Semitecolos v Semitecolos

This is yet another case, involving two adult siblings, both children of the deceased, who are prepared to incur a significant amount, by way of costs, rather than coming to a resolution of the proceedings. Mercifully, it is not a case in which a major issue revolved around the character and conduct of the applicant, his relationship with the deceased, and the deceased’s views of the relationship.

John Valerios Semitecolos (the deceased) died on 3 April 2019, aged 89. He left surviving him three, now adult, children being the Plaintiff, Ven John Semitecolos, Maria Jacqueline De Girolamo, who is a beneficiary named in the Will dated 1 February 2018, and Jason Troy Semitecolos, the Defendant and the executor named in that Will. The deceased’s wife, Maureen, who was the mother of the three children, died in April 2012.

This Court granted Probate of the deceased’s Will to the Defendant on 16 September 2020.

Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

Ven filed a Summons on 22 July 2020. There is no dispute that it was not filed within the time prescribed by the Succession Act 2006 (NSW) (the Act) (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act. He filed, and at the hearing moved on, an amended Summons, filed on 4 December 2020, in which he sought the following relief:

It will be necessary to deal with most of the claims for relief as there were different views as to the way in which the case should be decided. (It should be noted that Ven’s claim is actually for additional provision as he receives provision out of the estate of the deceased.)

The pandemic necessitated a remote hearing, with the use of video technology and electronic document handling software. This required co-operation, planning, and flexibility, on the part of all involved. The hearing was set down for two days and was completed within that time, even though extended hearing times, in some other cases, have occurred because of remote hearings necessitated by the COVID-19 pandemic.

For the most part, the legal representatives endeavoured to manage the hearing, with the object of resolving the real issues between the parties in such a way that the cost to the parties was proportionate to the importance and complexity of the subject-matter in dispute: Civil Procedure Act 2005 (NSW) s 60. Even so, as will be read, substantial costs have been incurred on both sides.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Ven is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

As the deceased dealt with all of his estate in his Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Although there is some property that may be able to be designated as notional estate, the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders, or because there are special circumstances: s 88 of the Act.

Counsel agreed that the value of the actual estate of the deceased, on any view, is sufficient for the making of any family provision order, and any order for costs, that may be made for Ven: Tcpt, 20 October 2021, p 03(35)-04(01).

The only eligible persons are the three children of the deceased. Jason is a party to the proceedings, whilst Maria has been served with a notice of the application, and of the Court's power to disregard her interests in the manner and form prescribed by the regulations or rules of court: s 61 of the Act. She has not brought any claim for additional provision out of the deceased’s estate.

As will be read, each of the children of the deceased is a beneficiary named in the Will of the deceased. (Perhaps, this demonstrates that the deceased had given consideration to whether some provision ought to be made on his death for each of the children.)

Neither Maria nor Jason, as a beneficiary, has advanced her, or his, financial circumstances, as a competing claimant, on the bounty of the deceased. In respect of a beneficiary who chooses not to adduce evidence of her, or his, financial circumstances, the Court may infer that she, or he, has sufficient resources to meet her, or his, financial needs, whatever they might be, but must nevertheless assess the competing claims of the beneficiary as the chosen object of the deceased’s bounty: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing); see also Blendell v Byrne [2019] NSWSC 583 at [113]–[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42].

Jason has given evidence of his competing claim, otherwise, on the bounty of the deceased. He did confirm, however, that he had received a lump sum of $500,000 from the deceased (to which reference was made in the deceased’s Will).

The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and his, or her, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. Maria, however, has played no part in the proceedings.

As executor, Jason does not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.

The deceased was born in Greece and migrated to Australia, settling at Port Macquarie, on the mid-north coast of NSW. He and his brother, Peter, ran a milk bar/delicatessen there.

Ven was born in January 1957 and is now almost 65 years old. Maria was born in June 1961 and is now 60 years old. Jason was born in July 1971 and is now 50 years old.

The family lived in rented accommodation in Port Macquarie until about 1967, by which time they had saved enough to build a house there (which house, thereafter, remained the family home, currently being the principal asset of the estate).

In about 1970, the deceased and Peter sold the milk bar and the deceased and his family went to Greece for a holiday. Upon his return to Port Macquarie, the deceased worked as a labourer and then established a "pinball parlour" business in Port Macquarie, which was initially quite successful. Subsequently, he purchased the interest of his business partner, and acquired the freehold premises in which the business was conducted.

Ven completed Year 12 at Port Macquarie High School in about 1974. He then undertook a diploma of fine arts at Newcastle College of Advanced Education which he did not complete. He then returned to Port Macquarie.

In about 1979, he and Maria opened a retail surf shop in Port Macquarie. The premises of the shop were owned by Peter. Ven and Maria were not required to pay rent for the storefront for 6 years. There was a dispute whether this was because the deceased had loaned Peter money for the construction of the block of shops, where the surf shop was located, and the brothers had agreed that the rent free use was in exchange for the deceased’s loan. As I am not satisfied that any such arrangement, between the brothers, has been established, it is unnecessary to take this matter further. The business was sold in about 1988. Ven received about $80,000 as his share of the proceeds of sale.

