Scott v Scott

WARD P: I have had the advantage of reading in draft Meagher JA’s reasons, with which I agree. I also agree that, for those reasons, the appeal should be dismissed with costs.

MEAGHER JA: The appellant (Charlene Scott) and respondent (Coralynne Scott) are sisters. They have one brother (Clifton Scott). These reasons refer to each of them by their first name. Their father (Clifton Snr) died in 2016, leaving the whole of his estate including his interest in the family home at Fairfield to their mother (the deceased), who died some three years later on 23 July 2019. She made a will dated 16 May 2019, leaving the Fairfield property to Charlene and gifts of $40,000 to each of Coralynne and her brother, the remaining balance of any residuary estate to be shared equally between the three children. Charlene is the executrix of the deceased’s 2019 will.

Under her earlier will dated 28 September 2015, which was in “mirror form” to that of her husband also made in September 2015, the deceased left the whole of her estate to her husband provided he survived her by 30 days. Otherwise her estate (which after her husband’s death included the Fairfield property) was to pass to the three children in equal shares.

In July 2020 Coralynne made an application for a family provision order under s 59 of the Succession Act 2006 (NSW). Charlene as executrix and major beneficiary was named as defendant. Following a three-day hearing in October 2021 the primary judge (Parker J) made an order that in lieu of the provision made in the 2019 will, Coralynne receive a lump sum of $180,000 out of Charlene’s share of the estate (Scott v Scott [2021] NSWSC 1619).

The parties were not subsequently able to reach agreement as to the cost orders which should follow, requiring the primary judge to determine those orders in circumstances where several offers of compromise had been made by Coralynne. On 8 July 2022 his Honour delivered reasons for making costs orders, the effect of which were that Coralynne’s costs should be paid out of Charlene’s share of the estate on the ordinary basis, and that Charlene’s costs as executrix should be paid out of her share of the estate on an indemnity basis (Scott v Scott (No 2) [2022] NSWSC 914).

Charlene appeals from the order making a provision of $180,000 in favour of Coralynne.

There are eight grounds of appeal. Grounds 3 and 5 are not pressed, and no oral submissions were made in support of ground 7(a) or 7(b). The remaining grounds (as numbered) are:

The arguments made in support of those grounds challenge the primary judge’s determination that he was satisfied (in accordance with Succession Act, s 59(1)(c)) that:

Charlene does not contend that, if the primary judge is not shown to have erred in being satisfied that adequate provision had not been made, his Honour nevertheless erred in making provision for Coralynne in the amount of $180,000 for the purposes of s 59(2).

Whilst the making of a determination under s 59(1)(c) that adequate provision has not been made involves an evaluative as opposed to truly discretionary decision, the parties ultimately accepted, as current authority dictates, that the appellate standard of review which applies to that “jurisdictional” question (as to which description see White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; and Singer v Berghouse (1994) 181 CLR 201 at 208-210; [1994] HCA 40) is that stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

At the commencement of the argument, senior counsel for the appellant raised the prospect of challenging the authorities holding that the House v The King standard of appellate review, rather than the “correctness” standard in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, continues to apply. Such a challenge was not raised by the grounds of appeal, or otherwise than obliquely in the appellant’s reply submissions. After some discussion, which included reference to the observations made by various judges of this Court in the authorities referred to in Bassett v Bassett [2021] NSWCA 320 at [72]-[75], counsel for Charlene did not press any application to amend the grounds of appeal to allow such an argument to be made. Accordingly, the appeal proceeded on the basis that the appellant must demonstrate “an error of principle, a material error of fact, a failure to take some material consideration into account, or the converse, or [that] the result is so unreasonable or plainly unjust to bespeak error of such a kind”: DJ Singh v DH Singh [2018] NSWCA 30 at [277] (Gleeson JA, Leeming and White JJA agreeing).

