Weisbord v Rodny (No 4)

1. [1]

   Mrs Rose Rodny died on 24 August 2014 aged 92 years old. The parties to this litigation are Mrs Rodny’s daughter, Ms Jeanette Weisbord, and her sons, Mr Joel Weisbord and Mr Alexander Weisbord, on the one hand, and the deceased’s son, Mr Laurence Rodny, on the other. Without meaning any disrespect, I will refer to the parties and other members of Mrs Rodny’s family by their first names, except for Mrs Rodny who I will refer to as the deceased.

2. [2]

   Jeannette, Joel and Alexander have each brought family provision applications under s 59 of the Succession Act 2006 (NSW). That section empowers the Court to order that further provision be made out of a deceased person’s estate for certain classes of applicants in circumstances where an applicant has not been left with adequate provision by the deceased person’s will for their proper maintenance, education or advancement in life. Laurence, as the executor of the deceased’s last will, opposes these applications.

Procedural history

1. [3]

   These reasons comprise the fifth judgment in the litigation between the parties. On 6 December 2018 I delivered the primary judgment in Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 (Weisbord (No 1)) and on 19 June 2019 I delivered the costs judgment in Weisbord v Rodny (No 2) [2019] NSWSC 739 (Weisbord (No 2)). The proceedings raised two issues, the first being whether a document should be admitted into probate as an informal will under s 8 of the Succession Act, and the second being whether further provision ought to be ordered from the deceased’s estate in favour of Jeannette, Joel and Alexander under s 59 of the Succession Act.

2. [4]

   I decided in Weisbord (No 1) that the document referred to in that judgment as the “2008 document” and later by the Court of Appeal as the “second typewritten draft” was to be admitted into probate. Relevantly, the formal declarations and orders of the Court made on 11 February 2019 were:

3. [5]

   Following the publication of Weisbord (No 2) I made orders on 1 July 2019 concerning the costs of the proceedings. The orders accommodated the fact that the plaintiffs had succeeded on their probate claim and that their family provision claims had been dismissed, but only on the basis that the success of the probate claim had the result that the plaintiffs did not need any orders for additional provision out of the deceased’s estate. Laurence accepted during the costs hearing that it was appropriate that a single set of costs orders be made in the proceedings. The cost orders included:

4. [6]

   As I noted in Weisbord (No 2), Laurence’s costs of defending the proceedings had already been paid out of the deceased’s estate.

5. [7]

   On 27 February 2020, the Court of Appeal allowed an appeal from Weisbord (No 1) in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 (Appeal Decision). The orders made by the Court of Appeal were:

6. [8]

   In respect of order 5, the Court of Appeal, by order made on 16 March 2020, remitted the proceedings to me or some other judge in the Equity Division for case management to determine the three family provision applications that were left undecided in Weisbord (No 1), and which are the subject of these reasons.

7. [9]

   As I understand the Court’s file, the Court of Appeal did not make any order to set aside costs orders 2 and 3 made by me on 1 July 2019 and ordered that all parties’ costs of the appeal be paid out of the deceased’s estate on the ordinary basis. The effect of these costs orders will be that all of the parties’ costs of the whole of the proceedings will be paid out of the deceased’s estate unless any contrary order is made as a result of the outcome of the plaintiffs’ outstanding family provision claims.

8. [10]

   On 30 April 2021, I published reasons in Weisbord v Rodny (No 3) [2021] NSWSC 458 (Weisbord (No 3)) in which I explained why at first instance I determined only the first issue and not the second issue. In essence, I was concerned that the determination of the plaintiffs' family provision applications might prove to be futile if the Court of Appeal overturned significant findings of fact that I had made in Weisbord (No 1), and the range of possible ultimate findings was so wide that I was not sufficiently confident that I could predict the ultimate basis upon which it would be necessary to decide the family provision applications. As will be seen below when I discuss the reasoning in the Appeal Decision, subsequent events have shown that my concerns were probably misplaced, as the Court of Appeal did not significantly disturb the findings of fact that I made in Weisbord (No 1).

9. [11]

   The essence of my decision in Weisbord (No 3) was that I rejected Laurence's application to reopen his case to tender new evidence concerning the plaintiffs' circumstances, as I took the view that the Court had reserved judgment on the basis of the evidence relevant to the plaintiffs' family provision claims that had been tendered during the hearing, and the appropriate course, given the remittance of the claims for determination, was that I decide those claims on the basis of the evidence that was available when judgment was reserved. I also invited the parties to deliver further written submissions on the issue of the extent to which the reasoning in the Appeal Decision should influence the Court's determination of the family provision applications. The Court received submissions from the parties on that issue in due course.

10. [12]

    I have referred at the outset to the effect of my decision in Weisbord (No 3) in order to acknowledge the reality that, even though I declined to permit any reopening that would allow the admission of new evidence on the substantive issues, and the possible re-enlivening of the dispute, there may be some subsequent events that the Court cannot properly ignore in determining the plaintiffs' family provision claims, if it should decide that the plaintiffs, or some of them, should succeed on those claims. As I have explained above, the Court was told that Laurence had caused his legal costs to be paid out of the estate. Costs orders were made at first instance and on the appeal in favour of the plaintiffs. The Court does not know what has been done in relation to the payment of those costs, or whether the amounts payable have finally been assessed.

11. [13]

    The hearing that led to the publication of Weisbord (No 1) was completed on 12 April 2018, when judgment was reserved. As noted in various places in the judgment, the Court had received evidence concerning the value of the assets in the deceased's estate. Common sense requires the Court to determine the plaintiffs' family provision applications on the basis that it may have been necessary for Laurence, as executor, to have realised assets in the estate for the purpose of its administration, and the value of the assets that remain in the estate may have changed since the Court reserved its judgment. I will return to this issue below, but I foreshadow that it may be appropriate to formulate any orders for further family provision that are proposed to be made in favour of the plaintiffs in percentage terms in relation to the current actual value of the estate, rather than in specific terms, by reference to individual properties or historical values that may by now have been superseded by events.

12. [14]

    It will be necessary first to determine how and to what extent, if any, the procedural history of this litigation influences or constrains the manner in which the Court must now determine the family provision claims. This course may require some repetition and elaboration of the introductory observations that I have just made.

Consequences of the Appeal Decision in respect of these reasons

1. [15]

   In Weisbord (No 3) I drew attention to two ways in which the Appeal Decision would influence the determination of the family provision claims. The first was that the Court would need to determine the family provision claims on the basis of the evidence that was before the Court when it reserved judgment in Weisbord (No 1): Weisbord (No 3) at [19]-[26]. On that basis I rejected the defendant’s application to serve further updating evidence relevant to the family provision claims: Weisbord (No 3) at [18]. As I noted in Weisbord (No 3) at [11], the plaintiffs’ applications for further provision were fully contested at the hearing.

2. [16]

   The second way relates to the way in which the Court is now to proceed in respect of findings of fact which could bear relevantly on the determination of the family provision claims. I stated the problem in these terms in Weisbord (No 3) at [28]:

3. [17]

   I invited additional submissions from the parties on this problem. The plaintiffs submit that the only error in Weisbord (No 1), the error on which the Appeal Decision turned, was that I did not appropriately recognise the need for a specific or particular document to be identified when making my determination of the s 8 issue. The plaintiffs submit that the Court of Appeal did not otherwise disturb any of my prior findings of fact, and that the Court of Appeal’s decision could only be said to reinforce a number of my findings on the deceased’s intentions to provide for the plaintiffs and on issues of credit against Laurence’s interests.

4. [18]

   Laurence’s submission is multi-pronged. The first aspect is that any prior factual findings and rulings that I made in Weisbord (No 1) that are relevant to the determination of the family provision claims that were not disturbed in the Appeal Decision may be relied upon in determining those claims. That appears to square broadly with the plaintiffs’ submission. This aspect of the submission was made subject to the following further aspects.

5. [19]

   The second aspect of Laurence’s submission is that my determination of the family provision claims should be influenced by those parts of the Appeal Decision that note what he submits is the impossibility of making any findings as to why the deceased did not sign the second typewritten draft. Laurence refers to the judgment of Meagher JA at [54], [55] and [61], and the judgment of White JA at [148], the latter of which encapsulates the sense of Laurence’s submission:

6. [20]

   Laurence submits that these parts of the Appeal Decision, that he says recognise the impossibility of finding why the deceased did not sign the second typewritten draft, should cause the Court to entertain the possibility that the deceased did not retain the testamentary intentions that gave rise to the preparation of the second typewritten draft.

7. [21]

   The plaintiffs oppose this submission on the grounds that the evidence offered by the second typewritten draft is also provided in the witness evidence of Mr Lloyd and Mr Price, the acceptance of which the plaintiffs say the Court of Appeal did not disturb in the Appeal Decision. In essence, the plaintiffs say that the document is one of many pieces of evidence from which the Court can infer that the deceased intended to benefit the plaintiffs further than under the terms of her last will.

8. [22]

   The third aspect is that my finding in Weisbord (No 1) at [374] was made under a misapprehension as to the meaning of Laurence’s outline written submissions provided at the hearing. The relevant paragraph of Laurence’s outline written submissions reads as follows:

9. [23]

   My finding in Weisbord (No 1) at [374] was as follows:

10. [24]

    Laurence accepts that the Court of Appeal explicitly took up that finding. Meagher JA (with whom McCallum JA, as her Honour then was, agreed at [150]) wrote, in the Appeal Decision at [12], [15], and [31]:

11. [25]

    White JA wrote, at [146], relevantly:

12. [26]

    This aspect of Laurence’s submission is that he accepted that the second typewritten draft embodied testamentary intentions, but that this was not an acceptance that the document embodied the deceased’s final testamentary intentions so as to influence the determination of the family provision claims.

13. [27]

    The plaintiffs oppose this submission on the basis that it is tantamount to calling for an appeal from Weisbord (No 1) by a single judge of this Court, and that the Court of Appeal was under no misapprehension as to what Laurence submitted in par 5.33 of his outline written submissions.

