Olsen v Olsen & Ors

1. [1]

   MEAGHER JA: I agree for the reasons given by White JA that this appeal should be dismissed with costs.

2. [2]

   WHITE JA: This is an appeal from an order of the Equity Division (Pembroke J) dismissing the appellant’s summons. The appellant had sought a family provision order under s 59 of the Succession Act 2006 (NSW) from the estate or notional estate of the late Colin Richard Olsen of Manly (Olsen v Olsen [2019] NSWSC 217).

3. [3]

   As appears below the appellant not only submits that the primary judge erred in dismissing the application. He also asserts that the judgment is vitiated for actual or apprehended bias and that the judge failed to give genuine consideration to the application. For the reasons which follow those grounds are untenable. The appeal should be dismissed.

4. [4]

   The deceased died on 17 July 2016 aged 87 years.

5. [5]

   The appellant is a son of the deceased. He was born on 5 November 1958. He was a child of the deceased’s first marriage. The deceased and the appellant’s mother were married in December 1957. They separated in 1959 when the appellant was about nine months old.

6. [6]

   The deceased married a second time on 17 December 1960. He and his second wife, Faye Beverley Olsen, had three children: Marc, in 1962, Micheline, born in 1963, and Dean, born in 1969. The deceased made a will dated 26 May 2015. His signature to the will was attested by only one witness. However, the parties were agreed that the will was operative as an informal will of the deceased pursuant to s 8 of the Succession Act. By the will he appointed his son, Dean, as his executor. He gave his whole estate to his wife. If she died before him, then he left specific properties and goods to the three children of his second marriage, Marc, Micheline and Dean, in different proportions. He made no provision for the appellant.

7. [7]

   Dean Olsen did not obtain a grant of probate of the informal will. The primary judge was informed that he was advised that the assets of the estate could be distributed without the need for obtaining a grant. No order was made granting administration to Dean Olsen or anyone else to permit the application for a family provision order to be dealt with (Succession Act, s 91). It was apparently common ground that such an order would be made if, but only if, it were held that the appellant was entitled to an order for provision.

8. [8]

   Dean Olsen deposed that at the date of death the assets of the deceased amounted to approximately $379,816.97, consisting of a boat with an estimated value of $12,750, two cars with a combined estimated value of $9,000, and one ordinary share in Richard Castle & Co Pty Ltd (“the Company”) whose value he estimated to be $358,066.97. The Company no longer traded. The Company had issued two shares, one to the deceased and the other to Beverley Olsen. The deceased’s share was valued on the basis of an estimate of half of the Company’s assets. Those assets consisted of a property in Bonnells Bay with an estimated value of approximately $576,000 and money in a bank account. Dean Olsen deposed that after funeral expenses, he estimated the gross distributable estate of the deceased to be approximately $343,801 as at 22 August 2017. Further, one of the cars and the boat had already been distributed.

9. [9]

   In his updating affidavit at the time of the hearing, Dean Olsen deposed that the assets of the estate then consisted of the one ordinary share in the Company and one of the motor vehicles with an estimated value of $6,800.

10. [10]

    It was common ground that there were two pieces of land of which the deceased was a joint tenant and two jointly owned bank accounts that could be designated as notional estate. The deceased and his wife owned the matrimonial home in Manly as joint tenants. It had been valued at between $4 million and $4.4 million. The deceased and his wife also had two jointly-owned bank accounts to a value of $57,529.79. These assets passed to Beverley by survivorship.

11. [11]

    The deceased was a joint tenant of a property in Beacon Hill co-owned with Beverley and his daughter Micheline. It was valued at $1.5 million. The appellant did not seek to have the Beacon Hill property or any interest in it designated as notional estate.

12. [12]

    The appellant carries on his profession as a solicitor through AMC Lawyers Pty Ltd. The practice is carried on from a property adjoining his and his wife’s residence in Waratah, a suburb of Newcastle. It appears from the appellant’s tax returns that he derives no income from the practice. Rather, the income from the practice is directed by payment of management fees, either to his wife or to the trustee of what his counsel called a “service trust”, called the Lensie Trust. No such income was reflected in the profit and loss statement of the Lensie Trust that was tendered. The appellant’s 2016 income tax return recorded that in the 2016 financial year the appellant had taxable income of $80,954. This included $52,954 by way of a State Super Monthly pension. There was an additional income of $28,000 described as allowances/earnings tips/directors fees. The respondents accepted that this reflected income that came from AMC Lawyers Pty Ltd, albeit not by way of wages.