The question posed by s 59(1)(c) is whether “adequate provision for the proper maintenance, education or advancement in life” of the claimant “has not been made by the will of the deceased person”. In Singer v Berghouse at 210, the plurality (Mason CJ, Deane and McHugh JJ) described this question as being “strictly one of fact, notwithstanding that it involves the exercise of value judgments”, and continued:

Earlier at 209-210, in a passage cited with approval by Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [75], the plurality said of the equivalent jurisdictional question in s 9(2) of the Family Provision Act 1982 (NSW):

In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, Dixon CJ said of the words “adequate” and “proper” which he noted “must always be relative”:

In the present context, two further matters should be emphasised. First, as White JA said in Sgro v Thompson [2017] NSWCA 326 at [71], in addressing the jurisdictional question:

Secondly, also in Sgro v Thompson at [6], Payne JA agreed with White JA that while the Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application, “that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate”. The authorities cited in support of that principle include Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], in which White J (as his Honour then was) said:

Section 60(2) of the Act sets out matters to which the Court may have regard for the purpose of determining whether it is satisfied in terms of s 59(1)(c), as well as in deciding the nature of any order for provision to be made in accordance with s 59(2). Those matters include, relevantly for the disposition of this appeal:

At this point it is necessary to summarise the primary judge’s principal findings which, as set out below, are with one exception not challenged. I propose then to record briefly the primary judge’s reasons for determining that s 59(1)(c) was satisfied. The grounds of appeal are then addressed in the order in which they were argued by senior counsel.

In July 2019, at the time of the deceased’s death, Coralynne was aged 63, Clifton was 59 and Charlene was 53. The family had lived in the Fairfield property from the late 1950s or early 1960s. Clifton Snr was the registered owner of that property (J[15]). Coralynne lived at home until she married in December 1977. In about December 1979, and after that marriage had failed, she moved back to the Fairfield home where she continued to live until the deceased’s death in 2019 (J[16]). Clifton Jnr moved out of the home in about 1980 and thereafter remained independent of his parents (J[17]). The home remained Charlene’s principal place of residence except for two periods in the 1980s when she lived in London for 12 months or so (J[18]).

Coralynne was in continuous full-time employment from about 1973. In the period from 1988 she worked with the NSW Police (J[49]). In 1992 she assisted her father to pay off the mortgage over the property, taking out a personal loan of $5,000 in order to do so (J[20]). In the period before the deceased’s death, she was involved in at least two significant car accidents, one in 2012 and another in June 2017. She made a successful compensation claim for the injuries suffered in the first, and her claim in relation to the second was eventually settled in 2020 (J[52]).

Charlene worked for a period and then was unable to do so, at least between 1994 and 2003 (J[57]). Thereafter she unsuccessfully applied for a disability pension. She subsequently secured a carer’s pension, having been nominated as the carer for Clifton Snr and her mother. She remained in receipt of that pension from 2011 until the deceased’s death in 2019 (J[58]-[59]). At some stage before 2011 she worked in the District Court or Local Court as a court attendant or monitor for a period of about two years (J[60]).

In September 2015 Clifton Snr and the deceased executed wills under which the estate of each was to pass to the children in equal shares, if the first to die was not survived by the other. That will was prepared by Mr Duncombe, solicitor (J[22]). At the same time the deceased executed an enduring guardianship appointment in favour of Coralynne and Charlene jointly (J[21]).

Following the death of her husband in May 2016, the deceased obtained probate of his will and the Fairfield property was transmitted into her name. Mr Duncombe also acted with respect to these matters. Each of the children contributed equally to the costs of their father’s funeral (J[23]).

In the period after Clifton Snr’s death, the deceased lived in the Fairfield property with Coralynne and Charlene. In September 2017 Charlene formed a relationship with a Mr O’Hagan, who lived on the Central Coast and as a builder undertook some improvements to the Fairfield property (J[25], [54]). In November 2018 the deceased had a serious fall in the Fairfield house which resulted in her arm and hip being badly broken (J[27], [28]). She remained either in hospital care or at a rehabilitation facility until her discharge from the latter at the end of January 2019 (J[28]). Whilst the deceased was in hospital, renovations were undertaken to the Fairfield house, principally to the bathroom, to enable her to return and live there (J[29]). Those renovations were completed in late January 2019, and before the deceased’s return to the house (J[31]).

By that point in time the relationship between Coralynne and Charlene had (in the primary judge’s language) “unravelled” and become “poisonous” (J[30]). In January 2019 the deceased also cut off communications with Clifton Jnr as a result of an incident between him and Charlene at the hospital (J[32]).