In 1988, Ven married Karen Baz. They had two children together, being Emily, who was born in 1989 and John, who was born in 1992. They lived in, or near, Port Macquarie, until the marriage broke down, irretrievably, in 2008.

After he sold the surf shop, Ven worked in other forms of employment until, in 1996, at the request of the deceased, he started working for the deceased in the pinball parlour. He says that he worked long hours for little pay. By this time, the business was in long term decline, as a result of the growth of electronic, and digital, home amusement technology.

Jason, at about this time, was studying at Oxford University. He lived in the United Kingdom until about late 2003 or early 2004: Tcpt, 20 October 2021, p 71(05). Upon his return to Australia, Jason lived in Sydney until about 2009. Subsequently, he moved to Port Macquarie to live with his mother and the deceased.

In around mid-2010, the deceased closed the pinball parlour business and leased the freehold of the property to a third party. Thereafter, Ven completed a certificate in assistance nursing and worked in aged care.

Between about August 2011 and February 2015, Ven lived in Alstonville, a town in the Northern Rivers area of New South Wales. He began working as a Lifestyle Co-ordinator at Maronoa Baptist Care. During this time, he would visit the deceased at least every three months.

The deceased’s wife died in April 2012.

In around February 2015, Ven received a telephone call from the deceased who told him that Jason had pushed him to the ground and that he feared continuing to live with him. Ven also stated that the deceased told him (and Maria) that he slept with a knife under his pillow due to his fear of Jason: Affidavit, Ven John Semitecolos, 11 September 2020 at par 89 and Tcpt, 20 October 2021, p 48(07-09) and p 48(36-38). Jason denied that he had pushed the deceased and also that the deceased had slept with a knife.

Shortly after the alleged incident, Ven left his job and moved back to Port Macquarie to live with the deceased and Jason. In cross-examination, he stated that he never saw any knife: Tcpt, 20 October 2021, p 48(15-17). He also confirmed, in cross-examination, that during the 6 weeks he was living with the deceased, he did not see any “abuse from Jason directed towards [his] father”: Tcpt, 20 October 2021, p 46(09-11).

Bearing in mind the terms of the deceased’s Will, to which I shall refer, even if the event occurred, apparently, it was not sufficiently serious to impact upon the deceased’s testamentary intentions.

After 6 weeks, Ven moved to Woodburn, a small town, about 34 kilometres south of Lismore, with his daughter and her partner. He stated that, whilst he was living there, he continued to visit the deceased, but it became more difficult as Jason prevented him, and Maria, from staying at the deceased’s home, a matter which Jason disputed, and which was not the subject of evidence from Maria (who had given no evidence in the proceedings). Again, I am not satisfied that Jason prevented Ven’s visits, although it is likely that the relationship between the two brothers was not harmonious.

The deceased and Ven would talk regularly on the phone, at least fortnightly and sometimes weekly.

In or around October 2018, the deceased was diagnosed with cancer. After his diagnosis, Jason cared for the deceased. He arranged doctors’ appointments, bought groceries, assisted with household chores, and assisted with paying bills. As the deceased’s cancer progressed, Jason became the deceased’s full-time carer until his death.

As stated, the deceased left a duly executed Will dated 1 February 2018. Relevantly, the Will provided for the revocation of all former Wills (Clause 1) and appointed Jason as the sole executor of the Will and trustee of the deceased’s estate (Clause 5).

Because of the dispute between the parties as to the construction, and the claim for additional provision made by Ven, it is necessary to repeat Clause 6 and Clause 9 of the deceased’s Will verbatim:

The gifts of money referred to in Clause 9(b) of the Will were given between about 2016 and 2018. The source of the money for the gifts was the proceeds of sale of the freehold premises on which the deceased had operated the pinball parlour business: Tcpt, 20 October 2021, p 74(46).

Although I shall return to the topic later in these reasons, the question of construction raised in the amended Summons relates to how the payment of all debts, legacies, funeral and testamentary expenses and any death, estate or succession duties should be borne.

Jason submits that they should be paid out of the proceeds of any bank accounts held in the deceased’s name at the date of the deceased’s death, before distribution of what remains equally to Ven and Maria. Ven submits that they should be paid out of the balance of the deceased’s estate. Interestingly, both refer to the use of the word “remaining” in each sub-clause.

I shall return to the construction of the deceased’s Will later in these reasons.

On 15 September 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The deceased’s estate at the date of death comprised real property located in Port Macquarie ($460,000), cash in bank accounts ($16,358, $657,914 and $1), a debt of Penny Page (the subject of contested proceedings in the District Court) ($333,396), a motor vehicle ($1,800), firearms ($7,790), household goods ($5,000), a nominal amount in cash, a health fund refund and one third interest in land in Greece (combined totalling $359). The gross total of the deceased’s estate, at the date of death, was estimated to be $1,482,620.

The deceased’s estate, at the date of the schedule, comprised the real property in Port Macquarie ($837,500), cash in the Defendant’s solicitor’s trust account ($512,490), a motor vehicle ($1,800), firearms ($7,790), household goods ($5,000), a debt of Penny Page (estimated by the Plaintiff to be $266,631 and estimated by the Defendant to be $166,631), a nominal amount in cash, a health fund refund and a one third interest in land in Greece (combined totalling $359). The gross value of the deceased’s estate was estimated to be $1,631,571 by the Plaintiff and $1,531,571 by the Defendant. (In my view, nothing will turn on the difference in the estimates of the value of the estate at the hearing as on either estimate, there is more than sufficient to satisfy the claim for provision, and costs, made by Ven.)

