agreement” enclosed with this letter, or at least post-dated the letter. However, the somewhat obscure reference in the letter to the plaintiff having a life interest in the house (which is not express in the draft deed in evidence) tends to favour the latter hypothesis. It also indicates that the Deceased, and possibly the plaintiff, were aware of the concept of a life interest in this context as early as 2004. On either basis, the draft deed in evidence should be taken to represent the solicitor’s understanding of his instructions as at, or after, 14 April 2004, being the date of the letter. Those instructions appear to have been given by the Deceased (to whom the letter was addressed), but incorporating input from the plaintiff: “We think that’s what she means by the amendment she put on the draft copy”, and see the reference to the “further draft of the agreement for your consideration and the consideration of Mrs Baldwin”. The content of the “deleted clause 7” from an earlier draft is unknown.

6. [86]

   The third of the documents annexed to the defendant’s 17 September 2024 affidavit was a copy of a letter and invoice from Thurlow Fisher Lawyers & Consultants addressed to the plaintiff dated 29 June 2004, i.e., more than two months later, the body of which was as follows.

7. [87]

   The words “clause J1-5” appear to correspond to recital J of the draft deed in evidence, which recorded five topics of legal advice numbered (i)-(v). I note that at this stage, the lawyer Mr Fisher was still referring to an “enclosed draft deed”. It may be that this document was the draft deed in evidence, or (if the draft in evidence is the one that was attached to the letter from David Pain & Co) a later draft; it is also possible that they were the same document.

8. [88]

   In response to the defendant’s affidavit of 17 September 2024, the plaintiff then said in her affidavit of 25 September 2024 that she had reviewed the three documents, and that she did not hold draft or signed copies of any deed made for purposes of the Property (Relationships) Act in or about 2004. She said that in 2004 a Mr Fisher, who was a lawyer, lived in the same street as the Deceased and the plaintiff in Putney. She deposed that once while she was cooking the Deceased said to her that Mr Fisher was going to come over and give her some papers to sign; I note that this appears to have been the “attendance with you on 23 June 2004” to which Mr Fisher referred in his letter.

9. [89]

   I accept the plaintiff’s account of the matters to which I have referred in the preceding paragraph which she gave in her affidavit of 25 September 2024. I am not persuaded by the defendant’s submission that the plaintiff deliberately omitted reference to the deed from her earlier affidavits. It is equally possible that the plaintiff had overlooked a document executed 20 years ago, and, given the evidence against interest to which I refer below, I would not infer deliberate withholding.

10. [90]

    However, for reasons I will explain, I do not accept the following evidence given by the plaintiff in her 25 September 2024 affidavit to the extent that it conveys that she was unaware of the contents of the document in 2004 or that the Deceased dealt with her on that basis. But I accept her evidence, which I consider to be against interest, that she signed a document that Mr Fisher brought to her.

11. [91]

    The plaintiff said that when she asked the Deceased what the papers were for, he said, “Just sign it and we can talk about it later”. She said that when Mr Fisher arrived he asked her whether the Deceased had spoken to her about the papers, to which she replied, “Bill told me to sign it and he will talk to me about it later”. She said that although she did not read the document, and although the lawyer Mr Fisher did not read the document out loud to her, nevertheless “I signed a document that day.” She said that she did not receive any account issued by Thurlow Fisher or any letter from Thurlow Fisher. She said that later that evening when she asked the Deceased about the papers, he said words to the effect, “It is about my property with Jeanette [i.e., the Deceased’s wife from whom he was then separated but apparently not yet divorced]. Don’t worry, after I finish with Jeanette, I will have something for you. Let me just finish this problem first, and then we can get on with our lives”.

12. [92]

    No executed copy of the deed is in evidence; nor was there any evidence from either of the lawyers, Mr Fisher or Mr Palmer. I consider the plaintiff’s evidence that she signed “a document” brought to her by the lawyer Mr Fisher in 2004 to be honest evidence against interest, which the other evidence did not put her in a position of being compelled to concede. Based on that evidence, I find that in 2004 the plaintiff and the Deceased executed a deed of some kind for purposes of the Property (Relationships) Act (and possibly the Family Provision Act) which addressed the financial consequences of a future separation. But in light of the fact that both of the solicitors’ letters in evidence referred to drafts of the deed, and since there is no basis on which to conclude that the draft in evidence represented the final position, I am unable to make a finding about the specific content of the agreement that was entered.

13. [93]

    The reasons why I do not accept the other aspects of the plaintiff’s evidence in her 25 September 2024 affidavit referred to above are as follows. First, the letter from Mr Palmer of David Pain & Co referred to “the amendment she [i.e., the plaintiff] put on the draft copy” — a matter which the plaintiff did not address in her affidavit.

14. [94]

    Secondly, the defendant tendered at the hearing a copy of an undated handwritten letter to the Deceased signed by the plaintiff, which became exhibit D3. When asked whether it was in her handwriting, the plaintiff answered, “Similar, but I didn’t think that I did this” (Tcpt, 8 October 2024, 73.13 ff). She said that she did not remember writing the document, but when asked whether she was denying that it was her signature, she answered, “I, I’m not sure, but I try to figure out because it’s a long, long time ago” (Tcpt, 8 October 2024, 73.30). When it was put to her that she had written the document when she was discussing the terms of the deed with the Deceased, the plaintiff answered, “Sign the document with Bill? Probably, yes” (Tcpt, 8 October 2024, 74.6). I am satisfied on the balance of probabilities that the plaintiff wrote exhibit D3 in 2004 in connection with the deed that she ultimately executed, as was not ultimately disputed in submissions.

15. [95]

    The letter, the whole of which was as follows, is inconsistent with the plaintiff’s account in her affidavit of 25 September 2024 that she was unaware of the contents of the document she had signed.

16. [96]

    I am satisfied on the balance of probabilities that this letter was referring to a draft of the 2004 deed, and in particular to the plaintiff’s objection to clause 7. It may be that the words “Remove that No. 7 on the paper” were referring to an earlier draft of the deed which is not in evidence, from which Mr Palmer had “deleted clause 7”. Given the plaintiff’s position in her handwritten letter that “after two years we get married”, it may instead be that she was objecting to clause 7 of the draft which is in evidence, which stated that the parties intended to continue to live in a de facto relationship indefinitely (recital (d) recording that the parties had no present plans to become married). For present purposes I do not think it matters.

17. [97]

    The important points are as follows. First, I do not accept the plaintiff’s account in her 25 September 2004 affidavit of her conversations with either the Deceased or the lawyer Mr Fisher about the deed. I am not persuaded that that evidence, on which the plaintiff was cross-examined forcefully and at length, was dishonest, or that the plaintiff was pretending that she did not understand the cross-examiner’s questions because she did not know how to answer them in a way that would help her case. But the plaintiff’s evidence was reconstructed in a highly self-serving manner. This is a rare example in which there is contemporaneous documentary material against which to measure the accuracy of the plaintiff’s recollection of conversations with the Deceased. It casts significant doubt on the reliability of such evidence where her own interest is engaged.

18. [98]

    Secondly, the entry into the deed shows that, at least as at 2004, the Deceased was highly concerned to protect his existing assets from the plaintiff, in the event that they separated. While this episode predated the acquisition of Breakfast Point by about four years, given the evidence of the volatility of the couple’s relationship and the probabilities in light of the Deceased’s character and conduct as disclosed in the evidence (particularly his attitude to the other house in Putney in which Jeanette lived), it is improbable that he would have wanted to expose himself at any stage to the risk that the plaintiff would have rights against any property bought with his money if they separated.

19. [99]

    In the absence of evidence of the executed deed, it is difficult to make much of specific clauses in the draft. Although clause 4 in the draft deed provided that if the parties separated, property acquired after the date of cohabitation (which would include, for example, Breakfast Point) would be sold and the proceeds divided equally, the words at the end of the clause are important: “unless otherwise agreed between the parties.” Since the Deceased had the economic power in the relationship, and since the effect of the draft deed would have been to leave the plaintiff with no leverage if they separated before any such property was acquired, the words at the end of clause 4 (if that clause was included in the executed deed) would have given the Deceased considerable protection.

20. [100]

    The plaintiff rightly points out that the 2004 draft deed is addressed in terms only to the position in the event of separation, and not to the position where the plaintiff remained with the Deceased until his death. But it is improbable that in the meantime the Deceased would have intended to confer on the plaintiff any present property interest in assets bought with his money, of which she would have the benefit if they later separated. It is also improbable that he would have said anything to the plaintiff that would have given her a basis to assert a present property interest if they separated.

21. [101]

    Thirdly, exhibit D3 shows that the plaintiff was acutely concerned about the vulnerability of her own position. She was financially dependent on the Deceased and had little economic bargaining power. She wanted an “assurance” that “one day” (i.e., in light of recital (h), after the Deceased’s death) “people” (the Deceased’s children) would not be able to “kick me out from here” (apparently, the home at Putney in which the couple were then living with the plaintiff’s sons). The letter was also part of a negotiation. It acknowledged a transactional element to the relationship whereby, if the plaintiff left the Deceased (and thereby failed to uphold her end of the bargain) she would not be able “to claim anything from” the Deceased. On the other hand, if she stayed with the Deceased “until the rest of our life”, then she would receive “something”, i.e., an interest in property of some kind that would protect her from being kicked out of her home. I will return to the transactional element below. But the fact that the plaintiff was expressly contemplating receiving property from the Deceased from as early as 2004 is important context in which to assess the reliability of her reconstructed evidence about conversations with the Deceased on that subject.

22. [102]

    In connection with what the “something” was or might be, the plaintiff gave this evidence in cross-examination:

23. [103]

    Specifically as to the “something”, the plaintiff was cross-examined on exhibit D3 as follows:

24. [104]

    I do not accept the defendant’s submission that the “something” was necessarily a life interest in the house at Putney. The plaintiff rejected the proposition, and the very word “something” indicates a degree of flexibility. It is in any event not clear that the proposition would necessarily assist the defendant, given that when the house at Putney was sold Breakfast Point was the property which immediately replaced it.

25. [105]

    I do not accept the submission made on behalf of the plaintiff (Plaintiff’s Submissions on Credit of Plaintiff’s Witnesses at [33]) that her evidence about her beliefs and expectations that she was or would become an owner of the Breakfast Point property is “corroborated” by, among other things, her evidence that the word “something” in exhibit D3 meant, “We have to buy somewhere else” (Tcpt, 8 October 2024, 75.36-38). It is difficult to see how one part of a witness’s evidence can corroborate another. In any event, so far as it went, the answer at Tcpt, 8 October 2024, 75.37, “Not in, not in Putney” was rejecting the proposition that the “something” was an interest in the Putney property, not necessarily that the interest might take the form of a life estate.

The Deceased reported the plaintiff to the police in 2014

1. [106]

   Before turning to the plaintiff’s evidence about representations made by the Deceased, it is convenient to deal with an incident that occurred in 2014, of which the defendant sought to make much early in the cross-examination of the plaintiff. With some hesitation, I will address the evidence of this incident in detail. It includes an example of what appears in transcript to have been a concession which I did not understand to be such when I saw and heard the cross-examination. The evidence is of some significance, not only because of the use the defendant sought to make of it as to credit, but also because it illuminates aspects of the couple’s relationship which have a bearing on the probabilities with respect to the representations the plaintiff says the Deceased made to her about ownership of Breakfast Point.

2. [107]

   The issue arose out of the defendant’s evidence in [111]-[114] of her affidavit made 7 May 2024. The defendant said that in or around late 2013, the Deceased was admitted to Maitland Hospital for about 10 days, after which he had said that money was missing from his bank account. The defendant said in her affidavit, “Dad later told me that he had reported the missing funds to the police.”

3. [108]

   The plaintiff responded to that evidence at [50]-[54] of her affidavit made 7 June 2024 as follows:

4. [109]

   At [55], the plaintiff gave evidence that she then went to Breakfast Point. She said the Deceased followed her there and tried to persuade her to return to Pindimar. The plaintiff said that the Deceased told her words to the effect, “My money is your money too. Come back and look after me. It is all ok.” The plaintiff said that based on the Deceased’s statements, she returned to the Pindimar property and continued to look after him.

5. [110]

   The plaintiff was cross-examined at length on this episode. She agreed that in 2014 the Deceased had reported her to the police for having stolen over $10,000 from him (Tcpt, 8 October 2024, 44.6), although she also said “He didn’t tell me that. He, he gave me his cards” (Tcpt, 8 October 2024, 44.35). One aspect of the questioning was designed to lock the plaintiff into having made only two withdrawals, in the sums of $1,000 and $4,000:

6. [111]

   The plaintiff was then asked:

7. [112]

   The plaintiff’s answers, “Yes, but it’s not for stealing” and “I didn’t steal”, plainly rejected any suggestion that she had not believed she was entitled to take the money.

8. [113]

   Having denied that she had stolen the money, the plaintiff was then cross-examined about the period over which she withdrew it (“I can’t remember. There’s nothing, there’s no date in here” (Tcpt, 8 October 2024, 48.17)); and again to lock her into the figure of $4,000, with which she agreed:

9. [114]

   A police record (which later became exhibit D2) relating to this episode was put before her, and she was asked:

10. [115]

    I had understood the cross‑examination prior to this point to be directed to showing that the figure of $4,000 was too low, and that the manner in which the plaintiff had withdrawn the money was in a series of transactions over an extended period. The plaintiff appeared to have had the same understanding. I had the distinct impression at the time that in giving these answers the plaintiff was agreeing only that she had taken the $12,000 from the account (“If it’s recorded in here it means it’s true”), rather than the $4,000 figure in her affidavit. She was not agreeing that she was not entitled to do so: “and I thought, it’s okay to, to get some money”. I did not understand her answers as admitting that she had stolen any money, or as departing from the account she had given in her affidavit about the Deceased’s consent. Indeed, a few questions later, when it was put to the plaintiff that she had made up the evidence in [55] of her affidavit to the effect that Bill said the words, “My money is your money too”, the plaintiff disagreed: “Yes, that’s what he said” (Tcpt, 8 October 2024, 52.18).