In late March or early April 2019 Charlene made contact with a solicitor, Mr Wehbe, for the purpose of having him prepare a new will for her mother (J[33]). Arrangements were made for Mr Wehbe and the deceased to meet at a coffee shop rather than at her home for the purpose of taking instructions and later executing the will (J[213], [224]). Those meetings happened on 9 and 16 May 2019. On the latter date the will and a testamentary statement were executed (J[224]). That statement (excerpted at J[227]-[230]) purported to set out the deceased’s reasons for leaving the whole of her interest in the Fairfield property to Charlene and to record the financial and other circumstances of each of Coralynne and Clifton Jnr. It also contained separate messages addressed to Coralynne and Clifton Jnr purporting to explain why the will only provided for a payment of $40,000 to each of them, plus a share in her residuary estate, “but no part share of my house”.

The primary judge made findings about the terms of that testamentary statement and held that it contained significant “distortions and falsehoods”. Those findings are not challenged. As to the responsibility for those falsehoods, his Honour found at J[258]:

The “distortions and falsehoods” are described at J[253]-[257]:

None of those findings is challenged. The primary judge also made the following unchallenged finding as to the cause of the breakdown in the relationship between the sisters (at J[207]):

Finally, his Honour’s conclusion (at J[260]) was that the 2019 will was produced by a process of “manipulation and misinformation” on the part of Charlene. It is said that this finding, which is set out below, was not open to the primary judge because Charlene had not been given a fair opportunity to deal with it:

Treating Coralynne’s claim as one by an able-bodied adult seeking adequate provision for her proper “advancement” in life, the primary judge rejected the suggestion that the question of what was adequate for her proper advancement could be addressed by reference only to her financial “needs”, and specifically the extent to which she was already in a position to meet those perceived needs going forward (J[329]-[331]). His Honour did so having assessed Coralynne’s financial position as being that she had achieved a degree of financial independence and security; that her income was not particularly high; and that she did not have a capital position which would “unquestionably secure her a comfortable (and somewhat less hard-working) retirement” (J[332]).

In the primary judge’s assessment there were other and more significant factors to support her claim that adequate provision had not been made for her proper advancement in life. First, she had provided considerable assistance, financial and otherwise, to her parents during their lifetimes (J[334]). Secondly, she had provided direct financial assistance to her father in paying off the mortgage over the Fairfield property (J[335]). Thirdly, the deceased having inherited that property from her husband, the circumstances were capable of giving rise to a moral obligation on the part of the deceased to pass it on in equal shares to her children. That would have been the outcome of the 2015 wills had the deceased not made the 2019 will. Coralynne was aware of the terms of those earlier wills and the children contributed equally to their father’s funeral and testamentary expenses, allowing their mother to take the property free of those charges (J[336]-[338]).

Fourthly, whilst Charlene undoubtedly had a moral claim to provision from the deceased’s estate, the nature of that claim was “not appreciably different from that of Coralynne”, who had made more significant capital contributions to the Fairfield household (J[339]). Fifthly, and notwithstanding that Charlene had no home of her own, the primary judge considered that to “recognise a moral obligation [of the deceased] to provide Charlene with her own unencumbered property would be quite disproportionate to the financial contribution she [had] in fact made to the deceased’s estate, especially when it would come at the expense of a sibling who has received nothing by way of advancement herself” (J[340]).

Finally, in light of the findings noted at [27] and [28] above, the deceased’s 2019 will and testamentary statement could not be treated as being evidence of the judgment of a capable and responsible testator in the position of the deceased, that being a matter to which the Court could have regard under s 60(2)(j). The relevance of such evidence is explained by White J in Slack v Rogan; Palffy v Rogan at [127] (and partly extracted at [16] above). Once the 2019 will and testamentary statement were “swept away”, in the primary judge’s view it remained to consider whether the September 2015 will qualified as being such a judgment on the part of the deceased in the circumstances as existed at that time (J[341]-[346]).

As to that matter, the primary judge found as follows. In September 2015, Clifton Snr and his wife had “many years of experience of living with Coralynne and Charlene. The judgment of each … was that the merits of their children were sufficiently close to make it proper to make an equal distribution between them”; and nothing relevantly happened between 2015 and the deceased’s death which was sufficient to alter that judgment as between Coralynne and Charlene (J[346]-[347]).

