Alessandra Hart v Gerard John Basha

The plaintiff, Alessandra Hart, is the former wife of the late Anthony Siracusa, who died on 29 January 2021. The plaintiff is presently 82 years of age. The defendant, Gerard Basha, is a solicitor appointed as the administrator of the deceased’s estate by order of this Court.

The plaintiff and the deceased were married in December 1968. They had three children: Michael Brendan Siracusa born on 10 March 1972, Anna Louisa Siracusa born on 4 July 1974, and Mark Anthony Siracusa born on 17 December 1977. I will refer to those children, who are now adults, by the names by which they are commonly known: Brendan, Louisa and Mark. This is to avoid confusion that might otherwise arise from their common surname. No disrespect is intended.

The plaintiff and the deceased separated in January 1992, and were divorced in December 1992. No property settlement proceedings were commenced, and no property settlement orders were made, in connection with the dissolution of their marriage.

The deceased had entered into a relationship with Jessie Marion Boudville in 1989, prior to his separation from the plaintiff, which continued for some 23 years until Ms Boudville’s death in 2012.

In 2014, the deceased commenced a relationship with Jane Grimm, which continued until his death on 29 January 2021.

By his last will made on 27 January 2021, just two days before he died, the deceased purportedly gave the sum of $65,000 and 5,000 Telstra shares to the plaintiff, gave various specific items of personal property to his children, to Brendan’s partner Joy Chi Lok Chan, and to Tamara Hayward, gave his superannuation funds and any superannuation death benefits to Mark’s son Thomas Siracusa, and gave the residue of his estate in specified shares to his trustee to hold on trust for Thomas, Brendan, Louisa, Ms Boudville’s two daughters (Tamara Hayward and Denise Boonstra), Ms Grimm, and two charitable organisations.

The sum of $65,000 was in fact a loan that the deceased was obliged to repay the plaintiff, and the 5,000 Telstra shares which the deceased purportedly gave to the plaintiff by his last will were in fact property of the plaintiff that she had given to the deceased in about 2012 to hold and manage for her. Thus, the only bequest made by the deceased in favour of the plaintiff was in fact a repayment of a loan and a return to the plaintiff of her own property.

Letters of administration with the deceased’s will dated 27 January 2021 annexed were granted to Mr Basha on 9 September 2022.

After the resolution of other proceedings concerning the estate, including a family provision order made in favour of Ms Grimm by consent, the deceased’s estate has net distributable assets of approximately $2,700,000.

Relying on the doctrine of promissory estoppel, the plaintiff claims that the deceased unconscionably resiled from representations that she alleges he made to her from January 1992 and over the course of the years until his death in January 2021 to the effect that, if she did not pursue a property settlement following their separation and divorce, she would inherit the bulk of his estate upon his death. The plaintiff claims to have assumed that she would receive that inheritance, and to have acted to her detriment on the basis of that assumption, including by not pressing for a property settlement. The plaintiff claims that the deceased acted unconscionably by not providing for her in his last will, other than by purported gifts that were in fact a repayment of the $65,000 loan that the plaintiff made to the deceased and the return to the plaintiff of the 5,000 Telstra shares which were her own property. The plaintiff seeks equitable compensation in an amount commensurate to the proportion of the deceased’s estate that she claims to have been induced to assume she would inherit, plus interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

The defendant does not admit that the deceased made the alleged representations, and denies that the plaintiff relied to her detriment on any representations that may be found to have been made.

Alternatively, the plaintiff seeks an order pursuant to Chapter 3 of the Succession Act 2006 (NSW) for provision out of the deceased’s estate for her proper maintenance, education and advancement in life.

The defendant opposes any order for provision in favour of the plaintiff.

For the reasons that follow, the plaintiff’s promissory estoppel claim has failed. Authority binding on me establishes that the doctrine of promissory estoppel operates only as a restraint on the enforcement of legal rights, and not as a source of obligation. The plaintiff seeks to deploy the doctrine in these proceedings in order to create and enforce an obligation on the deceased to provide for her under his last will. Even if the doctrine of promissory estoppel were applicable, I would have held that the plaintiff had failed to establish most of the representations on which her promissory estoppel claim is founded, and I would have found that the plaintiff did not rely to her detriment on the two representations that were established. However, the plaintiff has succeeded in her family provision claim. I have determined that there are factors warranting the plaintiff’s application for provision, that the deceased’s last will did not make adequate provision for the plaintiff, and that provision should be made out of the deceased’s estate for the plaintiff’s proper maintenance and advancement in life in the sum of $600,000. In coming to those conclusions, I have considered all of the parties’ written and oral submissions, irrespective of whether they are expressly recorded in these reasons.

The plaintiff met the deceased in 1965. They were both 23 years of age at that time. They were married on 7 December 1968.

The plaintiff and the deceased had their first child – Brendan – in March 1972.

The plaintiff and the deceased had their second child – Louisa – in July 1974.

The plaintiff and the deceased had their third child – Mark – in December 1977.

At the time they separated in January 1992, the plaintiff and the deceased jointly owned their home in Kaleen in the Australian Capital Territory, which they had purchased in 1987, and an investment property in Coorparoo, Queensland, which they had purchased in 1985. Each of them had worked during the course of their marriage and had contributed financially to the payment of their household expenses and the acquisition of those assets. In addition, the plaintiff had been the primary carer for their children. The plaintiff gave evidence that she had returned to work in 1973, carrying Brendan with her in a bassinet while she worked as a door-to-door sales person. The difficulty of working while carrying her baby with her was compounded by the fact that she was still grieving the death of a daughter who had been still born in December 1972. According to the plaintiff’s evidence, she persisted with the work in these difficult circumstances because the deceased insisted that she contribute her share to the household finances. After the birth of Louisa in July 1974, the plaintiff worked night shifts in a restaurant so as to be able to care for the children during the day. According to the plaintiff’s evidence, she was required to work in order to meet all of their living expenses as the deceased’s wage at the time was only sufficient to cover the loan repayments on the farm where they were living at Bungendore at the time. The plaintiff was able to stay home for about two years after the birth of Mark in December 1977, but returned to work in 1979 and ran her own business in the early to mid-1980s. After selling that business in 1985, the plaintiff worked several jobs to contribute to their living expenses. The plaintiff was not challenged about any of this evidence in cross-examination.

Those matters need to be viewed in the context of the plaintiff’s evidence that she had not wanted to have children and had done so at the deceased’s insistence, that she had been forced to leave a satisfying career with Perpetual Trustees when the deceased decided to move to Canberra against her wishes shortly after they married in order to pursue career opportunities for himself, that the deceased refused to contribute towards housework in any way and required the plaintiff to serve him in their home, and that the deceased controlled their jointly earned income by transferring it into a bank account to which only he had access, leaving only enough funds for necessities in their joint bank account to which the plaintiff had access. According to the plaintiff’s evidence, this arrangement meant that she had to seek the deceased’s permission if she wanted to purchase anything for herself. Again, the plaintiff was not challenged about this evidence in cross-examination.

The plaintiff gave evidence that, in addition to contributing her wages to their family, her financial contributions to the marriage included the sale proceeds of two small blocks of land at Mt Evelyn in Victoria which her father had gifted to her on her 18th birthday, and an inheritance of $116,000 that she received on the death of her father in February 1989. According to the plaintiff’s evidence, she paid the entire amount of that inheritance to the deceased in order for him to discharge their mortgage over the Kaleen property, and she was surprised to learn many years later that there was still a mortgage over that property. The plaintiff gave evidence that she does not know what the deceased did with her inheritance from her father’s estate. Again, these aspects of the plaintiff’s evidence were not challenged in cross-examination.

In September 1991, the deceased received an inheritance from his father of approximately $100,000. Documents kept by the deceased which were provided to the plaintiff after his death included a letter that he received from solicitors acting for him in 1996 recording his instructions that both he and the plaintiff had ploughed back into their family the inheritances from their respective families. The plaintiff denies that the deceased contributed his inheritance to their family or matrimonial assets.

The plaintiff and the deceased separated in January 1992. The plaintiff moved out of the Kaleen property into a rented unit, together with Brendan and Louisa. Brendan and Louisa were working at this time, and their wages together with welfare payments that the plaintiff was receiving from the government covered their household expenses. The deceased remained living in the matrimonial home. Mark, who was then only 14 years of age, stayed with the deceased. According to the plaintiff’s evidence, she left all of the assets of the marriage in the possession of the deceased when they separated.

In her affidavit affirmed on 8 September 2021, the plaintiff deposed that she continued to contribute to the mortgage repayments for the Kaleen and Coorparoo properties during the period between the separation in January 1992 and the sale of those properties in July 1998 (Coorparoo) and October 2000 (Kaleen). When pressed for details in cross-examination, the plaintiff gave evidence she was paying the monthly amount of $344 that the deceased had asked her to pay. I understood the plaintiff to be referring to the payments that the deceased required the plaintiff to make from about February 1996 to cover the amounts totalling $40,000 that he had borrowed against the security of the Kaleen property in order to lend that sum of $40,000 to the plaintiff. [1] When it was put to the plaintiff in cross-examination that the deceased had made most of the mortgage repayments after their separation, the plaintiff answered: “But there wasn’t to be, supposed to be, a mortgage”. I understood the plaintiff to be referring to her belief that the Kaleen mortgage should have been discharged with the proceeds of her inheritance that she had transferred to the deceased in 1989. [2]

The deceased filed for divorce on 3 September 1992.

The plaintiff gave evidence that she told the deceased in early November 1992 that they needed to arrange a property settlement because she was not coping financially. The deceased replied:

Shortly after that conversation, the deceased gave the plaintiff a cheque for $8,800, and said to her “I know it’s not much but don’t worry, you’ll be rich soon. It’s prostate cancer. I am making a Will and I will make sure you get everything”.

In her affidavit affirmed on 8 September 2021, the plaintiff deposed that, throughout the years following their separation, the deceased said to her on many occasions words to the effect of: “So long as you don’t bring a property settlement now, I’ll leave you everything when I die”. The plaintiff also deposed that, following their separation and “right up until his death”, the deceased “consistently promised me” in words to the effect: “You’ll get what you’re owed when I die”, “You will get everything when I’m gone”, and “When I die, you will be rich”. The plaintiff provided no detail about the timing or context of these statements allegedly made by the deceased during the period of 29 years between their separation in January 1992 and the deceased’s death in January 2021.

On 20 November 1992, the deceased made a will pursuant to which he gave all of his firearms and sporting equipment to Mark and Brendan, gave his horse and a statue to Louisa, and bequeathed the residue of his estate to his trustee to be held on trust to sell in order to pay his debts, funeral and testamentary expenses, to give $100,000 to each of his three children, and to give the remainder to the plaintiff. The terms of the gift to the plaintiff state that it is “to do with as she wishes. However it is my fondest wish that whatever endeavours she pursues with her inheritance she keeps in her heart the welfare of any remaining children”. The children of the deceased and the plaintiff were then 20, 18 and 14 years of age.

The plaintiff gave evidence that the deceased showed her a copy of this will during one of his regular visits to her unit in December 1992. The deceased said to her:

In her affidavit affirmed on 10 May 2022, the plaintiff gave evidence that, having seen that will, and based on her belief that the deceased was terminally ill, she agreed not to commence property settlement proceedings. In cross-examination, the plaintiff gave evidence that she understood that the deceased was giving her the residue of his estate in the hope that she would ultimately benefit Brendan, Louisa and Mark.

It was put to the plaintiff in cross-examination that she knew at the time the deceased showed her his 1992 will that he could change his will at any time. The plaintiff denied this, saying that, at that time, she regarded the deceased as having given his word to leave her his estate as set out in the will, and regarded herself as having promised not to apply for a property settlement.

The plaintiff’s divorce from the deceased became absolute on 14 December 1992.