11. [116]

    To the extent that this episode was relied on to demonstrate the plaintiff’s lack of truthfulness (in particular, by showing that the plaintiff had dishonestly stolen the Deceased’s money), I reject both the premise and the conclusion. I did not understand the effect of the plaintiff’s answers to be that she was admitting to stealing; to the contrary, I accept that she believed she was entitled to take the money at the time. In the absence of an admission, the evidence does not establish that she stole any money. If anything, the plaintiff’s readiness to agree when shown a document that the figure was $12,000 not $4,000 enhanced her credibility, in the sense of truthfulness.

12. [117]

    But the exchanges set out above do show that the plaintiff’s evidence was not reliable, as to the timing (she could not remember), or the number of withdrawals, or the total figure (as to which she had been both adamant — “Yes, yes” — and mistaken).

13. [118]

    To the extent that this episode was relied on as bearing critically upon the plaintiff’s “character and conduct” within the meaning of s 60(2)(m) of the Act, I reject the proposition for the same reasons referred to above in relation to credit.

14. [119]

    The much greater significance of the evidence about this episode is that the plaintiff’s relationship with the Deceased was one in which (1) after more than ten years together, and after she had nursed him through his illness, he was capable of going to the police to accuse her of stealing his money; and (2) despite that, they remained together for the better part of another decade.

15. [120]

    The second point underlines the extent of the plaintiff’s dependence upon the Deceased.

16. [121]

    The first point is a circumstance in some tension with the plaintiff’s evidence (discussed below) that the Deceased made specific representations to her about her present or future ownership of Breakfast Point. The Deceased’s 2014 conduct suggests an instinctively uncompromising attitude when it came to sharing what was his. It is improbable that the same man who got the plaintiff to enter the 2004 deed, and who in 2014 went to the police over $12,000, made those specific representations in 2008.

17. [122]

    That is part of the context in which, for the reasons developed below, I am not satisfied that the Deceased made the statements or promises to the plaintiff of which she gives evidence, to the effect that she had or would have in the future part or outright ownership of Breakfast Point.

18. [123]

    One other aspect of the plaintiff’s evidence about the 2014 incident should be noted.

19. [124]

    On the plaintiff’s evidence, the Deceased told her, “My money is your money too.” The next sentence in her affidavit indicates that she understood his motive for saying that was to persuade the plaintiff to return to Pindimar to care for him: “Come back and look after me. It is all ok.” She acknowledged as much in a non-responsive answer towards the end of this passage of cross-examination: “Because he want me to come back to him. That’s why he, he make, he make those words just to make me come back to him” (Tcpt, 8 October 2024, 52.29). And, as the plaintiff said at [56] of her 7 June 2024 affidavit, “Based on the statements made by the Deceased to me I returned to the Pindimar property and continued to look after him.”

20. [125]

    On that evidence, in 2014 the plaintiff continued to understand her relationship with the Deceased as having the same transactional element that had manifested in 2004. But that transactional understanding could have arisen without the Deceased making any express representations to her. The same understanding could arise by implication out of the Deceased’s conduct over many years, leading the plaintiff to expect that she would get “something” in return for remaining with the Deceased and looking after him, including through his illnesses, until his death. I consider it likely that, consistently with his personality and the couple’s circumstances, the Deceased was happy for the plaintiff to believe, as indeed he intended, that if they remained together until he died, he would look after her in his will. In light of the events of 2004 and his knowledge of the plaintiff’s financial position, I infer that the Deceased understood that the “something” which the plaintiff expected to receive was an interest in property of some kind that would protect her from being “kicked out” of her home.

21. [126]

    Specifically as to the incident about the cash withdrawals in 2014, I consider it more likely than not that the Deceased said something to the plaintiff to persuade her to return to Pindimar. That may well have included an assurance that matters of money would not lead him to complain to the police about her again. I am not satisfied on the balance of probabilities that the Deceased went as far as saying to the plaintiff words to the effect, “My money is your money too.” But I do not think that makes any difference for present purposes. Even if he had said something to that effect, the plaintiff clearly did not understand him literally, i.e., that she would thereafter be a joint owner of all his money, or, for that matter, of all his other property. But unless any such statement is to be understood literally, it lacks sufficiently precise content to assist in resolving the questions on which disposition of the summons turns.

Evidence specific to Breakfast Point: the plaintiff’s conversations with the Deceased; the $2,000 deposit; and the sales advice

1. [127]

   The plaintiff gave evidence in her affidavits of a number of conversations with the Deceased in which she says he made representations about her present or future ownership of Breakfast Point, which she says gave rise to an understanding or expectation on her part. As will be seen, the plaintiff’s evidence about these matters was to some extent inconsistent as to the nature and extent of her ownership (although an unsophisticated layperson may not have understood them to be so).

2. [128]

   The plaintiff’s answers in cross-examination were also not always consistent. Nevertheless, she generally answered with conviction when she was being contradicted. Her responses were consistent with a genuine belief in her entitlement to some form of ownership of Breakfast Point. However, for the reasons given above, I do not consider the sincerity with which the plaintiff gave her evidence to provide great assistance in determining whether it is reliable.

3. [129]

   In her first affidavit (made on 9 October 2023), the plaintiff deposed to only one conversation on the topic of ownership of Breakfast Point, at the time of purchase in 2008.

4. [130]

   She gave evidence that in the period between 2002 and August 2008, the Deceased, the plaintiff and her two sons lived together as a family at the home in Putney. In 2006, the Deceased sold that property with an extended settlement. The plaintiff gave evidence that the Deceased said to her words to the effect, “I want to retire and move away from here”, to which she replied, “My boys are settled in school here so we need to stay in Sydney close to their schools.” The plaintiff says she commenced looking for a new home to live in, and in July 2008 she saw an advertisement for the Breakfast Point property. She said that she and the Deceased decided to buy the property. She gave the following evidence in her first affidavit at [50]-[53]:

5. [131]

   Before turning to the plaintiff’s evidence of what the Deceased said (“This is your place. It is for you and the boys.”) and what she believed (“that the property was in joint names”), it is convenient to address the sales advice and the $2,000 deposit.

6. [132]

   The plaintiff annexed to her first affidavit photographs of two versions of the sales advice dated 10 July 2008. The first version is a printed form with handwritten details; the second is a typed-up version. Under the heading “Purchaser Details” each version names the Deceased and the plaintiff, although the plaintiff is named as “Rosabelle Baldwin Fisher” (and in the handwritten version as “Mrs”).

7. [133]

   Each version of the sales advice also records an initial “Part Deposit” of $2,000. The handwritten version identifies the “Deposit on Exchange” as $75,000, on a “Contract Price” of $750,000. The corresponding figures on the typed-up version are $77,000 and $770,000. Although the plaintiff was cross-examined at some length about the fact that the initial part deposit was paid by cheque, not cash, and about the fuller account of the purchase that she gave at [12]-[22] of her second affidavit, I did not find that evidence ultimately to be inconsistent with the account given at [49]-[52] of the plaintiff’s first affidavit, particularly given that the receipt she annexed to her affidavit itself identified that the initial payment of $2,000 had been made by cheque. I accept the plaintiff’s evidence that she paid $2,000 for the initial deposit, which is also corroborated by her son Mike’s evidence under cross-examination that he knew at the time that his mother had contributed “a little deposit, just to chip in I guess”.

8. [134]

   The handwritten version of the sales advice identifies a different apartment number from that in the typed-up version, but nothing turns on that. The typed-up version shows the apartment number that was ultimately purchased. In the handwritten version, against the words “FIRB require”, the word “Yes” appears to have been circled and then crossed out; the word “No” is circled. In the typed-up version, the corresponding section simply says “No”. That is consistent with someone, perhaps the developer’s salesperson Ms Baxa, having experienced a concern that the plaintiff, as a potential purchaser, might have a residency or citizenship status that engaged the need for Foreign Investment Review Board approval; but for it to be later decided that no such approval was required.

9. [135]

   I understand that the sales advice is put forward as contemporaneous evidence that the Deceased’s actual intention, as communicated to the plaintiff at the time of purchase in 2008, was that the plaintiff was to share some form of joint ownership with the Deceased. I am not satisfied that it goes so far. While the sales advice is consistent with that proposition, it does not establish it. The sales advice appears to have been filled out by the developer’s salesperson, Ms Baxa. The evidence does not establish what involvement the Deceased had in its preparation. Ms Baxa may have simply included the names of both of the customers with whom she understood she was dealing. The sales advice was not the contract of sale; it acknowledged that there was yet to be an “Exchange”, i.e., of contract. The inaccuracy in describing the plaintiff as a purchaser would be consistent with the inaccuracy in the plaintiff’s name.

10. [136]

    That the plaintiff contributed $2,000 to the payment of the deposit, which I have accepted, is again consistent with the proposition that the Deceased intended the plaintiff to have an ownership interest of some kind in Breakfast Point, but again it does not establish the proposition. In particular, at least as a matter of arithmetic, it does not suggest that the plaintiff was to have an equal share in the ownership of Breakfast Point, still less 100%. The $2,000 was about one quarter of one percent of the purchase price. The Deceased ultimately paid the balance. Nor is there any suggestion that the plaintiff was a borrower under the loan the Deceased took out to finance the purchase. In light of the Deceased’s attitude to property and money, as manifested both in 2004 and 2014, those facts do not support an inference that in 2008 the Deceased intended the plaintiff’s contribution to be recognised by equality of ownership, or that he made statements to that effect to the plaintiff.

11. [137]

    That is the context in which to consider the plaintiff’s evidence in her first affidavit that the Deceased said, “This is your place. It is for you and the boys.”

12. [138]

    It would be surprising if there had been no discussion between the plaintiff and the Deceased about the purpose for which Breakfast Point was being purchased. But purpose (“It is for you and the boys”) and ownership (“This is your place”) are different subjects.

13. [139]

    As to the purpose for which the property was being purchased, as noted above, the plaintiff gave evidence that the Deceased had told her, before Breakfast Point was purchased, that he wanted to retire and move away, but that the plaintiff wanted to stay in Sydney where her sons were in school. I accept that evidence; it is consistent with what ultimately happened. The plaintiff’s sons moved into Breakfast Point in 2008 with the plaintiff and the Deceased; the two boys remained there until 2024; Scott still lives there. The plaintiff and the Deceased lived there from 2008 until about 2009, when the Deceased moved to Pindimar. From 2009 until about 2012, the plaintiff split her time two weeks in Pindimar and one week at Breakfast Point. From 2012, the plaintiff lived at Pindimar permanently, while her sons remained at Breakfast Point.

14. [140]

    Those circumstances support an inference that at least one purpose for which the Deceased purchased Breakfast Point in 2008 was so that the plaintiff and her sons would have somewhere to live in Sydney, both before and after the Deceased moved, as he had foreshadowed, to Pindimar. That is consistent with the plaintiff’s evidence that the Deceased said words to the effect, “It is for you and the boys,” in the sense of use rather than ownership. I consider it more likely than not that the Deceased communicated to the plaintiff in 2008 that he was buying Breakfast Point for the plaintiff to live in with her sons. But I reach that conclusion as an inference from the circumstances rather than on the basis of confidence in the plaintiff’s ability to recollect what was said some 15 years before she made her affidavit.

15. [141]

    As to ownership, I accept that the plaintiff believes she is entitled to some kind of ownership interest in Breakfast Point. But her evidence in her first affidavit was that she had understood at the time of purchase that “the property was in joint names.” That is, that she believed from 2008 to 2023 that she was at that time a legal owner of the property.

16. [142]

    I do not accept that evidence. In the circumstances discussed above, neither the sales advice nor the $2,000 contribution to the deposit goes very far to support it. The plaintiff was cross-examined by reference to the similar evidence at [20] of her affidavit of 28 February 2024; it was put to her that she did not have that belief (Tcpt, 8 October 2024, 88.2-89.4). The plaintiff agreed that the Deceased had not said anything to her about being an owner of the property (as opposed to saying “this is our place”), and she agreed that she had not signed any documents. She said that she had been “naïve” in 2008 — a proposition which I do not, having regard to all the evidence, accept. I also note that the plaintiff did not point to any circumstantial evidence indicating that in the period from 2008 until 2023 she conducted her relationship with the Deceased on the basis that she believed that she was already a joint legal owner of Breakfast Point, as opposed to the de facto partner of the owner.

17. [143]

    The plaintiff was cross-examined further about her belief that she was an owner, including by reference to an apparent inconsistency with evidence she gave at [57] of her fourth affidavit, where she said, “I seek the transfer of the Breakfast Point Property to me absolutely. ... I believed this was my property.”

18. [144]

    The following day, the plaintiff was cross-examined about her understanding of the difference between “our” and “your”, including as follows:

19. [145]

    Taking the plaintiff’s evidence as a whole, I am not satisfied that she recognised a number of important distinctions, including between what she understood or believed and what the Deceased actually said; between ownership and use (in particular, when the Deceased moved to Pindimar); between current and future ownership; and between joint ownership, her ownership and the Deceased’s ownership. When those matters are coupled with the passage of time, the plaintiff’s difficulties in remembering matters with precision generally, the self-serving nature of the evidence, and the probabilities in light of the circumstances I have referred to above, I do not accept the plaintiff’s evidence that the Deceased said to her words to the effect, “This is your place”, in any sense of ownership.

20. [146]

    I consider it improbable that, whatever else the Deceased said to the plaintiff at the time of purchase, it conveyed that the plaintiff had, or was to have in the future, any particular ownership interest in Breakfast Point, still less absolute ownership in her own right, i.e., “This is your place.” I am not satisfied that the Deceased made any particular representation as to ownership. Instead, I consider it probable that the Deceased told the plaintiff that she and her sons could live at Breakfast Point indefinitely, i.e., (at least implicitly) as long as the plaintiff and the Deceased remained together. The $2,000 deposit would represent the plaintiff’s contribution to that state of affairs.

21. [147]

    One further point that the defendant makes with some force about the plaintiff’s first affidavit is that she deposes that in 2023, not long before the Deceased died, he told her, “When I go, this house [i.e., Pindimar] is yours. Make sure you look after this place. We’ve done such a great job.” As the defendant submits, there was no suggestion in the first affidavit that the plaintiff found this surprising or that it prompted her to ask about Breakfast Point.

22. [148]

    It was only after making that affidavit on 9 October 2023 that the focus of the plaintiff’s claim (including in her application for interim provision) became Breakfast Point.

