Rootes v Slatcher and McLaughlin as Executors of the Estate of the late Derek George Slatcher

1. [1]

   Derek George Slatcher (“the Deceased”) died on 14 September 2021, aged 90 years.

2. [2]

   The Deceased was widowed at his death, his late wife Marjorie having died in 2013. He is survived by four adult children.

3. [3]

   Three of those children are the plaintiffs in these proceedings: Sarah Louise Rootes, Jeremy Derek Slatcher and Emma Victoria McLaughlin.

4. [4]

   The Deceased’s other child is Faith Mary Slatcher, who is the second defendant.

5. [5]

   During the hearing, counsel referred to the parties by their given names. For convenience, and without intending any disrespect, I will do the same. Where appropriate, I will refer to the plaintiffs, together, as “the Siblings”.

6. [6]

   Jeremy is the eldest of the Siblings and is now 59. Emma is the youngest and is now 52. Sarah and Faith are 58 and 55 respectively.

7. [7]

   The Deceased left a last will, dated 30 May 2017. He appointed Jeremy and Emma as executors and left the residue of his estate equally to his four children. The Deceased had made earlier wills to the same effect.

8. [8]

   In the events that have happened, the will has limited work to do. The Deceased’s actual estate is nominal, comprising a small amount of cash at bank that is now exhausted by testamentary expenses, as well as personal effects.

9. [9]

   The Deceased’s principal asset was his interest in a property in the Greater Wollongong area (“the Property”) that in 2009 he purchased as joint tenant with Faith. The Deceased paid for his half of the purchase price of the Property from the proceeds of sale of the property that he owned as joint tenant with his late wife, who was then in care. Faith acquired her share using borrowings. I return to the detail of these matters below. On his death, the Deceased’s interest in the Property passed to Faith, who is now registered proprietor of the Property.

10. [10]

    The Siblings have thus received no significant benefit under the Deceased’s will. They seek further provision pursuant to s 59 of the Succession Act 2006 (NSW) (“the Act”) from the Deceased’s notional estate which, it is agreed, comprises the Deceased’s former interest as joint tenant with Faith in the Property.

11. [11]

    Although, as I have said, Jeremy and Emma were, by the will, appointed as the Deceased’s executors, the parties have consented to orders appointing Faith to represent the Deceased’s estate and notional estate for the purpose of the proceedings.

12. [12]

    A number of matters are common ground.

13. [13]

    The first is that each of the Siblings is an “eligible person” for the purposes of s 57(1)(c) of the Act, and thus eligible to apply for provision from the estate of the Deceased, and have brought these proceedings within time.

14. [14]

    The second is that the Deceased’s failure to sever the joint tenancy in relation to the Property is a “relevant property transaction” for the purposes of s 75 of the Act, so as to enliven the Court’s jurisdiction to give consideration to making a notional estate order.

15. [15]

    Third, it is agreed that I must first decide whether the Siblings have shown that adequate provision has not been made for them by the Deceased, and that if, and only if, I come to an affirmative conclusion in regard to that question, I should then consider whether a notional estate order should be made, and what, if any, provision should be made.

16. [16]

    Fourth, the Siblings’ solicitor has estimated that their costs to the conclusion of the hearing before me will be in the order of $75,500. The solicitor for Faith estimates that her costs will be in the order of $121,400. The total estimated cost is thus a little under $200,000. It is agreed that I should publish reasons for judgment and then invite submissions as to what, if any, orders should be made in respect of costs.

The provision sought

1. [17]

   In opening written submissions, Ms Tibbey, who appeared for the Siblings, said that the Siblings “seek a notional estate order designating a half share of the property as notional estate, to be sold and the net proceeds of sale divided between the four siblings”.

2. [18]

   However, in oral submissions Ms Tibbey submitted that, by reason of the appreciation in value of her interest in the Property, Faith had somehow received provision from the Deceased’s estate during the Deceased’s lifetime and, as a consequence, the notional estate should be divided equally between the Siblings. I do not accept that submission. On any view of the facts, Faith purchased her interest in the Property, such that any appreciation in the value of that interest is attributable to that purchase and not to any provision from the Deceased.