In being satisfied that adequate provision for Coralynne’s proper advancement had not been made, the primary judge considered “the focus should be on discharging the deceased’s moral obligation to Coralynne to provide her with a capital amount to help her make her way through the rest of her life” (J[351]). His Honour’s view was that adequate provision would have been between $260,000 to $300,000, representing one-third of the value of the deceased’s estate. Such a provision was above the high end of the range submitted as such by Coralynne’s counsel ($130,000 to $180,000) (J[350], [352]).

Although this ground in terms asserts error in the primary judge’s determination of the amount for which provision out of the deceased’s estate should be ordered in favour of Coralynne, it was treated in argument as directed to his Honour’s evaluative determination of the question under s 59(1)(c). Charlene’s argument is that in doing so the primary judge failed to take a material consideration into account, being that at the time of the hearing Coralynne had superannuation benefits totalling $668,839 which she could “access” at the age of 65.

Charlene’s written submissions in support of ground 8 as formulated accept that the primary judge’s assessment of what was proper maintenance etc. “was not based on need but [on] other factors including the moral obligation arising from the 2015 will”. Those submissions also accept that in considering Coralynne’s financial circumstances, the primary judge found at J[265]:

There was some cross-examination as to whether the superannuation figures were the latest figures available to Coralynne. In the course of that cross-examination, as the primary judge recorded at J[274], it “emerged that Coralynne can access her police superannuation at the age of 65 and not 67 as she had claimed in her affidavit”.

His Honour then set out at J[279] a summary of Coralynne’s “asset and liability figures” which did not include as an asset any present value of her superannuation entitlements.

The oral submission in support of this ground as reformulated was that the House v The King error of the primary judge was not having regard to relevant evidence, namely the value of Coralynne’s superannuation entitlements, when considering whether adequate provision had been made for her advancement, to enable her “to make her way through life”.

That submission is not made out.

In reciting Coralynne’s financial circumstances the primary judge referred to her superannuation entitlements on two occasions. The absence of the value of those entitlements in the table of assets and liabilities does not provide a sound basis for concluding that his Honour had at that point, and subsequently, overlooked the existence of her pension entitlements and their value. That is because the evidence did not show that Coralynne was required or proposed to “cash in” any ongoing pension entitlement at age 65. Nor did the evidence explore what the consequences of her doing so might be for her ongoing eligibility to receive an age pension. That being the position, there was no compelling basis for treating the superannuation entitlement as an asset with a present value rather than as an entitlement to a stream of income to be considered with the age pension and any other potential sources of income after she had retired from the police force.

Having approached Coralynne’s claim as being that there had not been adequate provision for her proper advancement in life, his Honour did not undertake a detailed comparison of the financial “needs” and relative financial positions of Coralynne and Charlene going forward. The analysis his Honour did undertake permitted the finding at J[332] that “while Coralynne clearly has achieved a degree of financial independence and security, her income is not particularly high”; and that she does not “have the sort of capital position which will unquestionably secure her a comfortable (and somewhat less hard-working) retirement”. Neither of these conclusions is necessarily inconsistent with his Honour having taken account of the ongoing superannuation entitlements, and no submission was made to suggest otherwise.

For these reasons, this ground as reformulated and argued should be rejected.

The challenged findings are at J[335] and [336]:

There are two findings of fact in J[335]. The first is as to financial assistance which Coralynne provided to her father and then to her mother, in each case in relation to the Fairfield property. That finding is not challenged. The second is that in providing that assistance, at least at times after her father’s death, Coralynne was influenced by an understanding that she would be receiving a share of the property in due course. This second finding is challenged, initially on the basis that there was “no evidence at all to support it”, Coralynne not having given evidence to that effect. This last observation is correct, but not determinative of the challenge to the correctness of the finding.

His Honour’s use of the expression “reasonable to suppose” in this context conveys that notwithstanding the absence of evidence directly supporting the matter, he would infer and accordingly proceed on the basis that in providing such assistance Coralynne was influenced by such an understanding. His Honour’s citation to Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38] is for the proposition that expectations raised by testators may be relevant to the ascertainment of what is an adequate provision for a claimant. In this context, the primary judge’s reference to there being a moral duty or obligation on the testatrix to make provision is another way of saying that the matter giving rise to the so-called moral duty or obligation is one to be weighed in the balance in favour of the applicant for provision. However, as Gleeson CJ stressed in Vigolo v Bostin at [25], use of the concepts of moral obligation and moral duty cannot be “a substitute for the text”.