23. [149]

    The plaintiff gave evidence in her second affidavit, made 28 February 2024, of more conversations with the Deceased relating to the Breakfast Point property. One of the defendant’s criticisms of that evidence is that the plaintiff agreed in cross-examination that she had endeavoured to exhaust her memory “on this topic” of such conversations in her first affidavit. I do not read the passage of transcript on which the defendant relies (Tcpt, 9 October 2024, 107.24-27) as supporting that submission. The question asked was at a higher level of generality: “So going back to this first affidavit, when you were writing this affidavit and preparing this affidavit, you tried to put everything that you could remember into [the first affidavit], do you agree?” The question was not tied to the “topic” of conversations about Breakfast Point.

24. [150]

    In the plaintiff’s second affidavit she gave evidence of several conversations with the Deceased about the Breakfast Point Property. Her evidence at [24]ff was as follows.

    1. (1)

       On the weekend of 12 or 13 July 2008, at the new apartment, the Deceased said, “Look boys! Do you like your new place? This is your place with your Mum. No-one can take it away from you or your Mum.”

    2. (2)

       Apparently on the same occasion, the Deceased said words to the effect, “I have organised all of the paperwork. This is your place. It is for you and the boys.”

    3. (3)

       On the day the Deceased, the plaintiff and her sons moved into the Breakfast Point property, the Deceased said words to the effect, “This is a great place for you and your two boys. It is close to Mike’s school and the bus stop. It is a nice clean place. You have done well.”

    4. (4)

       In or around 2009, when the Deceased moved to Pindimar, the Deceased and the plaintiff had a conversation:

    5. (5)

       In about 2009, at a time when the plaintiff’s sons had not yet obtained full-time employment, the Deceased said to her, “Are the boys all right? Are they okay down there? They know that is their home and they can stay there as long as they like.”

    6. (6)

       In about 2010, the Deceased said words to the plaintiff to the effect: “Now the boys have jobs, they should start paying the rates. That’s what they have to pay as owners. That place (referring to the Breakfast Point property) is for you and your boys. This place (referring to Pindimar) is for me and my family.” (The plaintiff gave evidence that in about 2010 her sons started paying the council rates, body corporate fees, water rates and occupation expenses such as telephone and electricity.)

    7. (7)

       In about 2020, when Scott asked the Deceased if they could replace the carpet with wooden floorboards, the Deceased said words to the effect, “Great idea. I am happy for you to do whatever you like with the floors. It’s your place with your Mum”.

    8. (8)

       Two or three months later, when Mike asked if the boys could do some painting, the Deceased said words to the effect, “Yes, I’m happy for you to do that. This is your place with your mum. You can do whatever you like.”

    9. (9)

       In about January 2021, the Deceased and the plaintiff visited her sons at Breakfast Point. The Deceased said to Mike and Scott words to the effect, “Listen boys, look after this place for your Mum. I am not coming back here anymore. There is nothing here for me.”

25. [151]

    Much of that evidence, particularly as to ownership, is improbable on its face. For example, there was no apparent reason for the Deceased to say in July 2008, when he was (or was about to be registered as) the sole owner, “No-one can take it away from you or your Mum.” If the Deceased said that he had “organised all of the paperwork”, meaning paperwork that recorded the plaintiff’s ownership of Breakfast Point, that would have been an outright lie. The suggestion that the Deceased said that the plaintiff’s sons should start paying the rates on the basis that “That’s what they have to pay as owners” is inconsistent with the plaintiff’s evidence that she understood that Breakfast Point was in her name and the Deceased’s, and with Mike’s evidence that he never thought he owned Breakfast Point. It is more probable that the Deceased simply linked his expectation that the plaintiff’s sons pay the rates to the fact that they were in employment.

26. [152]

    Consistently with what I have found above, it seems to me far more probable in light of the objective circumstances that the Deceased made statements about the use of the property, such as “The boys can stay there as long as they want”, at a time when the boys lacked an income, than about ownership. The very fact that (even on the plaintiff’s own account) the Deceased felt the need to say “they can stay there as long as they like” implies that the Deceased was the person in control of the property because he was the sole owner.

27. [153]

    Moreover, much of what the plaintiff attributes to the Deceased in the evidence referred to above could be understood as directed either to ownership or to use. For example, “It is for you and the boys”; “This is a great place for you and your two boys. … You have done well.” To describe an apartment as somebody’s “home” is not to say that they own it.

28. [154]

    The defendant submits that the evidence in this second affidavit is inconsistent with other aspects of the plaintiff’s evidence. For example, in her first affidavit the plaintiff said that, as early as 2002, the Deceased had said words to the effect, “You are my family now”. The defendant submits that that is inconsistent with the Deceased saying later that the property was for the plaintiff and her boys, or for the plaintiff and her family, as though she were not part of the Deceased’s family. Although I do not give great weight to that inconsistency, it does suggest that the evidence has been reconstructed in a way that draws a distinction which supports the plaintiff’s claim that the Deceased made representations to her about ownership.

29. [155]

    It might be noted that in his affidavit, Scott, who was not required for cross-examination, did not corroborate his mother’s evidence given in her second affidavit as to statements the Deceased made to her about ownership of Breakfast Point. Neither, specifically as to ownership, did Mike (whose evidence in cross-examination I discuss below).

30. [156]

    In the result, I am not satisfied that the Deceased made the statements about ownership that the plaintiff attributed to him in her second affidavit.

31. [157]

    The plaintiff gave evidence at [36] of her third affidavit, made 7 June 2024, to the effect that the Deceased had told her in 2021 that he would pay off the mortgage over Breakfast Point so that she would not have to worry if anything happened to him. The implication of the evidence was that the Deceased intended to leave her Breakfast Point.

32. [158]

    The plaintiff was cross-examined (Tcpt, 9 October 2024, 120.40-123.6) as to why she had not included that conversation in either her first or her second affidavit. She at first answered, “Because I didn’t think about that later.” When this was put back to her, the plaintiff said that that was not her explanation. She then referred to the medicine she was taking, which she said had “all mixed up my brain” — although this appeared to be by way of explanation for why she was struggling in the witness box, rather than for why she had not included that conversation in her earlier affidavits. She then asked more than once to have questions repeated to her and answered non-responsively.

33. [159]

    Although I did not find those answers particularly satisfactory, it is not uncommon for a witness to remember something which it had not occurred to her to include in her earlier evidence. The less central the subject-matter, the more often that will happen. I do not consider the fact that this evidence about a mortgage was not given in the plaintiff’s earlier affidavits to present an insuperable barrier to accepting it.

34. [160]

    However, the point made by the defendant in relation to the plaintiff’s second affidavit, referred to above, is particularly acute here. The plaintiff deposed in her first affidavit that in 2023, not long before the Deceased died, he told her, “When I go, this house [i.e. Pindimar] is yours. Make sure you look after this place. We’ve done such a great job.” It is improbable that the Deceased would also have had a conversation with her, just two years earlier, about Breakfast Point on the assumed basis that he intended to leave it to her. That the Deceased would have suggested to the plaintiff in 2021 that he intended to leave her Breakfast Point is even less likely given that his Will, which was made in 2015, left the plaintiff an interest in Pindimar but not in Breakfast Point.

35. [161]

    I am not satisfied that the Deceased said words to the effect attributed to him at [36] of the third affidavit.

36. [162]

    The following exchange took place in cross-examination about the purchase of Breakfast Point.

37. [163]

    The answer, “Bill said to me he will buy for me a property if I - if I promise to him that we will live together for the rest of his life. And that’s why I agree”, was not directly responsive to the question, which was about a gift of a 50% interest in a property, not a quid pro quo involving outright ownership of a whole property. It was important new evidence about an express bargain: that the Deceased had extracted a promise from the plaintiff to stay with him for the rest of his life, in return for a promise that he would buy her a property. It went further on this central issue than any of the evidence given by the plaintiff in her affidavits.

38. [164]

    When it was put to the plaintiff that she had made that evidence up in the witness box, she denied that allegation with apparent conviction. But it was certainly surprising that this evidence was given for the first time after the plaintiff had made six affidavits (which had canvassed the Deceased’s representations in some detail). When that was put to the plaintiff, I found her first response (“Well, I didn’t read it …”) evasive. However, when it was put to her that she was willing to lie to help her case, she again responded with apparent conviction: “But I believe that, that the Breakfast Point is ours. …” (I note that the plaintiff’s final answer in that passage — “Yes, I think, …” — was clearly not in fact agreeing with the proposition put to her.)

39. [165]

    Notwithstanding the apparent conviction with which the plaintiff reacted when challenged, and largely for the same reasons explained above, I do not accept this evidence of an express bargain about ownership of Breakfast Point. Given the passage of time, the plaintiff’s self-interest when reconstructing, and the circumstances in which this evidence emerged for the first time in cross-examination, I do not feel any actual persuasion that the Deceased said what the plaintiff attributed to him as to ownership. Again, it is not clear that the plaintiff was recognising the distinction between use and ownership. The language she attributed to the Deceased — “he will buy for me a property” — could be consistent with either ownership or use. And, again, the plaintiff blurred the distinction between sole ownership (“Bill said to me he will buy for me a property”) and joint ownership (“I believe that … Breakfast Point is ours”).

40. [166]

    Moreover, the evidence as it emerged is contrary to the probabilities. The cross-examiner’s questions were directed to the plaintiff’s belief in 2008 that she was at that time a joint owner with the Deceased. The plaintiff said that that was her belief, based on what she claimed the Deceased said to her at the time. But it is implausible that in 2008 the Deceased would have acknowledged any present property right in the plaintiff on the strength of her mere promise to remain with him. The relationship was only six years old, it was volatile, and the Deceased had an uncompromising attitude to his own property and a strongly controlling streak.

41. [167]

    Even if one ignored the temporal aspect of the questions in answer to which this evidence emerged, and even if the evidence were understood as involving a promise by the Deceased that the plaintiff would become an “owner” in the future (i.e., under his will), provided that she honoured her promise and remained with him until he died, the probabilities would lend it little support. First, particularly given the reference to a life interest in the solicitor’s letter to the Deceased in 2004 in connection with the draft deed, it should not be assumed that any promised interest would have been absolute ownership. Secondly, in circumstances where (1) the Deceased was already contemplating moving away from Sydney to Pindimar, (2) he owned other property at Tea Gardens, and (3) Breakfast Point was encumbered, it should not be assumed that any promised interest would have been specific to Breakfast Point.

42. [168]

    It was submitted on behalf of the plaintiff that “her evidence about her beliefs and expectations that she was or would become an owner of the Breakfast Point property” is corroborated by, among other things, “the evidence of Mike Baldwin (T153.50-154.48)”. The relevant passage in Mike’s cross-examination starts a few lines earlier, as follows (Emphasis supplied.):

43. [169]

    I accept that evidence, which was carefully given and candid about the limits of recollection. The question is how far it goes.

44. [170]

    As to what Mike’s belief had been, he gave clear evidence that he had understood that his mother and the Deceased together owned Breakfast Point. But his evidence as to the basis of that understanding was less clear.

45. [171]

    Specifically as to what the Deceased had said about ownership in terms — “part owns” and “owns or part owns” —- Mike said “There could’ve been conversations, but nothing I could say right now”. He agreed that, although he could not remember the exact words that the Deceased had spoken, “It was something like ‘This is our new place.’” To describe a house or apartment as someone’s “place” does not necessarily convey ownership; rather, it can just as readily convey that that is where the person lives. Similarly, the language of “I do recall him saying it’s my mother’s” is also not necessarily a statement about ownership, although it is true that the preceding question had been expressed in terms of Mike’s understanding as to whether he himself owned the property with: “You’ve never thought that you owned the Breakfast Point property?”

46. [172]

    On balance, I consider Mike’s evidence to be consistent with the plaintiff’s belief that she is entitled to some form of ownership interest in Breakfast Point. But Mike’s evidence does not persuade me that the Deceased represented to the plaintiff that she owned, or in future would own, Breakfast Point — as opposed to the Deceased’s saying in 2008 that it was now her home. The passage of time is too great, and the limits of Mike’s recollection were clear.

47. [173]

    I accept that from time to time the Deceased told the plaintiff that she and her sons could live at Breakfast Point indefinitely (i.e., while the plaintiff and the Deceased remained together); that accords with what actually happened over the long period in which the Deceased owned that property.

48. [174]

    I also accept that the plaintiff believes she is entitled to some kind of ownership interest in Breakfast Point. That is consistent with the conviction with which she gave her evidence of conversations which, given the passage of time and the plaintiff’s difficulties in remembering matters with precision, must be reconstructed. It is also supported by Mike’s evidence.

49. [175]

    However, the plaintiff has not established the basis upon which her belief is claimed to be based. In particular, I am not satisfied on the balance of probabilities that the Deceased made the various representations as to the plaintiff’s present or future ownership of Breakfast Point that the plaintiff attributed to him in her evidence, including, in particular, the evidence of an express bargain referred to at pages 90-91 of the transcript of 8 October 2024.

50. [176]

    It was submitted on behalf of the plaintiff:

51. [177]

    I have dealt earlier in these reasons with each of the matters said to be corroborative. While they tend to support the plaintiff’s evidence of her belief in an entitlement to ownership, they do not materially advance her case as to representations made by the Deceased.

The 2013 estate planning instructions

1. [178]

   Records of Australian Executor Trustees contain estate planning instructions which are shown as having been taken from the Deceased on 16 August 2013.

2. [179]

   A handwritten document among the records appears to indicate that the Deceased’s instructions were that the value of Pindimar, which was identified as “PR”, or primary residence, was $1.2m. The document records “note: PR not secured/mortgaged in any way.” It records a value for the property at Tea Gardens — “A2” — also of “$1.2m”.

3. [180]

   The same document appears to record a value for “Bfast Point” — “A3” — of either “$805k” or “$800k”, or possibly “$1mill”, but the handwriting is obscure. Next to the letters “CB” and “CBA”, the document provides figures of “$800k” or “$805k”, which appear to be references to a mortgage over Breakfast Point.

4. [181]

   Under the heading “Superannuation”, the same document records, “Colonial First Wrap. $1.25m. largely tax-free”; and, below that, “now SAF $1.05m.”