More important, it seems to me, is that there is no certainty that the Defendant, on behalf of the estate will recover the debt said to be owed by Penny Page. There are currently District Court proceedings against Ms Page for repayment of the alleged debt. Those proceedings were instituted on 23 January 2018 and had not been concluded by the hearing. The matter is next listed, in February 2022, for a Status Conference, in the District Court.

Jason has not had an official valuation of the land in Greece completed. However, he was informed by another co-owner that the land is “worth nothing, has no road access, and cannot be built on”. (This evidence was not the subject of objection or challenge.)

The estate also had liabilities at the date of the schedule totalling $3,462. In addition, the costs and expenses for the sale of the Port Macquarie property are estimated to be $3,999 (inclusive of GST).

The Schedule of Costs in Ex JS1 included testamentary expenses ($7,770) and funeral expenses ($10,901). The funeral and testamentary expenses have already been paid out of the deceased’s bank account. (These will need to be returned to the bank account if Ven is successful on the construction issue).

At the hearing, the estimated net value of the estate, according to Ven, was $1,628,109 and was $1,528,109, according to Jason. (These estimates include legal costs already paid by the estate).

Ven’s solicitor estimated costs, calculated on the ordinary basis, to be $57,000 and, calculated on the indemnity basis, to be $91,474.

Jason’s solicitor estimated costs on the indemnity basis to be $184,468. Of this amount, $134,365 has already been paid out of the bank accounts held by the estate relating to costs of the family provision proceedings.

Another $26,499 has been paid out of the bank accounts held by the estate for legal proceedings in the District Court brought to recover the alleged debt owed by Ms Page. The Plaintiff estimated a further cost of $55,000 for the costs up to, and including, the final hearing: Ex JS1 and Tcpt, 21 October 2021, p 94(31-40) and p 109(04). (The reference to “the Plaintiff” in the transcript is the reference to Jason, the Plaintiff in the District Court proceedings.)

I am unable to determine the issue of costs at this point as the parties have stated that there may be documents relevant to any determination of costs: Tcpt, 20 October 2021, p 10(01-02).

If one assumes the estimates of costs and expenses are accurate, the total amount deducted for debts, costs, testamentary and funeral expenses (including the Defendant’s costs of the Penny Page proceedings) are $341,639: Tcpt, 21 October 2021, p 127(43-49). I shall return to this topic in more detail in paragraph 63 (the construction claim section).

Ven submitted that the debts, funeral and testamentary expenses should be borne by residue in accordance with s 46C and the Third Schedule of the Probate and Administration Act 1898 (NSW) which provide that assets included (either by a specific or general description) in a residuary gift are applied towards testamentary expenses in priority to assets specifically disposed of in the Will. He submitted that the following factors supported the submission:

Jason did not dispute the provisions of that statute but argued that the application of the Third Schedule were displaced by the provisions of the Will and that looking at the Will, as a whole, there was the clear intention that debts, legacies, funeral and testamentary expenses are to be paid from the bank accounts, with the remaining balance in the accounts to be divided equally between Ven and Maria.

Jason pointed to the following factors to indicate that the deceased intended debts, legacies, funeral and testamentary expenses to be paid from the bank accounts:

It was agreed that, on the basis that the total debts, funeral and testamentary expenses, including both Ven’s costs and Jason’s costs of the proceeding come out of the deceased’s bank accounts, Ven would receive $166,317: Tcpt, 21 October 2021, p 128(04-35). In the alternative, if Ven’s submission is to be accepted and the total debts, funeral and testamentary expenses including the Defendant’s costs and the Plaintiff’s costs are paid from residue, Ven would receive $337,137: Tcpt, 21 October 2021, p 128(37-44).

Whichever decision was reached on the question would be relevant to whether any additional provision ought to be provided by the Court for Ven.

I shall next deal with additional facts relevant to the claim for a family provision order.

Ven commenced his action on 22 July 2020, that is about 15.5 months after the death of the deceased, or about 3.5 months after the prescribed period had expired. It was not until the amended Summons was filed, on 4 December 2020, that he sought an order pursuant to s 58(2) of the Act, seeking an extension of time for the making of his application.

Ven submitted that any prejudice to the beneficiaries from the delay in the administration of the estate has been occasioned from Jason’s conduct rather than his own.

Ven was informed of the deceased’s death on 3 April 2019. He stated that at the time of the funeral, there was no discussion about the deceased’s Will or his estate. However, he understood that Jason had been appointed the executor of the deceased’s estate.

In about July 2019, Ven received a letter from Searson Shannon & Co Solicitors, who were retained by Jason to assist with obtaining Probate of the deceased’s Will. The letter stated that he would be notified “in due course once an Estate distribution has occurred” and the process was likely to take around 6 months. Ven complied with the request, made in the letter, to fill out a statutory declaration.

Ven stated he did not take any further action as he believed Jason’s solicitors would contact him when the estate was ready for distribution.