So understood, the second finding in J[335] was available on the evidence. The deceased and Clifton Snr executed the “mirror” wills in September 2015. Coralynne was aware of their terms and effect, which was that unless they were changed, the survivor of her parents would inherit the Fairfield property and pass it on in equal shares to the adult children. That the other children also understood this to be the position by the time of their father’s death is an available inference in the face of the fact that each contributed a one-third share of his funeral and testamentary expenses (J[338]). It might also be noted at this point that the primary judge rejected Charlene’s evidence that she did not know of the terms of the deceased’s 2015 will at any relevant time (J[209]). As senior counsel for Coralynne submitted, human experience and psychology would support an inference in these circumstances that Coralynne’s conduct in providing ongoing financial assistance was likely to have been influenced by a continuing expectation of equal treatment with her adult siblings.

There is one finding of primary fact in J[336]. It is that the deceased inherited the Fairfield property from the estate of Clifton Snr pursuant to his will executed in September 2015, which was relevantly in the same terms as the will she also executed at that time. That finding is not challenged. The remaining observation in J[336] is his Honour’s description of that fact as “capable of giving rise to a moral obligation”. His Honour then makes further findings at J[337] and [338] which are not challenged and are taken into account in determining whether adequate provision had been made for Coralynne’s proper advancement. It is not contended that those other matters were not relevantly taken into account (cf Succession Act, s 60(2)(p)).

For these reasons, ground 1 should be rejected.

Charlene’s written submissions in support of this ground emphasise that whilst the question arising under s 59(1)(c) involves the making of value judgments, it is ultimately a “question of objective fact to be determined by the judge at the date of the hearing” (Singer v Berghouse at 211). In answering that question, the Court must address the relevant circumstances including, to the extent that they are relevant, those set forth in s 60(2).

The primary judge’s consideration of the adequacy of the provision made for Coralynne is specifically addressed between J[324] and J[349], where his Honour concludes:

It is contended, by reference to what is said at J[349], that his Honour’s finding that inadequate provision was made for Coralynne’s proper advancement was founded on the fact that the deceased had given “false” reasons or explanations for making her 2019 will. It is said to follow that the primary judge “mistakenly limited his examination of ‘proper’ [provision] to the disposition of the estate by the testator, and how that came to be”.

The House v The King error to which this ground as formulated in oral argument is directed might be described as an error of principle or perhaps a failure to take some or many material considerations into account. The error of principle is in determining the jurisdictional question only by reference to whether the grounds relied on by the deceased to justify Coralynne’s disinheritance were false. Alternatively, the error is a failure to take any other material matters into account when assessing whether inadequate provision was made.

The respondent contends that a sufficient answer to this ground is that the matter referred to was not the only matter which the primary judge took into account in assessing whether the provision made by the 2019 will was inadequate for Coralynne’s proper advancement. Those other matters included the evidence of the testamentary intention of the deceased in her “mirror” will of September 2015, which his Honour held was not made in circumstances where the deceased or her husband suffered from any relevant disability or where any undue influence was brought to bear; and that there were no relevant changes in the circumstances of the children to suggest that any different judgment was called for as at May 2019. It was not contended that these matters were not properly taken into account (see s 60(2)(j)).

However, more fundamentally in response to this ground, his Honour’s observation at J[349] is not to be understood as suggesting that the falsity of the grounds relied on to justify Coralynne’s disinheritance constituted a sufficient reason for finding that inadequate provision had been made. Rather, in a shorthand manner his Honour was saying the following. First, the grounds relied on as justifying the May 2019 will, which made no significant provision for Coralynne, were false. On his Honour’s findings, the true position was that from the deceased’s perspective, nothing had materially changed in relation to Coralynne and Charlene’s circumstances since September 2015 when the mirror wills were executed. Accordingly, her testamentary intention expressed in that will was to be given significant weight as evidence of her sound testamentary judgment as to what as at May 2019 was adequate and proper provision for her adult children. Stating the matter shortly, the fact that the grounds for the second will were false allowed the conclusion that the provision made by it was not proper.

This is also made plain by the primary judge’s further observation at J[352]:

Accordingly, ground 2 should be rejected as it proceeds on a wrong understanding of the primary judge’s reasoning. Properly understood, that reasoning did not involve either of the House v The King errors formulated in oral argument.