The plaintiff gave evidence that, in 1993, she was “becoming desperate for financial security” and was considering purchasing two lots of land in a potential subdivision in Watson, which she believed would be a lucrative investment. During one of the deceased’s visits to the plaintiff’s unit at about this time, the deceased told her that he had been cured of his cancer after undergoing surgery. The plaintiff told the deceased that this was wonderful news, “however in that case I need a property settlement. I can’t keep waiting for you to die; there are opportunities opening up for me and I need the money urgently”. The deceased replied: “Ok, but you do not need to go and see a lawyer about a property settlement. Let’s go to the bank and see what they’ll give us. I’ll take a loan out and that can be part [of] your settlement”.

The plaintiff gave evidence that, following that conversation, she and the deceased attended an appointment at the Westpac branch in Civic Canberra together to find out how much the bank would be prepared to lend to the deceased. After assessing the value of the Kaleen property and the Coorparoo property, the bank manager advised the plaintiff and the deceased that the bank could approve a loan of $250,000. The plaintiff signed the loan application documents there and then. The deceased declined to sign all of the documents required to proceed with the loan application. The plaintiff gave evidence that she was distressed about missing the opportunity to purchase the lots in the Watson subdivision, and she continues to feel regret about this.

The plaintiff gave the following evidence about this loan application in cross examination:

It appears from the plaintiff’s evidence above that, when she turned her mind to a property settlement in 1993, her focus was on the money that might be paid to her by way of property settlement, and that she did not turn her mind to her interests in the properties that she owned jointly with the deceased that she might have to give up, either by transferring them to the deceased, or by selling them jointly with the deceased in order to raise the funds that would be paid to her as part of any such settlement.

There is no evidence of any further discussions about a property settlement between the plaintiff and the deceased in 1993 after the loan application did not proceed.

In 1994, the plaintiff moved into a government unit in Campbell together with Brendan and Louisa. The plaintiff gave evidence that, with careful budgeting, she could comfortably afford the rent for this unit out of her welfare payments, and “for a time, I did not think about pursuing a property settlement”.

In about May 1994, the deceased gave the plaintiff two cash payments of $5,000 each, and the plaintiff signed a document acknowledging that she had received the money as part of a property settlement. According to the plaintiff’s evidence, she needed this cash in order to buy a car. The deceased told the plaintiff that he had raised the funds by increasing the mortgage over the Kaleen property. The plaintiff gave evidence that, until that time, she had believed that the deceased had used the proceeds of her father’s inheritance that she had transferred to him in 1989 to discharge the mortgage on the Kaleen property.

The plaintiff gave evidence that, by 1996, she was once again becoming concerned about her financial circumstances. She approached the deceased and told him that she really needed money. On 2 February 1996, the deceased gave the plaintiff two Westpac bank cheques for $15,000 each. One cheque was payable to the plaintiff and the other was payable to Esanda finance. The plaintiff signed a document acknowledging the receipt of $30,000 on 2 February 1996. The document stated:

According to the plaintiff’s evidence, the deceased required her to sign a further document in April 1996 concerning these payments totalling $40,000. On 9 April 1996, the plaintiff signed a document which stated:

The evidence to which I have referred at [40]-[41] above indicates that the payments totalling $40,000 that the deceased made to the plaintiff in May 1994 and February 1996 were funded by the deceased borrowing those funds under a loan facility secured by mortgage against the Kaleen property that he owned jointly with the plaintiff and in which he continued to live following their separation and divorce whilst the plaintiff moved into government-funded housing where she paid rent from her social security allowance. By signing the first document referred to above in February 1996, the plaintiff had undertaken the liability (as between herself and the deceased) to repay that loan to the bank. Those terms are wholly inconsistent with the description of the payments totalling $40,000 as “part property settlement” ‘in the second document which the plaintiff signed at the deceased’s insistence on 9 April 1996.

It is clear from the plaintiff’s evidence in cross-examination that she understood at the time she signed the receipt that the deceased wanted it as a record that the money had been paid to her as part of a property settlement. It was put to the plaintiff that she expected at that time that she would receive further payments by way of property settlement. The plaintiff answered: “Not until I had something to buy”. The plaintiff was then asked whether it had been her custom to ask the deceased for money when she had something she wanted to buy. The plaintiff answered: “No. I wanted, I wanted a settlement so I could get rich. Not, not in little bits and pieces”.

It was put to the plaintiff in cross-examination that, at the time she signed the receipt in April 1996, she did not expect to be a substantial beneficiary under the deceased’s will. The plaintiff answered: “That’s right. He didn’t make it yet”. I understood the plaintiff to be referring to the will that the deceased showed her in March 2015, which he had not yet made in April 1996, [3] and to be accepting the proposition that by April 1996 she was no longer carrying any expectation or assumption concerning the will that the deceased had shown her in December 1992.

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that:

The plaintiff’s affidavit evidence that, in April 1996, she knew that she would receive the deceased’s money one day, having seen his will made in November 1992, and that she “decided to just wait”, is inconsistent with her evidence in cross-examination to which have referred at [36] and [45] above.

The contemporaneous documentary evidence establishes that the deceased obtained legal advice in late 1996 about a property settlement proposal that would have involved the plaintiff transferring her interest in the Kaleen and Coorparoo properties in return for a monetary payment.

On 25 October 1996, Michael Eley of McGuinness Eley, Barristers and Solicitors, wrote to the deceased in the following terms:

Mr Eley wrote two letters to the deceased on 10 December 1996. The first letter confirmed advice given to the deceased during recent discussions in relation to property settlement issues arising between the deceased and the plaintiff. Mr Eley advised that, notwithstanding that their divorce had become absolute on 14 December 1992, the deceased and the plaintiff could apply to the Court by consent for leave to apply for property settlement orders. After referring to the deceased’s instructions concerning the parties’ financial contributions to the marital asset pool, the Kaleen and Coorparoo properties owned by the plaintiff and the deceased at the time of their separation, the debts secured by mortgages against those properties, the $26,000 paid to the plaintiff by the deceased as a “cash advance by way of initial interim property settlement”, and the $40,000 lent by the deceased to the plaintiff, Mr Eley advised that the deceased would have a reasonable claim to between 50 and 60 per cent of the existing equity in the property, resulting in a net payout to the plaintiff of between $24,000 and $46,500, depending on how the Family Court were to treat the $26,000 cash advance and the $40,000 loan.

I note that the description of the $40,000 payments as a loan is consistent with the evidence of the substance of those transactions which I have referred to above.

There is no evidence in these proceedings of any “cash advance” of $26,000 made by the deceased to the plaintiff as referred to in Mr Eley’s first 10 December 1996 letter, other than that letter itself.

Mr Eley’s second letter to the deceased on 10 December 1996 stated:

In cross-examination, the plaintiff gave evidence that she was aware that the deceased was seeking legal advice about a proposed property settlement in 1996, and that she had kept writing to him about a property settlement throughout 1996. However, the plaintiff did not recall the deceased offering to pay her some money in exchange for a transfer of her interest in the Kaleen and Coorparoo properties.

On 22 May 1997, the plaintiff signed a transfer of the Coorparoo property from herself and the deceased (as transferors) to the deceased (as transferee). The consideration recorded on the transfer form is: “Pursuant to property settlement following divorce”. The plaintiff’s signature was witnessed by a justice of the peace. The transfer was never registered.

When asked in cross-examination about signing that transfer form, the plaintiff accepted that it bears her signature but said that she had no recollection of having signed it, and that she always did whatever the deceased asked her to do and she never read documents that he asked her to sign. The fact that the plaintiff’s signature on the transfer was witnessed by a justice of the peace did not assist her to recall anything about signing it, or about the circumstances in which she did so. When asked again whether there was a proposal or some negotiations at this time about a property settlement involving the plaintiff transferring her interest in the Coorparoo and Kaleen properties to the deceased in consideration for a payment, the plaintiff said “No. I, I, I really don’t know anything about that”, and “It was never spelt out to me like that. I signed these … there was so many documents that I never got and I didn’t even understand them”. The plaintiff was unable to offer any explanation for why she had signed the transfer at the time, if not in connection with a potential property settlement. The plaintiff then gave the following evidence:

A short time later in the cross-examination, the plaintiff qualified her evidence referred to immediately above that she was hoping in May 1997 that the deceased’s 1992 will was valid, by acknowledging that she did not regard the deceased as being bound at that time to make and leave unrevoked a will naming her as a substantial beneficiary. That is broadly consistent with the plaintiff’s evidence given in cross-examination earlier that same morning that she had no expectation in April 1996 that she would be a substantial beneficiary under the deceased’s will. [4]

In July 1998, the plaintiff and the deceased sold the Coorparoo property for $188,500. In her affidavit affirmed on 8 September 2021, the plaintiff deposed that the sale produced surplus funds of $140,000, of which the deceased paid her only $10,800. The plaintiff had agreed to sell the property on the understanding that she would receive 50% of the net sale proceeds. She asked the deceased: “Where is the rest of it?”. The deceased replied: “Don’t worry, you’ll get the rest later”. The plaintiff deposed that the deceased refused to give her any more money out of the net sale proceeds. The plaintiff gave inconsistent evidence about the sale of the Coorparoo property in her affidavit affirmed on 10 May 2022. In that affidavit, the plaintiff deposed that the net sale proceeds were approximately $150,000, and that the deceased had retained the whole of those moneys. As will become apparent below, the contemporaneous documentary evidence records that the deceased did in fact pay the plaintiff the sum of $10,800 out of the net sale proceeds of Coorparoo, but not until November 1998.

In about mid-August 1998, the deceased sent the plaintiff a list of expenses that he claimed to have incurred on their Kaleen home during the period between October 1990 and March 1998. The expenses, which totalled $14,816.50 included amounts for the deceased’s labour. The deceased asserted that the plaintiff was indebted to him for those claimed expenses, or to pay some contribution towards them. In cross-examination, the plaintiff gave evidence that she refused to pay any part of this claimed amount to the deceased.

On 28 August 1998, the plaintiff wrote to the deceased in the following terms:

The plaintiff accepted in cross-examination that she had no continuing expectation at the time she wrote this letter that she would be a substantial beneficiary of her former husband’s estate after his death.

As I have already mentioned, the deceased paid the plaintiff the sum of $10,800 on 11 November 1998. According to the plaintiff’s evidence, $6,000 of this sum was paid to her in cash, and the remaining $4,800 was put towards an investment that the deceased managed on behalf of the plaintiff. The plaintiff signed a receipt for the total sum of $10,800. The receipt stated that “[t]his represents part only of my share of the proceeds of sale for 375 Chatswood Rd, Coorparoo Brisbane, a property which was jointly owned by us”.

As I have referred to above, the plaintiff’s evidence inconsistently quantifies the surplus funds from the sale of the Coorparoo property as $140,000 and $150,000. There is no contemporaneous documentary evidence of the amount of the surplus. The only documentary evidence that casts some light on this is the receipt signed by the plaintiff on 11 November 1998 which describes the $10,800 payment there acknowledged as representing only part of her share of the surplus.

The plaintiff gave evidence that, by early 1999, she believed that the deceased did not intend to pay her half share of the net sale proceeds of Coorparoo to her. She told the deceased: “I’ve had enough. This has gone on too long. I am going to go and see a lawyer”. According to the plaintiff’s evidence, the deceased replied: “Do that and I will make sure you lose everything you have”. The plaintiff nevertheless sought legal advice from Ms Barbara Campbell of Meyer Clapham Lawyers, about commencing property settlement proceedings against the deceased.

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that she had many conversations with Ms Campbell regarding the value to the plaintiff of a potential property settlement, and that she can “clearly remember” Ms Campbell telling her words to the following effect:

No such advice or contention concerning the likely quantum of a property settlement appears in any of the contemporaneous correspondence tendered in evidence between Ms Campbell and the plaintiff, or between Meyer Clapham and the solicitors acting for the deceased. Nor did the plaintiff mention in her first affidavit affirmed on 8 September 2021 any advice received from her solicitor to the effect that she would likely be awarded a property settlement in the range of $500,000.