14. [28]

    The final aspect of Laurence’s submission is that, in any case, the matter of the deceased’s testamentary intentions is merely one of the many considerations relevant to determining the family provision claims, and that this matter is one of minimal influence on the determination in this case.

15. [29]

    The parties’ submissions on the problem I raised in Weisbord (No 3) at [28] give rise to a number of issues which must be determined before the Court can safely proceed to consider the central jurisdictional questions posed by s 59 of the Succession Act.

16. [30]

    The first aspect of Laurence’s submission is on all fours with the primary submission of the plaintiffs; that is, any prior factual findings and rulings that I made in Weisbord (No 1) that are relevant to the determination of the family provision claims that were not disturbed in the Appeal Decision may be relied upon in determining those claims. I accept that position. Where the evidence before the Court in respect of the probate and family provision issues is the same, it would be irrational for the Court to make findings in respect of the family provision issue inconsistent with those made in respect of the probate issue on the basis of that same evidence.

17. [31]

    The final aspect of Laurence’s submissions is also uncontroversial law. Section 60(2) of the Succession Act provides that in determining family provision claims the Court may consider any of the 15 matters enumerated in that subsection as well as any other matter the Court considers relevant. One of those 15 matters, explored in greater detail below, is evidence of the deceased person’s testamentary intentions: Succession Act, s 60(2)(j). It is clear that none of the matters is determinative of a given claim and that the Court weighs all relevant circumstances in an evaluative judgment of whether adequate and proper provision has been made for an applicant: Megerditchian v Khatchadourian [2020] NSWCA 229 at [43] (Payne JA, with whom Macfarlan JA and Emmett AJA agreed at [1] and [71] respectively).

18. [32]

    The second aspect of Laurence’s submission grapples with the question begged when the first aspect is accepted: which findings in Weisbord (No 1) were disturbed in the Appeal Decision, and which were not?

19. [33]

    It is convenient to begin by observing that, in the Appeal Decision at [67]-[94], Meagher JA considered ten grounds of appeal directed towards my finding that the deceased made statements that she had executed a new will, an effect of which was to leave her property at 102 Balfour Road, Bellevue Hill to Alexander and Joel and their sisters. The grounds were numbered 3 through 12, and were summarised by Meagher JA at [28], relevantly:

20. [34]

    Meagher JA rejected all ten grounds: see Appeal Decision at [83], [88], [91]-[94]. McCallum JA agreed expressly at [150] with Meagher JA’s consideration of all these grounds. White JA agreed with Meagher JA’s consideration of grounds 3, 4, 5, 7, 8 and 9 (those concerning Mr Price’s evidence) at [129] but did not expressly consider the remaining four grounds. The Court can therefore proceed on the basis that the findings made in Weisbord (No 1) that were addressed in the Appeal Decision at [67]-[94] continue to be sound.

21. [35]

    Laurence did, however, succeed on grounds 1 and 2 of his appeal, which were considered by Meagher JA at [30]-[66], the reasons of whom McCallum JA agreed at [150], and by White JA at [99]-[149]. Meagher JA said of these grounds at [27] and [29], relevantly:

22. [36]

    Meagher JA subsequently identified the following errors in, or expressed the following reservations in respect of, my reasoning:

    1. (1)

       My finding in Weisbord (No 1) at [474] that the deceased intended the 2008 will to form her will within the meaning of s 8(2)(a) of the Succession Act “at this point in his Honour’s reasons was not justified if read as being that [the deceased’s] intention was directed to any particular “document” operating as her will. It could only be justified as a finding that her testamentary intentions corresponded with the terms of the second typewritten draft will”: Appeal Decision at [14].

    2. (2)

       My conclusion in Weisbord (No 1) at [523] that I was satisfied “that document was “capable” of being a document of the kind referred to in s 8(2)(a) […] implicitly recognise[d] that the evidence did not, and could not, justify a finding that the deceased then or at some later (unspecified) time intended that particular document to operate as her last will”: Appeal Decision at [14].

    3. (3)

       The evidence did not permit any finding as to whether there was any particular document which was the subject of the deceased’s belief that she had executed a new will, whether that belief was correct or mistaken, “and if so whether that document was the or a version of the second typewritten draft will which conformed to her instructions to Mr Lloyd”: Appeal Decision at [33]; cf Weisbord (No 1) at [368], [395].

    4. (4)

       The reference in Weisbord (No 1) at [413] to the deceased’s belief that she had “made a will in the terms of the 2008 will” was “only correct if understood as being to a will which she believed was in accordance with her instructions to Mr Lloyd. In other words, her belief was as to her having given effect to her testamentary intentions”: Appeal Decision at [36].

    5. (5)

       My finding in Weisbord (No 1) at [413] that the deceased held that belief did “not include that she believed she had done so by the execution or adoption of a particular document which in fact conformed to those intentions”: Appeal Decision at [36].

    6. (6)

       As to my “finishing position” in Weisbord (No 1) at [414], namely “my finding that [the deceased] told Jeannette, Avi and also Laurence that she had made a will that on the evidence could only be the 2008 will”, “the observation that “on the evidence” the will [the deceased] believed that she had made “could only be the 2008 will” was “to be understood as no more than an observation that the second typewritten draft was the only document which could have correctly accorded with [the deceased’s] belief because it was the only document which recorded her testamentary intentions. It did not follow that there was a specific document which was the subject of her belief, and that it accorded with her instructions to Mr Lloyd”: Appeal Decision at [38].

    7. (7)

       My analysis in Weisbord (No 1) at [413]-[467] (within the section titled “The events following Mrs Rodny’s instructions to Mr Lloyd”) should be taken as a consideration merely of the possibilities, in light of my observation “at the outset that the evidence did not permit the Court to make reliable findings of fact, even on the balance of probabilities, as to what happened and how the deceased came to think she had made a new will which conformed to her instructions”: Appeal Decision at [48], see also [39]-[47]; cf Weisbord (No 1) at [413]-[414], [417], [420], [423]-[426], [430], [444]-[445], [448]-[449], [461], [467].

    8. (8)

       Whereas I stated in Weisbord (No 1) at [417] and [420] that the ““more likely” of two alternative possibilities (identified at [417]) was that [the deceased] (perhaps accompanied by her friend Mrs Parker) gave instructions to Mr Lloyd on 14 August 2008 “with the intention that she would return the following day to execute the will, the first draft was prepared in error by Mr Lloyd, [the deceased] returned on 15 August 2008 and signed the appointment of enduring guardians, but in some manner the error in the draft will was discovered, so that the second draft had to be prepared”” [Appeal Decision at [40]], Meagher JA observed at [48], relevantly:

    9. (9)

       “The evidence did not permit a finding as to what might have happened which could have caused [the deceased] to believe she had complied with all the formalities” in circumstances where “in mid-August 2008 the deceased’s intention was to make a new will by executing a document conforming to her instructions, as she had done on at least three earlier occasions and proposed to do on this occasion” and where “[a]t that time she had no intention that a document conforming to her instructions should without more form her will”: Appeal Decision at [48].

    10. (10)

        As to my observation in Weisbord (No 1) at [467], there were “difficulties with treating the statement “that [the deceased] intended the final draft of the 2008 will to operate as her will” as supporting a conclusion that at some point in time and without more she intended that unexecuted document to constitute her will (cf s 8(2)(a))”: Appeal Decision at [50]; those difficulties being, relevantly:

    11. (11)

        My finding in Weisbord (No 1) at [469] that the deceased believed “in or after August 2008 that she had made a new will in terms of the final draft of the 2008 will” was “not supported by the reasoning that precedes it if understood as saying more than that at some time in or after August 2008 [the deceased] believed she had made a will conforming to her instructions to Mr Lloyd”: Appeal Decision at [51].

    12. (12)

        “[T]he evidence did not permit findings as to how [the deceased] came to have” the belief that she had made a will that “conformed to her instructions to Mr Lloyd”: Appeal Decision at [51].

    13. (13)

        The evidence did not permit “a finding that [the deceased] had any specific document in mind, or that any such document was a will and conformed to her instructions to Mr Lloyd” in the context of my ““most likely” scenario in which the document [the deceased] may have believed she had executed was either the appointment of enduring guardians, or the first typewritten draft of the will”: Appeal Decision at [51]; cf Weisbord (No 1) at [396], [413], [423], [467].

    14. (14)

        My finding in Weisbord (No 1) at [474] that the deceased “intended the 2008 will to form her will within the meaning of [s 8(2)(a)] of the Succession Act”, acknowledging “the reference to “the 2008 will” to be a reference to the second typewritten draft prepared on 15 August 2008”, did “not follow from the finding that [the deceased] believed she had made a will which conformed to her instructions to Mr Lloyd”, and nor was it “justified either by the evidence or his Honour’s earlier reasoning”: Appeal Decision at [54].

    15. (15)

        My finding that the deceased believed that she had made a will left “unanswered questions as to whether there was any particular document which was the subject of her belief and, if so, whether that document was a will which accorded with her instructions; as well as questions as to how and when she came to have that belief”: Appeal Decision at [54].

    16. (16)

        The absence of findings addressing the questions just set out in turn left unanswered “how [the deceased] came to intend that a particular unsigned document should, without more, constitute her will when her apparent intention was to give effect to her testamentary intentions by executing a will”: Appeal Decision at [54].

    17. (17)

        My analysis in Weisbord (No 1) at [517]-[523] (the section entitled “Preparation of will after instructions given”) involved the making of further findings which were “not supported by the evidence” and which were “inconsistent with his Honour’s earlier analysis”: Appeal Decision at [55]. The errors in respect of that section were that:

23. [37]

    The errors identified and reservations made by White JA broadly aligned with those set out by Meagher JA. They were:

    1. (1)

       “[T]he evidence did not establish on the balance of probabilities that the deceased had seen the final draft of the 2008 will, or even knew whether it had been created”: Appeal Decision at [108].