The Deceased

1. [19]

   The Deceased was a highly educated and sophisticated man. He had an honours degree in economics and postgraduate qualifications.

2. [20]

   Although he was 90 when he died, and was by then physically frail, he suffered no cognitive impairment prior to his death. As recently as 19 November 2019, his general practitioner certified in writing that the Deceased was “mentally competent to manage his own affairs”. No suggestion to the contrary was made on behalf of the Siblings, nor was it suggested that the Deceased’s mental acuity deteriorated after 19 November 2019.

Was adequate provision not made for the Siblings?

1. [21]

   During cross-examination, each of the Siblings stated that they thought that they were “entitled” to an inheritance from the Deceased. But adult children have no prima facie entitlement to an inheritance. And the law imposes no obligation on a parent to treat their children equally. The Court’s jurisdiction under the Act is not enlivened by any precept of fairness. That is, looking at this case, an order for provision is not to be made merely because I might form the view that the Deceased’s decision as to the disposition of the estate was unfair to the Siblings. Nor is the fact that the Siblings have shown love and affection for the Deceased itself a reason to make an order for provision; still less to assuage their hurt feelings at the decision the Deceased has made concerning disposition of his estate.

2. [22]

   The only question for me is whether the Siblings have shown that inadequate provision has been made for their “proper maintenance, education or advancement in life”. [1] The only order that can be made is one necessary to deal with that demonstrated inadequacy.

3. [23]

   That involves an evaluative consideration of all the circumstances, including the applicant’s financial position, the size and nature of the deceased’s estate and the totality of the relationship between the applicant and the deceased [2] and the other matters set out in s 60 of the Act. [3] The Court must be guided by its perception of “prevailing community standards of what is right and appropriate”. [4]

4. [24]

   There is no suggestion of any estrangement between the Siblings and the Deceased. Each had a close and loving relationship with him. There is no suggestion of any behaviour of the Siblings so far as concerns the Deceased that could be the subject of any criticism, save for one incident in 2019 involving Emma, the details of which I find unnecessary to recount. Each of the Siblings contributed to the Deceased’s care from time to time.

5. [25]

   The Deceased lived with Faith, and her daughter, Bethany Downing, from the time of the purchase of the Property in 2009 until he died. The primary burden of caring for the Deceased thus fell to Faith and Bethany. The Siblings offer criticisms of some aspects of that care and of the access that Faith and Bethany permitted the Siblings to have with the Deceased in his latter years; including Faith’s decision to install cameras at the front door and internally in the Property. Those matters were put to Faith and Bethany in cross-examination. The suggestions were firmly rejected. There may be some truth in some of them, but the fact remains that for the last 12 years of his life, the Deceased was primarily cared for by Faith and Bethany.

6. [26]

   Much of the cross-examination of Faith and Bethany was devoted to enquiry as to the use made by them of monies withdrawn from the Deceased’s bank accounts during the period from 2009 to 2021. Each of Faith and Bethany gave responses to those questions rejecting the impropriety that was implicit in the questions. There is no evidence to contradict those responses, and I accept them. To the extent that analysis of the bank statements revealed spending that may have directly or indirectly benefited Faith or Bethany, that is consistent with the Deceased sharing a household with them and reflects the close relationship, marked by interdependence, between the Deceased and Faith.

7. [27]

   It was not in terms suggested to either Faith or Bethany that they had acted improperly nor, in the case of Faith, in breach of her obligations arising from an Appointment of Enduring Guardian or Enduring Power of Attorney that the Deceased executed on 7 February 2020, [5] although this was the implication of the questions asked in cross-examination. The distinct impression I gained from the cross-examination was that it was being used somehow to ventilate and vindicate intra-family resentments arising from the decision that the Deceased made to enter into a joint tenancy with Faith in relation to the Property.

8. [28]

   I turn to the circumstances of each of the Siblings. This summary is taken in large part from the submissions of Ms Muscat, who appeared for Faith. There was no dispute about these matters.

9. [29]

   Sarah is now aged 58.