Ms Campbell wrote to the plaintiff on 19 March 1999 in the following terms:

In cross-examination, the plaintiff gave evidence that she received the letter referred to above after attending a conference with Ms Campbell. During that conference, Ms Campbell had asked her why she had not sought a property settlement with the deceased at about the time of their separation and divorce in 1992. The plaintiff gave evidence that she told Ms Campbell that the deceased had told her that she would be left with nothing if she consulted a solicitor. The plaintiff did not recall telling Ms Campbell anything about a medical condition, and gave evidence that she did not know what medical condition Ms Campbell was referring to in her letter dated 19 March 1999.

Ms Campbell wrote to the deceased on behalf of the plaintiff on 24 March 1999:

The deceased appears to have consulted new solicitors at about this time. On 3 June 1999, Mr David Ridge of Barker & Barker, solicitors, wrote to Meyer Clapham advising that he was acting for the deceased. The letter stated:

There is no documentary evidence of the deceased paying to the plaintiff an amount of $60,000 following the sale of the Coorparoo property, as asserted in the letter immediately above. In cross-examination, the plaintiff said that, when she read that letter after the deceased’s death, she could not understand where the writer had got the $60,000 from. It was put to the plaintiff in cross-examination that she had in fact been paid a total amount of $59,600, comprising the payment of $8,800 in 1992, [5] the two cash payments totalling $10,000 in May 1994, [6] the two payments totalling $30,000 in February 1996, [7] and the payment of $10,800 in November 1998. [8] However, that mathematical exercise is incapable of accounting for the assertion that the plaintiff had received approximately $60,000 from the sale of the Coorparoo property. With the exception of the $10,800 payment in November 1998, all of the payments identified by the cross-examiner occurred prior to the sale of Coorparoo in July 1998. The deceased was meticulous in documenting any payment to the plaintiff that he wished to treat as being by way of partial property settlement. The deceased did not create any such document in relation to the $8,800 payment made in 1992. As I have already mentioned, the first document created by the deceased in relation to the May 1994 payments totalling $10,000 and the February 1996 payments totalling $30,000 indicate that these payments were loans that the deceased had facilitated by increasing the loan secured against their jointly owned Kaleen property, which the deceased regarded the plaintiff as obliged to repay. The plaintiff has given evidence that she was in fact making those repayments. The document created by the deceased for the plaintiff to sign in respect of the November 1998 payment of $10,800 referred to this sum as part only of the plaintiff’s share of the Coorparoo net sale proceeds.

On 4 June 1999, Mr Ridge wrote to the deceased requesting all documentation concerning movements of money, mortgages over the Kaleen property, and the deceased’s superannuation and termination payments. Referring to his letter to Meyer Clapham dated 3 June 1999, Mr Ridge stated:

Meyer Clapham wrote to Barker & Barker on 9 June 1999 reiterating their request for a written undertaking from the deceased that he would not dispose of any assets in his possession. The letter stated that court documents would be filed and served in the near future.

Meyer Clapham wrote to the plaintiff on 10 June 1999 enclosing a letter received from Barker & Barker. I infer that the letter referred to was Barker & Barker’s letter dated 3 June 1999. Meyer Clapham’s letter to the plaintiff stated:

Barker & Barker wrote to Meyer Clapham on 16 June 1999 advising that their client declined to provide the requested undertaking on the basis that it appeared to them to be unnecessarily broad. No alternative undertaking was offered. The letter stated:

At some stage between 16 June and 13 July 1999, the plaintiff wrote to the deceased in the following terms:

On 2 August 1999, the plaintiff wrote to Ms Campbell at Meyer Clapham in the following terms:

As the defendant submitted, the plaintiff gave two inconsistent explanations for instructing her solicitor to “put the file on hold” at this time.

In her affidavit affirmed on 8 September 2021, the plaintiff deposed that:

As counsel for the defendant put to the plaintiff in cross-examination, the contemporaneous correspondence is devoid of any reference to any alleged promise by the deceased to leave all or any part of his estate to the plaintiff in his will. No such promise is mentioned in the plaintiff’s letter to the deceased in late June or early July 1999, in the contemporaneous correspondence between Ms Campbell and the plaintiff, or in the correspondence between Meyer Clapham and the deceased’s solicitors. In cross-examination, the plaintiff agreed that she did not expect to receive a significant part of her former husband’s estate after his death at the time that she was instructing Ms Campbell in 1999.

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that:

The plaintiff’s evidence of the deceased’s threats of violence was not challenged in cross-examination.

In her affidavit affirmed on 10 May 2022, the plaintiff gave evidence that, after discovering a beautiful farm at Michelago that she wanted to purchase in late 1999, she told the deceased that “we need to sell Kaleen. I have found my dream home and I need the money to buy it. I let go of the property settlement for you. Your now need to do this for me”. The plaintiff deposed that the deceased replied: “Okay, we’ll do it”. The plaintiff then deposed that:

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that she wrote to the deceased on 20 June 2000 in the terms set out below because the deceased had still not paid her any of the proceeds of the sale of the Kaleen property. The plaintiff described her 20 June 2000 letter to the deceased as “begging him to agree to a property settlement and provide me with my share of the assets”.

As will become apparent below, the plaintiff’s evidence about the timing of the sale of the Kaleen property, and the net proceeds of that sale, is inconsistent with the contemporaneous documentary evidence which establishes that the property was sold for $235,500 pursuant to a contract for sale dated 1 September 2000 which was completed on 11 October 2000. The total sale price was less than the amount of the “net profit” which the plaintiff asserted in her 10 May 2022 affidavit that the deceased retained from selling the Kaleen property. The deceased’s failure to pay the plaintiff’s share of the net proceeds to her following completion of the sale cannot have been the cause of the plaintiff writing to the deceased some three months earlier on 20 June 2000 in the terms set out below.

When the discrepancy between the plaintiff’s affidavit evidence about the sale of the Kaleen property, and the contemporaneous documentary evidence, was put to her in cross-examination, the plaintiff gave the following evidence:

It appears from the plaintiff’s ultimate acknowledgement that she did not know what the surplus of the Kaleen sale was because “I didn’t see it” and “I didn’t hear it from Tony”, that the plaintiff’s evidence in her 10 May 2022 affidavit that the Kaleen property was “sold for a net profit of $290,000” was mere guesswork. That guesswork has been shown by the contemporaneous documents to be wrong.

The letter that the plaintiff wrote to the deceased on 20 June 2000 was in the following terms:

In cross-examination, the plaintiff gave the following evidence about whether she expected at the time she wrote that letter in June 2000 that she would be a substantial beneficiary under the deceased’s will (emphasis added):

It is not clear from the evidence what the plaintiff was referring to in her non-responsive answer when she mentioned the deceased bringing her a cheque for $1,000 at a time when the plaintiff asserts that “the whole settlement money” was $200,000. There is no evidence that the plaintiff and the deceased had discussed a property settlement involving a lump sum payment to the plaintiff of $200,000 in or about 2000.

Contemporaneous documentary evidence establishes that the plaintiff and the deceased entered into a contract on 1 September 2000 for the sale of the Kaleen property for $235,500. The contract was completed on 11 October 2000.

The plaintiff paid a deposit of $40,000 for the Michelago farm on exchanging contracts in October 2000. The plaintiff gave evidence that she had saved those funds for the deposit from money that the deceased had previously paid to her. Settlement was due in December 2000. In her affidavit affirmed on 10 May 2022, the plaintiff deposed that she wrote to the deceased on several occasions over the settlement period for the Michelago farm “demanding the Deceased transfer the outstanding settlement sum by way of a property settlement”. No such correspondence was tendered in evidence. The plaintiff did not specify what she believed at that time to be the amount of the “outstanding settlement sum”. However, it appears from the following further evidence given by the plaintiff in her 10 May 2022 affidavit that she expected the deceased to pay her by way of property settlement an amount equivalent to the whole of the sum of approximately $399,000 that the plaintiff required in order to settle her purchase of the Michelago farm:

The receipt signed by the plaintiff was in the following terms:

The description of the bank cheque in that receipt is consistent with a copy of the bank cheque that was tendered in evidence. The cheque was drawn in the amount of only $49,000. Presumably, the deceased wrote a separate cheque for the sum of $100,000 that he paid to the plaintiff at the same time.

The plaintiff’s account in her 10 May 2022 affidavit of her conversation with the deceased on the occasion that he gave her the cheques is inconsistent with her earlier account of that conversation in her affidavit affirmed on 8 September 2021. In that earlier affidavit, the plaintiff deposed that she had agreed to the sale of the Kaleen property on the understanding that she would receive 50 per cent of the net surplus. The plaintiff deposed that the net surplus was $290,000 (which is wrong, as I have explained above), and that the deceased gave her one cheque for $149,000, and told her that $100,000 of that amount represented her share of the Kaleen surplus and that the remaining $49,000 was “given as a loan with interest”. The plaintiff continued:

In cross-examination, the plaintiff gave inconsistent evidence about the statement that she attributed to the deceased in her 8 September 2021 affidavit: “Don’t worry about that now, I’ll make sure you get the rest when I’m gone. You’ll be rich when I’m gone”. The plaintiff initially maintained that the deceased said this during the conversation in which he handed her the cheque in December 2000. A very short time later in the cross-examination, the plaintiff said that the deceased said this at a later time.

After receiving only $149,000 in total from the deceased, the plaintiff negotiated with the vendors of the Michelago farm to complete her purchase with a $250,000 vendor finance interest-free loan repayable after three years. The plaintiff completed her purchase of that property on 14 December 2000.

In her affidavit affirmed on 10 May 2022, the plaintiff gave the following evidence of a conversation that she says she had with the deceased in early 2003 when he came to the Michelago farm to help her protect it from bushfires that were affecting the area at that time:

It was put to the plaintiff in cross-examination that this conversation did not occur in those terms because, by early 2003, it was the deceased’s position that the plaintiff owed him money, not the other way around. Specifically, the deceased’s position was that the plaintiff had already been paid her entitlement from the sale of the Coorparoo and Kaleen properties and that the plaintiff owed him the $49,000 that the deceased had lent her in December 2000 when she purchased the Michelago farm. The plaintiff acknowledged that this was the deceased’s position, but said that she did not agree with the deceased’s position that she had already been paid her entitlement from the sale of the Coorparoo and Kaleen properties, and did not resile from her evidence that the conversation occurred.

In the same affidavit, the plaintiff gave evidence of a further conversation that she says she had with the deceased when she met with him for coffee about six months after the conversation during the bushfires referred to above:

The plaintiff deposed:

Again, it was put to the plaintiff in cross-examination that this conversation did not occur in those terms, having regard to the deceased’s position at the time that the plaintiff had already been paid her entitlement from the sale of the Coorparoo and Kaleen properties and owed him the $49,000 that he had lent to her in December 2000. The plaintiff maintained that the conversation did take place.

On 21 August 2003, the deceased lodged a caveat on the Michelago farm claiming an interest in the property pursuant to an equitable charge on the terms of an agreement made on 13 December 2000. The plaintiff gave evidence that she was “very angry” about the caveat.

On 3 October 2003, the plaintiff wrote to the deceased in the following terms:

Neither party adduced any evidence in these proceedings of any meeting between the plaintiff and the deceased on or about 3 October 2003. In cross-examination, the plaintiff confirmed that, as this letter suggests, she had asked the deceased for additional money by way of property settlement many times in the period up to October 2003. It was put to the plaintiff that the letter also suggests that the deceased consistently responded by articulating reasons why he did not believe that he should have to pay the plaintiff any more money. The plaintiff denied that the letter should be read in that way.