5. [182]

   I do not consider these documents, which pre-date the 2015 Will by two years, to be of great significance for the issues in the case. A good deal may happen in a two-year period; in this case the period included the 2014 incident involving the police. In any event, I do not accept the plaintiff’s submission, based on the estate planning instructions, that “The Plaintiff did not receive under the Will and superannuation nomination the value of what the deceased intended her to receive, and the Defendant and other beneficiaries under the Will received comparatively more.”

6. [183]

   A document headed “WILL(S) INSTRUCTIONS” records in handwriting that something, which appears to read “ROR” (perhaps a reference to the primary residence), is to be given “to Rosabelle for life”. While the effect of the instructions in 2013 appears to have been that the Deceased intended to leave the plaintiff a life estate in the unencumbered property at Pindimar, that was in any event the effect of the Will itself. The fact that the instructions in 2013 indicated that Pindimar was at that stage worth more than Breakfast Point (which was also in any event encumbered) does not provide a sufficient basis for an inference that the Deceased’s intention was to benefit the plaintiff with whatever was the most valuable of his properties, as opposed to the home in which he and the plaintiff had lived.

7. [184]

   Equally, the fact that the superannuation balance at that point appears to have exceeded $1 million does not provide a basis for an inference that the Deceased particularly intended to benefit the plaintiff in that sum, as opposed to giving her the benefit of whatever was the balance of his superannuation at the time of his death.

8. [185]

   I accept the plaintiff’s submission that the estate planning instructions disclose no statement of reasons to support the testamentary decisions made by the deceased; from that point of view, these documents are neutral. But the testamentary decisions themselves can be taken to represent the Deceased’s intentions and judgment.

9. [186]

   A hand-sketched family tree among these records shows, above dotted lines linking the plaintiff and the Deceased, a “BFA”, which may be shorthand for a binding financial agreement. If so, it would be some corroboration of the fact that the 2004 deed (whatever its terms) had been executed and remained in place. But I put little weight on it, and do not need to, in light of the plaintiff’s evidence that she signed the document that the lawyer Mr Fisher brought her in 2004.

The Deceased’s relationship with the other beneficiaries and their current circumstances and needs

1. [187]

   Save in respect of the evidence that I made an order suppressing (as explained below), I have addressed the detailed evidence about these matters separately for each of Nerida, Louise, Billy and Madison in a Schedule to these reasons. Unless otherwise stated, I accept that evidence. I note that, for present purposes, I have not ultimately found it necessary to distinguish among the siblings. But, as will be seen, Madison is in a separate category.

2. [188]

   There may be reasons which arise out of the nature and purpose of the s 59 jurisdiction and the circumstances in which the issues are litigated, why a court might pause before making affirmative findings of historical abuse in family provision proceedings. However, for reasons explained below, this is a case in which I consider it appropriate to make findings that such abuse occurred.

3. [189]

   The unchallenged evidence of Nerida, Louise and Billy, which was in some respects corroborated by the plaintiff in cross-examination, establishes that the Deceased was a controlling, volatile, sometimes charming, sometimes violent bully who abused each of the siblings in different ways that have had lasting effects on them. The evidence, which I accept, disclosed serious child abuse, including sexual assaults on some but not all of his children. Each of Nerida, Louise and Billy found it challenging to describe this aspect of their childhoods in evidence. I made an order suppressing the detailed evidence of the abuse they suffered as children.

4. [190]

   The siblings have been affected by the abuse in differing ways. But I am satisfied that the ongoing effects of the abuse are significant for each sibling. It was not disputed that Louise and Billy suffer from serious mental health conditions. Louise has been given a complex mental health diagnosis. Billy also gave evidence that he has been diagnosed with a complex mental health disorder. Although the defendant did not call expert psychological or psychiatric evidence to establish a causal connection between the abuse and their mental health conditions, each undoubtedly believes that the abuse materially contributed to their mental health conditions, and having regard to all the evidence that is the inference I draw. Although Nerida has never been formally diagnosed with a mental health condition, she believes that she requires ongoing psychological care to help her address what she describes as “these past traumas”. Her doctor has recommended that she recommence attending a psychologist, but she has resisted, both for financial reasons and because she is “anxious about the can of worms this would open.” I accept that the abuse has had lasting effects on her.

5. [191]

   I find that the effects of the abuse have materially contributed to each of the siblings’ present and future needs, including financial needs. Louise has not had paid employment since 2010 due to Post Traumatic Stress Disorder, which I accept the abuse materially contributed to. Billy’s mental health disorder impedes his ability to carry out day to day activities such as shopping for groceries. I am satisfied that each sibling, including Nerida, is likely to benefit from ongoing professional psychological therapy with respect to the effects of the abuse, and that the therapy will be costly.

6. [192]

   None of the siblings is in good general health, and again their ill-health differs in various respects. The siblings’ financial positions and needs also differ, both as to their net assets and as to their ability to earn an income. But I have not ultimately found those differences material to the disposition of the present application, for reasons that will become apparent below. Among other matters that the siblings have in common, each has significant financial needs as they approach retirement age, and limited superannuation and savings.

7. [193]

   Independently of the Deceased’s responsibility for the abuse, each of the siblings has a legitimate claim, arising out of their particular needs and stages in life, to receive substantial provision from the Deceased’s estate. The Deceased himself plainly recognised that in the provision he made for them. As to the Deceased’s responsibility for the abuse, it is enough for present purposes to note that the abuse contributed to the siblings’ needs, including financial needs and therefore reinforced his obligations to them in ways which have a bearing on what is proper provision in this case.

8. [194]

   Madison, who was aged 26 at the time of the hearing, is in a different position from the three other residuary beneficiaries in several respects. She was not abused by her grandfather. At the time of the hearing, Madison and her partner had succeeded in saving a substantial sum to put towards the purchase of a house and in preparation for the arrival of their first child. They are both fit and healthy and have substantial earning capacity, with most of their working lives before them.

Applicable principles

1. [195]

   It is uncontroversial that the plaintiff is an “eligible person” within the meaning of s 59 of the Act, as she falls within s 57(1)(b) as “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”.

2. [196]

   The central question under s 59(1)(c) is whether, “at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the [plaintiff] has not been made by the will of the deceased person”. For convenience below I will generally use the words “adequate provision for the proper maintenance” as shorthand for the longer statutory phrase.

3. [197]

   Adequate and proper are very general concepts, and the list of potentially relevant matters in s 60(2), which I will address below, is broad. Ultimately this case, like every other, must turn on its own unique complex of facts. The decided cases nevertheless provide guidance both as to the overall approach to s 59 claims, and as to the matters that might be significant, or even dispositive, in a particular category of case; for example, as to what might be the minimum proper provision for the surviving dependent partner of a long marriage or de facto relationship.

4. [198]

   As to the overall approach to s 59 claims, Bell P, Leeming and Payne JJA said the following in Bassett v Bassett [2021] NSWCA 320 at [78]-[86] (in that case, in the context of an application for provision for an adult child of the deceased):

5. [199]

   The Court in Bassett referred at [82] to a passage from the judgment of the primary judge (Ward CJ in Eq), which had been quoted earlier in the Court of Appeal’s judgment at [59]. That passage included the following:

6. [200]

   The parties rightly treated the plaintiff, who was the Deceased’s de facto partner of some two decades, as being in the same position as a spouse of a long marriage (the defendant submitting, however, that a lack of harmony in the relationship weakened the plaintiff’s claim on the estate, a submission to which I will return below). Although each application ultimately turns on its own facts, there have been many statements in cases determining the claims of surviving spouses, and particularly of dependent widows, about what constitutes adequate provision for their proper maintenance, education or advancement in life. Those statements are properly regarded not as rules of law, but as guidelines that may give assistance: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [106] per Brereton JA. Such guidelines may be seen to reflect community values and expectations of a testator and (what for practical purposes should amount to the same thing) the Court’s view of what the testator was morally obliged to do. They also promote consistency in decision-making.

7. [201]

   It has been said that a testator’s duty to his widow of a long-standing (and at least in the case of a harmonious) marriage requires, at a minimum, to the extent that the testator’s assets permit it, provision of security in her home for the rest of her life and the capacity to change it; an income sufficient for her to live in a reasonable degree of comfort; and a fund for modest luxuries and contingencies: Steinmetz v Shannon at [101] per Brereton JA, citing Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep) per Powell J. In Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70, Powell J described the testator’s duty as “to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.” See further Steinmetz v Shannon at [102]-[105].

8. [202]

   I will return below to the question of the competing claims of the residuary beneficiaries and the size of the estate. But I pause to observe that the plaintiff had lived in the house at Pindimar for more than a decade, and the Will gave her the capacity to change it at her direction. It might be thought that the provision made in this case, which included a portable life estate in the house in which the plaintiff had been living with the testator at the time of his death, and a substantial superannuation benefit, met the minimum described in those cases. (Indeed, the defendant submitted that no decided case has found that a portable life estate in the family home constituted inadequate provision, a proposition the plaintiff did not accept. As this case must turn on its own facts, I do not consider it necessary to explore the universe of fact-specific cases to determine whether the defendant’s proposition is correct.)

9. [203]

   The question under s 59(1)(c) ultimately remains what, in all the circumstances of the case, is “adequate provision for the proper maintenance, education or advancement in life” of the claimant. The statute does not refer to a bare minimum. To the extent that the word “adequate” necessarily contemplates a minimum, it must be understood as a minimum for the “proper” maintenance, etc, of the plaintiff. More importantly, consideration of what is proper is not confined to the applicant’s immediate financial needs. For example, relevant to the present case are the statements the plaintiff claims the Deceased made to her about Breakfast Point; the location of Pindimar, its physical circumstances and its remoteness from the plaintiff’s family, friends and services; the moral claims the plaintiff had upon the Deceased and his moral duty to her; and the competing moral claims upon the estate of the other beneficiaries.

10. [204]

    As to the competing claims upon the estate of the Deceased’s adult children, it is important to note that they are not applicants for provision themselves; instead, they are seeking to resist any reduction in the provision made for them in the Will. In Bassett at [88], Bell P quoted, with apparent approval, the following passage in the judgment of Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111]:

11. [205]

    As to the moral obligations of grandparents to grandchildren, in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [65] Barrett JA (Gleeson JA agreeing) said the following, in the context of a claim under s 59 by a grandchild who was not a beneficiary under the will:

12. [206]

    There has been some debate in the decided cases about the significance to be given to testamentary intentions in s 59 cases. I will adopt the approach described as follows in Bassett at [87]:

13. [207]

    There is an intersection in this case between that approach and Hallen AsJ’s observation in Bowditch that a moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. That is a subject on which the Deceased was far better placed to form a view than is the Court.

14. [208]

    As to the scope for the court to take into account historical sexual abuse in a s 59 claim, the plaintiff relied on what Hallen J said in Page v Page [2016] NSWSC 1218: see at [57]-[63], citing his Honour’s earlier decisions in Williamson v Williamson [2011] NSWSC 228 at [124]-[127] and Curran v Harvey [2012] NSWSC 276 at [124]. His Honour said at [57] of Page:

15. [209]

    Hallen J also said that a claim under the Act does not encompass reparations or compensation for such abuse: see at [59]-[60].

16. [210]

    I accept that the power conferred by s 59 is confined by the purpose of the order identified in subs (2), namely, to order “provision out of the estate … for the maintenance, education or advancement in life” of the plaintiff. It is not a “compensation” or “reparation” jurisdiction. However, that is not to say that evidence of historical abuse may never be relevant in cases under s 59. Indeed, on appeal in Page v Page [2017] NSWCA 141, Sackville AJA stated that Hallen J “may have erred in concluding … that the allegations ‘speak more to damages than compensation, than to factors warranting the making of an application’”: at [119].

17. [211]

    As Hallen J himself acknowledged at [59] of Page (quoting his Honour’s own previous judgment in Williamson) where the deceased’s conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between that conduct and the applicant’s need for provision, the court may take that into account in determining whether proper provision has been made. To similar effect at [62], his Honour quoted Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178; (2016) 15 ASTLR 402 at [40]: “the testator’s conduct may explain why the claimant has a particular financial need”. See also, Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576 at [129] (Sackville AJA, Basten and White JJA agreeing).

18. [212]

    There are sound practical and policy reasons why a court exercising the s 59 jurisdiction should be wary of turning it into a roving inquiry into historical misconduct. Nevertheless, it may be necessary to make findings of sexual or other abuse in cases brought under s 59 of the Act in order to give effect to the purpose identified in s 59(2), or (as in this case) to give proper consideration to the matters in s 60(2), such as the nature and extent of any obligations or responsibilities owed by the deceased person to a beneficiary other than the applicant for provision.

The provision made as to the plaintiff’s accommodation was not adequate

1. [213]

   The plaintiff makes no complaint about the adequacy of the provision as to income or a fund for modest luxuries or contingencies. It was not said that the plaintiff’s income would be insufficient to permit her to live in the style to which she had become accustomed. The only sum of money sought was $25,000 for a motor vehicle. However, as at 18 September 2024 the plaintiff already had savings of $25,475.63 in one of her bank accounts, which I understood was in addition to a balance of $5,022.23 as at 31 August 2024 in a separate account. In light of those savings, and given that the plaintiff’s monthly income significantly exceeds her expenses, I do not consider that, as at the time the application is being considered, the Will made inadequate provision for the plaintiff’s proper maintenance, education or advancement in life in this respect.

2. [214]

   However, the plaintiff claims that, as to her home, adequate provision required an absolute devise in fee simple of the apartment at Breakfast Point. That claim involves two propositions. The first is that insofar as adequate provision required the testator to provide for the plaintiff to be secure in her home, the appropriate home was Breakfast Point rather than Pindimar. The second is that adequate provision required an absolute devise, rather than a portable life estate. As noted above, I have concluded that the first, but not the second, of those propositions has been made good.

3. [215]

   I will address each of the matters referred to in s 60(2) of the Act. But it is convenient to state at the outset that I consider that the portable life estate in Pindimar, rather than one in Breakfast Point, did not constitute adequate provision for the proper maintenance of the plaintiff. There are several reasons why Pindimar is not a suitable “home” for the plaintiff, but Breakfast Point is.