10. [30]

    Sarah is married to Tim, who is aged 61. They do not have any dependent children.

11. [31]

    Sarah and Tim each have some identified health issues, although the evidence in relation to those is expressed in general terms.

12. [32]

    Sarah and Tim each work full-time. They each intend to work until they turn 67. Their combined annual gross income was in the order of $238,000 in the financial year ending 30 June 2021. Sarah estimated that her and Tim’s annual expenditure is in the order of $113,000, considerably less than their combined income.

13. [33]

    Each of Sarah and Tim is accumulating superannuation, although Sarah’s is relatively modest and is in the order of $51,000, and Tim’s more modest still.

14. [34]

    Sarah and Tim own their home. Sarah estimates its value is $1.2 million. The property is encumbered by a mortgage in the order of $670,000.

15. [35]

    Sarah and Tim own a number of vehicles and some listed shares with a combined value of approximately $60,000.

16. [36]

    Sarah’s only identified financial need is referable to repayment of the mortgage.

17. [37]

    Jeremy is 59.

18. [38]

    He is married to Sue who is 75. They are both in good health.

19. [39]

    Jeremy works as a nurse. He has a net monthly income of around $6,600.

20. [40]

    Sue is retired and no longer earns an income. Jeremy’s and Sue’s expenses are estimated to be in the order of $5,600 per month.

21. [41]

    Jeremy has a superannuation entitlement in the order of $424,000 as at 31 December 2021.

22. [42]

    Jeremy and Sue own their home. Jeremy estimates that the home is valued at $560,000. There is a mortgage of about $278,500.

23. [43]

    Jeremy and Sue own three vehicles with a combined value in the order of $61,000.

24. [44]

    Like Sarah, Jeremy’s only identified financial need relates to repayment of the mortgage.

25. [45]

    Emma is 52.

26. [46]

    Like Sarah, Emma has some health concerns, which have been described in the evidence in a general way.

27. [47]

    Emma is married to Garry who is 51. They have three children; a son aged nearly 21 and twin daughters aged 17.

28. [48]

    Emma and Garry are both working. Their combined gross income is about $200,000 per year. Their annual expenditure is disclosed as about $124,000 per year.

29. [49]

    Emma and Garry own a home said to be worth around $1 million. They also own a number of vehicles.

30. [50]

    Emma and Garry have significant superannuation entitlement. As at 30 June 2021, Emma had accumulated superannuation in the order of $759,000 and Garry in the order of $451,000, a combined total of more than $1.2 million. That is likely to have increased since then.

31. [51]

    Emma and Garry have debts in the vicinity of $649,000, primarily a mortgage debt secured over their home.

32. [52]

    Emma characterises her needs by reference to repayment of that debt and some expenses in relation to the children.

33. [53]

    Thus, each of the Siblings is an independent adult in full employment. Each is married and, with their spouse, a homeowner. Each of those homes is encumbered by a mortgage to approximately half the value of the homes. But each of the Siblings has above average earning capacity and has income exceeding outgoings. Jeremy and Emma have significant superannuation entitlements.

34. [54]

    Each asserts a “need” to pay down some of their mortgage debt (Emma also points to some expenses relating to dependent children) but none asserts an inability presently to service and ultimately to retire such debt. None asserts that any possible provision from the notional estate of the Deceased could retire their debt completely.

35. [55]

    In effect, each of the Siblings has received no provision from the Deceased’s estate.

36. [56]

    Nonetheless, in the circumstances I have outlined, I am not persuaded that adequate provision has not been made. The jurisdiction under the Act should be seen as a needs-based jurisdiction, as s 59 of the Act directs attention to any inadequacy of provision for, relevantly in this case, the proper maintenance and advancement in life of the applicants for provision. Although each of the Siblings would obviously benefit from receiving a provision which would enable them to pay down their mortgage debts, I am not persuaded that it follows from the Deceased’s failure to structure his testamentary affairs that he has thereby made inadequate provision.