The plaintiff’s sons, Brendan and Mark, repaid the $250,000 that the plaintiff owed for the vendor finance loan of the Michelago farm in late 2003. They allowed the plaintiff to continue living on the farm on the condition that she would sell the farm to them in the future.

There is no evidence of any discussions between the plaintiff and the deceased about property settlement after October 2003. Nor is there evidence of any further discussions about the deceased’s will until March 2015, when the deceased gave the plaintiff a copy of a new will that he had made on 24 March 2014.

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that she sold the Michelago farm to Brendan, Mark and Louisa in 2005, and that she believed that the price was $579,000 although she no longer had access to documents concerning the sale. The plaintiff deposed that she received the sum of $270,000 in respect of the sale, after Brendan and Mark deducted from the purchase price the $250,000 that they had paid to discharge the plaintiff’s debt in late 2003 plus $59,000 which the plaintiff believes that they paid directly to the deceased in respect of the $49,000 loan made at the time that she purchased the Michelago farm together with $10,000 that the deceased claimed as interest on that loan so as to procure the deceased’s removal of the caveat in order to facilitate the transfer of the property from the plaintiff to her three children.

The plaintiff’s maths would be correct if the price for which she sold the Michelago farm to her children was $579,000. However, the transfer dated 15 October 2004, which was registered on 1 November 2004, records the sale price as $750,000. Thus, the plaintiff’s testimony is inconsistent with the contemporaneous documentary evidence in relation to both the timing of the sale and the sale price. As counsel for the defendant put to the plaintiff in cross-examination, that leaves approximately $171,000 of the purchase price unaccounted for. The plaintiff denied receiving anything more than the $270,000 referred to in her affidavit, but was unable to explain what had happened with the whole of the $441,000 net proceeds after repayment of $250,000 to the former owners and the payment of $59,000 to the deceased. The plaintiff said that it was “not possible” that she had received net proceeds of $441,000 from the sale.

In her affidavit affirmed on 10 May 2022, the plaintiff gave evidence that she travelled around New South Wales between 2005 and 2008, returning to stay at the Michelago farm frequently. According to the plaintiff’s evidence, the deceased would also come to visit the farm while she was there, and they continued an intimate relationship during this period. The plaintiff deposed that:

The plaintiff gave evidence that she used the net proceeds of the sale of the Michelago farm to buy a house in Cowra in 2008, and that she had about $65,000 of the Michelago sale proceeds left after completing her purchase of the Cowra property. The contemporaneous documentary evidence shows that the Cowra property was transferred to the plaintiff in August 2007. The transfer records that the purchase price was $285,000. As the plaintiff had surplus funds after paying that price, it is likely that she did receive more than $270,000 out of the sale proceeds of the Michelago farm in 2005.

In cross-examination, the plaintiff gave evidence that she rarely saw the deceased during the period in which she lived at Cowra. As will become apparent below, the plaintiff lived at Cowra from 2008 until 2017 when she sold that property.

According to the plaintiff’s affidavit affirmed on 10 May 2022, the deceased persuaded her in March 2012 to pay to him the $65,000 that she says she had left over from the sale of the Michelago farm to hold it for the plaintiff until she needed it. The plaintiff gave the deceased a cheque for that amount, and the deceased signed a receipt on 30 March 2012 acknowledging receipt of that sum. The terms of the receipt suggest that the payment was a loan from the plaintiff to the deceased, rather than a sum that the deceased was holding for the benefit of the plaintiff. The plaintiff described the payment as a loan to the deceased in her first affidavit affirmed on 8 September 2021.

The plaintiff gave evidence that, at about the same time, the deceased convinced her to transfer 5,000 Telstra shares into his name so that he could manage them on the plaintiff’s behalf, on the basis that the deceased would sell them or transfer them back into the plaintiff’s name at her request.

From March 2012 until his death, the deceased held the Telstra shares and created documents from time to time that appear to account to the plaintiff for the dividends on those shares. The deceased also paid some interest on the sum of $65,000. For example, the deceased sent an email to the plaintiff on 19 May 2018 attaching Telstra dividend statements, informing her that he had reinvested dividends totalling $3,844 in more shares, and offering to pay her the sum of $3,844 and hold those additional shares for himself if she preferred to have the dividends in cash. By way of further example, a box of papers maintained by the deceased and provided to the plaintiff after his death contained an ANZ electronic payment receipt for a payment of $4,675 made by the deceased to the plaintiff on 28 November 2019. A handwritten note on the document records that the payment related to interest on a sum of $65,000 at the rate of 2.5% over a period of two years ($3,250) plus “Telstra Sept 18 – Sept 19” ($1,425). I infer that the $1,425 component of the payment related to dividends paid on the Telstra shares held by the deceased for the plaintiff during the period between September 2018 to September 2019.

Ms Boudville, the deceased’s partner of 23 years, passed away in 2012. The plaintiff gave evidence that she had known about the deceased’s relationship with Ms Boudville from the time that the relationship began in 1989, and that she observed the deceased grieve for Ms Boudville for many years after her death in 2012. The deceased sometimes talked to the plaintiff about how much he loved Ms Boudville.

In cross-examination, the plaintiff agreed that, at the times when the deceased was speaking to her about his relationship with Ms Boudville, the plaintiff had no expectation that she (that plaintiff) would be a substantial beneficiary under her former husband’s will.

In 2013, the deceased moved to Bodalla, which is a little more than four hours’ driving time from Cowra. The plaintiff acknowledged in cross-examination that she had rarely seen the deceased after she moved to Cowra in 2008, and it continued to be the case that she rarely saw him after he moved to Bodalla in 2013.

On 24 March 2014, the deceased made a new will leaving his residuary estate after payment of all legally enforceable debts, funeral expenses and administration costs was left to Ms Hayward’s daughter (as to 20 per cent), his sister Giuseppa Siracusa (as to 10 per cent), and the plaintiff (as to 70 per cent).

In her affidavit affirmed on 10 May 2022, the plaintiff deposed that the deceased came to stay with her in Cowra in about March 2015 and gave her a copy of this new will, saying:

The plaintiff deposed that, although the 2014 will left her less than the 1992 will, she was satisfied that “the Deceased was keeping his promise to me that he would provide for me in his death”.

As was put to the plaintiff in cross-examination, the gift to her under the 2014 will was in fact different to that which the plaintiff claims the deceased promised to her in and from 1992. The plaintiff gave the following evidence in cross-examination:

The plaintiff deposed that, from the time the deceased gave her the 2014 will until the end of his life, he would say words to the following effect whenever they discussed money:

In cross-examination, the plaintiff gave evidence that she and the deceased had no further discussions about property settlement after 2014, and that “it was always ‘I will make you rich and will leave you 70%’. That’s all he ever talked about it, not settlement”.

According to the evidence of Ms Grimm, she commenced a de facto relationship with the deceased in 2014, and that relationship continued until his death in January 2021. The plaintiff gave evidence that Ms Grimm introduced herself to the plaintiff as “Tony’s partner” on the one and only occasion that the plaintiff met Ms Grimm in about April 2016. According to the plaintiff’s evidence, the deceased told her on that occasion, and on many subsequent occasions, that Ms Grimm was not his partner and was merely a friend whom the deceased was allowing to live in his home because she was in financial difficulty. According to Ms Grimm’s evidence, however, they were a de facto couple who cared for and supported one another, including Ms Grimm accompanying the deceased to his oncology visits from November 2019 when he was diagnosed with Stage 3 liver cancer. Ms Grimm was not required for cross-examination.

The plaintiff gave evidence that, in the years leading up to his death, the deceased would often say to her words to the following effect:

In her affidavit affirmed on 10 May 2022, the plaintiff gave evidence that she last spoke to the deceased about his 2014 will in December 2019. According to the plaintiff’s evidence:

Josie was the deceased’s sister, Giuseppa Siracusa, who was named in the 2014 will as the beneficiary of 10 per cent of the deceased’s residuary estate.

At the time that the plaintiff says she had the conversation with the deceased in December 2019, the plaintiff was living in Downer in the Australian Capital Territory and the deceased was living in Bodalla together with Ms Grimm. Ms Grimm gave the following evidence in response to this part of the plaintiff’s evidence:

The plaintiff gave evidence that she last saw the deceased on 22 January 2021, when Brendan brought him to visit her, and they lay together and reminisced about their lives together.

The plaintiff gave evidence that, unbeknownst to her, the deceased made several new wills after 2014. The plaintiff deposed that she was devastated to learn after his death that those subsequent wills did not provide for her adequately or at all, and that the deceased had been lying to her about the validity of the 2014 will for years. Neither party tendered or adduced evidence of the contents of any post-2014 will other than the deceased’s last will made on 27 January 2021.

The deceased died on 29 January 2021.

By his last will on made 27 January 2021, just two days before he died, the deceased:

The plaintiff learned about the terms of the deceased’s last will after his death on 29 January 2021. In cross-examination, the plaintiff was asked whether she felt angry when she learned that Ms Boudville’s daughters were to receive more of the deceased’s estate than the plaintiff and her three children. The plaintiff answered that she was angry that the deceased gave Ms Boudville’s children more than he gave to his three children with the plaintiff. It is very difficult to reconcile this answer with the plaintiff’s allegation underpinning her claims in these proceedings that the deceased had promised to leave the whole or the bulk of his estate to her.

In her affidavit affirmed on 10 May 2022, the plaintiff gave the following evidence of her view of her relationship with the deceased during the period from their separation and divorce in 1992 until his death in 2021:

The plaintiff’s affidavit evidence describing a lifelong romantic and physically intimate relationship with the deceased, who regularly visited her and relied on her as a source of support, comfort and physical intimacy right up until his death in 2021, is starkly inconsistent with her evidence in cross-examination that she rarely saw the deceased after 2008. [9]

In her affidavit affirmed on 8 September 2021, the plaintiff deposed that, after her separation from the deceased, she “acquiesced with [his] refusal to provide me with a proper property settlement or adequate maintenance on the basis that he continued to promise me that I would receive everything when he died”.

In her subsequent affidavit affirmed on 10 May 2022, the plaintiff deposed that she has come to think that she “was wrong to believe the Deceased’s lie that I would be better off just waiting for him to die”.

The plaintiff’s pleaded case relies on three categories of alleged representations.

The plaintiff pleads that the deceased represented to her from the time of their separation in January 1992 that, if she did not “bring a property settlement against him”, he would leave “the bulk of his estate” to her upon his death. According to the particulars, this alleged representation was made by the deceased orally and “repeated on many occasions during conversations” between the plaintiff and the deceased during the period from 1992 to 2021. These alleged representations are confusingly defined in the singular as “the First Representation”. In submissions during the course of the hearing, the plaintiff expanded the particulars of the alleged first category of representations to include not just the alleged oral representations, but also the deceased’s act in making the 1992 will and in providing a copy of that will to the plaintiff.

It is pleaded that the deceased made the first category of alleged representations with the intention that the plaintiff would rely on them, and that the plaintiff did rely on them to her detriment, including by: (1) allowing the deceased to retain all of the assets of the marriage, by not pressing for a property settlement from 1992; (2) by paying rent for accommodation during the period from 1992 until 1999; (3) by accepting “only modest maintenance payments and loans from the Deceased in order to live” during the period between 1992 to 2021; (4) by continuing to contribute to repaying the loans secured by mortgage over the marital assets after she separated from the deceased in 1992; and (5) by not pressing for her proportionate share of the proceeds of sale of assets that she owned or had contributed to. It is pleaded that the deceased knew that the plaintiff relied on the first category of alleged representations because the plaintiff did not commence property settlement proceedings against him.