13. [13]

    In the same financial year the appellant’s wife had a taxable income of $80,628. In the financial year ended 30 June 2017 the appellant’s taxable income was $98,578 and his wife’s taxable income was $92,689. In other words, their combined taxable income was about $190,000.

14. [14]

    The appellant was 60 at the time of trial. From the time he turned 60 his pension of approximately $58,000 per annum was tax-free. The pension is indexed. The evidence did not disclose whether the pension was indexed to CPI, average earnings or the earnings of a particular position within the Office of the Director of Public Prosecutions in which the appellant formerly worked and from which he derives his pension.

15. [15]

    The appellant has minimal assets. His wife is the owner or part-owner of two properties in Queen Street, Waratah, and three other properties. She deposed that she had all the significant assets of the family in her name. She deposed to having assets whose value she estimated to be $1,385,000 and liabilities (other than to AMC Lawyers) of approximately $362,000. It appears that Mr Olsen owes a tax debt of approximately $65,000 and AMC Lawyers owes tax debts of approximately $91,000. Both Mr and Mrs Olsen are indebted to AMC Lawyers for almost $500,000.

Primary judge’s reasons

1. [16]

   The primary judge observed (Judgment [2]) that Mr Olsen’s claim was limited to a sum of $250,000 to carry out repairs to one or both of two adjoining properties in Waratah near Newcastle. Both properties are owned by the appellant’s wife. She and the plaintiff live in one property and operate a legal practice from the other. His Honour observed that no claim was put forward for any other sum that could be said to be necessary for the appellant’s maintenance or advancement in life (Judgment [2]).

2. [17]

   The primary judge did not dismiss the claim on the ground that the provision sought was not for the maintenance or advancement in life of the appellant, but rather for his wife (Mayfield v Lloyd-Williams [2004] NSWSC 419 at [135]). That contention was not raised below, nor on appeal.

3. [18]

   The primary judge made some general comments about claims by adult sons referring to In re Sinnott (1948) VLR 279 at 280, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20; [1962] HCA 19 and Stott v Cook [1960] 33 ALJR 447 at 455. His Honour did not refer to, and was not referred to, Gorton v Parks (1989) 17 NSWLR 1 or Taylor v Farrugia [2009] NSWSC 801.

4. [19]

   The primary judge then said (Judgment [5]):

5. [20]

   The primary judge had made similar comments in a pre-trial directions hearing referred to below at [38]-[46]. The repetition of those sentiments at [5] of the judgment quoted above was said to demonstrate actual bias. For the reasons below, that contention is untenable.

6. [21]

   The primary judge then repeated a view he had expressed in other cases as to the frequency of unmeritorious claims being brought for family provision orders. His Honour said (Judgment [6]):

7. [22]

   The primary judge then addressed the relevant test to be applied under s 59(1)(c) of the Succession Act in unexceptionable terms. He said:

8. [23]

   The primary judge then addressed deficiencies in the appellant’s case. His Honour said:

9. [24]

   The primary judge then addressed the terms of the will and the testator’s recognition of the position of Micheline, and continued (Judgment [14]):

10. [25]

    The primary judge then addressed the size of the estate, the claims of the deceased’s widow and three children and the appellant’s circumstances. He was critical of the appellant’s affidavit. He said (Judgment [25]):

11. [26]

    The primary judge then addressed the appellant’s financial circumstances, concluding (Judgment [34]):

12. [27]

    The primary judge then referred to how, as he saw it, the Court should respect the exercise of a testator’s judgment, concluding (Judgment [40]):

13. [28]

    The primary judge concluded that having regard to the matters specified in s 60(2)(a)-(e), (g), (j) and (p) of the Succession Act, he was not satisfied that adequate provision for the appellant’s proper maintenance or advancement in life had not been made by the will of the testator (Judgment [41]). His Honour continued (at [41]):

14. [29]