4. [216]

   To the extent that those reasons do not fit neatly into pars (a) to (o) of s 60(2), they fall within par (p), “any other matter the Court considers relevant …”.

5. [217]

   Among the matters that may be considered by the Court under s 60(2) are the following:

6. [218]

   The plaintiff and the Deceased lived together in a de facto relationship for over two decades. In time she became completely financially dependent upon him. It was plainly a complicated relationship, the nuances of which cannot be captured in a judgment of the Court. Notwithstanding their many difficulties, I accept that the plaintiff and the Deceased shared a genuine affection and a capacity for mutual forgiveness.

7. [219]

   The defendant points to the volatility and violence in the relationship as matters detracting from the strength of the plaintiff’s claim upon the estate. Whatever force an absence of harmony from time to time might have in other cases, it is offset in this case by the extent of the plaintiff’s dependence upon the Deceased. Indeed, the circumstances which show a lack of harmony tend equally to show the plaintiff’s dependence on the Deceased. It may be unusual for one partner of a long relationship to go to the police to accuse the other of theft, particularly in the circumstances and in the sum in which that occurred in this case. Yet the relationship between the plaintiff and the Deceased survived for almost another decade thereafter. The fact that it did so points to a high degree of dependence and a strong claim upon the estate.

8. [220]

   The plaintiff’s economic insecurity, and the overall inequality of their financial positions, cannot have been lost on the Deceased. That was part of the reality of their relationship. It is not necessary to find (and neither party asked me to find) that the Deceased took advantage of the plaintiff’s economic vulnerability. But the financial inequality of the relationship is relevant to the strength of the plaintiff’s claims upon the estate.

9. [221]

   As I have noted above, the plaintiff perceived the relationship as having a transactional dimension. I infer that the Deceased also understood that element of the relationship. As early as 2004, the plaintiff had made that clear in the handwritten letter in which she asked the Deceased for “something” in return for living together for the rest of their lives (exhibit D3). I will return below to the significance of the plaintiff’s evidence about representations made by the Deceased. But I note at this point that notwithstanding what was said at [10]-[14] of the Plaintiff’s Closing Submissions handed up in the afternoon on the last day of the hearing, I did not understand the case to be put ultimately by way of what would amount to an estoppel, that is, detrimental reliance on an inheritance promise as such (see Tcpt, 10 October 2024, 267.27-269.12). In particular, the plaintiff, as her counsel acknowledged, did not give direct evidence of reliance on any such promise or representation, and the suggestion at [12] of the written submissions that exhibit D3 “shows she relied on the deceased’s representations” is unsustainable. Moreover, it is difficult to see what case as to detriment it would have been open to the plaintiff to advance.

10. [222]

    Instead, the way the case was put in submissions was: “This plaintiff wants something if she’s going to continue a relationship with this man” (Tcpt, 10 October 2024, 268.35-36). I consider that a fair way to characterise this aspect of the relationship. Viewing the evidence as a whole, I infer that one feature of the relationship was that the plaintiff and the Deceased conducted themselves, at least implicitly, on the basis that in return for providing (as the defendant acknowledges the plaintiff in fact did) domestic assistance and support for the Deceased over the long period that they lived together, including looking after him through his illnesses into old age, the plaintiff would receive an appropriate “something” upon his death. The plaintiff upheld her part of their implicit bargain. The Deceased was at least morally obliged to uphold his part.

11. [223]

    The question is specifically what was the “something” to which the plaintiff was thus at least morally entitled?

12. [224]

    As early as 2004, exhibit D3 identified the plaintiff’s central concern: she wanted an “assurance” that “one day” (i.e., after the Deceased’s death) “people” (the Deceased’s children) would not be able to “kick me out from here” (her then home). The plaintiff eventually came to be entirely financially dependent on the Deceased. Against that background, by the time the Deceased died in 2023, I consider that the “something” to which the implicit bargain entitled the plaintiff was an interest in property of some kind that would protect her from being “kicked out” of her home, and an income to live on. I pause to note that that was essentially the intended effect of the provision the Deceased ultimately made for the plaintiff.

13. [225]

    The defendant draws attention to another aspect of the relationship, submitting that the Deceased spoke contemptuously of the plaintiff (at least) to some third parties and was frequently reluctant to acknowledge that she was his de facto partner (preferring instead to call her his driver). I accept that that was so. But those matters do not reduce the force of the plaintiff’s claim upon the estate. If they are relevant at all, they tend to emphasise her dependence on the Deceased.

14. [226]

    In the result, the most significant features of the relationship for present purposes were the genuine emotional attachment of the plaintiff and the Deceased to each other, the plaintiff’s complete financial dependence on the Deceased, and the implicit bargain to which I have referred. Those matters required the Deceased to make adequate provision for his dependent surviving partner, having regard to the nature and size of the estate and the competing claims upon it.

15. [227]

    Paragraph (b) is “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the deceased person’s estate”.

16. [228]

    The nature and extent of the Deceased’s obligations and responsibilities to the plaintiff arise out of their relationship and are as described above.

17. [229]

    The more difficult question is the nature and extent of the Deceased’s obligations and responsibilities to the residuary beneficiaries under the Will, particularly given (a) his abuse of his three children, and (b) the fact that Madison is his granddaughter, not his child.

18. [230]

    The obligations of a parent to an adult child are generally speaking different in character from the obligations of a parent to a dependent minor, as discussed above. However, Nerida, Louise and Billy are in poor health and have limited financial resources and substantial needs (which I acknowledge differ among the three siblings). Even if they were not beneficiaries, and even independently of the abuse, their needs would have supported claims on the estate. As noted above, weight is to be given to the Deceased’s judgment as to what is proper provision for each of his children. In this case, notwithstanding that their needs differ, the Deceased’s judgment was that each should receive the same provision.

19. [231]

    I referred above to the proper role of historical abuse in a s 59 claim, and to cases where it is necessary or appropriate to make findings of sexual or other abuse. This is such a case. I have accepted the evidence of the three siblings (the defendant Nerida, Louise and Billy) that each suffered serious and prolonged abuse by their father, and I am satisfied that the abuse had lasting effects on them, which are causally connected with their needs, including financial needs. While the fact of those needs would itself give rise to a claim upon the estate, the additional fact that the Deceased’s conduct materially contributed to those needs strengthens their claims on the estate. As the defendant submits, the abuse is relevant to an assessment of the nature and extent of the Deceased’s obligations to them.

20. [232]

    It is important to note that none of the beneficiaries brings her or his own claim pursuant to s 59 to increase the provision made for them. Instead, the evidence upon which the defendant relies is directed to establishing that the provision currently made for the beneficiaries under the Will should be maintained. In practical terms, the current provision would mean, in the near future, an equal share in the cash distribution of what remains after this litigation of the HUB24 account plus the proceeds of sale of Breakfast Point. I have estimated this above as being at least $475,000 and probably closer to $525,000. The current provision would also mean, at some unknown time in the future, an equal share in the distribution of the residue of the capital referable to Pindimar upon the plaintiff’s death.

21. [233]

    Against that background, it is necessary to say something of Madison’s position. I accept the plaintiff’s submission that in the ordinary case, a testator is under no general obligation to provide for a grandchild. That general proposition is, of course, of particular relevance where a grandchild is making their own s 59 claim. If Madison had made such a claim, she would have had to establish that she was an “eligible person” within s 57(1)(e) of the Act, which in the case of a grandchild requires some relationship of dependency on the deceased person. Section 59(1)(b) then adds an additional condition to engaging the Court’s power: that the Court be satisfied that “in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of ‘eligible person’ in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

22. [234]

    But here, Madison is not making a s 59 claim; she is a beneficiary under the Will, and has the benefit of the Deceased’s testamentary judgment. As discussed below in relation to s 60(2)(j), I will give some weight to the testator’s judgment in this regard.

23. [235]

    Nevertheless, I consider Madison’s claim on the estate to be, overall, clearly weaker than the plaintiff’s. So too plainly did the Deceased, as is reflected in the provision he made for them.

24. [236]

    If Madison were the only beneficiary in the present case she would be in a considerably weaker position to resist the plaintiff’s application than are the three surviving children of the Deceased. But Madison is one of four equal primary residuary beneficiaries under the Will, and neither party asked me to treat her any differently from her two aunts and her uncle in the event that I decided that the Will made inadequate provision for the plaintiff. In particular, neither party made an affirmative submission that, if I make an order in favour of the plaintiff, there should be any adjustment to the equal interests of the residuary beneficiaries under the Will. Still less was there any suggestion as to what that adjustment might be.

25. [237]

    The power to make such an adjustment is contained in s 66(2) of the Act, which provides:

26. [238]

    As any order for provision in favour of the plaintiff would affect the four residuary beneficiaries, the power would be engaged if I considered additional orders necessary to adjust their interests and to be just and equitable to all of them.

27. [239]

    Both parties adopted a somewhat absolute stance on this issue. The plaintiff’s position was that although the Court has power under s 66 to adjust the residuary beneficiaries’ interests, that would not be necessary because even after the plaintiff received an absolute devise of Breakfast Point there would still be sufficient assets in the estate to meet the claims and needs of those beneficiaries in full, without re-arranging their interests inter se: see Tcpt, 10 October 2024, 284.15-46.

28. [240]

    When asked, counsel for the defendant rejected any suggestion that the proportionate interests of the residuary beneficiaries should be adjusted: Tcpt, 10 October 2024, 300.50-301.9. I understood that submission to reflect the wishes of not only Nerida herself but also of the other three residuary beneficiaries. However, again the defendant’s position that no such adjustment should be made is to at least some extent bound up with her submission that no order for provision should be made in favour of the plaintiff at all. The situation is not entirely satisfactory, in circumstances where the defendant acknowledged that Madison was “in a different category for various reasons” (Tcpt, 10 October 2024, 300.41), while at the same time resisting the plaintiff’s claim on the basis of the needs of, in particular, Nerida, Louise and Billy.

29. [241]

    Neither party addressed how I should deal with the residuary beneficiaries’ interests in the event that I concluded that, having regard to the competing claims on the estate:

30. [242]

    I will return to these issues in the context of discussing the inadequacy of the provision made in favour of the plaintiff. It suffices for present purposes to note that the conclusions I have reached are in accordance with (a), (b) and (c) above.

31. [243]

    Paragraph (c) is “the nature and extent of the deceased person’s estate …”.

32. [244]

    I have discussed the size of the estate above. It is a significant matter that the resources of the estate are limited. If the provision which the plaintiff seeks is granted in full (i.e., an absolute devise of Breakfast Point in fee simple), the remaining assets of the estate are likely to see each of the beneficiaries receive in the order of $400,000-$450,000 in the near future, with nothing further to come. While that is not an insignificant sum, it is less than what Nerida, Louise and Billy require for their maintenance in future.

33. [245]

    As to the nature of the estate, it contains two valuable properties, in each of which the plaintiff has lived at different times. There is a real prospect that one or more of Nerida, Louise or Billy will survive the plaintiff. That being so, provided that adequate provision for the proper maintenance of the plaintiff can be made for her lifetime through a portable life interest in one or the other of the two properties, this is a factor which would favour provision consisting of a life estate rather than the fee simple.

34. [246]

    Paragraph (d) is “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant … or of any beneficiary of the deceased person’s estate”.

35. [247]

    Paragraph (f) is “any physical, intellectual or mental disability of the applicant … or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated”.

36. [248]

    I have addressed the financial resources, including earning capacity, and needs of the plaintiff and the residuary beneficiaries, as well as their physical and mental health, above and in the Schedule to these reasons.

37. [249]

    As to financial matters, putting to one side what is to be received out of the estate, although the position is far from uniform, each of the three siblings has greater assets than the plaintiff. On the other hand, by reason of the superannuation benefit the plaintiff receives she is currently in a stronger position as to income, at least compared to Nerida, Louise and Billy. The plaintiff and the three siblings are all relatively close in age and are at a stage in their lives when retirement income is a pressing need.

38. [250]

    As to matters of health, again the position is far from uniform. But again, none of the siblings nor the plaintiff is in robust health.

39. [251]

    I will return to the competing claims of the plaintiff and the residuary beneficiaries below.

40. [252]

    Paragraph (e) is: “if the applicant is cohabiting with another person—the financial circumstances of the other person”.

41. [253]

    Paragraph (l) is: “whether any other person is liable to support the applicant”.

42. [254]

    The plaintiff is cohabiting with her son Scott at Breakfast Point. He appears to be at least partially dependent upon the plaintiff.

43. [255]

    Putting to one side government payments, it appears that no other person is liable to support the plaintiff.

44. [256]

    Paragraph (g) is “the age of the applicant when the application is being considered”.

45. [257]

    The plaintiff is 64½ years old. She is in the position of a dependent spouse entering the retirement phase of her life. She has poor prospects of improving her financial position independently of provision from the estate. I do not accept the defendant’s submission that there appears to be no real reason why she could not recommence work.

46. [258]

    Paragraph (h) is “any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant”.

47. [259]

    The plaintiff contributed to the relationship, and to the welfare of the Deceased, through a large amount of domestic work over a long period and by caring for him through illness and old age. In that respect her contribution was significant; it is one of the foundations of her claim.

48. [260]

    The defendant submits that because the relationship began fairly late in the Deceased’s life, and because he was largely retired over the period of the relationship, the plaintiff made a more limited contribution to the assets of the estate than, for example, that of a person who raised children while his or her spouse worked. There is force in this submission. The Deceased acquired the bulk of his wealth before forming his relationship with the plaintiff, and the evidence does not suggest that the plaintiff contributed assets of significance to the estate beyond the $2,000 deposit for Breakfast Point discussed above.

49. [261]

    Some of the domestic work the plaintiff performed was at Pindimar, and to that extent the plaintiff assisted in conserving and improving the property. But I consider that to have been a relatively small contribution to the assets of the estate (and one which the provision of the life estate in Pindimar fully recognised).

50. [262]

    That being so, I do not consider the plaintiff to have a strong claim to outright ownership of the assets of the estate, so as to be in a position to dictate their disposition upon her own death. Her claim on the estate is, rather, to have the benefit of the use of appropriate assets for her proper maintenance during her lifetime.

51. [263]

    Paragraph (i) is “any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate”.