    2. (2)

       It did not follow “from the fact that [the deceased] believed she had made her will and that there [was] only one document which could be the subject of her belief, that she intended that the document to be prepared by Mr Lloyd would, when prepared, be operative as her will if it accorded with her instructions: Appeal Decision at [147]. This was because:

    3. (3)

       The evidence did not rise above “a choice between speculative possibilities. It [did] not establish on the balance of probabilities the deceased intended a particular document to form her will”: Appeal Decision at [148].

24. [38]

    As White JA observed at [147], this was a difficult case.

25. [39]

    It immediately bears noting that I have borne in mind the errors and reservations identified by Meagher and White JJA enumerated above in coming to the findings that follow in these reasons. I have also borne in mind the issue raised by Meagher JA at [1] that my description in Weisbord (No 1) of the relevant document as “the 2008 will” has the capacity to mislead, and I propose to refer to the two typewritten drafts in a way consistent with the Appeal Decision.

26. [40]

    I can now turn to the second aspect of Laurence’s submission directly. This second aspect raises three questions:

    1. (1)

       Did the Appeal Decision recognise the impossibility of making any finding as to why the deceased did not sign a document that gave effect to her testamentary intentions?

    2. (2)

       If so, should that impossibility influence the determination of the family provision applications by causing the Court now to entertain the possibility that the deceased did not retain the testamentary intentions that gave rise to the preparation of the 2008 will in either of its draft forms?

    3. (3)

       Regardless of either answer, what bearing do these two considerations have on the operation of s 59 of the Succession Act?

27. [41]

    The answer to question (1) is in the negative. The crux of the question is in the word ‘why’, that being a question of the reason for which the deceased did not execute a draft of the 2008 will. The Appeal Decision was not concerned with that reason, whatever it may have been. The essential legal proposition on which the Appeal Decision turned was that s 8(2)(a) of the Succession Act “requires a finding of intention concerning the operation of the document which is the subject of the application for the grant of probate”: Appeal Decision at [54] (Meagher JA), see also [147]-[148] (White JA). That is, there must be the “adoption [by the testator] of a particular document”: Appeal Decision at [36] (Meagher JA). The errors and reservations identified above were directed at the incapacity of the evidence to establish whether the deceased did or did not manifest the relevant intention in respect of a particular document. The deficiency was in the merely speculative position of the Court as to what the deceased believed she had or had not done and in respect of what document or documents. Belief in what the deceased had or had not done is a different matter to the reason for not doing that thing. I do not consider that the Appeal Decision made any determination on the impossibility or otherwise of the Court finding some reason as to why the deceased did not execute a particular document.

28. [42]

    Even if I were wrong in that consideration, the answer to question (2) would be in the positive, but in a completely unhelpful way. It is a matter of logic that if the evidence permits no finding either way, on the balance of probabilities, as to the reason why the deceased did not execute a will in 2008, the Court cannot then make a finding on the balance of probabilities that the or a reason for the deceased not doing so was because she did not retain the intentions embodied in her instructions to Mr Lloyd. The most the Court could then do is to determine possibilities for the deceased not doing so, and I accept to that extent alone that there is a possibility that the deceased did not retain the intentions on which she instructed Mr Lloyd. But that consideration is of no use to the Court. The Court can only determine the family provision applications before it on the basis of facts established on the balance of probabilities: Evidence Act 1995 (NSW) s 140(1). Furthermore, the Court of Appeal has recently affirmed in Bassett v Bassett [2021] NSWCA 320 at [80]-[81], [116] (Bell P, as his Honour then was, Leeming and Payne JJA) that the terms of s 59(2) of the Succession Act require the Court to exercise its discretion “having regard to the facts known to the Court”, not to matters of speculation. The Appeal Decision itself affirmed the risk of error in the Court relying on possibilities alone in making findings of fact or law: see Appeal Decision at [39]-[48], [61] (Meagher JA); [137], [148] (White JA).

29. [43]

    However, the most significant consideration is the answer to question (3). What I take to be the principal point of this aspect of Laurence’s submission is that the determination of family provision claims is not influenced, or is only influenced to a limited extent, by evidence of testamentary intentions that are not the final testamentary intentions of the deceased. I reject the substance of that submission. It is necessary at this point to set out the law governing the Court’s ability to consider evidence of testamentary intentions in family provision claims.

30. [44]

    As adverted to above, s 60(2)(j) of the Succession Act provides that one of the matters the Court may consider in determining a family provision claim is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person” (emphasis added). The Court of Appeal recently observed the following of that provision in Bassett v Bassett at [185] (Bell P, Leeming and Payne JJA):

31. [45]

    It is apparent from this observation, and from the words of the provision itself, especially the word “any”, that s 60(2)(j) renders relevant any evidence of testamentary intentions, no matter the timing of those intentions relative to the creation of any wills by the deceased person, and no matter their timing relative to the deceased person’s death.

32. [46]

    It follows that s 60(2)(j) allows the Court to consider evidence of testamentary intentions that are not the final intentions of the deceased person. Support for this position is found in statements that Hallen J has adopted in a number of decisions, most recently that of McDonald v O’Connor [2019] NSWSC 261 at [149]-[150]:

33. [47]

    As an aside, the Court of Appeal did allow the appeal in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114. At [91], Brereton JA doubted the conclusion of Pembroke J that the testator in that case had made a carefully considered decision, a statement which might be said to bear adversely on the statement of Pembroke J extracted in Hallen J’s reasons immediately above. That is of little moment, however, since it is the contrasting statements of Hallen J himself that I adopt in considering the issue at hand.

34. [48]

    It is also apparent from the statement of Bell P, Leeming and Payne JJA in Bassett v Bassett at [185], extracted above, that the Court is able to consider evidence of testamentary intentions of the deceased notwithstanding that those intentions were embodied in a document that was not admitted into probate, in this case by virtue of the defendant’s successful appeal, and notwithstanding that another document of earlier origin was admitted into probate.

35. [49]

    Further and more focused support for this approach is found in the decision of White J (as his Honour then was) in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522. In that case, the testatrix made a will in 2003 which broadly benefited her nephew, Mr Slack. The testatrix made another will in 2007 which revoked all previous wills and left her estate to two of her grandchildren. Mr Slack claimed that the 2007 will had been revoked, and that the 2003 will had been revived, by an informal will of 2008. White J upheld that claim. Mr Slack had made a family provision application in the alternative that he was unsuccessful, which White J considered in obiter in the alternative that his Honour had erred. White J stated relevantly at [137]:

36. [50]

    White J’s reference to “testamentary intentions”, in its context, can only refer to the intentions embodied in the informal 2008 will that his Honour admitted into probate, and not the 2007 will which would otherwise have been admitted into probate and which would have been the relevant will upon which the family provision order would have operated. In other words, in this alternative scenario, White J acknowledged that an informal will not admitted into probate would have embodied the testamentary intentions of the testatrix, and that those intentions would have justified the making of an order for further provision in accordance with or in the spirit of those intentions.

37. [51]

    Slack v Rogan; Palffy v Rogan and Bassett v Bassett might be said to contrast in at least one relevant regard; that is, the weight to be attributed to statements of testamentary intention made subsequent to the deceased’s last will may differ in each case. In White J’s alternative finding in Slack v Rogan; Palffy v Rogan extracted above, his Honour would have attributed significant weight to such statements, whereas in Bassett v Bassett at [192], the Court of Appeal did not “attach any particular weight” to the relevant conversation in which the deceased’s subsequent testamentary intentions were expressed. That that difference is possible is consistent with the evaluative nature of the jurisdictional question in s 59(1)(c), and the permissive but not mandatory nature of the considerations in s 60(2), of the Succession Act: see Bassett v Bassett at [192], [198] (Bell P, Leeming and Payne JJA).

38. [52]

    It now remains to consider the third aspect of Laurence’s submission. I have set out above the references in Weisbord (No 1) at [374], and to the Appeal Decision at [12], [15], [31] and [146] in which Meagher, White and McCallum JJA expressed their Honours’ understanding that it was agreed by the parties that the second typewritten draft represented the deceased’s testamentary intentions. In circumstances where the Court of Appeal unanimously expressed that view and determined the appeal on the basis of that view, I consider myself bound not to derogate from it. In any event, I respectfully agree with the conclusion reached by their Honours.

39. [53]

    To round out the consideration of these issues, it is worth noting some statements in the Appeal Decision that I have relied upon in the reasons that follow. At [63], Meagher JA stated, relevantly:

40. [54]

    Most significantly, his Honour then stated at [80]-[81] (emphasis added):

Relationship between the parties

1. [55]

   Before turning to the factual history of this case, one matter deserves some discussion which has continuing relevance for the conduct of family provision applications in general. This was a matter that I addressed in Weisbord (No 1) at [311]-[330], but on which there are principles applicable to the family provision applications.

2. [56]

   Quite clearly, the enmity between the parties in this case is palpable. A not insignificant part of the plaintiffs’ case focused on what they depicted to be the aggressive and conniving conduct of their brother and uncle against not only the deceased but against them. Though s 60(2)(n) of the Succession Act permits the Court to consider the conduct of persons other than applicants when determining family provision applications, the central focus in these cases is on the familial relationship between a deceased person and the applicant: see Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [12] (Gleeson CJ).

3. [57]

   Given the Court’s focus on the relationship between the deceased and the applicant, and the relationships between the deceased and any beneficiary or other person, evidence of acrimonious behaviour between the applicant and those other persons independent of the deceased can in many cases be of doubtful value in determining the jurisdictional question in s 59 of the Succession Act. Chapter 3 of the Succession Act is not directed towards righting the wrongs of one sibling against another. In this respect, the warning of Hallen AsJ (as his Honour then was) in Graham v Graham [2011] NSWSC 504 at [198] remains relevant:

4. [58]

   Evidence of the parties with respect to their relationships with one another in this case is therefore only deserving of any real weight where it bears on the jurisdictional question in s 59. That will be the case, for example, where such evidence bears upon the relationships of the deceased with those persons and, accordingly, her moral duty to them (see Vigolo v Bostin at [25] (Gleeson CJ), [121] (Callinan and Heydon JJ)); or where it bears upon one or another party’s circumstances in life. Such evidence may also bear naturally on the credibility of the parties in giving their evidence.