It is further pleaded that the plaintiff has suffered detriment, in that: (1) she did not receive a property settlement; (2) she did not receive her proportionate share of the proceeds of sale of assets that she owned or contributed to; (3) she paid rent; (4) she did not have the opportunity to purchase real estate and the opportunity to benefit from capital gains; and (5) she did not have the opportunity to invest the proceeds of any property settlement and the opportunity to benefit from any gains.

The second category of alleged representations pleaded by the plaintiff are representations that the deceased’s will made on 20 November 1992 was his current will, and that the benefit provided for the plaintiff under that will would remain unchanged “so long as she did not push for a property settlement”. According to the particulars, the alleged representation was oral and was “made and repeated on many occasions during conversations” between the plaintiff and the deceased during the period from November 1992 to January 2014. Again, these alleged representations are confusingly defined in the singular as “the Second Representation”.

It is pleaded that the plaintiff relied on the second category of alleged representations to her detriment, including by: (1) not pressing for a property settlement; (2) continuing to allow the deceased to retain the benefit of all of the assets and property of their marriage; (3) paying rent for her accommodation during the period from 1992 to 1999; (4) accepting only modest maintenance payments and loans from the deceased from 1992 in order to live; (5) continuing to contribute to repaying the loans secured by mortgage over the marital assets after she separated from the deceased in 1992; and (6) by not pressing for her proportionate share of the proceeds of sale of assets that she owned or had contributed to. It is pleaded that the deceased knew that the plaintiff relied on the second category of alleged representations because the plaintiff did not commence property settlement proceedings against him.

It is further pleaded that the plaintiff has suffered detriment, in that: (1) she did not receive a property settlement; (2) she did not receive her proportionate share of the proceeds of sale of assets that she owned or contributed to; (3) she paid rent; (4) she did not have the opportunity to purchase real estate and the opportunity to benefit from capital gains; and (5) she did not have the opportunity to invest the proceeds of any property settlement and the opportunity to benefit from any gains.

The third category of alleged representations pleaded by the plaintiff are representations that the deceased’s will made on 24 March 2014 was his current will, and that the 70% share of the deceased’s residuary estate given to the plaintiff under that will “would remain her entitlement under his will”. According to the particulars, the alleged representation was oral and was “made and repeated on many occasions during conversations” between the plaintiff and the deceased during the period from 2014 to 2021. Again, these alleged representations are defined in the singular as “the Third Representation”.

It is pleaded that the plaintiff relied on the third category of alleged representations to her detriment, including by: (1) not pressing for a property settlement; (2) continuing to allow the deceased to retain the benefit of all of the assets and property of their marriage; (3) accepting only modest maintenance payments and loans from the deceased in order to live; and (4) not pressing for her proportionate share of the proceeds of sale of assets that she owned or had contributed to. It is pleaded that the deceased knew that the plaintiff relied on the third category of alleged representations because the plaintiff did not commence property settlement proceedings against him.

It is further pleaded that the plaintiff has suffered detriment, in that: (1) she did not receive a property settlement; (2) she did not receive her proportionate share of the proceeds of sale of assets that she owned or contributed to; (3) she did not have the opportunity to purchase real estate and the opportunity to benefit from capital gains; and (4) she did not have the opportunity to invest the proceeds of any property settlement and the opportunity to benefit from any gains.

The plaintiff pleads that it was unconscionable for the deceased to resile from the first, second and third categories of representations, and that the defendant therefore holds 70% of the deceased’s estate on constructive trust for the plaintiff. Alternatively, it is pleaded that the defendant holds the estate subject to an equitable lien in favour of the plaintiff, or that the defendant should pay equitable compensation to the plaintiff. The claims for relief in the Amended Statement of Claim do not include any claim for a declaration of constructive trust or an equitable lien. The only relief sought that is referable to the pleaded promissory estoppel claim is equitable compensation in a sum that is not specified in the pleadings, but which I understood counsel for the plaintiff submitted should be quantified as an amount equivalent to 70% of the net distributable assets of the deceased’s estate.

I acknowledge the submissions made by counsel for the plaintiff to the effect that the doctrine of promissory estoppel acts not only as a restraint on the enforcement of legal rights, but also as a source of obligation, referring to passages from the judgment of Mason CJ and Wilson J and the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher. [10] However, the Court of Appeal held in Saleh v Romanous that promissory estoppel “is not the equitable equivalent of a contract”, and operates as a restraint on the enforcement of rights and must therefore be negative in substance. [11] In Ashton v Pratt, Bathurst CJ observed that there is a significant body of authority to that effect, whilst also acknowledging significant dicta to the contrary. [12] I respectfully agree with and embrace Peden J’s conclusion in Fiorenza v Fiorenza, [13] referring to Nock v Maddern, [14] that, until this uncertainty is resolved, I am bound by the decision of the Court of Appeal in Saleh v Romanous, “the effect of which, on lower courts, is that promissory estoppel must be viewed only as a restraint on the enforcement of rights, and negative in substance”. Counsel for the plaintiff ultimately acknowledged that, as a Judge of the Equity Division of this Court, I am so bound.

Counsel for the plaintiff then submitted that the alleged representations underpinning the plaintiff’s promissory estoppel claim in the present case can be “reframed”, in order to “adapt” her case to Saleh v Romanous, as representations that the deceased would not exercise his right of testamentary freedom to change his will. It was submitted on this basis that the doctrine of promissory estoppel operated to constrain the deceased from changing his 1992 will, but counsel for the plaintiff acknowledged that her acquiescence to the changes made by the 2014 will meant that she could not “resurrect the 1992 will” and that she could not ask for anything more than what the deceased had decided under his 2014 will, which the plaintiff had accepted at that time.

I reject the submission that the deceased’s alleged representations can be “reframed” in this way so as to permit the plaintiff to rely on the doctrine of promissory estoppel without offending the limitations on its operation articulated in Saleh v Romanous. If that submission were to be accepted, then it would be possible to enforce any representation through the doctrine of promissory estoppel merely by “reframing” the exercise as one of restraining the representor from exercising a legal right to act inconsistently with the representation, being a right at large that the representor has but for the estoppel that the representee seeks to raise. That would be contrary to Saleh v Romanous, which the Court of Appeal made it clear that promissory estoppel operates as a restraint on the enforcement of rights that the representor would otherwise be able to enforce against the representee in circumstances where it would be inequitable for the representor to enforce those rights having regard to the dealings that have taken place between the parties. [15]

The plaintiff’s promissory estoppel claim must be dismissed for those reasons alone. However, in a case a different view might be taken on any appeal about the availability of the doctrine of promissory estoppel to restrain the deceased from departing from the alleged representations, I will briefly address the elements articulated by Brennan J (as his Honour then was) in Waltons Stores (Interstate) v Maher: [16]

Those elements are not to be applied in every case in a mechanical fashion. However, if those elements are not satisfied in a particular case, “it would be necessary to think thoroughly about why not”. In particular, it is not necessary for a plaintiff to show that they assumed or expected that “a particular legal relationship” existed or would exist, or that the alleged promise was irrevocable. As Ward P put it in Slade v Brose, “[i]t is unconscionability, rather than ‘ticking the box’ of each of Brennan J’s elements, which will be decisive”. [17] The plaintiff in the present case bears the onus of proving each of the elements on which she relies.

First, the plaintiff must prove on the balance of probabilities that the deceased made the alleged representations.

If proved to have been made, the representations must be sufficiently clear to support an estoppel. This requirement will be satisfied if it was reasonable for the plaintiff to have interpreted the representations in the way that she did (being an interpretation that the representations were clearly capable of bearing), and if it was reasonable for the plaintiff to rely on the representations. [18] The plaintiff must establish that the representations were something more than a mere statement of the deceased’s revocable testamentary intentions at the time of each alleged representation. It is not enough if the plaintiff merely hoped, or even confidentially expected, that the deceased would do the right thing. [19]

The plaintiff must prove that, induced by the representations, she did in fact assume that she would receive the deceased’s estate, or the bulk of his estate, upon his death. [20] That assumption may arise from the deceased’s words and conduct over a period of time, rather than from any one conversation. [21] The plaintiff must also prove that she relied on that assumption, in the sense that she would have acted differently but for the assumption. However, it is not necessary that the assumption was the sole inducement operating on the plaintiff’s mind. [22]

The purpose of the doctrine of equitable estoppel is “to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting”. [23] The plaintiff must prove that she has suffered, or will suffer, detriment if the deceased is permitted to resile from the relevant representation or promise. The detriment is assessed as at the time that the party said to be estopped seeks to resile or depart from the relevant representation. The use of counter-factual reasoning can assist in determining whether detriment has been established. The relevant counterfactual is not what the plaintiff would have done if the promise had never been made, but rather what the plaintiff would have done if, the promise having been made, the plaintiff had been told at an earlier point in time that it would not be kept. [24]

The alleged representations are said to have been made by the deceased in various conversations with the plaintiff over a period of almost 30 years from January 1992. Those alleged conversations are not said to have been witnessed by any other person. The alleged representations are not said to have been reduced to writing at any time. The only evidence of the alleged representations is that given by the plaintiff in her affidavits sworn in these proceedings and during cross-examination.

The Court is required to scrutinise very carefully the plaintiff’s uncorroborated evidence of conversations with the deceased, who is obviously unable to respond to the evidence. [25]

The well-known fallibility of human memory of what was said in conversations that occurred many years or even decades ago is a further reason to exercise caution when assessing the plaintiff’s evidence. [26]

The poor quality of the plaintiff’s memory of the period in which the representations are alleged to have been made is demonstrated by her inability to recall signing the transfer of the Coorparoo property in May 1997, [27] and her erroneous recollection about the timing of the sale of the Kaleen property and the amount of the net sale proceeds. [28]

Further doubts about the reliability of the plaintiff’s evidence arise from: (1) her inconsistent evidence about her reasons for withdrawing from the property settlement negotiations with the deceased in August 1999; [29] (2) her inconsistent evidence about what the deceased said to her in December 2000 when she complained about the amount that he paid to her following the sale of the Kaleen property immediately before she completed her purchase of the Michelago farm; [30] (3) the inconsistencies in her evidence about whether she expected that she would be a beneficiary under the deceased’s will during the period after 1993 when he had told her that his cancer was cured and she was aware that he was in what she regarded as a loving relationship with Ms Boudville; [31] (4) the inconsistency between her clear evidence given without hesitation in cross-examination that she rarely saw the deceased after 2008, and her affidavit evidence describing a lifelong physically intimate and romantic relationship with the deceased characterised by frequent visits from the deceased and the plaintiff being subjected to coercion and sexual control; [32] and (5) the inconsistency between the plaintiff’s evidence attributing her anger when she learned about the terms of the deceased’s last will to the fact that their three children were to receive less than Ms Boudville’s children, with the plaintiff’s allegation that is central to her claims in these proceedings that the deceased had promised to leave the whole or the bulk of his estate to her. [33]

For those reasons, I approach the task of making findings about whether the alleged representations were made and, if so, whether the plaintiff reasonably relied on them to her detriment, by placing primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities. [34] Ultimately, the Court must feel actual persuasion that the alleged representations were made and that the plaintiff relied on them to her detriment as she alleges. [35]

There is no evidence that the plaintiff raised the question of property settlement with the deceased, or that the deceased said anything to her about his will, at any time prior to the conversation in early November 1992 referred to below, which was closely followed by the deceased showing her his will in December 1992.