37. [57]

    Further, as emerges from the matters I set out below concerning the Deceased’s acquisition of the Property as joint tenant with Faith, and his later consideration, following the Siblings’ reaction to revelation of the joint tenancy, to the possibility of its severance, the Deceased gave due and careful consideration to the Siblings’ claim on his estate, and chose to maintain the joint tenancy; fully aware of its consequences. The making of the provision sought by the Siblings would subvert the Deceased’s expressed wishes about that matter.

38. [58]

    It is, in any event, relevant to consider Faith’s competing claim. Faith does not have to justify her position. The Deceased decided to enter into a joint tenancy with Faith in respect of the Property. But I consider that Faith does have a strong competing claim. She had a close and loving relationship with the Deceased. She provided considerable care and support to him, especially since 2009. The Property is her home. It may be that, as a five-bedroom property, it is more than she needs. But it has been her home for almost 14 years. It is true that Faith has a significant income from the Department of Communities and Justice and stands to receive a substantial superannuation payout on her retirement. However, she also has significant debts, and no savings. Unlike the Siblings, she is unpartnered.

39. [59]

    Whether or not, as Ms Tibbey submitted, Faith’s “apparent inability to save” is something that “lies at her own feet”, the fact remains that were I to order provision for the Siblings as they contend, it could only come from the notional estate, and it seems inevitable that Faith would have to sell the Property. It was put to Faith in cross-examination that she has sufficient income to borrow funds necessary to make the provision sought. However, Faith rejected that proposition and there is no evidence to prove otherwise.

40. [60]

    For those reasons my conclusion is that the Siblings’ claims fail at the threshold. They have not shown that the provision made for them is not adequate.

41. [61]

    However, as considerable attention was given at the hearing to the question to whether, assuming the Siblings have established inadequate provision, a notional estate order should be made, l will now turn to that question.

The acquisition of the Property

1. [62]

   As the only notional estate could be the Deceased’s former interest as a joint tenant in the Property, I will recount the circumstances in which that interest was created, and the events that occurred once Sarah, Jeremy and Emma became aware of its implications so far as they were concerned.

2. [63]

   The Deceased and Faith purchased the Property for $529,000 and became registered proprietors of the Property as joint tenants following registration of the transfer dated 15 December 2009.

3. [64]

   As I have said, the Deceased paid half of the purchase price from the proceeds of a property in Bathurst that he then owned as joint tenant with his late wife. Those proceeds were in the order of $320,000 and it seems clear the Deceased could not have afforded to purchase the Property alone. The Deceased was then on a single pension and was struggling financially.

4. [65]

   Faith funded her interest in the Property with borrowings secured by a mortgage from ING Bank (Australia) Limited, in the names of both joint tenants. Faith and the Deceased agreed that Faith would make all payments under the mortgage, which she did. Faith has also paid all utilities, expenses, and home insurance on the Property, as well as some $19,000 on repairs to the Property.

5. [66]

   The original mortgage was for $300,000. The amount now owing is in the vicinity of $241,000. There is also a second mortgage under which some $54,000 is owing.

6. [67]

   As I have said, from the time of purchase of the Property until his death, the Deceased occupied the Property with Faith and Bethany.

7. [68]

   Neither the Siblings nor Faith adduced evidence of a formal valuation of the Property. The Siblings rely on five “drive by” assessments by local real estate agents who opine the property would sell for something between $1.1 and $1.2 million. Faith relies on a “walk through” appraisal by another real estate agent who opines the Property is worth $950,000 and who notes that “the premises is only in fair condition and considerable expense is required to bring it up to a reasonably acceptable standard”. Assuming the true value is somewhere between these figures, and that were the Property to be sold, the net proceeds, after payment of agent’s commission and legal costs, were in the order of $1 million, the value of the notional estate is in the order of $500,000.

The creation of the joint tenancy

1. [69]

   Faith gave evidence that in December 2009, she attended with the Deceased on a solicitor at Wollongong Conveyancing Services, Mr Stephen Dawson, to give Mr Dawson instructions concerning the purchase by the Deceased and Faith of the Property.