In cross-examination, Ven admitted that he had a copy of the deceased’s Will, which had been enclosed with the letter from Searson Shannon & Co, since July 2019: Tcpt, 20 October 2021, p 62(20-33).

In around early 2020, Ven had still not heard anything from Jason’s solicitors. Sometime later, he was contacted by Maria who informed him that she had contacted Searson Shannon & Co Solicitors, and that she had been informed that the firm had ceased to act for Jason.

Between early 2020 and June 2020, Ven made various attempts to contact Jason, who did not answer, or return, the telephone calls. Due to COVID-19, Ven was unable to travel to Port Macquarie to see Jason in person.

Ven stated throughout this time he was unsure of his legal rights and had no information about the estate. He stated he was in a poor financial position and had been reluctant to gain legal advice due to costs concerns.

By July 2020, he had still not heard from Jason and sought legal advice.

On 14 July 2020, he had an initial conference with a solicitor at Somerville Laundry Lomax, during which he was advised of his eligibility to make a family provision claim and the applicable limitation period. He was also advised that at that time Probate had not yet been granted.

On 21 July 2020, Ven instructed Somerville Laundry Lomax to file the claim and the Summons was filed on 22 July 2020.

Ven submitted that the delay in making the claim could not be considered “unduly long”. He also submitted that even if he had been aware of his right to make a family provision claim earlier, he could not have been aware of the merits of any claim until he knew of the size and nature of the estate, which was not disclosed by Jason until around 16 months after the deceased’s death.

Jason did not consent to the extension of time being granted. He submitted that Ven’s claim had insufficient strength to warrant an extension of time being granted. It was accepted that Jason could not show any prejudice as a result of the delay in commencing the proceedings (Tcpt, 21 October 2021, p 90(06)) and no unconscionable conduct, by either party, was relied upon.

During submissions, very fairly if I may say, counsel for Jason confirmed that, in the event it were found that adequate and proper provision had not been made for Ven, the order for extension of time was not opposed: Tcpt, 21 October 2021, p 90(36-41).

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] – [90], I set out the applicable legal principles relating to an application to extend the time. In view of the appropriate concession made by counsel for Jason, I shall not repeat all of the principles stated there.

Apart from the reason(s) for the lateness of the claim, the factors to which the Court must look include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time. The onus lies on the applicant to establish “sufficient cause”. It will be for the Court to determine the strength of the applicant's claim.

I am satisfied that there has been a satisfactory explanation for the commencement of the proceedings out of time, which, in part may be laid at the feet of Jason; there is no evidence that Maria, the only other beneficiary named in the Will, would be unacceptably prejudiced if time were to be extended; and nor is there any evidence of any unconscionable conduct by either side.

In any event, since I am of the view that since an order for additional provision should be made for Ven, there is no opposition to an order extending the time.

Ven stated that he grew up in a time when there was less access to money and that the opportunities provided to him were less than those provided to Jason. Jason disputed the assertions, stating that all three of the deceased’s children had attended the same primary, and the same high school, and each had been provided with further educational opportunities, which Ven had chosen not to complete. He added that, in fact, he had been the child who had grown up when the family was in a worse financial situation.

There was no dispute that in the 1970s, the deceased had given Ven an allowance of $20 per week whilst he was studying in Newcastle. This allowance had lasted for 5 years, until Ven discontinued his diploma course: Tcpt, 20 October 2021, p 21(50) -22(15).

In 1985, the deceased, in order to assist Ven and Maria to pay off a business loan taken out from a firm of solicitors, had loaned them $10,000. Ven could not recall if he had ever repaid this loan: Tcpt, 20 October 2021, p 31(34-38). The deceased had also guaranteed a loan for Ven and Maria to assist with their business (although it was not suggested that the guarantee had ever been called upon).

In around 1996, Ven commenced working at the deceased’s pinball parlour. He stated that during his time working for the deceased at the pinball parlour he worked significant hours (over 50 hours a week) and received very little remuneration. Jason stated that the deceased told him that he paid Ven $500 per week for 3.5 days work. (No documents were produced, by either side, to support the contention advanced by him.)

In 2009, Ven and his ex-wife entered into an agreement to sell their property at Sarah’s Creek to their daughter, Emily and her then fiancé, Mitch. He had agreed to sell his share of the property for an initial deposit of $8,000 with the balance of approximately $180,000 to be repaid over five years. Ven’s ex-wife had agreed to sell her share of the property for $80,000: Tcpt, 20 October 2021, p 40(03-04).

Emily and Mitch had taken out a mortgage and used the proceeds to pay out the entirety of her mother’s share and the $8,000 deposit to Ven: Tcpt, 20 October 2020, p 39(39) and p 40(03-23). The property was then transferred to Emily and Mitch.

A short time after moving into the property, Emily and Mitch ended their relationship and she was, thereafter, unable to meet the repayments. Shortly thereafter, they sold the Sarah’s Creek property and they received enough to cover most of the mortgage debt, with a small amount still to be repaid: Tcpt, 20 October 2020, p 39(26-33). Ven did not receive any of the agreed $180,000: Tcpt, 20 October 2021, p 39(48).