I accept the plaintiff’s evidence that she told the deceased in about early November 1992 that they needed to arrange a property settlement because she was not coping financially, and that the deceased responded by telling her that he was very sick with what the doctors thought was cancer, that he thought he did not have long to live, and that she should not worry about seeing a lawyer because he would leave her everything when he died. That evidence is consistent with: (1) the undisputed facts that the plaintiff was at that time reliant on social security benefits and was having to pay rent for the apartment in which she was living with two of their three children; (2) the inherent probability that, facing his cancer diagnosis and believing that he did not have long to live, the deceased would have wished to ensure that the plaintiff was in a position to provide for their teenage and young adult children after he died; and (3) the objective fact of the terms of the will that the deceased made and showed to the plaintiff shortly after this conversation. [36]

I also accept the plaintiff’s evidence that, in December 1992, the deceased showed her a copy of his will made on 20 November 1992. It is inherently probable that the deceased showed the plaintiff a copy of his will in order to reassure her that he was providing for her after his death as he had promised a short time earlier in circumstances where the deceased then believed that he would lose his life to cancer before long. [37]

I do not feel actual persuasion that the deceased said to the plaintiff on that occasion in December 1992 words to the effect that “I’m leaving you everything”, and that “all of my assets are tied up in shares, but you will receive it all upon my death”. [38] That aspect of the plaintiff’s evidence is inconsistent with the objective facts that: (1) the terms of the deceased’s will did not leave the plaintiff with “everything”, but left her with his residuary estate after the gifts totalling $300,000 to his children; and (2) it is not true that all of the deceased’s assets were tied up in shares in December 1992, as the deceased owned the Kaleen and Coorparoo properties jointly with the plaintiff. The correspondence between solicitors acting for the plaintiff and for the deceased during the 1999 property settlement negotiations makes no mention of the matrimonial assets or the assets of the deceased at the time of the separation and divorce including any share portfolio. [39]

However, I accept the plaintiff’s evidence that the deceased said to her when he showed her his will in December 1992 words to the effect of “if you go and see a lawyer about a property settlement you will ruin everything and I will leave you with nothing”. [40] Although the deceased was later prepared to engage directly with the plaintiff in relation to a potential property settlement, including in 1993 when he contemplated taking out a loan in order to facilitate a settlement, it is inherently probable viewing his conduct in the property settlement negotiations during the period from 1993 to 2003 as a whole that he said things to discourage the plaintiff from obtaining legal advice about her entitlements. The first letter of advice that the plaintiff received from her solicitor in March 1999 records the plaintiff’s instructions to her solicitors that the deceased had exerted psychological pressure on her and threated to “leave [her] with nothing should [she] see a lawyer”. [41]

The plaintiff relies on her evidence that the deceased said to her “on many occasions” in the 29 years following their separation until his death in 2021 words to the effect of: “So long as you don’t bring a property settlement now, I’ll leave you everything when I die”, “You’ll get what you’re owed when I die”, “You will get everything when I’m gone”, and “When I die, you will be rich”. [42] Taking into account the inherent fallibility of evidence of this nature to which the deceased is unable to respond, and having regard to the demonstrated unreliability of material aspects of the plaintiff’s evidence concerning various matters in the same period in which she claims that the deceased made these statements, and the plaintiff’s inability to place any of the alleged statements in a particular time or context within the 29 year period, I do not feel actual persuasion that the deceased made those statements. The plaintiff’s evidence that the deceased made those statements to her “on many occasions” in years following their separation is inconsistent with the course of events revealed by the documentary evidence, which shows that the plaintiff was pressing the deceased for a property settlement almost constantly from 1993 when the deceased told her that his cancer had been cured until October 2003 and that, rather than seeking to dissuade the plaintiff from asking for any property settlement, the deceased was willing to enter into property settlement negotiations, albeit only in a manner that, viewed objectively, was calculated to deprive the plaintiff of the benefit of legal advice, to minimise any payment to the plaintiff and to cement his own hold on the assets that had been accumulated during their marriage, and to deprive the plaintiff of information about those assets. There is no evidence of any property settlement discussions after October 2003, and no evidence of any cause or occasion for the deceased to have made statements to the plaintiff to the effect that she has alleged after that time. Indeed, it is inherently improbable that the deceased would have made statements to the effect that he would leave her “everything”, in circumstances where he had not in fact left all of his estate to her under his 20 November 1992 will which he had shown to her. [43]

I do not feel actual persuasion that the deceased said to the plaintiff in December 2000 when paying her $100,000 from the sale proceeds of the Kaleen property together with an additional $49,000 as a loan that “I’ll make sure you get the rest when I’m gone”. I do not feel actual persuasion for the reasons explained at [160]-[163] above, including that the plaintiff’s evidence about what the deceased said on that occasion is inconsistent between two of her affidavits, and a further inconsistency emerged in cross-examination. [44]

The plaintiff relies on her evidence that, when she spoke with the deceased about property settlement in about mid-2003, the deceased referred to his will, saying “It’s really happening this time. I’m dying. But this is good news for you. You’ve seen my Will, you are getting everything I have”. [45] I reject that evidence for the reasons explained at [160]-[163] above, and for the further reason that it is inconsistent with the objective fact that the deceased’s 20 November 1992 will which was current at the time of this alleged conversation did not in fact leave “everything” to the plaintiff.

For those reasons, I find that deceased represented to the plaintiff in about early November 1992 that he was very ill with cancer, that he thought he did not have long to live, and that she should not worry about seeing a lawyer to obtain a property settlement because he would leave her everything when he died (the November 1992 representation). I further find that, in December 1992, the deceased showed the plaintiff a copy of his will made on 20 November 1992 thereby representing that he would leave her a material portion of his estate under his will after providing for their children, and that the deceased said to the plaintiff at that time words to the effect of “if you go and see a lawyer about a property settlement you will ruin everything and I will leave you with nothing” (the December 1992 representation). The plaintiff has otherwise failed to prove the first and second categories of alleged representations.

I find that the plaintiff did not rely on the November 1992 representation or the December 1992 representation after the deceased told her in 1993 that he had been cured of his cancer. According to the plaintiff’s own evidence, she changed course at that time by deciding to pursue a property settlement. [46] As I have already said, the plaintiff maintained that new course by persistently pursuing property settlement negotiations with the deceased during the period from 1993 to 2003. The overwhelming weight of the plaintiff’s evidence given in cross-examination is that she had no expectation during that period of being a substantial beneficiary under the will of her former husband, who was in a long-term, loving relationship with Ms Boudville. [47] Counsel for the plaintiff simply ignored that evidence in closing submissions. Moreover, the contemporaneous correspondence generated by the property settlement negotiations is devoid of any reference to any representation by the deceased that he would leave all or a significant portion of his estate to the plaintiff by way of inheritance. [48] In my opinion, that renders it most unlikely that the plaintiff was placing any reliance on the November 1992 representation and the December 1992 representation during the ten year period in which those property settlement negotiations were ongoing. According to the plaintiff’s own evidence, she did not refer to any promised inheritance when explaining to her solicitor in March 1999 the reasons why she had not sought a property settlement from the deceased shortly after they separated. [49] It is plain from the terms of the letter that the plaintiff sent directly to the deceased in July 1999 that she was no longer relying on anything that he said to her in November and December 1992 when they believed he was dying, and that she was acting to enforce what she regarded as her legal right to a property settlement. [50] The plaintiff withdrew from the negotiations, instructing her solicitor to place the file “on hold”, a very short time after sending that letter. I have already referred to the plaintiff’s inconsistent affidavit evidence about the reasons why she did so. I find that she did so due to the fear engendered by threats that the deceased made at the time to harm her or her solicitor if the plaintiff did not “stop it now”. The plaintiff’s evidence about those threats is consistent with the instructions given to her solicitors at the time, as recorded in the contemporaneous correspondence generated by the 1999 negotiations between the parties’ solicitors. It is also consistent with the objective fact that the deceased had been warned by his previous solicitor in 1996 about the likely adverse consequences for the deceased in property settlement negotiations if the plaintiff were to obtain legal advice. As I have mentioned earlier in these reasons, the plaintiff’s evidence about the threats was not challenged in cross-examination. [51] I reject the plaintiff’s inconsistent evidence that she withdrew from the negotiations because she decided instead to rely on the deceased’s promise “that I would receive everything when he died”. [52] The plaintiff’s conduct in continuing to press the deceased for a property settlement during the period after August 1999 until October 2003, albeit not through solicitors, is inconsistent with her relying on any promise by the deceased that she would receive “everything” when he died. As counsel for the defendant put to the plaintiff in cross-examination, it is plain from the terms of her letter to the deceased dated 3 October 2003 that the plaintiff had asked the deceased for a final property settlement many times, and the deceased had responded, not by referring to any promise concerning his will, but by articulating reasons why he considered that he was not obliged to pay the plaintiff anything further, [53] including issuing invoices charging the plaintiff for his own labour for works that he claimed to have done at their jointly owned Kaleen property in which he was living without making any payments to the plaintiff for rent or for her maintenance and at the same time as withholding from the plaintiff her share of the net sale proceeds of the Coorparoo property. [54]

As I have observed earlier in these reasons, there is no evidence of any discussions between the plaintiff and the deceased about property settlement after October 2003, and there is no evidence of any further discussions about the deceased’s will until March 2015, when the deceased gave the plaintiff a copy of the new will that he had made on 24 March 2014. To the extent that the defendant’s submissions suggested that the deceased genuinely believed that he had made payments to the plaintiff by that stage which represented an appropriate property settlement, I reject those submissions. I infer that the deceased believed that his campaign of obstruction and intimidation had served him well. The plaintiff had been worn down by ten years’ of asking the deceased for a property settlement, only to be met with payments of sums of the deceased’s choosing which did not even equate to half of the net sale proceeds of their jointly owned assets, and threats of violence when the plaintiff engaged a solicitor to represent her in relation to her property settlement claim. I infer that the plaintiff, out of a conscious or sub-conscious sense of self-preservation, gave up her long and unsuccessful pursuit of the deceased for a property settlement in late 2003 when her sons came to her financial rescue by paying out the vendor finance loan for the Michelago property. After that, the plaintiff was able to live on the farm without any debt, before selling it to her children in 2005. According to the plaintiff’s evidence, she then felt financially secure. [55] When she next wished to buy property, the plaintiff had sufficient funds to do so without revisiting the subject of a property settlement with the deceased. [56] I find that the plaintiff rarely even saw the deceased after she purchased the Cowra property in 2008. [57] For the reasons that I have explained above, I have found that the plaintiff had ceased to rely on the November 1992 and December 1992 representations in 1993. I reject her evidence to the contrary that, in the period after 2003, she continued to believe that she would receive an inheritance in accordance with his 1992 will, and that she was “content to wait”. [58]

I have found that the sums paid to the plaintiff by the deceased did not even equate to half of the net sale proceeds of their jointly owned assets because the evidence establishes that the payments made by the deceased to the plaintiff following their separation were limited to: (1) a sum of $8,800 that he paid to her in November 1992 in circumstances where she was reliant on social security benefits, she moved into rented accommodation with two of their children following their separation while he remained in their jointly owned family home, they had not yet discussed any property settlement and he was making not making any maintenance payments to her; [59] (2) a sum of only $10,800 that the deceased paid to the plaintiff in November 1998 following the sale of the Coorparoo property, which did not represent the whole of the plaintiff’s share of the net sale proceeds of that property; [60] and (3) a sum of $100,000 paid by the deceased to the plaintiff following the sale of the Kaleen property for $235,500, shortly before the plaintiff completed her purchase of the Michelago farm in December 2000. [61]

There is no contemporaneous documentary evidence of the sale price or net sale proceeds of the Coorparoo property, but the plaintiff was not challenged in cross-examination on her evidence that the net sale proceeds were between $140,000 and $150,000, and the contemporaneous receipt that the deceased required her to sign for the $10,800 payment states that this sum represented only part of the plaintiff’s half of the net sale proceeds.

Thus, the deceased resisted the plaintiff’s demands for him to pay her full half share of the net sale proceeds of the Coorparoo property, which may have been in the order of $75,000.

The payment of $100,000 in December 2000 may have represented one half of the net sale proceeds of the Kaleen property, as the plaintiff acknowledged in cross-examination.