2. [70]

   Faith gave this evidence as to what happened on that occasion:

3. [71]

   I see no reason why I should not accept this evidence. It is consistent with evidence that the Deceased had hitherto owned properties as joint tenant with his late wife. It shows that he intended to create a joint tenancy with Faith, and understood that, if he died first, his interest in the Property would pass by survivorship to Faith.

4. [72]

   This is confirmed by evidence that Jeremy gave of a conversation with the Deceased a short time later in which the Deceased said that the reason he had decided to buy the Property together with Faith was that “Faith has nothing in her name” and that “they were going to buy a property together” and that “he was concerned about her future”.

5. [73]

   Jeremy said that he said to the Deceased:

6. [74]

   In cross-examination, Jeremy said:

7. [75]

   Nonetheless, the Deceased adhered to the joint tenancy.

8. [76]

   The Siblings make no application to impugn this transaction. They make no suggestion of undue influence or any other matter that might cast doubt on the legal effect of the creation of the joint tenancy.

9. [77]

   There was a dispute in the evidence as to when the Siblings became aware of the joint tenancy.

10. [78]

    I do not find it necessary to come to a final conclusion about this as it is clear that, by 2019, when relations between Faith and the Siblings were becoming strained, Jeremy came to know of the joint tenancy.

11. [79]

    That is because he took it upon himself, without consultation with the Deceased, to contact the Deceased’s solicitor as he “wanted direction on where we stood”.

12. [80]

    Jeremy said that this followed an occasion when “Faith was not happy for us to go into the house” and when Faith had said:

13. [81]

    Jeremy said that after he spoke to the solicitor, he had a conversation with the Deceased as follows:

14. [82]

    It cannot be known why the Deceased responded to Jeremy’s statement by saying it “couldn’t be right” that the Property “will all go to Faith” after he had “passed on”, although the Deceased’s reported statement that “I’ve got to go now” might suggest he was seeking to avoid a confrontation with his son.

15. [83]

    The Deceased was clearly irritated that Jeremy had made contact with his solicitor. Thus, Jeremy said that a short time later the Deceased telephoned him and they had this conversation:

16. [84]

    Jeremy said that on another occasion the Deceased rang him and said, “Faith has said everything’s sorted”.

17. [85]

    At about the same time, Sarah said that the Deceased said to her:

18. [86]

    The Deceased’s reported statements that Faith had said “it will be fixed” or “sorted” and that she would “do the right thing” is consistent with Faith’s evidence of her intentions at that time.

19. [87]

    Thus, Faith gave evidence that she told Emma that she and the Deceased had purchased the Property as joint tenants. Faith said that Emma asked “what does that mean” and Faith replied, “it means that it won’t be part of the estate when Dad dies, it will automatically revert to my name”.

20. [88]

    Faith said that the following conversation ensued:

21. [89]

    Similarly, Faith said, she thought in about 2017, that she told Jeremy that she and the Deceased had purchased the Property as joint tenants and that she told Jeremy:

22. [90]

    Further, in November 2019, shortly after Jeremy had been told that the Deceased and Faith held the Property as joint tenants, Emma and Faith had this SMS exchange:

23. [91]

    At around that time, Faith made the following Facebook post:

24. [92]

    The passages I have emphasised show, as Faith accepted in her evidence, that at this stage, she was intending to make some informal provision for the Siblings after the Deceased’s death. As I discuss below, for reasons Faith explained, she changed her mind about this.

25. [93]

    On 20 December 2019, Faith and the Deceased met at the Property with another solicitor, Mr James Isabella, from the firm Williamson Isabella Lawyers in Dapto.

26. [94]

    That meeting was evidently prompted by the following conversation between Faith and the Deceased. Faith placed this conversation as having occurred in February 2020, but its contents suggest that it occurred prior to 20 December 2019.

27. [95]

    The conversation was as follows:

28. [96]

    This appears to be inconsistent with a statement that Sarah attributed to the Deceased at around this time that “I’m going to go to the solicitor and change the joint tenancy”. Again, it cannot be known why the Deceased may have said this to Sarah.