Ven stated that he had chosen not to pursue legal proceedings to recover the funds as he did not want to commence proceedings against his daughter: Tcpt, 20 October 2021, p 38(18-32). He had never sought legal advice on the ability to recover the funds or any part thereof: Tcpt, 20 October 2021, p 38(42-48).

The deceased had been aware of the agreement and that the funds had not been repaid: Tcpt, 20 October 2021, p 42(44)-43(01).

Ven also stated that his relocation to Port Macquarie in 2015 at the request of the deceased was at a significant cost and had caused him to resign from his managerial position at Baptist Community Services: Tcpt, 20 October 2021, p 49(16-18). He put forward no evidence of his income at Baptist Community Services at the time of his departure in 2015 and was unable to substantiate, to my satisfaction, that his allegation was correct. No doubt, however, there was some contribution made by him to the welfare of the deceased.

Jason stated that the deceased did not ask Ven to move back to the family home and neither he, nor the deceased, had any idea that Ven was moving back to Port Macquarie. Furthermore, whilst living with the deceased in Port Macquarie, he was not paying any rent (to the deceased or for any property elsewhere in NSW): Tcpt, 20 October 2021, p 55(01-07). This fact suggests that there may have been some consideration for doing what he did.

Ven stated that after relocating to Woodburn in 2015, his financial circumstances became strained and that he had withdrawn $18,000 from his superannuation. Again, no specific evidence to corroborate his assertion was provided.

Ven’s current income is derived partly from employment with Northcott Society and partly from Centrelink. In September 2021, Ven’s income with Northcott Society was around $2,228 per month and he remained employed on a permanent part-time basis. He provided an illegible copy of his last four payslips from Northcott Society.

The assistance Ven receives from Centrelink has decreased with the end of any COVID-19 government supplement. The fortnightly amount he receives changes depending on the income received from Northcott Society. However, Ven stated that on average he gets $175 a fortnight from Centrelink. He stated that his total net monthly income is $2,578. This is a reduction on his income from his previous affidavit in September 2020.

He stated that due to this decline in income he has been required to rely upon his small savings. He noted that his bank account is in overdraft of about $309.

Ven has not sold, or purchased, any real estate, or shares, in the last three years.

In his affidavit, Ven stated that around February 2018, the deceased had given him $61,000 (as noted in the Will). The funds were paid in three instalments: Tcpt, 20 October 2021, p 55(22-24). The first instalment of $10,000 was received on 14 March 2016: Ex JTS2/20. The second instalment of $50,000 was received on 29 July 2016: Ex JTS2/27. The third instalment of $1,000 was received on 23 April 2018: Ex PA/2. He stated that he had used these funds to give his daughter $18,000, to pay off a number of debts, including a car loan and credit card debt, to provide a rental bond for his current flat in East Ballina, and to purchase household goods.

Despite providing a gift of $18,000 to his daughter, Ex JTS2 shows that between April 2015 and February 2017, Emily had made a number of payments to Ven totalling around $2,951. In cross-examination he stated that he could not recall what all the transactions were for but that some of them were for personal items that he had sold to her: Tcpt, 20 October 2021, p 57(19-32). Between April 2015 and March 2016, he had also received a number of payments from his son, John, totalling around $4,125.

Ven stated in cross-examination he has not filed tax returns in at least 8 years: Tcpt, 20 October 2021, p 50(01).

He has no current liabilities.

A summary of Ven’s assets are set out below (as of 7 September 2021):

A summary of Ven’s expenditure are set out below (as of 7 September 2021):

Ven stated that, at the age of 64, he has a limited number of working years left. He only has a small amount of superannuation, which he states will not meet his needs for retirement “even at a modest level”. He owns no property and has stated that it was extremely difficult to find rental accommodation in the mid north coast of NSW. He stated that his lease is due to expire around October 2021 and he is uncertain whether his lease will be renewed.

He resides by himself and is not dependent upon anyone else.

Ven would like to purchase a modest two-bedroom unit in Ballina to be closer to his daughter and his employment. He estimated this will cost approximately $500,000. At annexure VS-4 of Ven’s affidavit of 7 September 2021, he refers to two-bedroom properties in the area ranging from $550,000 - $585,000.

Ven stated he required a two-bedroom unit because he is a painter and uses the spare bedroom as an art studio: Tcpt, 20 October 2021, p 59(43-44). He has put forward no evidence of the cost of a one-bedroom apartment in the Ballina area.

Jason disputed Ven’s estimate of the purchase price of a two bedroom home in the Ballina area. The affidavit of James Peter Poulos, affirmed 7 October 2021, attached various one, and two, bedroom homes in the East Ballina area which ranged from $175,000-$305,000.

He has made no enquiries as to whether he would be able to borrow any money to put towards the purchase price of accommodation in circumstances where he receives the provision under the Will or otherwise: Tcpt, 20 October 2021, p 61(03).

Ven does not own a car and relies on public transport. He would like to purchase a motor vehicle in the range of $20,000. He also stated that he will require a cash sum for contingencies of life and living expenses.

In the last few months, Ven has also had three procedures to remove skin cancers and a large filling fall out requiring dental surgery. He was advised he will need a wisdom tooth extraction in the near future. Whilst he stated that he is in good health for his age, Ven anticipates that he may require medical assistance as he ages.