5. [59]

   For present purposes, it bears repeating in particular what I stated in Weisbord (No 1) at [319]-[320] and [324]:

Factual history

1. [60]

   Many facts relevant to the determination of the family provision applications have been canvassed in the earlier judgments in this litigation. Subject to the consideration above as to the consequences of the Appeal Decision on the findings I made in Weisbord (No 1), the facts that I found to be the case in Weisbord (No 1) remain correct. I will refer to corresponding paragraphs in Weisbord (No 1) while supplementing the facts with other evidence where relevant.

2. [61]

   I addressed the credibility, and the evidence generally, of the principal witnesses in the proceedings at the following parts of Weisbord (No 1): Mr Lloyd at [135]-[165], Jeannette at [206]-[241], Avi at [242]-[257], Joel and Alexander at [258]-[262], Mr Price at [263]-[310], and Laurence at [331]-[364]. My findings as to credibility continue to colour the evidence given by the witnesses in light of the consideration of the Appeal Decision above.

3. [62]

   As explained above, one effect of Weisbord (No 3) is that the Court must now determine the family provision applications on the evidence that was before the Court when it initially reserved judgment: see Weisbord (No 3) at [18], [26]. Though these reasons are rendered in the present tense, it is to be borne in mind that the facts are present as of 2018.

4. [63]

   The deceased was born on 3 July 1922 and died on 24 August 2014, aged 92 years: Weisbord (No 1) at [2].

5. [64]

   The deceased was married to Karel. The deceased and Karel operated a fur manufacturing business and retail outlet in Sydney from the 1960s until Karel’s death in 1989: Weisbord (No 1) at [4].

6. [65]

   The deceased and Karel had two children. Jeannette was born in 1952 and was aged 66 years at the hearing. Laurence was born in 1956 and was aged 62 years at the hearing: Weisbord (No 1) at [5].

7. [66]

   Jeannette is married to Abraham Weisbord, who goes by Avi. They have four children: Alexander, born in 1985 and aged 32 years at the hearing; Joel, born in 1988 and aged 30 years at the hearing; Karly, born in 1990 and aged 27 years at the hearing; and Jordana, born in 1993 and aged 24 years at the hearing: Weisbord (No 1) at [6].

The deceased’s estate

1. [67]

   Four parcels of real property are relevant to the deceased’s last will and to her testamentary intentions. There was some dispute as to the respective values of these properties which was resolved by the end of the hearing: Weisbord (No 1) at [20].

2. [68]

   The first property is a residential property at 77 Balfour Road, Bellevue Hill (77 Balfour Road) which was the deceased’s home. The parties agree that the property is valued at $4,000,000: Weisbord (No 1) at [21].

3. [69]

   The second property comprises four large home units at 102 Balfour Road, Bellevue Hill (102 Balfour Road). The parties agree that the property is valued at $5,100,000: Weisbord (No 1) at [21].

4. [70]

   The third property comprises eight two-bedroom flats on a single title at 87 Sproule Street, Lakemba (87 Sproule Street). The parties agree that the value of the underlying property is $3,000,000: Weisbord (No 1) at [21]. The Lakemba Property is owned by a company called Karod Investments Pty Ltd (Karod).

5. [71]

   The fourth property comprises nine flats on a single title at 23 Carramar Avenue, Carramar (23 Carramar Avenue). The deceased owned 23 Carramar Avenue until it was sold in September 2003. The plaintiffs did not appear to challenge Laurence’s evidence that the property sold for $1,250,000. As of 2002, 23 Carramar Avenue was earning approximately $65,000 per annum in rent: Weisbord (No 1) at [22].

6. [72]

   I outlined the issues concerning the deceased’s estate in Weisbord (No 1) at [18]-[19]:

7. [73]

   With respect to the two reservations mentioned in Weisbord (No 1) at [19], I made further passing references to these issues at [21], [320], and [339]. I resolved upon the following view in Weisbord (No 1) at [536] and I continue to adhere to that view:

8. [74]

   The effect of that conclusion is that the gross value of the deceased’s estate, at the time of the hearing, was $11,591,775, as is set out in Exhibit 8, and without the two reservations: Weisbord (No 1) at [19]. The inventory set out is as follows:

9. [75]

   The deceased made three wills after her husband died, dated 15 May 1990, 17 June 1997, and 19 December 1997 respectively. Probate of the December 1997 will was granted to Laurence on 15 January 2016: Weisbord (No 1) at [23]. The order of the Court in Weisbord (No 1) revoking the grant of probate was set aside by the Appeal Decision. As such, the December 1997 will is the last will of the deceased.

10. [76]

    I described the preparation and effect of the three wills in Weisbord (No 1) at [26]-[29]:

11. [77]

    Between 2006 and 2008, the deceased set out to make a new will. As has been seen, it is the events of this attempt that comprised the bulk of the consideration in Weisbord (No 1) and the Appeal Decision. Meagher JA summarised the events surrounding second typewritten will in the Appeal Decision at [4]-[9]:

12. [78]

    As to the events of the deceased’s meeting with Mr Lloyd, I stated in Weisbord (No 1) at [138]-[139]:

13. [79]

    The events following the deceased’s meeting with Mr Lloyd was summarised by Meagher JA in the Appeal Decision at [10]:

Events following the deceased’s death

1. [80]

   There is evidence of events following the deceased’s death, in particular of the reading of the December 1997 will, which I relayed in Weisbord (No 1) at [181]-[204], and which I relay here, relevantly:

Significance of evidence of deceased’s testamentary intentions

1. [81]

   I will proceed upon the basis that on or about 15 August 2008 the second typewritten draft will embodied the deceased's intentions at that time, at least in respect of the testamentary gifts that she wished to make to Jeannette and her grandchildren. The two typewritten drafts were in any event materially the same in respect of the intended gifts to Jeannette and the grandchildren.

2. [82]

   I have accepted the evidence given by the solicitor, Mr Lloyd, concerning the circumstances in which the deceased gave him her instructions that led to the preparation of the type-written draft wills. I have set out those findings from Weisbord (No 1) at [83] above.

3. [83]

   In this respect, I note the following observation made by Meagher JA in the Appeal Decision at [5]: “the principal differences between the existing will and that proposed were that the four grandchildren were to receive the home unit property in Balfour Road instead of Laurence, and that the residuary estate was to be shared equally between Laurence and Jeanette rather than going only to Laurence” and at least one impetus of the deceased’s attempt to change her last will was that the 23 Carramar Avenue, Carramar property had been sold.

4. [84]

   The gift of 23 Carramar Avenue was adeemed because the property was sold to provide funds for the deceased's continuing financial needs. It is unsurprising that a grandmother as loving and attentive as the deceased would recognise the need to replace the gift to her grandchildren if she wanted to provide an equivalent inheritance for them, following the sale of the Carramar Property.

5. [85]

   I have accepted evidence that the deceased made a number of statements that support a conclusion that the deceased believed that she had successfully given effect to her testamentary intention as embodied in the second type-written draft will: see Weisbord (No 1) as to Jeannette at [206], [211] and [219]; as to Avi at [242]; as to Alexander at [259], and as to Joel at [261]. I also accepted in Weisbord (No 1) the evidence given by Andrew Price of statements made by Laurence that justified a finding that the deceased made statements to Laurence that caused him to believe that the deceased understood she had left a greater share of her estate to Jeannette than to Laurence, and that she had also provided for her grandchildren: see [266], [268], [273], [278], [298], [364], and my final conclusion on this issue at [395]. Given my acceptance that the deceased said those things and had that belief, it is natural to conclude that she did not take further effective steps to implement her testamentary intention because she believed that she had already done so.

6. [86]

   The plaintiffs' probate case failed, primarily because of the insufficiency of the evidence that identified a particular document that the deceased intended, without more, to operate as her will. The possibility cannot be ruled out that the deceased changed her testamentary intentions after 15 August 2008 but: (a) there is no positive evidence at all that she did so; (b) there is no evidence of any event occurring that would give reason to believe that the deceased may have changed her testamentary intentions; (c) the evidence of the deceased's character and the relationship that she had with Jeannette and her grandchildren supports a finding that it is unlikely that the deceased would have misled them concerning her testamentary intentions; (d) the deceased's medical history provides at least a partial explanation for her failure to execute a new will in 2008 in proper form: see Weisbord (No 1) [166]-[176] leading up to the deceased being diagnosed with dementia in September 2009; and (e) the manner in which Mr Lloyd went about assisting the deceased to make a new will in 2008 was so disorganised that it could well have led to confusion on the deceased's part.

7. [87]

   In these circumstances I reject the submission made by Laurence that the matter of the deceased's testamentary intentions is merely one of the many considerations relevant to determining the family provision claims, and that this matter is one of minimal influence on the determination of this case. It remains necessary, however, to ensure that the jurisdictional requirement in s 59(1)(c) is properly satisfied, and, if it is satisfied, for the Court to have proper regard to and give proper weight to all relevant factors known to the Court in the exercise of its discretion under s 59(2).

8. [88]

   It will be convenient at this point to make the following additional observations concerning the significance of the evidence of the deceased's expressed testamentary intentions in this case. That evidence is to the effect that the deceased formed the intention to leave 77 Balfour Road to Jeannette, 102 Balfour Road to her grandchildren, and her half interest in Karod to Laurence. The combined value of those properties is $10,600,000. As the total value of the deceased's estate was $11,591,775, the value of the balance of the deceased's estate is $991,775.

9. [89]

   As I noted at [537] of Weisbord (No 1), the plaintiffs' family provision claims were expressed in the plaintiffs' submissions to be in the alternative to the probate claim. Accordingly, if the plaintiffs' probate claim had succeeded and a grant of probate had been made in respect of the second type-written draft will, each of the deceased's grandchildren would have become entitled to a quarter of the value of No 102 Balfour Road, equal to $1,275,000. It follows from the way in which the plaintiffs conducted their case at the hearing that Alexander and Joel accepted that, if they received an amount of $1,275,000 under the will of the deceased, they would not have a proper claim in addition for further family provision in their favour.