    The primary judge then expressed concern about the level of costs incurred, and, in particular, the level of the appellant’s costs. Although the claim propounded at the hearing was for $250,000, the estimate of the appellant’s costs from commencement to conclusion of the hearing was $178,050. The primary judge said that he regarded that amount as “discreditable”. He complained that the appellant’s affidavit evidence had been unhelpful and far more extensive than it needed to be, and noted that junior counsel had disavowed responsibility, saying that the appellant (a solicitor) insisted on drawing his own affidavits. The primary judge was critical of the appellant’s legal representatives for allowing that to happen (Judgment [45]). The primary judge concluded that the case had achieved nothing, except unnecessary cost and unwanted misery and stress (Judgment [48]). His Honour took credit for the hearing of the case being confined to one day rather than the three days that his Honour said had been proposed. As the appellant argued on appeal, the original estimate of three days was made when Micheline, who had been joined as a defendant to the appellant’s summons, had filed a cross-claim claiming to be beneficially entitled to the whole of the beneficial interest in the property at Beacon Hill. By his amended summons, the appellant had sought an order that the deceased’s one-third share in the property that passed by survivorship to Micheline and Beverley be designated as notional estate. This Court was informed that that claim was not pressed at the hearing before the primary judge. Micheline’s cross-claim was discontinued on 13 February 2019.

15. [30]

    The primary judge was not told that the three-day estimate for the hearing had been made before the cross-claim had been discontinued, although that would have been apparent from the file.

16. [31]

    The primary judge concluded that the summons should be dismissed, but made no order as to costs on the basis that the estate was better able to absorb the respondent’s legal costs than the appellant was able to afford them (Judgment [49]). The respondents do not apply for leave to cross-appeal from the primary judge’s costs order.

Grounds of appeal

1. [32]

   The appellant appealed on the following grounds:

2. [33]

   The appellant sought an order that the judgment of the primary judge be set aside and that the matter be remitted to the Equity Division to be heard by a judge other than the primary judge, or alternatively that this Court itself make an order for provision in favour of the appellant.

Actual or apprehended bias

1. [34]

   If either of the first two grounds of appeal were established, that is, actual bias or apprehended bias, the proceedings should be referred to another judge of the Equity Division for retrial. These grounds of appeal should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [116]-[117], cf [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]).

2. [35]

   It was common ground that the principles in relation to a finding of actual bias were correctly expounded by Gleeson JA in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74] as follows:

3. [36]

   The test of apprehended bias does not require a determination of the actual mind of the judge. Rather, the question is whether a fair-minded and informed, lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]; and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [12], [57]). The question is whether the informed and fair-minded lay observer might apprehend that the primary judge might have predetermined the issue, such that he or she was not open to persuasion, rather than whether he or she did so.

4. [37]

   No objection was taken at the trial to the primary judge’s statements as giving rise to either actual or apprehended bias. The respondents submit that the failure to object constituted waiver of any objection to the judge’s continuing to hear and determine the matter (Vakuata v Kelly (1989) 167 CLR 568 at 573, 577, 587-588; [1989] HCA 44; Michael Wilson & Partners at [76]). Prior to the delivery of judgment the primary judge had stated more than once that he had not formed a view and that the concerns he expressed about the appellant’s case were merely preliminary and that he had not made up his mind, but would be listening to the evidence and the submissions. The appellant submitted that it was not until the very end of the hearing that the primary judge indicated a lack of impartiality and that this only became clear on the publication of the primary judge’s reasons on 15 March 2019.

5. [38]

   The matter was listed before the primary judge for hearing on 5 March 2019. On 26 February 2019 the primary judge had what was described as a pre-trial hearing. The hearing was referred to as a directions hearing, although no directions were made. The hearing was attended by junior counsel for the appellant and the solicitor for the respondents. After the appearances were taken and the court book was handed up, the primary judge said as follows:

6. [39]

   Counsel for the appellant advised that the appellant himself had insisted on drawing his own submissions and the primary judge referred to the need of legal representatives to control the enthusiasm of their clients and said he would not allow the appellant to be cross-examined for a day on all of the issues that he raised. The primary judge said:

7. [40]

   There was a discussion about how long the case should take. The parties were agreed that it should only take one day. The judge was concerned that it had been listed for three days. He was not told that the reason for the original listing of three days was due to a cross-claim that had since been discontinued. There was discussion about the circumstances of the deceased’s daughter, Micheline and the circumstances of the deceased’s son, Marc.