I have not included in the payments listed above the amounts totalling $40,000 that the deceased paid to the plaintiff in 1994 and 1996. The contemporaneous documents establish that those payments were loans that the deceased required the plaintiff to pay for, and the plaintiff was not challenged on her evidence that she did in fact make those repayments of $344 per month. [62] Nor have I included the $49,000 loan that the deceased made to the plaintiff in December 2000 at a time when he had retained part of the plaintiff’s share of the sale proceeds of the Coorparoo property (which likely exceeded $49,000). That loan was repaid to the deceased in 2005. [63]

In relation to the third category of alleged representations, [64] I accept the plaintiff’s unchallenged evidence that, in about March 2015, the deceased gave her a copy of his will made on 24 March 2014. However, I reject the plaintiff’s evidence that the deceased said words to the effect of: “I told you I would look after you when I’m gone. I am keeping that promise”. I also reject the plaintiff’s evidence that she was thereby satisfied that the deceased was “keeping his promise to me that he would provide for me in his death”. [65] For the reasons explained above, it is plain from the conduct of the deceased and the plaintiff during the period from 1993, and from the plaintiff’s evidence in cross-examination, neither the deceased nor the plaintiff regarded him as having made a promise that continued to apply after the deceased’s health recovered in 1993. It is therefore inherently improbable that the deceased said words to the effect attributed to him by the plaintiff in March 2015, and equally improbable that the plaintiff understood those words as reaffirming a promise on which I have found that she had ceased to rely more than 20 years earlier. The plaintiff’s evidence of what was said in conversations that she had with the deceased almost 10 years prior to the hearing of these proceedings is inherently unreliable in any event, for all of the reasons explained at [159]-[164] above.

The plaintiff relies on her evidence that, during the period after 2015 until his death in January 2021, the deceased said to her words to the effect that “you know you are getting basically everything”, “you are getting everything”, and “you’re going to be rich”. [66] Having regard to the inherent fallibility of evidence of this nature to which the deceased is unable to respond, the demonstrated unreliability of material aspects of the plaintiff’s evidence, and the plaintiff’s inability to place any of those alleged statements in a particular time or context within the six year period in which they are said to have been made, and the inconsistency between the terms of the alleged statements and the terms of the deceased’s 2014 will under which he had not given the plaintiff “everything” or “basically everything”, I do not feel actual persuasion that the deceased made those statements.

The plaintiff also relies on her evidence of the conversation that she says she had with the deceased in December 2019. I am not persuaded that any such conversation occurred for all of the reasons explained at [159]-[164] above, and for the further reason that Ms Grimm’s unchallenged evidence about her relationship with the deceased and the manner in which they spent their time together following his stage 3 liver cancer diagnosis has the ring of truth about it and renders it inherently improbable that the deceased travelled to Canberra to visit the plaintiff in or about December 2019. [67]

For those reasons, I find that the deceased, by his conduct in giving the plaintiff a copy of his 2014 will in March 2015, made a representation to her about his testamentary intentions at that time. The plaintiff has failed to establish the third category of alleged representations.

Even if I had found that the deceased had made the third category of alleged representations, I would not have been persuaded that the plaintiff relied on those representations by not pressing for a property settlement, continuing to allow the deceased to retain the benefit of the marital assets, accepting only modest payments from the deceased, and not pressing for her proportionate share of the proceeds of sale of the marital assets. [68] As I have explained above, the plaintiff abandoned her quest for a property settlement in late 2003, long after she ceased to have any expectation that she would benefit from the deceased’s estate. For the reasons I have already explained, I reject the plaintiff’s evidence that she acquiesced in the deceased’s refusal to provide her with a proper property settlement or adequate maintenance because he continued to promise her that “I would receive everything when he died”, and that she believed that she “would be better off just waiting for him to die”. [69]

As counsel for the plaintiff acknowledged, the evidence does not provide a sufficient basis for the Court to estimate the amount that would have been payable to the plaintiff by way of an appropriate property settlement following her divorce from the deceased in 1992. Nevertheless, for all of the reasons explained above, the evidence does provide a sufficient basis to find that the deceased refused to enter into an appropriate property settlement with the plaintiff, and was determined to disable the plaintiff in their property settlement negotiations by threatening her with violence if she persisted in having a solicitor represent her, and by refusing to disclose relevant financial information to which only the deceased was privy. This was clearly detrimental to the plaintiff, but her limited success in extracting some funds from the deceased after ten years of consistently pressing him for a property settlement had nothing to do with any expectation on her part about what she might receive from the deceased by way of inheritance. For the reasons explained above, I have found that the plaintiff held no such expectation from 1993 onwards.

The proceedings were commenced within 12 months after the date of death of the deceased. [70] Because the plaintiff is an eligible person by reason of being the deceased’s former spouse, s 59(1)(b) of the Succession Act 2006 (NSW) requires the Court to be satisfied that, having regard to all the circumstances of the case, there are factors warranting the making of the application. [71]

As submitted on behalf of both parties, the “factors” that might warrant the making of a family provision application by a former spouse in a particular case are those factors which give the former spouse the status of a person who, in all the circumstances of the case, would be regarded according to community standards and expectations as a natural object of testamentary recognition by the deceased. [72]

There are no fixed or closed categories of “factors” which former spouses must address, as each case depends on all of its circumstances. However, significant factors will include any final settlement of the financial relationship between the claimant and the deceased, whether by agreement or court order, following their divorce. [73] The absence of a property settlement will also be relevant, although its significance will generally diminish with the passage of time because intervening events and circumstances will be likely to have shaped the claimant’s financial circumstances at the time of the family provision application more than the absence of a property settlement with their deceased former spouse. [74]

The nature of the relationship between the claimant and the deceased is also relevant. Specifically, the Court considers whether there are any features of that relationship that create a moral obligation on the deceased to make provision for the claimant. However, “considerable care needs to be taken to prevent a family provision claim becoming a forum for litigating questions of matrimonial fault long since removed from family law”. [75]

If the Court is satisfied that there are factors warranting the making of the application, then ss 59(1)(c) and s 59(2) of the Succession Act require the Court to determine whether the deceased’s last will made adequate provision for the claimant’s proper maintenance, education and advancement in life and, if not, whether any order for provision should be made. This is an evaluative judgment that takes into account all relevant circumstances. The words “adequate” and “proper” in s 59(1)(c) are always relative. As was submitted on behalf of the plaintiff, the Court’s judgment is informed by its own general knowledge and experience of current social conditions and community values and standards. The adequacy or otherwise of provision is not determined merely by a calculation of the financial needs of the claimant and other persons with claims on the deceased’s estate. In determining whether to make an order for provision, and the nature of any such order, the Court may have regard to the matters in s 60(2) of the Succession Act, giving each relevant matter such weight as is appropriate in all the circumstances of the particular case. If the deceased was capable of giving due consideration to the question of what provision was required for the claimant’s proper maintenance, education and advancement in life, and has done so, then considerable weight should be given to the deceased’s testamentary wishes in recognition of the advantages of the deceased over the Court in knowing all of the details of the family’s relationships. However, s 59 of the Succession Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testamentary disposition. Evidence of the testamentary intentions of the deceased are but one of the many factors in s 60(2), and the weight to be attributed to each of those factors depends on all of the circumstances of each case. [76]

The interests of other claimants on the deceased’s estate, and of beneficiaries entitled to a share of the estate under the deceased’s last will, are relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for the claimant. This includes consideration of the financial circumstances and needs of any beneficiaries who have adduced evidence of those matters. Even if beneficiaries do not adduce evidence of their circumstances – and they are under no obligation to do so – their claims as the chosen objects of the deceased’s testamentary bounty, and as persons whose interests in the estate may bear the burden of any order for provision made in favour of the claimant, must be borne in mind. [77]

On the basis of the evidence referred to at [15]-[21] above, I find that the plaintiff made significant financial and non-financial contributions to the assets accumulated during her 23 year marriage to the deceased, and that the deceased controlled their combined earnings at the same time as enjoying the benefit of the plaintiff’s unpaid labour within their household. I have found that, after their marriage ended in 1992, the deceased refused to enter into an appropriate property settlement with the plaintiff, and was determined to disable her in their property settlement negotiations by threatening her with violence if she persisted in having a solicitor represent her, and by refusing to disclose relevant financial information to which only the deceased had access. [78] I have found that the payments that the deceased made to the plaintiff from time to time were even less than her one half share of the net sale proceeds of their two jointly owned properties that the deceased could not conceal from the plaintiff. [79] In my opinion, those matters give the plaintiff the status of a person who would be regarded as a natural object of testamentary recognition by the deceased, and warrant the plaintiff making the application for provision out of his estate.

I now turn to the question whether adequate provision has been made in the deceased’s last will for the plaintiff’s proper maintenance, education and advancement in life, and whether any order for provision should now be made and the nature of any such order. Given that the plaintiff is 82 years of age, the focus is on her proper maintenance and advancement in life.

According to the defendant’s affidavits sworn on 10 May 2024, 30 May 2024, and 19 June 2024 the estate has assets of $4,006,781 (including $595,987 in superannuation benefits that are the subject of the specific gift in favour of Thomas) and liabilities of between $970,316 and $1,008,316, leaving a total net distributable estate of between $2,998,464 and $3,036,464. Those figures do not include any liabilities of the estate in respect of the executor’s costs or the plaintiffs’ costs of these proceedings.

Pursuant to consent orders made in proceedings 2022/50997, Brendan has relinquished the 20% share of the residue of the estate bequeathed to him under the deceased’s last will.

Pursuant to consent orders made in proceedings 2021/209636, Ms Grimm is to be paid a lump sum of $180,000, together with her costs of those proceedings in the amount of $110,000, out of the net distributable estate, in lieu of the 7% share of the residue of the estate bequeathed to her under the deceased’s last will.

After payment of those amounts totalling $290,000 to Ms Grimm and after payment of the superannuation benefits of $595,987 for the benefit of Thomas, there will be a balance of between approximately $2,112,477 and $2,150,877. Assuming that the executor’s costs of these proceedings of approximately $142,000 (on an indemnity basis) are ordered to be paid out of the estate, and that an amount of up to approximately $150,000 is ordered to be paid out of the estate in respect of the plaintiff’s costs, the balance available for distribution to the residuary beneficiaries will be between approximately $1,820,477 and $1,858,877. I express no final view about the costs orders to be made in these proceedings. The assumed amount of $150,000 in respect of the plaintiff’s costs reflects my preliminary view that the plaintiff’s actual costs of $330,677 on an indemnity basis and $266,677 on a party and party basis, according to the affidavit affirmed by the plaintiff’s solicitor on 24 July 2024, [80] are excessive for a two day hearing with a slim single volume court book containing all pleadings, affidavits and documentary evidence.

Mr Basha’s affidavit sworn on 30 May 2024 sets out the following calculation of the residuary beneficiaries’ share in the residuary estate, grossed up to account for Brendan’s relinquishment of his 20% share and the lump sum payment to Ms Grimm in lieu of 7% of the residuary estate:

Thomas’ 6.85% share of the residuary estate is in addition to the specific gift to him of any superannuation death benefits and superannuation paid to the deceased’s estate. The defendant’s opening submissions recorded his understanding that no challenge is made in the plaintiff’s family provision claim to that gift to Thomas. No submission to the contrary was made by the plaintiff at any stage during the hearing.

Notice of the plaintiff’s application was served on all other potential claimants in accordance with s 61 of the Succession Act. As I have already mentioned, Ms Grimm also made a claim for provision, which was resolved by consent orders made in separate proceedings. No other provision claims have been made, and Ms Tamara Hayward is the only beneficiary under the deceased’s last will who has adduced evidence of her circumstances as a competing claimant.

As I have mentioned earlier in these reasons, the plaintiff is 82 years of age.