29. [97]

    It appears from a manuscript file note produced by Mr Isabella on subpoena, and from a more complete note Mr Isabella made at a later meeting on 7 February 2020 and to which I will return, that on 20 December 2019 the Deceased gave Mr Isabella instructions for a new will pursuant to which Faith would ultimately receive a 70% interest in the Property and have an option to purchase the remaining 30%.

30. [98]

    It also appears from Mr Isabella’s manuscript notes that the Deceased instructed Mr Isabella to prepare a revocation of an existing Power of Attorney in favour of the Siblings and Faith and to prepare a “New P/A”.

31. [99]

    Faith and the Deceased had a further meeting with Mr Isabella on 7 February 2020.

32. [100]

    On that occasion, the Deceased executed the revocation of the earlier Power of Attorney and the Enduring Power of Attorney in favour of Faith and, as her substitute, Bethany, foreshadowed at the 20 December 2019 meeting. The Deceased also executed an Appointment of Enduring Guardian in favour of Faith. Those documents had been prepared by Mr Isabella, evidently from instructions received at the meeting on 20 December 2019.

33. [101]

    On 7 February 2020, there was also discussion about the draft will that Mr Isabella had prepared arising from his meeting with the Deceased and Faith on 20 December 2019.

34. [102]

    Faith gave this evidence about what occurred at the meeting:

35. [103]

    Mr Isabella made an extensive note of the 7 February 2020 meeting as follows:

36. [104]

    Mr Isabella’s note is likely to be a more accurate summary of what occurred at this meeting than Faith’s recollection given in evidence. However, Faith’s recollection of the meeting, and her conversation with the Deceased as set out at [95] above, suggest that she was encouraging the Deceased to consider severing the joint tenancy. As I discuss below, ultimately, the Deceased decided not to follow this course.

37. [105]

    I draw these conclusions from Mr Isabella’s file note:

38. [106]

    Faith’s evidence suggests that she may have made an alternative suggestion that the joint tenancy be severed so that, on the Deceased’s death, she acquire a further 20% interest in the Property to make a total interest of 70%, and that each of Sarah, Jeremy and Emma acquire a 10% interest. On the other hand, it may be that Faith has misremembered the detail of the conversation and that all that was discussed was the proposed new will. It is not possible to be certain about this as Faith was not asked any questions about what appears to have been the contents of the proposed new will.

39. [107]

    In any event, the matter went no further. The Deceased did not execute the proposed new will, nor take any step to sever the joint tenancy in the Property.

40. [108]

    The evidence suggests that this was because the Deceased made a conscious decision not to take either of these steps. That is evident from the conversation the Deceased had with Faith prior to the 7 February 2020 meeting with Mr Isabella which I have set out at [95] above.

41. [109]

    It is also evident from the statements made by the Deceased to Faith following the meeting.

42. [110]

    Faith said that the Deceased later said to her “I am worried about that option”. Faith said she understood that the Deceased was referring to the “option” as severing the joint tenancy and making provision for the Deceased’s interests in the property to be divided between siblings on the 10:10:10:20 basis that Faith may have suggested. Faith said that the Deceased said: “I don’t want to do it in an even split”. Although the transcript records that Faith here deposed that the Deceased said he did not want an “even split”, it is likely that he said he did not want the “uneven” split that Faith was suggesting for his consideration.

43. [111]

    Faith also said that the Deceased then said, concerning the Power of Attorney, that “I feel a lot safer now”.

44. [112]

    Faith also gave this evidence:

45. [113]

    It was in these circumstances that Faith reconsidered whether she should reach some accommodation with the Siblings about passing on to them some benefit following the death of the Deceased. In answer to a question from me as to “what changed”, Faith gave this evidence:

46. [114]

    Ms Tibbey asked Faith no questions arising from that evidence. I see no reason not to accept it. The words Faith attributed to the Deceased are consistent with the established facts that both Faith and Mr Isabella raised the possibility of the Deceased severing the joint tenancy in relation to the Property and that, despite this, the Deceased did not and, I would infer, decided not to do so.