As stated, neither Maria nor Jason has advanced her, and his, financial circumstances as a competing claimant upon the bounty of the deceased.

Counsel for Ven submitted that regardless of the outcome of the construction suit, the provision made for Ven in the deceased’s Will is inadequate. He stated that, even if the construction argument is accepted, Ven will require additional provision to take the total amount he ought to receive to $580,000: Tcpt, 21 October 2021, p 99(28-30). This will allow him to purchase accommodation, a motor vehicle and have a small cash buffer.

Ven submitted that, on all the facts, he and the deceased had a close and loving relationship up until the time of his death and that the deceased owed him a responsibility, in light of his material circumstances, to make greater provision for him than he had made in the Will. Namely, to provide for a vehicle, enough to purchase accommodation, and an amount for exigencies of life, as he has virtually no capacity to meet unforeseen contingencies and with “the inevitable march of human life”, his medical needs will likely increase: Tcpt, 21 October 2021, p 91(46-49).

Counsel for Ven submitted that given his age, he is unlikely to be able to continue his part time work beyond the next few years and will then be wholly or largely dependent upon government support to survive. He also stated that a cash sum provision will reduce the size of any pension Ven is entitled to, whereas a house will not: Tcpt, 21 October 2021, p 103(22-25). He admitted there is no evidence that Ven would be unable to borrow by way of mortgage or reverse mortgage, however he stated that as Ven is nearing retirement and has no assets, it is unlikely he would be able to get a mortgage or reverse mortgage: Tcpt, 21 October 2021, p 103(32-35). He also submitted that as Ven ages it is likely his rented accommodation will become less appropriate as he may need to make capital modifications to his house: Tcpt, 21 October 2021, p 103(17-22).

Ven admitted that the amount he currently receives under the Will would make some difference to his circumstances but qualified that any difference would be minimal.

Ven conceded that Jason had cared for the deceased in the final years of his life, but repeated that Jason had already received a gift of $500,000 from the deceased, that he had served no evidence of his financial circumstances, or about any competing financial need, and that if the Will is undisturbed by further provision, he will receive up to an additional $1.25 million. Whilst accepting that Jason’s interests as a beneficiary cannot be disregarded, Ven submitted that the Court may, and should, infer that he has adequate resources upon which to meet his needs.

Whilst Maria has not put on evidence of her financial situation, Ven submitted that the burden of any additional provision should not be borne from her share of the estate.

Ven submitted that he had assisted the deceased, at his request, in the pinball parlour for 12 years, for very little remuneration. He had done this during a critical period of his working career, which, he asserted, had contributed to his current financial circumstances. During this time, the business was in decline and eventually closed, so that this was not a case where Ven had worked in exchange for the opportunity to take over the business: Tcpt, 21 October 2021, p 92(35-40).

Counsel for Ven disputed the evidence of one bedroom accommodation put forward in the affidavit evidence of Mr Poulos. He noted, from the bar table, that rather than a strata title unit or a freehold home, they were “trailer home[s] in a residential park” where “the amount paid is to buy the mobile dwelling erected on the park and rent still has to be paid”: Tcpt, 21 October 2021, p 101(15-21) and p 101(37-40). He argued that this would not provide the same level of security of tenure and is not comparable to the types of accommodation Ven has put forward: Tcpt, 21 October 2021, p 101(41-45).

From the bar table, he stated that there is a real shortage of one bedroom accommodation in the Northern Rivers area and that the cost of any “would not be materially less than the cost of the two-bedroom unit that’s been referred to”: Tcpt, 21 October 2021, p 102(16) and 102(30-31).

Ven submitted that the deceased had said to him at various times that the three children would receive equal benefit in his Will. Whilst he acknowledges the “special bond” between the deceased and Jason, counsel for Ven submitted that this was a “slightly unusual” scenario as the deceased left a gift with a fluctuating disposition to Ven and Maria: Tcpt, 21 October 2021, p 98(30-35). He stated that there was a possibility that when the deceased made his Will, he expected that he was broadly effecting an equal division of his assets in monetary value between his children. However, due to external circumstances, the value of the gifts have altered in a way that the Court should not give as significant a weight to the deceased’s testamentary intentions in the Will as it would normally: Tcpt, 21 October 2021, p 99(05-14). He submitted that this, in turn, should reduce the weight given by the Court to the superior position of the deceased.

To support this submission counsel for Ven made various observations, most of which were speculative, including that the deceased may have anticipated that any recovered funds from the District Court proceedings be finalised and form part of his gift to Ven and Maria, and that the deceased was unlikely to have anticipated the unprecedented growth in the value of the Port Macquarie property.

Counsel for Ven submitted that the context and testamentary nature of the deceased’s gifts to his children has direct relevance to the adequacy of provision and the Court should consider that, in reality, Jason is receiving $1.7 million (before expenses): Tcpt, 21 October 2021, p 96(21-32); Tcpt, 21 October 2021, p 97(06-08).

Jason submitted that the amended Summons should be dismissed. Counsel for Jason stated that even if his position on the construction issue was accepted, $166,317 would be adequate and proper provision for Ven: Tcpt, 21 October 2021, p 128(46-50).