This ground as argued was that it was not open to the primary judge to make the findings at J[207], [260] and [352] because Charlene had no opportunity to deal with and respond to them (Browne v Dunn (1893) 6 R 67 at 70-71; Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 at [69]-[75]).

The relevant findings were as follows:

The argument outlined above is not squarely made by ground 7(c), which contends that these findings had regard to “irrelevant considerations”. However the latter contention is not pressed and instead it is said that the findings were not open.

At this point it is informative to say something more about the rule in Browne v Dunn, which applies to the making by one party of serious allegations with respect to the credibility or conduct of the other party or a witness of that party.

First, it is a rule directed to ensuring procedural fairness in the conduct of litigation. In Browne v Dunn it was described by Lord Herschell LC as “not only a rule of professional practice in the conduct of a case, but [also as] essential to fair play and fair dealing with witnesses” (at 71). The rule applies as between the parties and irrespective of whether the witness is a party. If the rule has not been complied with, as Kuhl v Zurich Financial Services makes clear (at [71]-[74]), it is not open to the party making the allegation to rely on it. Nor is it open to the trial judge to make a finding based on the allegation if the other party has not had adequate notice of and an opportunity to address it.

To take a well-known example, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, there was a factual issue as to the dominant purpose for the acquisition by Allied Pastoral of properties and whether that purpose was to resell them at a profit. The Commissioner had a so-called “staged development” theory which was relied on to contradict Allied Pastoral’s evidence denying that the dominant purpose of holding the land was for profit. That theory was not put to any of Allied Pastoral’s witnesses in cross-examination. Accordingly, it was submitted that the argument could not be made.

As to the application of the rule in Browne v Dunn in these circumstances, Hunt J said at 16:

In circumstances where Charlene was a party to the proceedings, this ground directs attention not only to the matters put to her in cross-examination but also to the issues as they were raised by pleadings and in the parties’ submissions. It is also relevant to consider the respects in which Charlene’s credibility and reliability as a witness was called into question and how those matters were dealt with by findings of the primary judge which are not challenged as not open to be made.

As the primary judge recorded at J[40], there was a general attack on the credibility of both Coralynne and Charlene. His Honour also recorded that it was necessary for Coralynne’s counsel to cut short his cross-examination of Charlene in part because of difficulties in the way she gave her evidence (J[44], [45]).

Turning first to the evidence, and the order in which it was exchanged, in her first affidavit of 16 September 2020 Charlene said:

In her first affidavit of 17 September 2020 Coralynne relevantly said:

Returning to the primary judge’s findings, his Honour found that in her evidence Charlene down-played various matters, including: the problems with the deceased’s cognitive functions; her own antipathy to Coralynne; and her involvement in the preparation of the 2019 will. His Honour also found that the testamentary statement contained false or exaggerated complaints against Coralynne (and probably Clifton Jnr) which came directly, or indirectly, from Charlene (J[46]).

To assist an understanding of what follows, it is instructive to extract at this point some of the paragraphs from that testamentary statement:

Before the hearing commenced on 20 October 2021, Coralynne served an outline of her case dated 13 October 2021 which included the following:

As appears in J[258] (extracted at [27] above), the primary judge held that the testamentary statement was “riddled with distortions and falsehoods” and that Charlene was the “ultimate source” of the statement, and accordingly of the distortions and falsehoods.

With respect to her oral evidence, in answer to questions from the primary judge, Charlene denied having any knowledge in 2019 as to the terms of the will which her mother had executed in 2015. His Honour rejected that evidence as false (J[209]). In relation to the making of the will and testamentary statement, she accepted that she had made the initial approach to Mr Wehbe and in that context that her mother had said she “wanted to change her will”. The primary judge found that she was active in recruiting Mr Wehbe as solicitor (J[210]-[211]), arranged for him to meet the deceased at a café rather than at her home (J[224], [243]), and instructed him not to send anything by post to her mother at home (J[242]).

Whereas in her written evidence Charlene did not say that she had been involved in the preparation of the testamentary statement, in cross-examination she first conceded it was possible that she had drafted the testamentary statement and sent it to Mr Wehbe. Later she agreed that she had drafted that statement on her computer.

Returning to the findings which it is said were not open to be made by the primary judge, senior counsel for Charlene submitted in this Court that in substance what should have been put to his client in cross-examination was the effect of the primary judge’s ultimate conclusion, namely that Coralynne had been deprived of one-third of the estate which she would otherwise have received but for Charlene’s machinations.

The question raised by this ground is whether by the commencement of the hearing, or at least by the time that she was to give evidence, Charlene and her lawyers were on notice of the thrust of the allegations being made against her with respect to the 2019 will and testamentary statement, including those implicit in the findings at J[207], [260] and [352].

In essence those allegations were: (1) that Charlene was aware by late 2018 that in 2015 the deceased had made a will leaving the Fairfield property to her three adult children; (2) that the deceased was old and frail and afraid of Charlene who was able to exercise a degree of influence over her decision-making; (3) that Charlene influenced the deceased to make a new will leaving the whole of the Fairfield property to her; (4) that Charlene took steps to ensure that the fact that she was doing so did not come to the attention of Coralynne or her brother; (5) that in order to persuade her mother to make the new will, in the period from December 2018 Charlene spread distorted and false stories about Coralynne and Clifton Jnr to her mother; (6) that the substance and effect of that distorted and false information is in the testamentary statement, the terms of which were ultimately sourced to Charlene; and (7) that the new will meant that Coralynne and Clifton Jnr would receive no interest in the Fairfield property.

With respect to these allegations, they were either foreshadowed or made in the affidavits exchanged before the hearing (allegations (2), (3) and (5)), put to Charlene in cross-examination (allegations (1), (4) and (6)), or a necessary consequence of the making of the will (allegation (7)). As such, Charlene was given the opportunity to deal with those allegations, separately and collectively, by her evidence and by any other evidence available to be adduced. For that reason, the rule in Browne v Dunn was not engaged. That conclusion is not altered by the terms in which the primary judge expressed his overall conclusions concerning Charlene’s conduct. Specifically, his Honour’s descriptions of her actions as involving a “process of manipulation and misinformation” and her engaging in “machinations” do no more than describe in pithy but not overly colourful language her conduct which was the subject of the allegations and established.

For these reasons ground 7(c) is rejected.

At J[340] the primary judge observed:

In Taylor v Farrugia [2009] NSWSC 801, claims for provision were made by five of six surviving adult children, principally for provision out of the estate of their deceased mother. In introducing his evaluation of those claims, Brereton J (as his Honour then was) said at [57]:

On behalf of the appellant it is submitted that the primary judge is to be understood by the reasoning at J[340] to have put aside and thereafter disregarded Charlene’s competing interest as principal beneficiary and the chosen object of the deceased’s bounty, whereas the Court was required to have due regard to “what the testator regarded as superior claims or preferable dispositions”, as demonstrated by her will (see Pontifical Society for the Propagation of the Faith v Scales at 19 per Dixon CJ, McTiernan J agreeing).

Thus it is said that his Honour treated Charlene’s “competing moral claim by virtue of the fact that she is in the will [and] receives the home under the will” as unimportant or worthless because in the ordinary case the community does not expect a parent to provide an unencumbered home, which was for Charlene the outcome of the 2019 will.

This argument does not take account of the context in which the findings and observations at J[340] are made. As a result it does not correctly capture his Honour’s analysis and reasoning.

The broader context in which that paragraph appears is a consideration of the adequacy or otherwise of the provision made for Coralynne by the 2019 will (J[324]ff). Having made findings as to Coralynne’s financial position and “other factors” which supported her claim, including the circumstances in which the deceased had inherited the property from her husband’s estate, the primary judge turned to Charlene’s reliance “upon her financial circumstances as an answer” to Coralynne’s claim (J[339]). The finding at J[340] addresses that matter, taking into account the size of the deceased’s estate, Charlene’s financial and other contributions to her parents and their welfare, and Coralynne’s claim to a provision by way of advancement. None of that involved disregarding Charlene’s competing claim as principal beneficiary.

That competing claim and Charlene’s reliance “on the May 2019 will as a testamentary judgment adverse to Coralynne’s claim” is dealt with at J[342]ff, his Honour concluding that the “testamentary judgment principle” was not attracted (J[345]).

As none of this discloses any error of principle on the part of the primary judge, ground 6 should be rejected.

Each of the grounds of appeal as pressed and formulated in oral argument is rejected. It follows that the appeal should be dismissed with costs.

KIRK JA: I concur with Meagher JA.