The plaintiff presently owns no real property. In her affidavit affirmed on 8 September 2021, the plaintiff gave evidence that she sold her Cowra property for $355,000 on 12 October 2017. She then transferred to Brendan and Mark the sum of $343,509 – representing almost the whole of the sale proceeds – in return for their promise to provide her with accommodation for the rest of her life.

In her affidavit sworn on 6 May 2024, the plaintiff deposed that she currently lives alone in a three-bedroom home owned by Mark in Downer in the Australian Capital Territory. The plaintiff does not pay rent to Mark, but provides other assistance to him, including regular childcare for his son Thomas. One of the three bedrooms in the home is designated as Thomas’ bedroom so that he can stay with the plaintiff whenever he wants to.

The plaintiff deposed that she is reliant on the “financial support of my son, Mark, who has allowed me to live in his house rent-free” because “I do not have sufficient assets to support myself”. The plaintiff deposed that this living arrangement “feels very insecure and uncertain”, and that Mark has told her that he needs to sell the Downer property. However, in oral evidence in chief given on 3 June 2024, the plaintiff gave evidence that the Downer property in which she has lived since October 2017 is owned by Brendan and Mark. The plaintiff gave evidence that she expects her sons to continue providing her with accommodation in the future in accordance with their agreement, which she considers to be enforceable. In cross-examination, the plaintiff disavowed any suggestion that Brendan or Mark have suggested to her that they need to sell the Downer property. I accept the plaintiff’s evidence in cross-examination.

The plaintiff has no superannuation funds.

In late 2023 or early 2024, the defendant caused the Telstra shares referred to at [114]-[115] above to be transferred to the plaintiff, and paid to the plaintiff the sum of $68,993.01, representing the $65,000 sum referred to at [113] above plus interest in accordance with s 84A of the Probate and Administration Act 1898 (NSW).

At the time of swearing her affidavit on 6 May 2024, the plaintiff had an everyday savings account with a credit balance of $10,955 and a high interest account with a balance of $52,206. The plaintiff continues to own the Telstra shares. Her only other assets are her vehicle (estimated value of $1,000) and household contents (estimated value $10,000). She has no liabilities.

The plaintiff receives a Centrelink pension of approximately $28,500 per annum plus any dividends paid on the Telstra shares, which she estimates as amounting to approximately $900 per annum. The plaintiff gave evidence that, with great difficulty and strict control over her spending, she lives on about $27,000 per annum, including a budget of about $7,400 for groceries, $4,550 for utilities, $4,500 for petrol, $4,000 for car insurance, servicing and repairs, and $780 for medication and medical bills. I accept the plaintiff’s evidence about the difficulty which she experiences in limiting her spending according to that budget.

In relation to her state of health, the plaintiff gave evidence, which I accept, that she suffers chronic pain and reduced mobility, a chronic cough, brittle bones, and heart problems. The plaintiff deposed that, since the death of the deceased, she has also been diagnosed by her general practitioner as suffering from depression and anxiety.

In her affidavit sworn on 6 May 2024, the plaintiff gave evidence that, if she were required to leave the home in Downer, she would be able to rent a similar house in Downer for approximately $960 per week. The plaintiff likes the Downer area, and she would wish to continue having three bedrooms with one for Thomas and one for visitors. The plaintiff estimates that she would only be able to afford to pay rent for one year before exhausting the proceeds of the payments made to her by the defendant, which are presently held in her savings and high interest accounts referred to above.

The plaintiff described her needs as follows:

In closing submissions, counsel for the plaintiff quantified the plaintiff’s claim as a claim for provision in the sum of $823,000, comprising $550,000 to purchase a modest flat plus the other four components of the claim referred to above.

Tamara Hayward is presently 51 years of age. She first met the deceased at the age of 15 when her mother, Ms Boudville, introduced them. Ms Hayward considered the deceased to be her stepfather, or like a third parent, even though he and Ms Boudville were never married. She describes the deceased as having been kind to her and having guided her through her life, and as having acted as a mentor for her. The deceased received palliative and end of life care at Ms Hayward’s home, where he died on 29 January 2021.

Ms Hayward works as an IT Service Delivery Manager, earning approximately $7,690 per month after tax. Ms Hayward does not own any real property, but has a modest pool of savings (approximately $6,000 at the time of her most recent affidavit affirmed on 13 May 2024), a car worth approximately $10,000 and a superannuation balance of approximately $444,262. Ms Hayward has a credit card debt of approximately $4,000. Her monthly expenses include rent of approximately $2,167.

Ms Hayward has a daughter who was born in March 1997 and is presently 27 years of age. Ms Hayward raised her daughter as a single parent without assistance, financial or otherwise, from the father. Ms Hayward’s evidence did not suggest that her daughter remains financially dependent on her.

Ms Hayward gave evidence of her ambition to purchase her own property, which she envisages as a small home with a garden in the Canberra area. She estimates the cost of such a home at about $880,000, based on the median house price in the Tuggeranong region. She would also like to purchase a new car at a cost of about $40,000.

Ms Hayward gave evidence that the deceased had discussed his last will with her, telling her that he had left her approximately $950,000 and he hoped that she would be able to leave her job, retire and live a happier life. According to Ms Hayward’s evidence, the deceased was aware that her job was demanding and required her to work excessive hours, and that he hated her being “on call 24/7”.

For the reasons I have already explained, the plaintiff has the status of a person who would be regarded as a natural object of testamentary recognition by the deceased in all the circumstances of this case. [81] The deceased has made no provision for the plaintiff other than the purported gifts which do no more than repay the $65,000 loan that she made to him in 2012 and return to her the Telstra shares which he was only ever holding for her benefit. This has left the plaintiff in a position where, as a consequence of the deceased refusing to enter into an appropriate property settlement with her and bullying her out of negotiating for a settlement on anything resembling an even playing field, the plaintiff has managed with far more limited financial resources than she was entitled to for the whole of her adult life since separating from the deceased and her financial security is now dependent on the fortunes of her sons and their ability to continue to provide accommodation for her in accordance with the agreement that she made with them in 2017. Her savings provide some money for a rainy day, but are insufficient in my opinion to provide a comfortable buffer against the risks of ill health and increased medical costs in her advancing years. Her savings do not afford her the ability to travel overseas to see her daughter and other family members. To be separated from family due to inadequate funds to travel is a hardship. For those reasons, I do not consider that the deceased made adequate provision for the plaintiff in his last will dated 27 January 2021.

I have had regard to the following matters referred to in s 60 of the Succession Act in forming my judgment that, in all the circumstances of this case, adequate provision for the plaintiff’s proper maintenance and advancement in life requires an order in her favour for provision out of the deceased’s estate in the sum of $600,000.

As I have already observed, [82] the relationship between the plaintiff and the deceased was one in which the plaintiff made significant financial and non-financial contributions to the assets that they accumulated during the course of their 23 year marriage, yet the deceased controlled their funds during and after the marriage, denied the plaintiff the share of their jointly owned assets to which she was entitled after the end of the marriage, and denied the plaintiff an appropriate property settlement. The deceased refused to discharge his obligations to his former wife, and threatened her with violence when she took steps towards commencing legal proceedings to enforce those obligations. [83]

The deceased’s intentions to benefit his grandson Thomas, his daughter Louisa, and Ms Boudville’s daughters Ms Hayward and Ms Boonstra are entitled to considerable weight. However, it also relevant that there is no evidence that Thomas has ever been financially dependent on the deceased, or that his daughter or Ms Boudville’s daughters have been dependent on him at any time during their adult lives. An order for provision in favour of the plaintiff in the amount of $600,000 will not deprive those beneficiaries of a benefit under the deceased’s will, but will reduce the quantum of the benefit that each of them will receive. I consider that it would be appropriate for the provision for the plaintiff to be paid before any distribution to the residuary beneficiaries, so that the burden of the provision will fall on those beneficiaries proportionate to their shares in the residuary estate identified at [199] above. If no provision were to be made in favour of the plaintiff, but her costs of the proceedings were nevertheless ordered to be paid out the estate as is sometimes done in family provision proceedings, the residuary beneficiaries would share in a residuary estate of approximately $1,820,477, and Ms Hayward’s 41.1% share would be worth approximately $750,000. As a result of the $600,000 provision that I have determined is to be made in favour of the plaintiff, the total value of the residuary estate will be approximately $1,220,477, of which Ms Hayward’s 41.1% share will be worth approximately $500,000. According to Ms Hayward’s evidence, that will cover more than half of the cost of the home that she wishes to buy. Applying my general knowledge of social conditions and community values and standards, I do not consider that this impact on the residuary beneficiaries weighs against an order for provision of $600,000 in the plaintiff’s favour. In particular, I do not consider that community values and standards would regard Ms Hayward’s wish to buy a home debt-free and retire from her chosen occupation at the age of 51 as giving her a stronger claim on the deceased’s estate than the claim of the plaintiff, who contributed to the assets that were the genesis of the deceased’s bounty, and who is financially insecure in her old age as a result of the deceased having failed to discharge his obligations to her following their separation. The plaintiff’s age and state of health, and her dependence on her sons for accommodation, mean that she has a genuine need for a fund to enable her to meet the vicissitudes of life, including any need that may arise for alternative accommodation if her sons become unable to continue providing her accommodation for any reason, and including any increased medical expenses. Contrary to the defendant’s submissions, it is not to the point that there is no evidence of a present risk of Brendan and Mark being unable to accommodate their mother. The point is that her dependence on them for her accommodation appears to have been her solution to the modest funds raised from the sale of the Cowra property in 2017, which would have been unlikely to stretch to the purchase of another property, plus stamp duty, with a sufficient savings pool left over to meet ongoing costs associated with home ownership (insurance, repairs and maintenance etc). The defendant’s submission that the plaintiff simply gave away to her sons the capital gain earned from the sale of the Cowra property fails to engage with those realities facing the plaintiff at 75 years of age in 2017. In circumstances where the deceased’s refusal to enter into an appropriate property settlement with the plaintiff has contributed to her limited funds, she should not be forced to continue to be dependent on her sons for accommodation if she does not wish to be so dependent. As counsel for the plaintiff submitted, that would be a most unsatisfactory state of affairs. [84] For those reasons, and in circumstances where it is no part of the plaintiff’s case that her sons will be unable to continue providing her accommodation, I reject the defendant’s submission that the plaintiff’s dependence on her sons to provide her accommodation makes their financial position relevant to the Court’s consideration of her family provision claim.

It is not entirely clear to me whether the defendant relied on the plaintiff’s inability to account for the whole of the sale proceeds of the Michelago farm as a withholding of information about her own financial circumstances that are relevant to the family provision claim. If so, then I reject that submission. In my opinion, the plaintiff gave evidence about the net proceeds raised by that sale in late 2004 or early 2005 to the best of her ability, having regard to the passage of time. Her evidence may be inaccurate or incomplete, but she has not deliberately withheld information about those sale proceeds from the Court. [85]

I consider that the quantum of each component of the plaintiff’s claim for provision identified at [212]-[213] above reflects a reasonable sum for her proper maintenance and advancement in life in all the circumstances, save that I have not included in the total provision of $600,000 the full amount of $550,000 that the plaintiff submitted she needs in order to purchase a modest home. If the plaintiff purchases her own home and ends her current arrangement with Brendan and Mark, it seems to me that it would be open to her to look to them to refund part of the moneys that she paid to them in 2017. For the reasons already explained, I reject the defendant’s submission that no provision should be made for the plaintiff’s accommodation having regard to her arrangement with her sons. Contrary to the defendant’s submissions, I do not consider that the mere fact that the plaintiff does not use her car very often means that the provision to be made in her favour should not take into account the cost of purchasing a newer, more reliable car. The plaintiff gave evidence that she enjoys driving her own car, from which I infer that it is important to her independence. I consider that independence is appropriately characterised as a need rather than a wish.

For all of the foregoing reasons, the orders of the Court are as follows:

I will hear the parties in relation to costs.