47. [115]

    Faith also deposed that:

48. [116]

    Emma said that she had this conversation with her father “fairly close in time” to his death:

49. [117]

    Once again, it cannot be known why the Deceased would have said this to Emma. It is obviously inconsistent with what he said to Faith. It may be that, faced with Emma’s assertion about Faith stealing the Siblings’ inheritance, the Deceased was seeking to deflect matters and appease Emma.

Notional estate

1. [118]

   As I have concluded that the Siblings have not established that adequate provision was not made for them by the Deceased, the question of whether I should make a notional estate order does not arise.

2. [119]

   However, had I been satisfied that adequate provision had not been made by the Deceased for the Siblings, I would not have been persuaded to make a notional estate order.

3. [120]

   The Court approaches applications for a notional estate order with circumspection.

4. [121]

   That reflects the provisions of s 87 of the Act:

5. [122]

   That section operates as a constraint on the making of a notional estate order.

6. [123]

   Section 87(a) provides that the Court must not make a notional estate order unless it has considered “the importance of not interfering with reasonable expectations in relation to property”.

7. [124]

   As has often been observed, the section does not specify whose “reasonable expectations” are to be considered.

8. [125]

   Untutored by authority, I would find it hard to see how the provision in s 87 could be seen as being directed to the “reasonable expectations” of an applicant for provision. That is because the legislative exhortation in s 87 only arises for consideration once the Court has concluded that adequate provision has not been made for the applicant for provision; in which case it is hard to see how any “reasonable expectations” of the applicant could continue to be relevant. Nor can I see how the “reasonable expectations” of the testator could be relevant.

9. [126]

   This is the view expressed by Basten JA (as his Honour then was) in Phillips v James [7] as follows:

10. [127]

    In Phillips v James, Beazley P (as her Excellency then was, and with whom Meagher JA agreed) cited with approval [9] the judgment of Ward J (as the President then was) in John v John [10] in which her Honour cited with approval [11] an earlier decision of McLaughlin M in Petschelt v Petschelt [12] expressing a wider view. [13]

11. [128]

    Were it necessary for me to express a view about this matter, I would, for the reasons set out at [124] above, favour the view expressed by Basten JA.

12. [129]

    It is not, however, necessary for me to express a concluded view about this because I find it clear that Faith has, in the circumstances I have outlined, a reasonable expectation of maintaining her interest as the surviving joint tenant of the Property and that this, alone, is a decisive reason not to make a notional estate order.

13. [130]

    Further, the circumstances I have set out show that the substantial justice and merits of the case compel the conclusion that Faith should retain her interest in the Property.

14. [131]

    As I have said, Faith has lived in the Property since 2009. She there cared for the Deceased. She has made the Property her home, a fact that the Deceased, for understandable reasons, considered to be of great importance. [14]

15. [132]

    That this was the Deceased’s view is confirmed by Bethany’s evidence that the Deceased said to her, on a number of occasions, “this is your home, I hope you will be able to raise your own family here one day too” and of the Deceased making general comments referring to the Property as “our house” and “our home”.

16. [133]

    The fact that Faith made what might be described as representations to the Siblings as to making some compensatory provision from her own resources is, I accept, a matter that could be taken into account in assessing the substantial justice and merits involved in the making or refusing of a notional estate order. But Faith has given an explanation for her change of heart about that matter that I see as being reasonable. Further, the Siblings have not asserted any detrimental reliance on anything that Faith said in that regard. In any event, such weight as should be given to Faith having made those statements is outweighed by the other matters to which I have referred and by the fact that the making of a notional estate order of the kind sought by the Siblings would subvert the Deceased’s express wishes as to how he wished his estate to be dealt with.

17. [134]

    For completeness, I record that had I been persuaded to make an order for provision in favour of the Siblings, it would only come from the notional estate that, as I have said, was in the order of $500,000. In that event, it is likely that the Siblings’ costs, and certainly that Faith’s costs, would first be paid from the notional estate, leaving some $300,000 to be divided equally between the Deceased’s four children: $75,000 each. That is what was at stake here.

Conclusion

1. [135]

   For these reasons I propose to dismiss the plaintiffs’ claims.

2. [136]

   I will now hear submissions as to costs.