52. [264]

    This has been discussed in detail above. The Deceased made substantial provision for the plaintiff through his superannuation nomination and the Will.

53. [265]

    Paragraph (j) is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”.

54. [266]

    The evidence of the estate planning instructions in 2013, followed by execution of the documents prepared by Australian Executor Trustees in July 2015, has largely been addressed above. The defendant submitted that the evidence

55. [267]

    To the extent that these are submissions that I should infer that the provision made for the plaintiff in the Will gave effect to professional advice as to what was appropriate provision, I do not consider there to be a sufficient evidentiary basis from which to draw that inference. To the extent that these are submissions that I should conclude that the provision made in the Will for the plaintiff was adequate because it gave effect to professional advice, I would not accept the submission. The question is one for the Court.

56. [268]

    I do, however, accept that the Will and the superannuation arrangements made for the plaintiff were the product of due consideration by the Deceased in which he paid attention to the assets likely to be available and to the various people with actual or potential claims on his estate. The Will thus comes within the statement of principle at [83] in Sgro quoted at [87] in Bassett and reproduced above. On that footing, the testator’s judgment would be given “respect” and “considerable weight”.

57. [269]

    I have considered whether, nevertheless, in light of the Deceased’s history of abusive behaviour, particularly towards his children, and the bias inherent in his racism, the weight to be given to his testamentary intentions should be reduced. If the Deceased had made meagre provision for his children or for the plaintiff, that might have been appropriate. But in this case the testator made substantial provision for his children, and also for the plaintiff; it is clear from the terms of the Will itself that the testator set out to balance their respective claims.

58. [270]

    Indeed, the defendant submits that it is possible, and perhaps even likely, that the Deceased’s abuse of his children influenced the provision made in the Will. The defendant refers to two passages of Nerida’s third affidavit which are said to support the proposition that the Deceased may have felt some guilt at least towards Nerida. I do not consider that the evidence supports that proposition. The first passage of evidence, which I made an order suppressing, contradicts the proposition. It records a conversation between the Deceased and Nerida in which he denied doing anything wrong.

59. [271]

    The second passage of evidence is consistent with the proposition that the Deceased felt guilt towards Nerida, but it does not go very far. It records that when the Deceased unexpectedly gave Nerida a cheque for between $30,000 and $40,000 in around 2016 or 2017, “Dad put his finger up to his lips as he gave it to me.”

60. [272]

    In the result, I will give weight to the testator’s judgment as manifested in the Will. The terms of the Will were not inconsistent with his obligations to his children, to which I have referred above and to which I give considerable weight. I also consider that, consistently with the reasoning in Sgro, the Deceased was in a better position to determine what obligation he had to Madison, and what provision is adequate for Madison’s proper maintenance, education and advancement in life, than is the Court. Although I propose to depart from the provision made in the Will in relation to the plaintiff, that is not out of a concern that the Deceased did not intend to make adequate provision for her maintenance. It is, rather, because I consider that his intention to make adequate provision miscarried in one respect: the selection of Pindimar instead of Breakfast Point as the subject of the portable life estate.

61. [273]

    I have made findings above in relation to the evidence given by the plaintiff about statements made to her by the Deceased. I will return to the significance of those statements in the decision section below.

62. [274]

    Paragraph (m) is “the character and conduct of the applicant before and after the date of the death of the deceased person”.

63. [275]

    Essentially for the same reasons given above when discussing the nature of the relationship between the plaintiff and the Deceased, I do not consider any aspect of the plaintiff’s conduct to detract from her claim on the estate.

64. [276]

    Paragraph (n) is “the conduct of any other person before and after the date of the death of the deceased person”.

65. [277]

    Other than the conduct of the Deceased himself, and the conduct of the beneficiaries in the course of their relationship with the Deceased, it was not suggested that any other person’s conduct is relevant.

66. [278]

    Paragraph (o) is “any relevant Aboriginal or Torres Strait Islander customary law”.

67. [279]

    This consideration is not applicable.

68. [280]

    Paragraph (p) is “any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered”.

69. [281]

    One such matter is the plaintiff’s submission that it would be preferable to have a clean break, in light of the history of conflict with Nerida, whom the plaintiff does not want to have as her trustee. While the plaintiff’s position is understandable, I do not consider it a sufficient reason to change the nature of the provision made from a portable life estate to an absolute devise. I accept that Nerida will act in accordance with her obligations as trustee if she remains as trustee, and she has undertaken to consent to a suitable replacement trustee if one is found. Moreover, for so long as the plaintiff wishes to remain at Breakfast Point — and I have accepted her evidence that that is where she wants to live — the occasions on which the trust relationship are likely to bring the plaintiff into contact with Nerida should be few, and straightforward.

70. [282]

    To the extent that other relevant matters have not yet been identified, they are discussed in the following section.

71. [283]

    In light of the matters discussed above, and as developed below, I am satisfied that adequate provision for the proper maintenance of the plaintiff requires that the plaintiff receive an interest in Breakfast Point, not Pindimar. That being so, I am satisfied that adequate provision for the proper maintenance of the plaintiff has not been made by the Will, such that the power in s 59 is engaged.

72. [284]

    However, I am also satisfied that a portable life interest in Breakfast Point, rather than the absolute devise the plaintiff seeks, is adequate provision for the proper maintenance of the plaintiff. That is, at least in the circumstances of this case, effectively the same question that arises under s 59(2) (“such order for provision … as the Court thinks ought to be made”). But it is at least convenient, and arguably necessary, to address at the s 59(1)(c) stage the specific provision the absence of which renders the provision made by the Will inadequate. That is so because it is necessary at this stage to consider the residuary beneficiaries’ competing claims upon the estate (discussed below), and for that purpose it is at least convenient to compare the provision that was made for them against the specific additional provision under consideration for the plaintiff.

73. [285]

    That is consistent with the following statement of White JA (with whom McColl and Payne JJA agreed) at [86] of Sgro, in a passage clearly approved in Bassett (see at [59] and [82]):

74. [286]

    Bell P also pointed out at [85] of Bassett, quoted above, that the questions which the Court has to answer in assessing such a claim do not necessarily always divide neatly into two.

75. [287]

    I am satisfied that adequate provision for the proper maintenance of the plaintiff requires that the plaintiff receive an interest in Breakfast Point, not Pindimar. That is because of the characteristics of Pindimar and Breakfast Point, and which of those properties is to be regarded as a suitable “home” for the plaintiff in light of her needs.

76. [288]

    Proper provision is that which leaves a surviving spouse or partner “secure in her home”. An important reason why provision of an appropriate interest in the “matrimonial” home is usually adequate for the proper maintenance of a surviving spouse or partner is the fact that it is their home. The significance of a home is not merely its capital value. The existing home will not only reflect the style in which the surviving spouse or partner is used to living, it will also have all the comforts and attachments of home — often one in which the surviving spouse or partner has lived for many years. Many will choose to remain in the matrimonial home until the end of their own lives.

77. [289]

    The fact that a life estate in such a home is “portable” gives the surviving spouse an appropriate measure of freedom to downsize, to move into aged care accommodation if desired, or to turn the home into capital from which to derive an income. But the importance of that freedom should not be inverted into the proposition that the only significance of the matrimonial home is its capital value. Yet that is the practical effect of the submissions made on behalf of the defendant.

78. [290]

    Here, the plaintiff has no desire to live at Pindimar. I accept her evidence, in particular at [62]-[70] of her affidavit of 28 February 2024, that Pindimar is a large property of one acre requiring significant maintenance, in a remote, rural location, disconnected from services and amenities, and that she does not feel physically safe there. She gave notice to the defendant as trustee before the hearing that Pindimar should be sold; plainly she has no attachment to it. In all the circumstances, although Pindimar was for more than a decade the “matrimonial” home, giving the plaintiff a portable life interest in Pindimar does not serve the usual purpose of leaving her “secure in her home”. Instead, it gives her access to a capital fund.

79. [291]

    The defendant submits that the plaintiff will have the benefit of the proceeds of sale of Pindimar, and that those proceeds could be used to buy an apartment in the suburb of Breakfast Point, the adjoining suburb of Mortlake, or in Campsie (the plaintiff having agreed in cross-examination that she would like to live around Campsie: Tcpt, 9 October 2024, 140.15-16). I did not understand the plaintiff to dispute that the proceeds of sale of Pindimar would be sufficient to purchase an apartment of some kind in one of those suburbs. And if there were no other real property in the estate, that might well have been proper provision.

80. [292]

    However, there is other real property in the estate, Breakfast Point, which would much more readily serve the purpose of making the plaintiff “secure in her home” than does a capital fund. Indeed, from 2008 to 2009, Breakfast Point was the plaintiff’s home which she shared with the Deceased and her two sons. Then from 2009 to 2012, the plaintiff divided her time between the two homes, Pindimar and Breakfast Point. Even after she moved to Pindimar permanently in 2012, she kept a strong connection to Breakfast Point because both her sons lived there until 2024, and as at the date of the hearing her son Scott was still living there.

81. [293]

    Breakfast Point has none of the disadvantages of Pindimar identified above. I accept the plaintiff’s evidence at [50]-[60] of her 28 February 2024 affidavit as to the advantages of Breakfast Point. The apartment is of a manageable size to maintain, in a secure building with security cameras, in a suburb where the plaintiff feels safe. It is close to services and amenities, including her preferred medical practice and the church she formerly attended and wishes to attend at Concord.

82. [294]

    Accordingly, for the purposes of making adequate provision to leave the plaintiff “secure in her home”, I consider that Breakfast Point is a suitable “home”, but Pindimar is not.

83. [295]

    There remains the evidence about the Deceased’s representations, the plaintiff’s belief that she is entitled to an ownership interest in Breakfast Point and the fact that she paid $2,000 to the deposit. Although these are not matters that I consider to have great weight, they reinforce my conclusion that Breakfast Point is a suitable home for the plaintiff.

84. [296]

    As to the first of those matters, I have not accepted on the balance of probabilities that the Deceased made the representations of which the plaintiff gave evidence as to her present or future ownership of Breakfast Point, whether joint or sole. But I have found above that the Deceased made representations to the plaintiff to the effect that Breakfast Point was for her use and, at times, that it was to be her home.

85. [297]

    Secondly, I accept that the plaintiff believes she is entitled to an ownership interest of some kind in Breakfast Point. Although I do not accept the plaintiff’s evidence that her belief is based on statements made to her by the Deceased, I nevertheless accept that her belief forms part of her attachment to Breakfast Point.

86. [298]

    Thirdly, although the plaintiff’s $2,000 contribution to the deposit for Breakfast Point was small relative to the total purchase price of $770,000, that figure was less small relative to her financial resources at the time. I do not consider that it follows from that small payment that adequate provision requires the absolute devise of Breakfast Point which the plaintiff seeks. But the payment is nevertheless a further specific connection to Breakfast Point.

87. [299]

    It was the Deceased’s testamentary intention that the plaintiff have a life interest rather than an absolute devise. For the reasons given above, that is a consideration to which I give some weight.

88. [300]

    Independently of questions of testamentary intention, I do not consider that the fact that the Will conferred a portable life interest on the plaintiff, as opposed to outright ownership of the fee simple, meant that the Deceased made inadequate provision for the plaintiff’s proper maintenance. To the contrary, as the defendant submits (and subject to the home itself being a suitable one), the decided cases show that a portable life estate can be adequate provision. The only inadequacy in the Will’s provision for the plaintiff here lies in the selection of Pindimar rather than Breakfast Point.

89. [301]

    As noted above, the plaintiff made no substantial contribution to the accumulation of the assets of the estate. This is not a case in which the plaintiff could rightly regard wealth accumulated in the course of the relationship as belonging equally to her. In this respect the $2,000 contribution she made to the deposit for Breakfast Point does not materially advance her claim to receive the fee simple, rather than a life estate.

90. [302]

    Instead, the plaintiff’s claim on the estate derives principally from the relationship of dependence she had upon the Deceased. That gave rise to an obligation in the Deceased to provide for the plaintiff by making her secure in her home in her lifetime, and by giving her flexibility in that respect. It did not give rise to an obligation in the Deceased to convey substantial assets absolutely to the plaintiff so that she could pass them on to her children or to others of her choosing. A portable life estate satisfies the Deceased’s obligation.

91. [303]

    I consider that conclusion to be consistent with the transactional aspect of the relationship to which I have referred. I have found that by remaining with the Deceased and caring for him until he died, the plaintiff upheld her part of the implicit bargain she struck with the Deceased. When the Deceased died in 2023, the plaintiff had a reasonable expectation that she would receive “something”, that is, an interest in property of some kind that would protect her from being “kicked out” of her home, and an income to live on. A portable life estate meets that expectation. Moreover, the solicitor’s letter to the Deceased in connection with the draft deed shows that the concept of a life interest was known to him as early as 2004. The cross-examination to which I referred at [102] above indicates that the plaintiff also had some understanding of what a life interest was at that time. Those are further reasons for concluding that a life interest would meet any expectation the plaintiff may have had arising out of the transactional aspect of the relationship.

92. [304]

    No aspect of the evidence leads me to conclude that adequate provision for the proper maintenance of the plaintiff requires an absolute devise of either Pindimar or Breakfast Point. The sincerity of the plaintiff’s belief that she is entitled to an ownership interest of some kind in Breakfast Point does not enhance her claim in this respect. I have rejected her case that her belief is based on representations made by the Deceased, and in any event the case was not ultimately advanced on the basis of any evidence from the plaintiff that she relied on any such representation, still less to her detriment.

93. [305]

    The estate is subject to other legitimate claims which bear on the s 59 assessment, as discussed below. There is a real prospect that one or more of Nerida, Louise and Billy will survive the plaintiff; it is very likely that Madison will. In the circumstances, adequate provision for the proper maintenance of the plaintiff has not been made because proper maintenance requires that the plaintiff receive an interest in Breakfast Point, not Pindimar. But in light of the residuary beneficiaries’ claims, the appropriate interest is a life estate, rather than the fee simple. That meets the Deceased’s obligations to the plaintiff while retaining an asset of value to satisfy the other claims on the estate.

94. [306]

    The question what is adequate provision for the proper maintenance of the plaintiff cannot be answered in a vacuum; what is proper depends on the nature and extent of the estate and the other claims upon it. As Bell P said at [82] in the passage from Bassett above, quoting McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571–572; per Dixon CJ and Williams J:

95. [307]

    So far as the competing claims on the estate are concerned, I have found it necessary to distinguish between Madison on the one hand and Nerida, Louise and Billy on the other.

96. [308]

    As to Madison, for reasons I will explain, the effect of my conclusion is that the plaintiff’s claim is of sufficient strength to displace the provision made under the Will for Madison, in an amount equal to the effect on the residue of substituting a life interest in Breakfast Point for the one in Pindimar.

97. [309]

    More precisely, I have considered the provision made under the Will for the plaintiff and for the residuary beneficiaries, and particularly Madison, and the matters referred to in s 60(2) insofar as they concern the plaintiff and the residuary beneficiaries and their claims upon the estate. Having done so, I am satisfied for the purposes of s 59(1)(c) that the portable life interest in Pindimar is not “adequate provision for the proper maintenance, education or advancement in life of the [plaintiff]”. Instead, adequate provision would be a portable life interest in Breakfast Point. The power in s 59 is thus engaged.

98. [310]

    However, in reaching that conclusion, as noted above, I do not set Madison’s claim at nothing. She is a beneficiary under the Will. The Deceased clearly considered that she had a proper claim on his estate; he intended that she receive an equal share in the residue. I give some weight to the testator’s judgment in that respect. However, having regard to the matters in s 60(2), and especially their stages in life, earning capacities, needs and relationships with the Deceased, and taking into account the provision currently made in the Will for the plaintiff, I consider the plaintiff to have a stronger claim than Madison has on part of Madison’s share of the residue under the Will. That part is equal in value to the difference in the funds that will be available for distribution to the residuary beneficiaries in the near future if a life interest in Breakfast Point is substituted for the one in Pindimar, as explained below.

99. [311]

    Madison’s one quarter share of the residue under the Will as it currently stands amounts to an entitlement to receive a distribution in the near future of at least $475,000 and probably closer to $525,000. (That calculation makes the conservative assumption, which remains to be tested, that the estate will meet the parties’ legal costs). Upon the death of the plaintiff at some unknown time in the future, she will also receive one quarter share of the remainder referable to the proceeds of Pindimar.

100. [312]

     If a portable life interest in Breakfast Point is substituted for the portable life interest under the Will in Pindimar, the effect (before legal costs) will be to reduce the total amount available for distribution to the residuary beneficiaries in the near future from approximately $2.66 million (at the high end of the valuation range for Breakfast Point) to approximately $2.31 million. That is an overall reduction of approximately $350,000, which is less than Madison’s share in the expected distribution under the Will as it currently stands. If by an order adjusting the interests of the residuary beneficiaries pursuant to s 66(2) (to which I will return below), Madison’s share in the residue were reduced by an equivalent sum, she would still receive a cash distribution of between $125,000 and $175,000 in the near future. Upon the death of the plaintiff, Madison would still receive her one quarter share of the remainder.

101. [313]

     Having regard to the matters in s 60(2), I would consider that to be, in all the circumstances of this case, adequate provision for the proper maintenance, education or advancement in life of Madison so as to meet the Deceased’s obligations and responsibilities owed to her. I note that it is likely that Madison will survive the plaintiff, and her interest in the remainder is a significant matter in my consideration.

102. [314]

     That is the basis on which I am satisfied for the purposes of s 59(1)(c) that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the Will, such that the power in s 59 is engaged.

103. [315]

     By contrast, as to Nerida, Louise and Billy, for reasons explained below, I have concluded that the plaintiff’s claim is not strong enough to have the practical effect of justifying reducing the provision currently made for any of them. Each of Nerida, Louise and Billy has a strong claim on the estate based on their present and future needs and on the Deceased’s obligations to them. Those claims are reinforced by my findings as to the lasting harm he did to them, and its causal connection to their present and future needs.

104. [316]

     Under the Will as it stands the plaintiff would receive the use for her lifetime (which may or may not exceed the three siblings’ lifetimes) of a capital fund of approximately $1.5 million (the proceeds of Pindimar), in addition to the substantial superannuation benefit the Deceased directed that she should have. The economic value of the provision made by the Deceased for the use of the plaintiff in her lifetime was in excess of $2 million. After the provision I propose to order (the substitution of a portable life interest in Breakfast Point for the one in Pindimar), the corresponding figure climbs to about $2.5 million.

105. [317]

     The provision the Deceased made under the Will for each of his surviving children was much smaller. It was in the order of $500,000 in the near future, with an indeterminate sum to follow at an indeterminate future time. There is a substantial prospect that one or more of the siblings will not survive to receive that future sum. In those circumstances (and putting the provision made for Madison to one side), given the provision that the Deceased made for the plaintiff, the provision for the plaintiff that I propose to order, and the strength of the siblings’ claims upon the estate, I do not consider the plaintiff’s claim sufficiently strong to have the practical effect of displacing the provision made for any of the siblings.

106. [318]

     More precisely, it is only because of the view I have taken of the provision made by the Will in favour of Madison that, after considering the provision made under the Will for the plaintiff and for the residuary beneficiaries and the matters in s 60(2), I am satisfied for the purposes of s 59(1)(c) that the provision made by the Will is not adequate for the proper maintenance, education or advancement in life of the plaintiff.

107. [319]

     As noted above, no party asked me to make an order pursuant to s 66(2) adjusting the residuary beneficiaries’ interests. The defendant rejected any suggestion that I should do so. Nevertheless, given the basis on which I have concluded that the s 59 power is engaged, and the provision in favour of the plaintiff that I propose to order, it is appropriate to confirm whether the defendant’s submission reflects all the residuary beneficiaries’ wishes, as I have understood.

108. [320]

     One way in which to deal with the residuary beneficiaries’ interests would be to treat Madison’s share in the residue as available to fund the provision to be made in favour of the plaintiff. That is, to exercise the Court’s s 66(2) power to adjust the provision made for Madison downwards by reducing her share in the distribution to be made upon the sale of Pindimar by $350,000, being (at the high end of the valuation range) the difference in value between Pindimar and Breakfast Point. The effect would be that, with respect to Nerida, Louise and Billy, the provision currently made by the Will would be substantially maintained. But doing that at Madison’s expense would be contrary to the express submission made on behalf of the defendant. It would also be contrary to the testator’s intention of equality. I would not make such an adjustment without giving Madison and the three siblings an opportunity to be heard on the question whether the order was “just and equitable” within the meaning of s 66(2).

109. [321]

     An alternative approach would be to treat an amount equal to Madison’s share as available to fund the provision to be made in favour of the plaintiff, while maintaining the equal shares of all four residuary beneficiaries in whatever is the residue following the order. That is, to make no s 66(2) order. That approach would accord with the defendant’s submission and would respect what I understand to be the wishes of the residuary beneficiaries. It would also, at least as to equality, respect the testator’s intention. Subject to what I say in the next paragraph, that is the approach I propose to take in making final orders. By not making any s 66(2) adjustment, the effect of the orders I propose will be that the four residuary beneficiaries will share equally the burden of the provision I propose to make in favour of the plaintiff (the substitution of a life interest in Breakfast Point for the life interest in Pindimar).

110. [322]

     The orders I propose to make depend on my understanding that not making a s 66(2) adjustment accords with the wishes of not only the defendant Nerida, but also of the other residuary beneficiaries — in particular, Louise and Billy. Accordingly, I will make directions:

     1. (1)

        for the defendant to notify each of Louise, Billy and Madison of what is said at [308]-[321] (i.e., that I propose to order the substitution of a portable life interest in Breakfast Point for the plaintiff’s portable life interest in Pindimar, without making any adjustment to the interests of the residuary beneficiaries pursuant to s 66(2) of the Act), and

     2. (2)

        giving any of the residuary beneficiaries who wishes to submit that I should make a s 66(2) order an opportunity to do so.

The provision that ought to be made

1. [323]

   It follows from the conclusions above that the power in s 59 is engaged on the plaintiff’s application. It also follows that I consider that the provision out of the estate of the Deceased that ought to be made for the maintenance, education or advancement in life of the plaintiff is a portable life interest in Breakfast Point, in substitution for the provision made with respect to the portable life interest in Pindimar, but otherwise on the same terms.

2. [324]

   I reject the plaintiff’s claim insofar as it seeks provision by way of an absolute devise of Breakfast Point.

3. [325]

   I also reject the plaintiff’s claim insofar as it seeks provision by way of the sum of $25,000 to purchase a motor vehicle.

Conclusion and orders

1. [326]

   The provision I would order is described above. I will direct the parties to bring in an agreed form of order to give effect to those conclusions within 14 days.

2. [327]

   Subject to the s 66(2) issue and to costs, the summons should otherwise be dismissed.

3. [328]

   The plaintiff has had a significant measure of success on her application, but she did not achieve the full provision that she sought. The parties indicated that they would wish to be heard as to costs, and I will direct the parties to exchange short submissions in writing.

4. [329]

   The orders of the Court will be:

   1. (1)

      Direct the defendant:

   2. (2)

      In the event that any of the persons identified in order 1(b) so wishes, direct that by 5pm on 29 April 2025 they file and serve submissions not exceeding 3 pages in length on the question whether, and in what terms, the Court should make a s 66(2) order.

   3. (3)

      In the event that none of those persons so wishes, direct the parties by 5pm on 29 April 2025 to bring in an agreed form of order (save as to costs) to give effect to the provision I have decided to make.

   4. (4)

      Direct the parties by 5pm on 29 April 2025 to file and serve by exchange submissions not exceeding three pages in length on costs.

The Deceased’s relationship with the other beneficiaries and their current financial circumstances and needs

1. [330]

   As noted above, save in respect of the evidence that I made an order suppressing, I have addressed the detailed evidence about these matters separately for each of Nerida, Louise, Billy and Madison in this Schedule. Unless otherwise stated, I accept that evidence.

2. [331]

   The unchallenged evidence of Nerida, Louise and Billy, which was in some respects corroborated by the plaintiff in cross-examination, establishes that the Deceased was a controlling, volatile, sometimes charming, sometimes violent bully who abused each of the siblings in different ways that have had lasting effects on them. The evidence, which I accept, disclosed serious child abuse, including sexual assaults on some but not all of his children.

3. [332]

   Nerida is aged 62 years. She gave evidence that the Deceased used physical violence to discipline her and her siblings as children. She said that on an average non-school day she spent 5 to 6 hours doing chores for her father. She also gave evidence that the Deceased was a thoroughgoing racist.

4. [333]

   She said that the Deceased never apologised to her or acknowledged what he had done to her as a child despite her attempting to engage him on the subject. Nevertheless, save for the months before his death, she said she always maintained a relationship with her father and stayed in contact with him. Nerida said that, at around the Christmas before the Deceased died, she had a conversation with her father in which he said words to the effect, “I want to know where your Mum is. I want to shoot her and cut her throat.” That led to an argument the result of which was that Nerida did not communicate with her father until he called and left a voicemail apologising weeks later.

5. [334]

   Nerida gave evidence that she has been employed as a florist for more than 25 years. She lives alone. As at September 2024, her weekly income after tax was $720.84 and her estimated weekly expenditure in May 2024 was $472.

6. [335]

   As at September 2024, she owned the house in which she lives, valued at $1,200,000; she had cash and other liquid assets of approximately $160,000; and she had superannuation of a little over $110,000. She had lent various sums to her daughter and to her son’s former partner, which she did not expect to recover. Her only liability was less than $500 on a credit card.

7. [336]

   She gave evidence that her health was poor. She has high blood pressure and an injury to her left shoulder. She says that she experienced significant abuse by her father but has not sought psychological help as she is anxious about the can of worms that that would open. Although she said she has never been officially diagnosed with any mental health conditions, her doctor has raised with her the possibility of attending a psychologist. She says that she has not done so as she is unable to meet the cost of the amount of psychological assistance she believes she would require.

8. [337]

   Nerida’s affidavit evidence of her need for provision from her father’s estate (which, as to the figures, I have treated as evidence of her genuine belief, rather than as necessarily establishing the exact figures referred to) may be summarised as follows.

9. [338]

   Nerida was cross-examined about her financial position. Following the sale of the family home in Putney in or about April 2020, Nerida (like her siblings) received a gift of $310,000 from her mother. Nerida’s evidence was that she used $98,000 of this sum to pay off her mortgage. As at the date of the hearing the balance of the gift was $153,000, which was the source of the cash she had in the bank. In cross-examination, Nerida said that she does not expect any additional money from her mother.

10. [339]

    Nerida was cross-examined as to whether, since receiving the money from her mother, she has been in a position to pay for home renovations, private health insurance and/or psychological treatment. With respect to the home renovations, her response was that she has decided to keep the money because she does not have health insurance and wants to have it “just in case” she requires it for health reasons. When she was asked about her decision not to obtain health insurance, Nerida said she has not yet “had a reason … to be in that situation” but, given her age, she would likely require insurance within the next 12 months (Tcpt, 10 October 2024, 223.46; 224.8). Similarly, when asked as to whether she was in a position to pay for psychological treatment, Nerida explained that she wants to keep the money for “unforeseen things” until she sorts out her finances (Tcpt, 10 October 2024, 224.18-20).

11. [340]

    Nerida was cross-examined to the effect that she had been in a position to pay for a psychologist since receiving the money from her mother but had not done so. In answer to the proposition that she had $150,000 in the bank, she said, “That’s not just for the psychologist, that’s for - it’s there for unforeseen things and at the time I have just left it there until I can sort things – [sort] financial matters out. I’ve been under a lot of stress this last 18 months to even go there at the moment” (Tcpt, 10 October 2024, 224.18). She was also cross-examined about her evidence that she had not found visiting a psychologist in 2015 and 2016 helpful. The effect of her answers was that the particular one she had seen in the past had not met her needs, and that whether a psychologist would be of assistance to her in the future would depend on the practitioner. When it was put to her that she had no way of knowing whether, if she commenced seeing a psychologist, she would wish to continue attending once a week or once a month or at all, she said she would continue on to the next one. Nerida thus showed a genuine, if somewhat apprehensive, desire to receive psychological assistance, which had not been sought because of her strong concern to preserve her limited existing resources.

12. [341]

    Nerida was cross-examined on what her financial circumstances would be in the event that she received $450,000 from the Deceased’s estate. She did not dispute that that sum, when combined with her current savings and superannuation, would be sufficient to cover her need for home renovations, remedial massage, private health insurance, leaving a cash balance of approximately $444,000. I note that that the cross-examiner made no allowance for Nerida to receive any psychological treatment in those calculations. I also note that the figure of $444,000 (which was calculated on the basis that Nerida’s existing superannuation balance was available to meet the needs referred to above) is below the level of superannuation Nerida said she required for a comfortable retirement.

13. [342]

    Nerida was also cross-examined on whether she would obtain any practical benefit from sharing in (along with the other beneficiaries) a remainder interest in a property held on trust for the plaintiff. When it was put to her, Nerida accepted that there is “real doubt” as to whether she will survive the plaintiff (Tcpt, 10 October 2024, 226.26-28). However, she denied that a remainder interest would be of no practical benefit, stating that the fact that the interest would be forwarded on to her siblings would itself be a practical benefit.

14. [343]

    Louise is 64 years old. She is the eldest child of her parents.

15. [344]

    Louise gave evidence that she was scared of her father and of his verbal and physical behaviour. He would give her the strap; he would ridicule her; and she found him unpredictable. Her father gave her multiple chores from an early age.

16. [345]

    The Deceased ridiculed Louise’s future husband, David. They married when she was 20 years old and she moved out of home. When she was about 22, she asked the Deceased to lend her some money to buy a fireplace. He refused. She borrowed the money from her paternal grandfather. When her father found out, he called her a bitch and struck her with an open palm to the side of her head.

17. [346]

    She gave evidence of another incident in about 2007 in which she was visiting her mother, who had separated from the Deceased. Her father showed up unannounced. Louise and her father got into an argument which resulted in the Deceased’s punching Louise in the shoulder and the back of her head as she attempted to leave in her car. He yelled at her, “I’m going to kill you, you fat ugly bitch!” Louise said that she reported the incident at the Toukley Police Station and thereafter lived in fear of her father.

18. [347]

    In 2008, Louise had what she described as a mental breakdown. She had to resign from her nursing job at Central Coast Area Health. She sought help from a psychologist. She was diagnosed with depression and anxiety, with an element of psychosis. Her psychologist told her that her poor mental health was to do with her family dynamics.

19. [348]

    From 2008 to 2010 she continued working at home, but she has not worked since 2010 due to Post Traumatic Stress Disorder.

20. [349]

    The Deceased would telephone her from time to time until he died. He would be charming at the start of the call and then work himself into a rage about Louise’s siblings, the plaintiff and what he described as the plaintiff’s “parasite boys”.

21. [350]

    In April 2020, Louise’s mother sold the remaining property at Putney that had become hers as part of a family law property settlement. When her father found out that the property had been sold, he said to Louise, “I am going to kill the bitch. That was not the agreement.” Louise’s husband David took her mother to make a complaint at the Wyong Police Station. After that, her mother lived with Louise and David for three or four months. Louise was scared for her mother’s life.

22. [351]

    Louise’s current fortnightly income consists of a Centrelink Disability Support Pension of $841.40, and a superannuation pension of $169.62. David’s current fortnightly income consists of a Centrelink JobSeeker payment of $709.60 and a pension from his superannuation of $416.64.

23. [352]

    Their joint fortnightly expenses are a little over $2,036, which exceeds their combined fortnightly income. They have been redrawing on their home loan.

24. [353]

    Using values as at September 2024, Louise’s assets which she owns jointly with David, including the family home at Wyee, were valued at about $1,068,732. They have a mortgage of $62,315. David has no assets in his sole name, but Louise owns a Toyota Fortuna valued at $48,000. She has superannuation of $111,762.83 and David has superannuation of $132,193.28. Louise has no liabilities in her sole name; David has a personal loan of $7,050.

25. [354]

    Louise’s physical and mental health is poor. She suffers from chronic abdominal pain. She has osteoarthritis in her hips and spine and has had surgery on her hips. She has also had two melanomas removed.

26. [355]

    She was first diagnosed with depression and anxiety in around 2000, for which she has been treated since that time. She was diagnosed with complex PTSD in around 2008, for which she has been treated since that time.

27. [356]

    David’s health is poor. He has had a total right reverse shoulder replacement. As at September 2024, he was incapacitated for work due to his shoulder injury.

28. [357]

    Louise’s affidavit evidence of her need for provision from her father’s estate (which I have treated on the same basis as Nerida’s) may be summarised as follows.

29. [358]

    It was suggested to Louise in cross-examination that her family’s dynamics had contributed to her poor mental health. She was also asked about factors that may have contributed to her inability to work. With respect to her employment as a nurse, Louise agreed that her reasons for resigning in 2008 were that she was assaulted and felt mistreated by her employer. She also agreed that she had been mistreated by her sister and that this affected her mental health.

30. [359]

    In cross-examination, Louise accepted that it would be sufficient for her to see a chiropractor once a month but maintained that it would be necessary for her to visit a physiotherapist weekly.

31. [360]

    Louise was also cross-examined about what her financial circumstances would be if she received $450,000 from the Deceased’s estate. She agreed that this sum would allow her to repay her mortgage. Earlier in cross-examination Louise had also agreed that once her mortgage is paid off, her living expenses will reduce to approximately $1,500 per fortnight. Louise later accepted that the remaining sum of $390,000 after the repayment of her mortgage would be sufficient to cover hip replacement surgery, modifications to her home and repairs to the roof and to repay David’s personal debt. She also agreed that once those requirements were satisfied, she would have approximately $280,000 to cover her and David’s other needs. Those needs include ongoing psychological care and a retirement income.

32. [361]

    Louise agreed that because of her age there is real doubt as to whether she will see any real benefit from an entitlement to a remainder interest in a property held on trust for the plaintiff’s lifetime.

33. [362]

    Louise and David have three children, all now well into adulthood.

34. [363]

    Billy is aged 60. Like Nerida, he said that the Deceased was extremely racist, particularly towards Asian people, and that he brought Billy and his siblings up to be racist.

35. [364]

    He gave evidence that he grew up in an authoritarian, argumentative, aggressive household in which he was constantly afraid of his father. He gave detailed evidence about his father’s violence towards him. He would hide from his father, for which he would be physically punished with a leather belt, the Deceased’s fist, or “anything [the Deceased] could get his hands on.” On his part, the relationship was submissive. He does not recall ever fighting or hitting back out of fear of repercussions.

36. [365]

    Billy gave evidence that his father’s treatment caused him to have suicidal thoughts which continue to this day. He describes himself as extremely depressed, anxious, non-trusting and suicidal in his late teens. In his early 20s he was homeless for about six months. In his mid-20s he lived with his paternal grandfather for a period, hiding from the Deceased when he visited. On one occasion, the Deceased discovered that Billy was present and punched him in the back of his head.

37. [366]

    Billy was homeless again in his mid-30s, sleeping on the street. While living with Louise in 2000 he attempted suicide after experiencing flashbacks and thinking about the abuse he had suffered from his father. In around 2008, the Deceased beat Billy so severely that he described his face as unrecognisable, for which the Deceased was convicted of aggravated assault.

38. [367]

    In about 2008, Billy was diagnosed with chronic depression, Post Traumatic Stress Disorder, anxiety and bi-polar disorder. He tried to avoid contact with his father, but the Deceased continued to contact him to abuse him over the telephone until he died; Billy would not talk back to him. Billy gives evidence that the last time he engaged in conversation with his father would have been at the time of the assault in 2008. He attributes the medication and mental health support that he requires to “a lifetime of emotional, physical and mental abuse from my father”.

39. [368]

    Billy lives with his friend Shirley Kennedy at Winston Hills in New South Wales.

40. [369]

    As at September 2024, Billy’s fortnightly income consists of a Centrelink JobSeeker payment of $958.67.

41. [370]

    His fortnightly expenditure is $1,141.

42. [371]

    His main asset is a property at Green Point, which he owns as joint tenant with Ms Kennedy, worth $600,000 (Green Point Property). He also owns a Toyota Hilux valued at $25,000, and has a little over $2,000 in bank accounts.

43. [372]

    He and Ms Kennedy have a joint liability of $47,119.81 under a mortgage over the Green Point Property. He has no liabilities in his sole name.

44. [373]

    He has superannuation of about $35,000.

45. [374]

    Billy’s mental health is poor. He continues to suffer from chronic depression and anxiety and (he understands) Post Traumatic Stress Disorder. He experiences daily symptoms of anxiety, confusion, nauseousness, chest pain, isolation, low self-esteem, and suicidal thoughts. He suffers from bi-polar disorder which makes him unmotivated and unsure. He also suffers from myocarditis (which causes fatigue), arthritis and hyperthyroidism.

46. [375]

    Billy’s affidavit evidence of his need for provision from his father’s estate (which I have treated on the same basis as Nerida’s and Louise’s) may be summarised as follows.

47. [376]

    Billy was cross-examined about his mental health as well as his psychiatric and physical health conditions. He denied that recreational drug use in the 1990s had contributed to these issues. He did not accept that his medical conditions affected his relationship with or feelings about the Deceased.

48. [377]

    Billy was cross-examined at some length about his interest in the Green Point Property and his relationship with Ms Kennedy. This included the following:

49. [378]

    Billy denied that he had purchased the property in joint names with Ms Kennedy and paid the mortgage because he wished to advance funds for her benefit. He said that Ms Kennedy became a joint owner of the property for the purpose of assisting him in obtaining a loan because he could not get one on his own, that she is someone that he has known for a long time and was a trustworthy partner to do that.

50. [379]

    He said their relationship is not a romantic or sexual one, and that he has never assisted Ms Kennedy with the care and support of her daughters.

51. [380]

    It was put to Billy that he would take into account his contributions to the purchase price and mortgage repayments when calculating the amount required to buy out Ms Kennedy’s interest in the property. Although Billy did not seem to follow the calculations that were put to him in cross-examination, when it was put that he would need no more than $130,000 to buy out Ms Kennedy’s interest he stated,

52. [381]

    When questioned on his view of Ms Kennedy’s understanding of the situation, Billy agreed that the two of them have had discussions about the topic, but he denied that that they have reached an agreement.

53. [382]

    Billy’s evidence that he requires provision for on-going psychiatric and psychological treatment was also the subject of cross-examination. Billy did not agree that he would not see a psychiatrist more than once a month, stating that it “could be once a week” (Tcpt, 10 October 2024. 244.21). He also did not accept that he cannot know if he will want to attend weekly sessions or that it is unlikely that he will attend weekly sessions consistently.

54. [383]

    In his affidavit evidence, Billy referred to the National Disability Insurance Scheme (NDIS) support calculators to quantify the provision that he would need in order to obtain the assistance he requires to help him with household tasks. In cross-examination, Billy explained that he is not aware of the type of assistance that the NDIS can provide and has not discussed it with his doctor. Billy agreed, when it was put to him, that it would be a good idea to apply to the NDIS for funding for a support person to assist him with everyday tasks.

55. [384]

    Billy was also cross-examined about what his financial circumstances would be in the event that he received $450,000 from the Deceased’s estate. He agreed that $270,000 would “[h]ypothetically” be enough to buy out Ms Kennedy’s interest in the Green Point Property, pay off his share of the mortgage and undertake renovations on the property (Tcpt, 10 October 2024, 242.14-17). He also accepted that the remaining $180,000 could be used as additional spending money, for psychologist appointments or to buy a new motorbike. He was not cross-examined on the other items in his evidence on his need for provision.

56. [385]

    Billy disagreed that his entitlement to a share in the remainder interest in a property held on trust for the plaintiff’s lifetime is of no real practical benefit to him.

57. [386]

    Madison is aged 27. There is no suggestion in her evidence that she suffered any ill-treatment at the hands of the Deceased.

58. [387]

    As at the date of the hearing, she was working as an Administrative Assistant in Mental Health Services, nine days per fortnight. Madison and her partner James, who is 29, rent their house near Wagga Wagga. Madison is pregnant with their first child.

59. [388]

    As at September 2024, Madison’s fortnightly gross income is $2,340.65. The sum of $631.78 of her salary is packaged, and goes towards her rent and some groceries. Her net income after deductions and salary sacrificing is $1,514.87 per fortnight.

60. [389]

    James’ fortnightly net income varies according to his shifts. After a deduction for salary packaging, James’s payslips in evidence show his net pay after tax as varying between $2,324 and $2,155 per fortnight.

61. [390]

    Their estimated fortnightly expenditure is $3,266.

62. [391]

    As at 30 June 2024, Madison and James had superannuation of $25,176 and $31,485, respectively.

63. [392]

    They own motor vehicles valued at $9,000 and $2,500, respectively. They each have small sums in the bank. They have one substantial joint asset which is a savings accelerator account containing $191,075. They are saving for a house deposit.

64. [393]

    They have no liabilities.

65. [394]

    Madison’s affidavit evidence of her need for provision from her grandfather’s estate (which I treat on the same basis as the sibling beneficiaries) may be summarised as follows.

66. [395]

    Madison was cross-examined about her and James’ fortnightly expenditure and their capacity to save. She agreed that their regular fortnightly expenses paid after salary sacrifice are about $2,100. She also accepted that together, her and James’ combined income amounts to approximately $3,800 per fortnight. Although Madison did not accept that she and James should thus be in a position to save approximately $1,700 of their combined income each fortnight, she agreed that they were able to save $10,000 (including interest) between July and September 2024.

67. [396]

    Madison further agreed that, putting aside her evidence that she needs provision to purchase a home, her and James’ savings of $190,000 are sufficient to cover her requirements for money for unexpected medical costs, private health insurance, a new car, the removal of James’ wisdom teeth, new orthotics and the difference between Madison’s maternity leave and her usual income.

68. [397]

    Madison also agreed that, in the event that she received $450,000 from the Deceased’s estate, she would need to take out a home loan of $400,000 to $450,000 to purchase a suitable property for her family. When it was put to her that she could fund repayments for a loan of that amount from the income that she and James currently earn, she responded, “Yes, we would try and make it work” (Tcpt, 10 October 2024, 166.43-45).