If this is the case, and the bank accounts have been dissipated due to costs of these proceedings, Jason submitted that it was as a result of Ven’s own conduct. He argued that the starting point for determining the adequacy and propriety of the provision is what was made for Ven in the Will without the costs of these proceedings being incurred: Tcpt, 21 October 2021, p 132(01-05).

He submitted that there is no evidentiary basis to justify provision to be made for Ven to acquire a two-bedroom home. Searches made by his solicitors indicate that the provision already made for Ven would be sufficient to assist him to purchase a one bedroom unit and supplement his superannuation as a financial reserve.

Jason also submitted that the Court should have regard to the assistance that the deceased provided to Ven during his lifetime. This includes the gift of $61,000, a business loan, acting as guarantor to another business loan, and the use of rent free premises for the surf shop (likely a result of the deceased’s relationship with the landlord).

Counsel for Jason submitted that the financial assistance the deceased provided to Ven over his lifetime is “highly relevant” because it shows a lifelong pattern of assistance and highlights that the deceased was in a much better position than the Court to determine what was adequate provision: Tcpt, 21 October 2021, p 114(08-16).

Counsel for Jason submitted that the evidence shows Ven had sufficient funds over the period of working at the pinball parlour, so much so as to allow him to enter into an agreement to sell his share of his marital home to his daughter at a reduced price. Counsel relied on this agreement to say that one of the reasons why Ven does not own a home is because of his own poor decisions: Tcpt, 21 October 2021, p 117(39-47) and p 118(06-08).

Counsel also submitted that Ven’s proposed buffer of $80,000 was excessive in light of the facts that Ven is employed; he has no plans to retire; there is no reason to assume his superannuation will not continue to accumulate; and should provision be made to allow him to buy a property, there will be a saving of around $1,500 a month since he will no longer pay rent: Tcpt, 21 October 2021, p 126(06-12).

Furthermore, it was submitted that there is no community expectation for a parent to provide an adult child with an unencumbered two bedroom home when he lives alone, has no disability, enjoys good health, has been provided with assistance during the parent’s lifetime, and where the adult child has effectively given away significant assets to his own child.

In Fulton v Fulton [2014] NSWSC 619, which I referred to more recently in Estate of Aspasia Kandros [2019] NSWSC 757, I wrote, at [201] - [206]:

In the Estate of Aspasia Kandros, I wrote, at [45]-[47]:

As stated, the question of construction relates to how the liabilities of the estate for debts, funeral and testamentary expenses and duties are to be borne as between Ven and Maria on the one hand and Jason on the other.

Before proceeding to the terms of the Schedule, reference should be made to s 46 of the Probate and Administration Act, which relevantly provides that “the real as well as the personal estate of every person dying … shall be assets in the hands of the person's executor to whom probate has been granted, or administrator, for the payment of all duties and fees, and for the payment of the person's debts in the ordinary course of administration”.

Then, pursuant to s 46C of the Probate and Administration Act, subject to any contrary direction in the will, and subject relevantly to s 145 of the Conveyancing Act 1919 (NSW), the burden of funeral, testamentary and administration expenses, debts and liabilities are to be borne in the order mentioned in Pt 2 of the Third Schedule to the Probate and Administration Act. Part 2 of the Third Schedule prescribes the following order for the application of assets to pay funeral, testamentary and administration expenses, debts and liabilities for a solvent estate:

Thus, subject to the provisions in the Will, if any, that disclose an intention to vary the order of the application of assets, Pt 2 of the Third Schedule applies. The intention must be found in the Will itself. Thus, the question of whether a will has disclosed an intention to vary the statutory order is a question of construction to which the ordinary principles of construction apply.

In Joyce v Cam (2004) 12 BPR 22, 231; [2004] NSWSC 621, Campbell J wrote at [48] – [49]:

In Singer v United Israel Appeal Refugee Fund & Ors, White J, at [19] – [21] wrote:

Clause 6 of the deceased’s Will provides for all of the deceased’s estate, to be divided, first for the payment of all debts, legacies, funeral and testamentary expenses and any death, estate or succession duties, and then the remainder to be given as set out in sub-clauses (b) and (c). However, the Clause does not say how the burden of such debts, legacies, funeral and testamentary expenses and other duties, is to be borne between the different gifts in sub-clauses (b) and (c).

There is no direction in the Will given to displace the statutory order and no specific indication of the way in which the burden of debts and liabilities is to be borne or apportioned. Bearing in mind the legislation and the principles to which I have referred, the Court should declare that Clause 6 of the deceased’s Will does not operate to displace the provisions of s 46C(2) of the Probate and Administration Act.

It follows that the debts, funeral and testamentary expenses and duties are to be borne out of the residuary estate. It also follows that the amounts paid out of the proceeds of any bank accounts held in deceased’s name at the date of his death must be repaid so that each of Ven and Maria receive, one half thereof, calculated as at the date of death. In view of the agreement of the parties, each is entitled to $337,137.