8. [41]

   Counsel for the appellant said that the appellant was confused as to why the circumstances of the deceased’s three children with his second wife were raised as competing claims (an issue later raised at trial). The primary judge said:

9. [42]

   His Honour added:

10. [43]

    His Honour said:

11. [44]

    The primary judge said that it looked to him as if the appellant were the most successful of all four of the children. His Honour urged the parties to take into account what he had said and continued:

12. [45]

    After the appellant’s counsel made an allusion to the appellant’s attempts at settlement having been met with the “proverbial wall”, the primary judge warned the respondents’ solicitor that if he formed the view that the respondents’ position had been unreasonable, he would certainly ensure that a costs order was made which reflected that.

13. [46]

    As to the duration of the hearing, counsel for the appellant estimated that two days to one and a bit maximum was reasonable. The primary judge said:

14. [47]

    The directions hearing concluded shortly thereafter.

15. [48]

    The appellant submitted that the primary judge had a fixed opinion concerning claims for family provision orders made by able-bodied adult sons. As initially formulated in oral submissions, the appellant submitted that the primary judge’s opinion was as formulated at [5] of his Honour’s reasons (quoted at [19] above). That observation of the primary judge does not suggest any bias against the appellant, even if it were accepted that the primary judge could not be persuaded to modify that opinion. The opinions expressed by his Honour at [5] are unexceptionable, although they do not address the statutory criteria for the making of a family provision order. As to the third sentence, there is no justification for an able-bodied adult son to cling to a sense of entitlement that he will necessarily benefit from his parents’ estate. That is far from saying that it is only in special circumstances that an able-bodied adult son would be entitled to claim on his parents’ estate.

16. [49]

    The appellant submitted that the primary judge’s comments at the pre-trial hearing on 26 February 2019 demonstrated a bias, but that the fears of bias were alleviated by his Honour’s statement that he was only expressing preliminary views. The appellant rightly submitted that at the pre-trial hearing the primary judge expressed some scepticism about the appellant’s claim. He referred the appellant’s counsel to the judgment of this Court in Sgro v Thompson [2017] NSWCA 326 and to his Honour’s judgments in Steinmetz v Shannon [2018] NSWSC 1090 and Revell v Revell [2016] NSWSC 947 and commented adversely on the appellant’s affidavit.

17. [50]

    Although at the directions hearing on 26 February 2019 the primary judge observed that not all of the affidavits were in the court file, it is clear that the primary judge had reviewed the principal affidavits. His Honour attempted to bring the parties to a settlement. In doing so, he expressed a prima facie view as to the merits of the appellant’s application. He expressed concern about the minutiae of the appellant’s affidavit in his unburdening himself of “deep-seated resentments about [his] past life”. That concern was justified. His assessment that the appellant was the most successful of the deceased’s four children was also justified on the affidavits. There is no basis for saying that the primary judge had closed his mind on these issues. Neither the conduct at the trial, nor the primary judge’s reasons, suggest that he had closed his mind.

18. [51]

    The first basis for the appellant’s complaint that the judge had closed his mind was that at the directions hearing on 26 February 2019 he expressed the view that there would be no question that the position of the three children of the deceased and his second wife would be relevant.

19. [52]

    Objection to their evidence was taken at the trial. Mr Coleman SC who appeared with Ms Clarke for the appellant, submitted that s 60(2)(a) and (b) and the following paragraphs of s 60(2) of the Succession Act made clear “... the statutory limit on the obligations or responsibilities owed by the deceased to a class of persons [and] neither Marc nor Dean falls in that class”. Counsel submitted that because the deceased’s children were neither beneficiaries of the estate, nor had they applied for provision from the estate, their position was irrelevant to a determination under s 59(2) as to whether provision should be made out of the estate for the maintenance or advancement in life of the appellant.

20. [53]

    No authority was cited in support of this submission. The primary judge rejected it. His Honour said:

21. [54]

    The primary judge’s adherence to the view which he expressed in the pre-trial hearing is not evidence of actual nor apprehended bias. His Honour’s ruling was also correct. Section 60(2)(p) provides that the court may consider any matter it considers relevant. In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J dealt with an objection as to the admissibility of evidence analogous to the objection taken in the present case. In a passage later cited with approval by this Court in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 at [35]-[36], Holland J said:

22. [55]

    Kleinig v Neal (No. 2) was not cited to the primary judge. It should have been cited by the appellant and distinguished, if it could be. It supported the primary judge’s view. The primary judge was plainly correct in taking into consideration the position of the deceased’s three children by his second marriage to whom he had a moral obligation which could be expected to be fulfilled through his leaving his estate to his wife. Neither the primary judge’s statement at the pre-trial hearing that he would take the position of the deceased’s children by his second marriage into account, nor his decision to that effect at the trial, is any evidence of bias or apprehended bias.

23. [56]

    In his written submissions the appellant raised a second ground of bias and apprehended bias. He stated that he had reviewed decisions given by the primary judge in family provision cases dating back to 2014 and in the period from March 2015 to July 2019 the primary judge had not found in favour of a plaintiff in a family provision claim. This statement was apparently advanced in support of a submission that the primary judge was biased against claimants for family provision orders, or at least against such claimants who were able-bodied males.

24. [57]

    The schedule of judgments attached showed that in 2015 the primary judge had made findings in favour of a plaintiff seeking a family provision order in two out of five cases. The schedule stated that the primary judge had dismissed summonses for family provision orders in two cases in 2016, one in 2017, two in 2018, and one in 2019 prior to the decision in the present case. One of those decisions (Steinmetz v Shannon [2018] NSWSC 1090) was overturned on appeal.

25. [58]

    When asked how this submission could stand with the decision of the Full Court of the Federal Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Mr Coleman SC abandoned the submission.

26. [59]

    In ALA15 v Minister for Immigration and Border Protection the Full Court of the Federal Court said (at [41]):

27. [60]

    In the course of oral submissions Mr Coleman SC modified his characterisation of the primary judge’s opinion that was said to be not amenable to argument to an opinion that, except in special circumstances, an adult able-bodied son should not be entitled to a family provision order out of the deceased estate of his parent. If the primary judge had a predilection to refusing such an application, there is nothing to show that that predilection was not amenable to argument. In Gorton v Parks Bryson J (as his Honour then was) said (at 10) that in his Honour’s view the bare fact of paternity was of very great importance in morality and said that views expressed by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (at 18) that the bare fact of paternity and no other mutual relation could not justify a claim for a family provision order was not consistent with contemporaneous concepts of moral duty.

28. [61]

    It is not possible to say that the primary judge could not be dissuaded from what is alleged to be his fixed opinion that an able-bodied adult son should not be entitled to a family provision order against the estate of one of his parents when the principal authority that could be cited in contradiction of that opinion was not cited.

29. [62]

    The other ground upon which the appellant contended that the primary judge was biased, or on which an hypothetical lay observer might have apprehended that the judge might have been biased, was his criticism of the appellant’s legal representatives. The primary judge said (Judgment [43]):

30. [63]

    The primary judge was in error in opining that the only basis on which an estimate of three hearing days might have been given to the Registrar was that that estimate would increase potential legal fees. But his Honour’s concern that the plaintiff’s estimated costs were $178,050 where his claim as propounded at the hearing was for approximately $250,000 was justifiable. On appeal, counsel said that the solicitor’s estimate of counsel’s fees of $98,050 was wrong by a factor of 10, but that was not disclosed to the primary judge.

31. [64]

    The primary judge also expressed the following concern (Judgment [45]):

32. [65]

    Nor does this paragraph give rise to any apprehended, let alone actual, bias against the plaintiff. The primary judge’s concern was legitimate. His statement that solicitor and counsel were duty-bound to restrain the appellant’s enthusiasm to unburden himself of his memories was correct. The appellant’s principal affidavit dealt not only with his relationship with the deceased, but also in irrelevant detail with property purchased by the deceased for his half-siblings and stepmother and with the maintenance paid by the deceased to the plaintiff’s mother when he was a child. By way of example, the appellant deposed that when he became interested in girls (apparently sometime after he was 12) he was often embarrassed about his state of dress.

33. [66]

    For these reasons I would reject the appellant’s grounds of appeal that the primary judge was biased, or that a reasonable hypothetical lay observer might have apprehended that the primary judge might have been biased.

Genuine consideration

1. [67]

   The third ground of appeal was that the primary judge did not give proper, genuine and realistic consideration to the merits of the case.

2. [68]

   The primary judge’s reasons for judgment negative this ground. Whether the primary judge’s reasons be correct or incorrect, they show a proper, genuine and realistic consideration of the merits of the case.

3. [69]

   As explained in submissions, the reason for this ground is that at the commencement of the defendants’ final oral submissions (after hearing the submissions of the plaintiff’s counsel) there was the following exchange between the primary judge and Mr Morrissey, who appeared at trial for the defendants:

4. [70]

   Mr Morrissey then addressed the primary judge. At the conclusion of his submission and submissions in reply, the primary judge said:

5. [71]

   I infer that at the commencement of the respondents’ submissions the primary judge had not made up his mind as to whether he would give judgment or announce the orders he proposed to make that day. Having heard the appellant’s counsel there could be no objection if he had made up his mind that the appellant’s claim would be dismissed. Even if the primary judge had not made up his mind at the conclusion of the submissions for the appellant as to the outcome of the claim, there is no substance to the ground that the primary judge did not give genuine consideration to the claim after having heard the respondents’ submissions and the limited submissions in reply. Ground 3 of the notice of appeal should also be rejected.

Grounds 4, 5 and 6

1. [72]

   I have already indicated why ground 5 of the notice of appeal should be rejected.

2. [73]

   Ground 6 was in substance a replication of ground 5. The appellant contended that the position of the deceased’s children was irrelevant. That is not so for the reasons articulated at [54] above.

3. [74]

   Ground 4 of the notice of appeal did not specify with particularity the alleged error. There was some confusion during the hearing of the appeal as to the issue raised by ground 4. At one point, counsel for the appellant indicated that grounds 5 and 6 were particulars of ground 4 and that the appellant relied only on grounds 5 and 6 as supporting an order for provision in his favour. Were that so, it would suffice to stop here. However, at a later point, counsel submitted that there was an error in the approach taken by the primary judge in reaching his decision. The alleged error is apparent from the paragraphs of the judgment referred to in ground 4. In paragraph [14] the primary judge said that he was satisfied that the will was rational and explicable, that the testator’s judgment was apparently conscientious, and that the will was not perverse, nor did it represent an abdication of responsibility. In paragraph [40] the primary judge said that the circumstances did not justify a conclusion that the deceased’s failure to make provision for the appellant should be disturbed, but did not address the statutory criterion of whether “proper” maintenance or advancement in life for the appellant required some provision to be made for him.

4. [75]

   Under the heading “The Testator’s Judgment” the primary judge referred to what I said in Friend v Brien [2014] NSWSC 613 at [62], Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and Sgro v Thompson at [80]-[88]. I said that where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the testator was placed. In this case, as the primary judge recognised, the testator knew nothing about the appellant’s circumstances.

5. [76]

   The principle I sought to express in those cases, and to which I adhere, was not applicable to the present case. It was not a general plea for primacy of freedom of testamentary disposition. There may be some tension between the views of Meagher JA (with whom Macfarlan JA and Simpson AJA agreed) in Squire v Squire [2019] NSWCA 90 at [10] and the views of Brereton JA (with whom Simpson AJA also agreed at [151]) in Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 at [96]-[97]. In Squire v Squire (decided after the hearing of the appeal in Steinmetz v Shannon) Meagher JA said (at [10]) of the power to make a family provision order:

6. [77]

   In contrast, in Steinmetz v Shannon Brereton JA said:

7. [78]

   I adhere to the views I expressed in Steinmetz v Shannon at [49]-[56].

8. [79]

   Although in paras [7] and [8] of his reasons (quoted at [22] above), the primary judge accurately stated the relevant principles, it does not appear that he applied those principles in reaching his decision. Rather, he proceeded on the basis that the will was rational and explicable. This would amount to an error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense justifying intervention if on re-exercise of the primary judge’s discretion I were to come to a different conclusion. Nonetheless, shorn of rhetoric, the primary judge’s conclusion was correct.

9. [80]

   The appellant did not press a claim to have the Beacon Hill property, that was Micheline’s home, designated as notional estate. The only properties that could be available to satisfy the appellant’s claim for provision were the deceased’s share in the matrimonial home that passed to his widow by survivorship or the share of the company that owned the property at Bonnells Bay that was a substitute for the widow’s superannuation and which she described as her only lifeline.

10. [81]

    The deceased’s primary moral obligation was to his wife (Steinmetz v Shannon at [98]-[107]).

11. [82]

    There is no reason to doubt the primary judge’s conclusion that the properties owned by the appellant’s wife, his indexed pension, the income derived from his legal practice, and eventually any goodwill on sale, should provide moderate security for their future (Judgment [34]).

12. [83]

    An order for provision in favour of the appellant that would require the sale of his share in Richard Castle Pty Ltd, or more likely, a consensual sale of the Bonnells Bay property, or the making of a notional estate order in respect of the matrimonial home, would deprive the deceased’s widow of her home or only financial resources that stood as a substitute for superannuation. The cash was exhausted by the costs of the litigation. To make a family provision order in the appellant’s favour would be antithetical to the deceased’s moral obligation to provide for his widow.

13. [84]

    For these reasons the appeal should be dismissed with costs.

14. [85]

    EMMETT AJA: The question in this appeal is whether a family provision order should be made under Pt 3.2 of Ch 3 of the Succession Act 2006 (NSW) in favour of the appellant, Mr Craig Olsen (Craig), in relation to the estate of the late Colin Olsen, who died on 17 July 2016 (the Deceased). Craig is a son of the Deceased by his first wife, whom the Deceased married in 1957. The Deceased and Craig’s mother separated in 1959 when Craig was nine months old. The Deceased married again and had three children by his second wife.

15. [86]

    By his informal will, the Deceased left the whole of his estate to his second wife, to whom he had been married for 56 years. He provided that, if she pre-deceased him, the whole of his estate was to go to their three children in varying shares. The Deceased’s second wife survived him. No provision was made for Craig in the will.

16. [87]

    The estate of the Deceased was valued at the date of his death at approximately $380,000. The Deceased had been a joint tenant with his wife of the matrimonial home and was a joint owner of two bank accounts. The Deceased was also the joint tenant of a property co-owned with his second wife and daughter. Those assets were not part of the estate but passed by survivorship.

17. [88]

    Craig carried on a practice as a solicitor from a property adjoining the residence occupied by him and his wife in a suburb of Newcastle. The income from that practice is applied in the payment of management fees, either to his wife or to the trustee of a “service trust”. Craig is entitled to a pension of approximately $58,000 per annum free of income tax. He has minimal assets although his wife is the owner or part-owner of some five properties.

18. [89]

    Craig filed an amended summons on 27 April 2018, joining his half-sister and the Deceased’s second wife as defendants seeking a family provision order. The original summons, filed 24 May 2017, had listed Craig’s half-brother Dean Olsen, appointed executor by the informal will of the Deceased, as sole defendant. On 15 March 2019, for reasons published on that day, a judge of the Equity Division (the primary judge) ordered that the amended summons be dismissed. His Honour was not satisfied that adequate provision for the proper maintenance and advancement in life of Craig had not been made by the Deceased and considered that the decision by the Deceased to make no provision for Craig was reasonable, justifiable and understandable. His Honour made no order for costs.

19. [90]

    By notice of appeal filed on 5 June 2018, Craig appealed from the order made by the primary judge. The grounds of appeal may be restated as follows:

    1. (1)

       The primary judge’s decision was affected by bias in that it was induced by a failure to bring an impartial and unprejudiced mind to the resolution of the question before him;

    2. (2)

       There was a reasonable apprehension that the primary judge’s decision was effected by bias in that a fair-minded observer could not be satisfied that his Honour had brought an impartial and unprejudiced mind to the resolution of the question before him;

    3. (3)

       Alternatively, the primary judge failed to give proper, genuine and realistic consideration to the merits of the case;

    4. (4)

       The primary judge erred in fact and law in determining that Craig had not been left without adequate provision for his proper maintenance, education and advancement;

    5. (5)

       The primary judge erred at law in considering the financial needs and circumstances of non-beneficiaries who had incorrectly raised their financial circumstances as competing claimants; and

    6. (6)

       The primary judge’s evaluative determination or exercise of discretion miscarried by taking into account irrelevant considerations.

20. [91]

    I have had the advantage of reading in draft form the proposed reasons of White JA for concluding that the appeal should be dismissed with costs. Specifically, I agree with his Honour’s conclusion that the grounds that the primary judge was either biased or that a hypothetical lay observer might have apprehended bias on his part, should be rejected. I also agree with White JA that the reasons of the primary judge demonstrate a proper, genuine and realistic consideration of the merits of the case. I also agree with White JA’s reasons for rejecting grounds 4, 5 and 6.