10. [90]

    Consequently, as the Court is now called upon to decide the family provision claims in the same manner as it would have decided those claims if it had dealt with them in Weisbord (No 1), it would be illogical and inconsistent with the way the plaintiffs' claims have been conducted for the Court to consider making orders for further family provision in favour of Alexander and Joel in amounts greater than the present equivalent of $1,275,000, having regard to any changes in the value of the assets in the deceased's estate, and the effect of the parties' costs being paid out of the estate. That consideration may have the consequence that, subject to the effect of any order for further family provision made in favour of Jeannette, the share in the value of No 102 Balfour Road that the deceased intended be given to her two granddaughters will fall into residue. Laurence is entitled to the residue under the December 1997 will.

11. [91]

    Under the December 1997 will, Jeannette will receive sole ownership of No 77 Balfour Road. If probate had been granted for the second type-written draft will, Jeannette would also have received that property and the only additional interest she would have received in the deceased’s estate is half of the residue, which has a value of $495,387.50. Although proof of the deceased’s testamentary intentions, even in cases where that proof is as strong as in the present case, will not be decisive of the determination of the issues that arise under s 59 of the Succession Act, consistency of judicial approach would suggest that a claimant such as Jeannette who joins with other claimants in placing great reliance on the deceased’s expression of her testamentary intentions must take those intentions as she finds them, and not pick and choose as to which aspects of the intention should be given effect. This reasoning would suggest that a significant factor in the determination of Jeannette’s family provision claim should be the deceased’s intention to give her an amount of about $500,000 more than she will get in any event.

Relationship of the parties with the deceased

1. [92]

   In Weisbord (No 1) at [16] I stated: “[t]he evidence establishes that over the course of the plaintiffs’ lifetimes [the deceased] provided substantial, if not exceptional, emotional, material and financial support to her daughter’s family out of love, and in apparent recognition of the special needs that they had.”

2. [93]

   I am satisfied that the deceased had a close relationship with both of her children and all of her grandchildren. There is no basis for the Court to draw a distinction between any of the parties in respect of the closeness of their relationship with the deceased.

3. [94]

   The plaintiffs devoted considerable forensic effort to an attempt to prove that Laurence behaved poorly towards the deceased and acted in a controlling manner in relation to her mail and finances: see the plaintiffs’ primary written submissions at pars 81-138. I have not treated this evidence as having any real significance, as it is the deceased who is the best judge of the worth of her relationships with the members of her family and she has spoken on that subject through the various manifestations of her testamentary intentions from time to time.

Circumstances of the parties

1. [95]

   Jeannette, Joel and Alexander have each suffered from significant medical and psychological disabilities over the course of their lives: Weisbord (No 1) at [9].

2. [96]

   In Weisbord (No 1), I noted at [12] that “Laurence did not contest Jeannette’s claim that she suffered and continues to suffer from substantial medical and psychological disabilities.” I summarised Jeannette’s evidence at [10], where I noted: “Jeannette gave evidence that she has suffered from depression, anxiety disorder, panic disorder, hypertension, and other physical ailments. These disabilities have necessitated her requiring assistance for almost everything she does”: see also at [239], [403].

3. [97]

   Jeannette owns her home in Gilgandra Road, North Bondi, and a home unit in Penkivil Street, Bondi, the latter left to her by her aunt Sari. Jeannette said that Gilgandra Road is in a state of dilapidation owing to her hoarding. Penkivil Street, a 3-bedroom and 2-bathroom unit, is used as an investment property and earns $750 per week before expenses. Jeannette borrowed $10,000 from her daughter Karly to make renovations to Penkivil Street when she obtained the unit in 2009.

4. [98]

   The rent from Penkivil Street is applied to Jeannette’s shoe shop business which she has operated since 2001 and which, she conceded, runs at a loss, such that it cannot afford to pay Jeannette a wage and has a deficit of about $68,000. Jeannette gave evidence that she was afraid to close down her business because it provided her with a level of psychological stability.

5. [99]

   Jeannette makes a gross monthly income of $3,000, and a net monthly income of approximately $2,083, which is expended entirely on monthly expenses. Jeannette has debts in the order of $113,000. Jeannette’s husband Avi was declared bankrupt in 2010 and has since then worked as a full-time carer for his mother and his family.

6. [100]

   The parties tendered a Table of Property Values that had been agreed or determined by expert valuation and which became Exhibit 4. The Gilgandra Road property was given a value of $3.2 million and the Penkivil Street property a value of $1.4-$1.6 million. Jeannette is entitled to the property at 77 Balfour Road under the 1997 will, which has been given a value of $4 million. Consequently, Jeannette’s application for further family provision must be determined on the basis that Jeannette will be entitled to unencumbered real property worth $8.6-$8.8 million, subject to the effect of the deceased’s estate bearing the costs of these proceedings and the probate proceedings.

7. [101]

   Jeannette does not earn an income and makes a loss from her shoe shop business as is mentioned above. I accept that Jeannette may have a psychological need to continue to operate the business, but it should be possible for Jeannette to generate an income from some of her assets, if necessary, with appropriate professional assistance. If Jeannette needs a cash fund to meet contingencies, it may be necessary for her to sell one of the properties. I also accept that Jeannette’s psychological problems prevent her from efficiently maintaining an orderly household. It may be necessary for her to convert some of her assets in order to be able to fund housekeeping assistance. It is ultimately a matter for Jeannette whether she would prefer to continue with her present material existence, or whether she would prefer to use her financial resources to get paid help.

8. [102]

   Laurence broadly accepts that Joel has suffered from significant medical and psychological disabilities: Weisbord (No 1) at [15].

9. [103]

   Joel is a disabled pensioner. His serious medical disabilities have made it difficult to work, in large part because he cannot stand or sit for long periods and suffers from mood swings: Weisbord (No 1) at [13]. Joel has suffered from dystonia from the age of 14 years, which causes constant pain that has become progressively more severe as he has aged. Joel suffers from anxiety and panic attacks which have resulted in psychological breakdowns on three occasions. Joel suffers from pain in his feet and ankles, and constant spasms, limiting his mobility; arthritis of the knees; pain in his lower back; anxiety disorder; panic disorder; clinical depression and insomnia. He suffers from many consequential problems such as fluctuating blood pressure, blurred vision, hyperventilation, dizziness, lethargic behaviour and migraines. These afflictions have left him with clinical depression and feelings of hopelessness. He is currently on six different types of meditation. Finding a job has been difficult as Joel cannot stand or sit for prolonged periods of time and he suffers from mood swings due to pain, insomnia, and the medications that he takes. He requires the use of a walking stick to get out of bed.

10. [104]

    Joel has virtually no assets, some debt, and limited resources and opportunities to financially support himself. Joel has approximately $5,000 in assets, which includes a 2005 Holden Astra. He receives a pension of $500 a fortnight from Centrelink and has debts in excess of $30,000.

11. [105]

    As with Joel, Laurence broadly accepts that Alexander has also suffered from medical and psychological disabilities: Weisbord (No 1) at [14]-[15]. Alex suffers from ulcerative colitis, Crohn's disease, oesophagitis, ADHD and suicidal depression.

12. [106]

    Alex is an apprentice studying what he called electro technology/electrician at TAFE/Northern Sydney Institute, St Leonards. He has assets with a value of approximately $12,000, which includes a motorbike that has mechanical problems. He has debts of approximately $30,000. Alex receives income of $480 per week. Alex said that often he does not have money for food and: "I just go to sleep hungry".

13. [107]

    Laurence has not put his financial circumstances into issue. The Court is entitled to infer from the evidence that Laurence is financially comfortable and may be relatively wealthy: Weisbord (No 1) at [17].

Legal principles in respect of family provision applications

1. [108]

   For the Court to exercise its discretion to order further provision in favour of Jeannette, Joel and Alexander, they each must ultimately establish that, at the time when the Court is considering their applications, adequate provision for their proper maintenance, education or advancement in life has not been made by the deceased’s will: Succession Act, s 59(1)(c).

2. [109]

   In the case of all three plaintiffs, each must show sufficient cause for the Court to order that they may make their applications given that they have brought their applications later than 12 months after the date of the deceased’s death: Succession Act, s 58(2).

3. [110]

   In the case of Jeannette, it is not disputed that Jeannette is an eligible person to make her application as a child of the deceased: Succession Act, ss 57(1)(c), 59(1)(a). The real dispute in respect of her application is as to her adequate and proper provision: Succession Act, s 59(1)(c).

4. [111]

   In the cases of Joel and Alexander, they must first establish that they are eligible persons to make their applications: Succession Act, s 59(1)(a). As they contend that they are eligible under the heads of eligibility in ss 57(1)(e) and (f) of the Succession Act, they must then establish that there are factors warranting the making of their applications: Succession Act, s 59(1)(b). Having established those matters, the Court will then turn to the question of their adequate and proper provision: Succession Act, s 59(1)(c).

5. [112]

   Section 58(2) of the Succession Act relevantly provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.

6. [113]

   In Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 at [53], Meagher JA (with whom Macfarlan and Leeming JJA agreed) explained that there are two steps to obtaining an extension of time to apply for provision under s 16 of the Family Provision Act 1982 (NSW): first, showing sufficient cause for the application not having been made within the prescribed period and, secondly, the exercise of the Court’s discretion in favour of granting the extension of time:

7. [114]

   In Stojanovski v Stojanovski [2019] NSWSC 1713 at [459], I accepted the following observations by Hallen J in Stojanovski v Stojovski [2016] NSWSC 976 concerning the granting of an extension of time to commence proceedings under s 58(2) of the Succession Act:

8. [115]

   For the Court to exercise its discretion to order further provision in favour of Jeannette, she must establish that, at the time when the Court is considering the application, adequate provision for her proper maintenance, education or advancement in life has not been made by the deceased’s will: Succession Act 2006, s 59(1)(c). Hallen J stated the broad considerations relevant to the family provision applications of adult children in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]:

9. [116]

   For the Court to exercise its discretion to order further provision in favour of Joel and Alexander, they must first establish that they are eligible persons: Succession Act, s 59(1)(a). In this case, Joel and Alexander contend that they are eligible persons as grandchildren of the deceased person who were, at any particular time, wholly or partly dependent on the deceased person: Succession Act, s 57(1)(e). It is not disputed that Joel and Alexander are grandchildren of the deceased, so they do not need to establish the matter in the latter half of the Succession Act 2006, s 57(1)(e)(ii), namely, that they were ever a member of the deceased’s household. Joel and Alexander also contend that they are eligible persons as persons with whom the deceased person was living in a close personal relationship at the time of the deceased’s death: Succession Act, s 57(1)(f).

10. [117]

    The first issue is whether Joel and Alexander were, at any particular time, wholly or partly dependent on the deceased. As to the meaning of “dependent”, Payne JA posed the relevant question simply in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [78] as: “has reliance on another to fulfil a need been shown?” In Purnell v Tindale [2020] NSWSC 746, Henry J summarised the key propositions relevant to this question, at [153]-[156]:

11. [118]

    As to the effect of the words “wholly or partly”, the word “partly” means “more than minimally”: Chisak v Presot [2022] NSWCA 100 at [47], [57] (White JA, with whom Macfarlan and Gleeson JJA agreed at [1] and [2] respectively).

12. [119]

    The second issue then is whether Joel and Alexander can establish factors warranting the making of their applications. This is because, as identified by McColl JA in Yee v Yee [2017] NSWCA 305 (with whom Gleeson JA and Simpson JA agreed at [193] and [210] respectively) at [112], persons claiming eligibility as dependent grandchildren “are not generally regarded as natural objects of testamentary recognition by a deceased” (citation omitted).

13. [120]

    I respectfully adopt the summary of principles relevant to this question as set out by Hallen J in Chisak v Presot [2021] NSWSC 597 at [335]-[342]:

14. [121]

    In Chisak v Presot, Hallen J stated in obiter at [343] that there would have been factors warranting the application of a grandchild solely on the basis that the applicant was a beneficiary of the deceased’s last will, but this was unnecessary to decide in the wake of his Honour’s finding that the applicant was not dependent on the deceased. White JA agreed with that conclusion on appeal at [2022] NSWCA 100 at [59]. That fact clearly satisfies the central question asked in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (McLelland J, as his Honour then was) and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 at NSWLR 252 (Priestley JA) because the deceased has in that instance nominated the beneficiary as a natural object of testamentary recognition.

15. [122]

    The third issue then is whether adequate and proper provision has been made for Joel and Alexander. This issue requires consideration of the circumstances in which the moral duty of a deceased grandparent to make provision for a dependent grandchild is enlivened. The leading statement of Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] was adopted by Basten JA in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [17]-[21]:

16. [123]

    In adopting those considerations, Basten JA reasoned, at [14], that:

17. [124]

    Section 57(1)(f) of the Succession Act provides that persons with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death are eligible persons to make a family provision application. Like dependent grandchildren, these persons must also satisfy the jurisdictional requirement that there be factors warranting the making of the application: Succession Act, s 59(1)(b). The principles in respect of that question are the same as set out above. Different considerations arise in respect of the eligibility condition and the question of adequate and proper provision.

18. [125]

    In the Succession Act, a close personal relationship is defined as “a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”: Succession Act, s 3(3). Grandchildren of deceased persons can be eligible under this head independently of and concurrently with the ‘dependent grandchild’ head: Re Filomena Rodi, deceased [2016] NSWSC 1696 at [47] (Lindsay J).

19. [126]

    Eligibility under this head is precluded where one of the parties provides the other with domestic support and personal care for fee or reward, or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation): Succession Act, s 3(4). A person’s eligibility is not precluded by this rule merely because the person received rent-free accommodation in circumstances where his or her residency with the deceased person “(a) lacked any commercial flavour; and (b) was, quintessentially, a family arrangement unattended by calculations about financial benefits or detriments”: Re Filomena Rodi, deceased at [53] (Lindsay J).

20. [127]

    Joel and Alexander’s eligibility under s 57(1)(f) turns on two questions. The first is whether each was “living together” with the deceased at the time of the deceased’s death and while each was an adult. Brereton JA (with whom Bathurst CJ agreed at [1]) considered the concept of “living together” in Yesilhat v Calokerinos [2021] NSWCA 110 at [134]:

21. [128]

    After an extensive review of the authorities, Brereton JA concluded at [152]:

22. [129]

    The second question to be asked of Joel and Alexander’s eligibility is whether, during the time that they were living together with the deceased, they had with the deceased the relationship contemplated by s 3(3) of the Succession Act. That relationship is one in which one or each of the applicant and the deceased provided the other with domestic support and personal care. Hallen J set out the principles relevant to this question in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [242]-[245]:

23. [130]

    To that summary should be added the statement of McColl JA (with whom Beazley JA, as her Excellency then was, relevantly agreed at [1]) in Hayes v Marquis [2008] NSWCA 10 at [87], that “there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual’s well being. Psyche is just as much a personal attribute requiring sustenance as one’s physical self …”

24. [131]

    As to the question of proper and adequate provision for Joel and Alexander, it is not apparent that this Court has yet observed a set of “general principles” directly applicable to persons who are eligible by virtue of the close personal relationship head, unlike those considerations generally applicable to other classes like spouses (see, for example, Steinmetz v Shannon at [98]-[109] (Brereton JA)), adult children (see, for example, Limberger v Limberger; Oakman v Limberger at [473] (Hallen J), extracted above), or grandchildren (see, for example, Chapple v Wilcox at [17]-[21] (Basten JA), extracted above). It may well be that such principles are not capable of articulation in respect of a category of persons which can vary vastly in character. The nature of the recurrent considerations employed by the Court in the family provision jurisdiction is not that they constitute firm principles of law, but that they “constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance”: Chapple v Wilcox at [19] (Basten JA, with whom Barrett JA made concurring remarks at [66]-[67]).

Whether sufficient cause shown for applications being made out of time

1. [132]

   Subject to the observations that I will make below concerning the prospects of success of Jeanette's family provision application, I am satisfied that the Court should make an order under s 58(2) of the Succession Act permitting the plaintiffs to commence their family provision applications out of time.

2. [133]

   The deceased died on 24 April 2014. The plaintiffs filed their family provision summons on 5 November 2015, which was about 2 1/2 months after the end of the 12-month period stipulated in s 58(2) for the commencement of the proceedings.

3. [134]

   Although each application must depend upon its own facts, where the application is commenced only a very short time after the end of the 12 month period, the Court should bear in mind the truth of the observation made by Pembroke J in Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24] that is extracted by Hallen J in Stojanovski v Stojovski that is set out above, that the application must be "made within a defined, and strictly confined period" and that s 58(2) imposes a "short time period". Events may occur within this relatively short period that impose understandable impediments on applicants in commencing their applications within the specified time limit.

4. [135]

   I am satisfied that, in the first instance, the plaintiffs have shown sufficient cause for their delay in this case in making their application. The references in the following explanation are to paragraphs in Weisbord (No 1).

5. [136]

   The December 1997 will was not read by Mr Lipman, the solicitor for Laurence as executor, until 9 December 2014: [181]. That meant that the plaintiffs lost some 3 1/2 months before they knew the terms of the December 1997 will for which Laurence proposed to seek a grant of probate.

6. [137]

   I am satisfied that Jeannette was devastated by her disappointment in the terms of the December 1997 will, particularly in respect of the fact that her children did not receive the inheritance that she understood from the statements made to her by the deceased that they would receive: [183]. It may be that Jeannette did not burst into tears during the will reading, but I am satisfied that she did so shortly afterwards when she fully realised the effect of the December 1997 will: [188], [192], and the evidence given by Joel at [T-A 324.45].

7. [138]

   There is in my view, a significant likelihood that all of the plaintiffs were diverted in determining what their proper response should be to the terms of the December 1997 will by the steps taken by both Jeanette and Mr Lipman to communicate with Mr Lloyd concerning what had happened in about August 2008 in respect of the deceased making a new will. Mr Lloyd advised Mr Lipman on 9 December 2014 that the deceased had not executed her draft will: [199]; but Mr Lloyd did not make his final reply to Mr Lipman until 3 February 2015: [201]. Jeanette accepted that she had received a copy of one of the type-written draft wills from Mr Lloyd in December or January 2015: [204]. It is likely that these investigations impeded the plaintiffs' determination of how they should respond to their learning of the terms of the December 1997 will.

8. [139]

   There is an issue as to whether either Laurence or Mr Lipman advised the plaintiffs or some of them that they had no right to challenge the December 1997 will. Jeanette claimed that Mr Lipman advised her that the December 1997 will could not be challenged, but this evidence was denied by Mr Lipman: [184]. Joel accepted in cross-examination that Laurence did not inform him that the December 1997 will could not be challenged: [T-A 327.43]. On the other hand, Alexander was quite definite that Laurence had told him that the will could not be challenged: [T-A 340.49, 341.7].

9. [140]

   I am satisfied that, by reason of the general disabilities from which they suffered and their personalities, the plaintiffs are not decisive people, and they would have found it difficult to organise themselves and act promptly in their response to learning of the terms of the December 1997 will. The evidence justifies a finding that the plaintiffs had limited funds, and the enquiries that were made concerning the possible retention of legal representation were sporadic and ineffective until, according to Joel, he chanced to communicate with the plaintiffs' present solicitor in October 2015: [T-A 328.27].

10. [141]

    I exercise my discretion in favour of permitting the plaintiffs to commence their family provision applications out of time. Laurence has not suggested that he has suffered any prejudice as a result of the short delay in the proceedings being commenced after the end of the requisite 12-month period. It is plain that no relevant prejudice has occurred, as nothing material changed in the 2 1/2 months.

11. [142]

    The claims made by Alexander and Joel satisfy the requirement that they have sufficient prospects of success to justify leave being given to commence their claims out of time, as I have decided that both grandsons have established their claims for orders for further provision out of the deceased’s estate. Although I have not found that Jeannette has established a good claim for further family provision in the particular circumstances of this case, I consider that the delay in the commencement of her claim was so brief that it is not the appropriate course to refuse a retrospective order permitting her claim to be made.

Whether Joel and Alexander eligible to make family provision applications

1. [143]

   It will be convenient to consider the applications for further family provision made by Joel and Alexander before the application made by Jeanette, as I will make orders for further family provision in their favour, and the quantum of those orders will be relevant to the determination of Jeanette's application.

2. [144]

   The claims made by the two brothers can conveniently be dealt with at the one time, as the evidence shows they were always treated equally by the deceased, both in relation to emotional and financial support on the one hand, and the accommodation on the other, that the deceased provided to them.

3. [145]

   The relationship between Joel and Alexander and the deceased was unusual in respect of the level of financial provision that the deceased made for her grandsons and the frequency and length of time that they lived in her home rather than their parents' home. That was not only a function of the deceased's generosity, but was a result of the limited income enjoyed by Jeanette and Avi, which was not sufficient to provide for the material needs of the brothers, and also Jeanette's psychological and behavioural problems which inhibited her ability to maintain an orderly and nurturing household that was suitable as a home for the brothers.

4. [146]

   I accept in substance the evidence given by both Joel and Alexander in their primary affidavits on 5 November 2015. I reject Laurence’s claim that in reality Joel and Alexander lived a separate existence at No 77 Balfour Street in what they called the downstairs granny flat. In the context of the whole of the evidence of the relationship between the deceased and her grandsons, it is extremely unlikely that the grandsons did not take advantage of their proximity to the deceased to spend time with her and to use the facilities in the main part of the home.

5. [147]

   Joel gave evidence that during his childhood he took turns with his siblings to live at the deceased's house over weekends, when the siblings would often sleep in bed next to the deceased. He visited the deceased after school four or five times per week on average. When Joel returned from Israel in 2007, he moved in to the deceased's home for approximately a year, and returned to her house when he returned again in 2011 from religious studies overseas to live there until she passed away.

6. [148]

   Joel said that one reason for his living with his grandmother was that Jeanette never cooked and both he and Alexander grew up eating instant food. The only real home-cooked food that they enjoyed was food made by the deceased for them. Joel said that his parents' home was in what he described as a terrible condition. The deceased agreed to allow Joel to move into the downstairs granny flat. Joel said that he ate almost every meal at the table with the deceased during this period. Joel continued living with the deceased until the day she died.

7. [149]

   In cross-examination, Joel maintained that he used to live with the deceased in her home and he did not just visit her. He said at [T 314.50]: "No, it wasn't a sleepover, I lived with her, it was my home, and I had problems with mum, I ran to grandma." He did not just stay in the granny flat downstairs. He was upstairs every day using the kitchen and bathroom: [T 316.40-45]. Joel said he could not move back to his parents’ home as it involved "sleeping on a couch and eating food infested with cockroaches": [T 321.25].

8. [150]

   Joel said that as a child he was dependent on the deceased to provide finance for matters that his parents were unable to afford, as follows:

9. [151]

   Alexander unsurprisingly gave similar evidence given his equal treatment by the deceased. When he was in preparatory and primary school he took turns with Joel living with the deceased over the weekends, when he slept in bed next to her. At about the age of 14 or 15 years, the deceased gave Alexander Laurence's old room, and Alexander has since lived in the deceased's home on a weekly basis, only spending some weekends at home with his parents. Alexander would sit next to the deceased at every meal. Alexander moved into the deceased's home full-time when he was 14. He said that he was "having issues at home with my parents and they effectively threw me out."

10. [152]

    While Alexander was at school, the deceased would give him money to buy lunch at school every day, which Alexander believed amounted to approximately $1,000 per annum. The deceased would take Alexander to the supermarket to make sure that she was getting healthy food for him that he would actually eat. Because of Alexander's health condition he was a selective eater. The deceased bought Alexander bus tickets every week until he stopped needing public transport for school and college. In 2007, the deceased gave Alexander money to purchase a second-hand Holden Commodore for his 21st birthday. The deceased gave Alexander and his brother birthday money of approximately $500-$1,000 when they were younger, and approximately $200 when they were in their teens. The deceased also paid for Alexander's Bar Mitzvah when he turned 13.

11. [153]

    Alexander said that the deceased arranged for Alexander to get the best medical and rehabilitation treatments and support.

12. [154]

    As did Joel, Alexander provided a specific list of financial aid provided to him by the deceased, as follows:

13. [155]

    Significantly, Alexander said in his affidavit:

14. [156]

    Joel's and Alexander's sister, Karly, confirmed in cross-examination at [T 363.20] that her brothers were "living with grandma. They lived with grandma on and off, and most of my childhood and my grown life". She described the deceased as a second parent to her grandchildren and that her home was their second home: [T 363.40].

15. [157]

    I would not expect Joel and Alexander to now be able to provide evidence in specific detail of the respective periods when they lived in the deceased’s house as compared to other places, and I am satisfied that their evidence broadly reflects the true position that they lived in her house as their home for substantial, relatively unbroken periods during their adulthood.

16. [158]

    I am satisfied for the purposes of s 57(1)(e)(i) of the Succession Act that, for most of their lives while the deceased was alive, both Joel and Alexander were partly dependent on the deceased, who provided to them a substantial level of accommodation and financial and emotional support, for much of the time largely eclipsing the support provided by their parents.

17. [159]

    I am also satisfied for the purposes of s 57(1)(f) of the Succession Act that both Joel and Alexander were living in a close personal relationship with the deceased at the time of her death.

18. [160]

    The evidence clearly satisfies me for the purposes of s 59(1)(b) of the Succession Act that there are factors which warrant the making of the application for further family provision by both Joel and Alexander. I accept that the deceased encouraged both of her grandsons to believe that they would, on her death, receive a share in No 102 Balfour Street that would entitle them to a unit so that they would have an independent home. The relationship between the deceased and her grandsons, as appears from the evidence summarised above, was such that they were natural objects of testamentary recognition by the deceased at the time of her death. The gift included by the deceased in the second typewritten draft will in 2008 in favour of her grandchildren speaks eloquently of the truth of the proposition that the deceased herself recognised Joel and Alexander as being objects of testamentary recognition by her. That conclusion is reinforced by the fact that the deceased included a gift in favour of her grandchildren in the December 1997 will that has been admitted to probate that was only ineffective because it has been adeemed as a result of the deceased’s need to sell the property to provide a fund for her living expenses.

Whether adequate provision made for Joel and Alexander

1. [161]

   The deceased had a testamentary intention at the time the second typewritten draft will was prepared to provide one quarter of No 102 Balfour Road to each of Joel and Alexander, and there is no evidence that she ever abandoned that intention. I am satisfied that Joel and Alexander have established for the purposes of s 59(1)(c) of the Succession Act that, at the present time, adequate provision for the proper maintenance, education or advancement in life of both brothers has not been made in the will of the deceased. That flows from the fact that the provision for those claimants in the December 1997 will was adeemed when the property the subject of the gift to them was sold by the deceased. The evidence that I have outlined above concerning the medical, psychological and material circumstances of both Joel and Alexander satisfy me that, in the circumstances, the absence of any effective provision for them in the December 1997 will has had the result that the provision was not adequate. Although the community would ordinarily expect Joel's and Alexander's parents to take primary responsibility for the proper maintenance, education or advancement in life of their sons, I am satisfied that, in the special circumstances of the present case, the community would also expect the deceased to make some appropriate provision for her grandsons. Although both applicants have a prospect of receiving a significant inheritance from their parents in due course, that will hopefully be many years in the future. In the meantime, Joel and Alexander have a strong call on their grandmother's testamentary beneficence. That is a call which the deceased apparently recognised, although, for reasons that are lost to history, she failed to put her testamentary intentions into effect.

2. [162]

   In being satisfied that Joel and Alexander have satisfied the jurisdictional requirement for the Court to be empowered to make orders for further family provision in their favour, I have had regard to the circumstances that Jeanette is entitled to the assets that I have discussed above, that their sisters have not joined in making a claim for further family provision even though they have received nothing under the deceased’s December 1997 will, and Laurence has not put his circumstances in issue in a context in which the evidence justifies the Court in forming a broad view that Laurence is reasonably wealthy and not significantly dependent for his financial well-being on the receipt of the gifts made in his favour in the December 1997 will.

3. [163]

   In Bassett v Bassett, the Court of Appeal said:

4. [164]

   Section 59(1)(c) of the Succession Act creates a jurisdictional threshold that depends upon the Court being satisfied of a matter that the applicant for a family provision order has the burden to establish. In a particular case, proof that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made may necessitate reasonably specific evidence from the applicant that explains what the relevant needs of the applicant are and why the present resources available to the applicant are not sufficient to meet those needs. That may require the applicant to engage with the question of why the applicant’s needs cannot be met by the available resources, having regard to how those resources may be utilised. That exercise may require a sufficient level of detail measured in money terms. Similarly, when the Court comes to consider what order for further family provision should be made in favour of the applicant, the proper exercise of the Court’s discretion may require evidence in detail of the applicant’s needs and the costs of satisfying those needs. Absent that evidence, the Court may not be able to perform its duties properly, particularly when satisfaction of the proper needs of the applicant will have the effect of reducing the capacity of a limited estate to satisfy the proper needs of other parties having a good call on the deceased’s beneficence.

5. [165]

   Consequently, applicants for family provision orders take a forensic risk when they do not provide this evidence in reasonable detail. I mention this issue because neither Joel nor Alexander provided detailed evidence of their ongoing needs or estimates of the costs of satisfying those needs. In the particular circumstances of the claims made by Joel and Alexander, I have not found this absence to be an impediment to the Court being satisfied that Joel and Alexander have established the jurisdictional requirement in s 59(1)(c). That is because of the obviousness of their respective needs in relation to their medical conditions and disabilities, and their relatively limited income earning capacities and access to capital. Having regard to the expressed testamentary intentions of the deceased, the amount that could reasonably be made the subject of family provision orders in favour of each applicant will not be sufficient of itself to make adequate provision for their proper maintenance for the balance of their lives, or even until they receive inheritances from their parents. In these circumstances, the Court has been able to satisfy itself that it has jurisdiction without the need to be able to make relatively precise judgments concerning needs and the cost of satisfying those needs.

Further provision for Joel and Alexander

1. [166]

   At the centre of debate in this case has been the significance of the evidence of the deceased’s testamentary intentions, being a factor in the Court’s consideration made relevant by s 60(2)(j) of the Succession Act. This is an unusual case because, as explained above, the gift that the deceased made in favour of her grandchildren in the December 1997 will that has been admitted to probate has failed by ademption and the deceased’s attempt to rectify the consequences by making a new will substantially in the terms of the second typewritten draft will in 2008 failed for reasons that cannot be discerned. Yet the solicitor who prepared the second typewritten draft clearly remembered that the deceased firmly intended to order her testamentary affairs substantially in accordance with the second typewritten draft. There is no evidence at all that the deceased ever changed her testamentary intentions. There was evidence recorded in Weisbord (No 1) that the deceased believed that she had effectually implemented her testamentary intentions. As has been explained above, both I in Weisbord (No 1) and the Court of Appeal in the Appeal Decision found that Laurence had correctly conceded that the second typewritten draft recorded the true testamentary intentions of the deceased, at least in respect of her intended gift to her grandchildren.

2. [167]

   In these circumstances, I consider that it will be proper for the Court in the exercise of its discretion under s 59(2) of the Succession Act to give exceptional force to the evidence of the deceased’s testamentary intentions. The deceased was the best judge of how to dispose of her testamentary bounty and it is clear that she exercised care in deciding to correct the consequences of her sale of the property that was the subject of the gift to her grandchildren in her December 1997 will.

3. [168]

   In this case, the prominence that should be given to the deceased’s testamentary intentions is not to any significant degree diluted by a consideration of the other factors made relevant by s 60(2) of the Succession Act. Although Jeanette makes the claim that will be considered below, she has assets valued at $8.6-$8.8 million. Laurence resists the application made by Joel and Alexander but has not put forward circumstances that permit the Court to properly weigh his claim for adequate provision for his proper maintenance, education or advancement in life by the will of the deceased against the claims made by Joel and Alexander. The granddaughters of the deceased have not made a claim. Consequently, there is little evidentiary barrier to the factors made relevant by s 60(2)(a), (b), (d) and (f) of the Succession Act, and which have generally been considered above, reinforcing the significance of the evidence of the deceased’s testamentary intentions.

4. [169]

   If the deceased had succeeded in leaving a will that contained the proposed gift to the grandchildren in the second typewritten draft, the four grandchildren would have become entitled to equal shares in a property worth $5.1 million, so that each would have received $1.275 million. I do not think that it would be appropriate for the Court to make an order for further provision in favour of Joel and Alexander that gave them the same outcome as if the deceased had succeeded in making a formally valid will that had that effect. However, in this case, I consider that only a small discount is necessary to allow for uncertainties that arise in respect of the deceased’s failure to have executed a valid will embodying her apparent testamentary intentions. All other things being equal, I would have made an order in the exercise of my discretion that a lump sum legacy of $1.0 million be paid to each of Joel and Alexander out of the deceased’s estate. That legacy would represent 80% of the gift that those applicants would have received under a validly executed will in the terms of the second typewritten draft will.

5. [170]

   However, as I have explained above, I decided in Weisbord (No 3) that the Court should not permit Laurence to reopen the evidence to introduce new issues concerning the need of Joel and Alexander for further family provision after the Court reserved judgment at the primary hearing. Notwithstanding that position, the Court cannot ignore the consequences of the costs of the proceedings being paid out of the deceased’s estate, particularly as the amount of some of those costs is not known to the Court. Further, the Court has no evidence of changes in values of the estate’s properties since judgment was reserved on 12 April 2018. The amount of the legacy that should be paid to Joel and Alexander may decrease to the extent that they should bear a share of the burden of the costs to be paid out of the estate. The amount of the legacy may increase in response to increases in the value of the properties in the estate, particularly No 102 Balfour Road. If the Court were simply to order now that legacies of $1.0 million be paid to each applicant, the Court might in ignorance of relevant circumstances impose unfairness on the applicants or other beneficiaries.

6. [171]

   In the circumstances, I will publish these reasons for judgment and invite Joel and Alexander on the one hand and Laurence on the other to provide brief written submissions as to whether the Court should vary its stated intention to order that legacies of $1.0 million be paid to each of Joel and Alexander, and, if so, what the nature of that variation should be. The variation that I contemplate will be limited to some rational and fair proportional adjustment from the starting position of $1.0 million to reflect the effect of the payment of costs on the estate as a whole and possible increases in the value of relevant properties. I appreciate that some evidence as to the costs incurred, the effect of payment of costs on the estate, and the value of relevant properties may be necessary. I presently do not intend to entertain a further contentious hearing and I propose in the first instance to attempt to determine the final amount of the legacies on the basis of brief written submissions and limited evidence on the papers. I will, however, entertain submissions as to why this proposed course is not appropriate. Given the date when this judgment will be delivered, I will not expect that my Associate will receive the further information referred to in the preceding paragraph until 30 January 2023.

Whether adequate provision made for Jeannette

1. [172]

   The determination of Jeanette's claim for further family provision must start with the jurisdictional requirement in s 59(1)(c) of the Succession Act, which has the effect that the Court cannot make an order for further family provision in favour of Jeanette unless it is first satisfied that, at the present time, adequate provision for the proper maintenance, education or advancement in life of Jeanette has not been made by the deceased's will.

2. [173]

   The framework in which that jurisdictional requirement must be satisfied is that the Court has evidence that the total value of the deceased's estate is $11,591,775 and the gift of 77 Balfour Road to Jeanette has a value of $4 million. I have found above in response to the applications of Joel and Alexander for further family provision that orders should be made in their favour for lump sum payments in the order of $2 million in total. After payment of those lump sums, the remaining value of the estate would be about $9.5 million.

3. [174]

   As I recorded in Weisbord (No 2) at [70], the evidence then before the Court was that the plaintiffs' legal costs to that time were $1,444,171.40 (including GST). At [74], I recorded that Laurence's costs were $706,724 (including GST). The total was $2,150,895.40. The Court has no evidence as to the magnitude of the costs incurred by the parties after the hearing that led to the publication of Weisbord (No 2) or the costs of the appeal. The Court also has no information about the assessment process in relation to the parties' costs, and thus what final amount will have to be paid out of the estate for costs. The payment of the whole of the known costs out of the estate after satisfying the lump sums that will be payable to Joel and Alexander would leave about $7.5 million in the estate. That, of course, overstates the amount that will be available because no allowance has been made for the unknown costs.

4. [175]

   On the assumptions just made, the $4 million gift of 77 Balfour Road represents over 50% of the estate of the deceased that remains available for distribution as between Jeanette and Laurence.

5. [176]

   To the extent that the testamentary intention of the deceased as displayed in the second typewritten draft is relevant, the only additional gift in favour of Jeanette that the deceased intended to make over the effect of the December 1997 will was half of the residue, which is about $500,000. The residue of the estate should be the first part of the estate to be consumed by payment of the costs of the proceedings. It will be necessary for the specific gifts of property to beneficiaries to bear the balance of the costs. Further, it is probable that other presently unknown costs of the administration have been paid out of residue.

6. [177]

   As I have already explained above, the nominal value of the property to which Jeanette would be entitled after she received 77 Balfour Road would be $8.6-$8.8 million, which is likely to be reduced by an amount that represents the share of the balance of the costs that will be met out of Jeanette's share of the estate.

7. [178]

   Even though Jeanette has the psychological and behavioural difficulties that have been established by the evidence, which have the result that she has no significant earning capacity and does not have a cash fund, the value of the assets to which Jeanette will be entitled is sufficiently large, when measured against her essential needs, that there is no justification for making an order for substantial further family provision in her favour, given that any such provision will have to be satisfied out of the share of the estate to which Laurence is entitled under the December 1997 will. The Court should give due weight to the fact that it is the December 1997 will that has been admitted to probate, and that the major change to the deceased's testamentary intention that is evidenced by the second typewritten draft was the proposed gift of 102 Balfour Road to the deceased's grandchildren.

8. [179]

   In these circumstances, I am not satisfied that Jeanette has established that adequate provision for her proper maintenance, education or advancement in life has not been made by the will of the deceased. Consequently, Jeanette has not satisfied the jurisdictional requirement to this Court making an order for further family provision in her favour.

9. [180]

   I add that Jeanette did not provide any specific evidence concerning her needs for future maintenance or what the costs of the provision of that maintenance would be as is required by the extract from the judgment of the Court of Appeal in Bassett v Bassett that is set out above.

10. [181]

    Jeanette also did not provide evidence that took into consideration her residential needs and then how her surplus assets could be realised in a way that would provide maintenance for her on a long-term basis. The absence of evidence of this nature may have less serious consequences for some family provision applications than is the case for Jeanette’s present claim. As Jeanette will have access to assets worth a number of millions of dollars, whichever home she chooses to live in, the complete absence of any evidence concerning the plans that she may have to utilise her existing assets has undermined her ability to establish that adequate provision has not been made for her proper maintenance. Not only has the Court not been able to find that adequate provision for proper maintenance has not been made, but any judicial contemplation of what additional provision might be justified would involve total guesswork on the part of the Court.

Orders

1. [182]

   I will not be able to make orders on the claims made by Joel and Alexander until the process explained at [171] has been completed.

2. [183]

   An order will be made that Jeanette's application for further family provision is dismissed.

3. [184]

   As to the costs of the proceedings, it is my understanding, as explained above, that most, if not all, of the costs of these proceedings and the probate proceedings are already the subject of the costs orders made by me and the Court of Appeal and that those orders remain valid and in effect. It will be appropriate, however, to give the parties an opportunity to make brief submissions on the issue of costs to ensure that my understanding of the position is correct. Given the time at which these reasons for judgment will be published, I will give the parties until 30 January 2023 to deliver submissions limited to 3 pages to my Associate.