The relevant provision is s 59 of the Act. Since the Plaintiff’s eligibility is not disputed, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased: s 59(1)(c) of the Act. It is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order: s 59(2) of the Act. Only then may “the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

In North v Daniel [2021] NSWSC 828, another case regarding an adult child seeking further provision from his father’s estate, I discussed the legal principles surrounding inadequacy of provision at [110]-[133]:

In Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, at [473]-[474], I repeated the principles that relate to a claim by an adult child:

Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. However, I do not intend what is written above to become rigid formulae, elevated into rules of law, or to constrain the Court’s discretion in these matters in any way.

Noting that no two cases are alike, Basten JA in Foley v Ellis [2008] NSWCA 288, at [3], wrote that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J wrote that the assessment of what provision is proper involved "an intuitive assessment".

Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his, or her, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased’s Will applies unless a specific application is made, and acceded, to by the Court.

The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]:

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox [2014] 87 NSWLR 646; [2014] NSWCA 392, by Basten JA at [18]-[20] and by Barrett JA at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and very recently, by White JA, in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [37]. They must be remembered.

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.

The main claim for provision made by Ven relates to the fund of money to enable him to purchase accommodation. In Smith v Johnson [2015] NSWCA 297, the Court of Appeal found that the primary judge had erred in making provision for an adult child of a fund to enable the purchase of a two bedroom home instead of a one bedroom home, without sufficient evidence of need. Sackville AJA (with whom Macfarlan and Ward JJA agreed) stated at [83] and [85]:

In this case, Ven has no family responsibilities and his stated need for the second bedroom is to enable him to use it as an art studio in his spare time. (In Smith v Johnson, the Plaintiff sought a two bedroom unit to have a space to work on his hobby of advocating for West Papua and as a guest room for friends. Sackville AJA stressed that it was incumbent on a plaintiff to adduce evidence in support of his, or her, case.)

In this case, it was Jason’s solicitor who has provided evidence of the cost of a one-bedroom residence. Apart from a statement from the Bar table, which I ignore, Ven provided no evidence of the unavailability of one bedroom units or the value of a one bedroom home in the East Ballina area. If Ven had wished to assert that one-bedroom units were not available, he could have given evidence of his searches and the difficulties he had experienced to find a suitable one-bedroom home unit.

Similarly, if he had disagreed with the estimates of the cost of a one-bedroom unit, or had wanted to qualify the evidence served, he could have relied upon evidence he had obtained. He did not do either.

Nor am I satisfied that Ven “needs” a two-bedroom unit in which to live. However, this does not mean that there is insufficient evidence of need to make any order for substantial provision.

Yet, there is evidence that Ven has minimal assets; an income seemingly insufficient to meet his expenditure; that he is living in rented accommodation; and, that with age, he will likely have increasing medical, and other, expenses. He also has a reduced earning capacity.

What is also of significance is that neither Maria, nor Jason, has given evidence of her, and his, financial circumstances, respectively. This, in my view, is a matter which must be considered. Another important matter, it seems to me, is the fact that during the deceased’s lifetime, he made significant provision ($500,000) for Jason.

However, I remember that Ven is, at least in part, the author of his financial misfortune, in that he transferred the interest in his former matrimonial home to his daughter and her then fiancé, with the consequence that he no longer has the property, or its equivalent value.

The question that must be answered is whether, taking into account all the circumstances, the provision made for Ven in the deceased’s Will, particularly as the question of construction has been decided in his favour, is inadequate for his proper maintenance and advancement in life.

Taking into account all the circumstances, I am satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance or advancement in life for Ven, as the person in whose favour the order is to be made, has not been made by the Will of the deceased.

The more difficult question is what order for provision out of the estate of the deceased ought to be made for Ven’s maintenance or advancement in life, having regard to the facts known to the Court at the time the order is made. In this regard, I have considered that he is not cohabiting with another person; that he did make a contribution to the estate of the deceased and to the deceased’s welfare; that he does receive provision from the deceased's estate, and also that he received some provision during the deceased’s lifetime, albeit not nearly as much as the provision received by Jason; that Ven was not being maintained, either wholly or partly, by the deceased before the deceased's death; and that there is no other person liable to support him.

I have also not forgotten the significant contribution made by Jason and his strong competing claim upon the bounty of the deceased.

As has been recently noted by Leeming JA, sitting at first instance, in Ibrahim v Nasr [2021] NSWSC 1321, at [301]:

Doing the best I can, I propose to treat the lump sum that Ven will receive under the Will of the deceased (about $337,000) as an accommodation fund. He can use that amount to purchase, or put towards the purchase, of accommodation, or as a fund to pay rent. I shall allow a modest sum to enable him to pay stamp duty and purchase some whitegoods.

Then, what is required is a modest capital sum for the purchase of a car (about $20,000) and a lump sum for the exigencies of life. I am of the view that he should receive additional provision of $120,000. There is evidence of his needs, summarised above. This lump sum should be the amount that he receives, by way of additional provision out of the estate of the deceased.

The additional provision should be provided out of the residuary estate of the deceased, which means that it will be provided out of the share of the deceased’s estate that passes to Jason. (The other lump sum will be provided out of the bank accounts to which reference has been made when it is reimbursed by Jason.)

This should still leave a reasonable share of the deceased’s estate for Jason.

It follows that Ven has been successful in the proceedings. However, I am unable to determine the question of costs. In the circumstances the Court: