Amos v Hogg

1. [1]

   HIS HONOUR: This hard fought litigation concerns an application made by John Allan Woodroffe Amos (“the Plaintiff”), for additional provision for his maintenance, education and advancement in life out of the estate and/or notional estate of his mother, Nancy Jean Amos (“the deceased”), pursuant to the Succession Act 2006 (NSW) ("the Act").

2. [2]

   The deceased died on 9 September 2016. (The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.)

3. [3]

   The Plaintiff filed a Summons on 11 July 2017, in which he sought a family provision order and an order that the costs of the parties be paid out of the deceased’s estate. He named the deceased’s nephew, Peter Hogg, and the deceased’s solicitor, Therese Valerie Younes, as the Defendants, as they are the executors appointed in her Will made on 16 June 2016, to whom this Court granted Probate on 11 November 2016.

4. [4]

   A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). Subject to one matter to which I shall refer, the parties agreed that there was no property that could be designated as notional estate. As will be read, it is only necessary to refer, hereafter, to the estate of the deceased.

5. [5]

   It is not in dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

6. [6]

   Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as an adopted child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

7. [7]

   It was also agreed that there was no scope for the operation of the intestacy rules, with the result that it is only necessary to refer hereafter to the Will of the deceased.

Background Facts

1. [8]

   In claims such as these, factual context is necessary. It is convenient to begin with a statement of some of the background and the formal facts, since these provide the context in which the issues in the case arise. Many of these facts are taken from the extensive number of affidavits read in the proceedings, or from the oral or other evidence given during the case, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.

2. [9]

   The deceased was born in September 1924 and, at the time of her death, was almost 92 years old. She married Maurice Amos in 1945, having met him 5 years earlier. They had been married for about 68 years at the time of his death, at the age of 88 years, in June 2012.

3. [10]

   There were no biological children of the deceased’s marriage to Maurice. However, they adopted two children, being Judith Daddow, who was born in 1946, and who is now about 72 years old, and the Plaintiff, who was born in March 1950, and who is now 68 years old. (There was no evidence that Ms Daddow and the Plaintiff are related by blood.)

4. [11]

   The date of each adoption is not disclosed in the evidence. However, there was no dispute that each of the children was adopted shortly after her, and his, birth, respectively, or that they lived with the deceased and Maurice during their childhood. The Plaintiff was not made aware of the fact of his adoption until he was about 8 years old.

5. [12]

   In the Obituary given by the deceased for Maurice, in 2012, she referred to Ms Daddow and the Plaintiff, and described them as “wonderful adult children”.

6. [13]

   The Plaintiff married in about 1982. He and his wife separated in about 2000, and were divorced in about 2001. It is unnecessary to recount the details of their separation and subsequent divorce.

7. [14]

   There were three children of the marriage, being Robin John William Maurice Amos, who was born in May 1987, and who is now 31 years old; Brydie Eleanor Jane Amos, who was born in September 1989, and who is now almost 29 years old; and Felicity Amos, who was born in March 1992, and who is now 26 years old.

8. [15]

   The deceased’s Will, in Clause 3, provided for a bequest of personal items to each of the deceased’s three grandchildren. The specific bequest has not been distributed to each of them. There was no dispute that each of the grandchildren should now receive the bequest made to him, or her, respectively: T4.10 – T4.18.

9. [16]

   The Will, then, provided that the executors were to hold the whole of the rest and residue of the deceased’s estate, on trust, to sell, call in, or convert the same into money, at such times and in such manner as they thought fit, pay all just debts, funeral and testamentary expenses and all duties and any other costs fees or expenses associated with her estate, and, subject thereto, to divide the balance of her estate into different percentage shares, namely 10 per cent to the Plaintiff; 15 per cent to Judith; 30 per cent to her grandson, Robin; 10 per cent to her granddaughter, Felicity; 10 per cent to her granddaughter, Brydie; 15 per cent to her friend, Jennifer Byrne; and 10 per cent to her nephew, the executor, Peter Hogg.

10. [17]

    In the Inventory of Property attached to the Probate document, the property owned solely by the deceased, at the date of her death, consisted of an accommodation bond, which was, subsequently, repaid to the estate ($105,508) and cash in bank ($508,504). The total gross value of the deceased’s estate was estimated to be $614,013. (In these amounts, I have omitted the reference to cents and will continue to do so. This will explain any seeming mathematical errors.)

11. [18]

    There were no liabilities disclosed in the Inventory of Property.

12. [19]

    The bulk of the amount held at the date of the deceased’s death comprised the proceeds of sale of the deceased’s home at Kings Langley, which home had been purchased by the deceased and Maurice, in about 1987, and which was sold, in 2014, when the deceased moved.

13. [20]

    The Kings Langley property was sold to enable the deceased to purchase accommodation in “The Willows” retirement village in Baulkham Hills. The deceased moved there in August 2014, having spent some time, first, in the Anglican Retirement Village, at Castle Hill, following her hospitalisation in July 2014, in circumstances to which I shall later refer.

14. [21]

    In an affidavit sworn by Ms Younes on 18 May 2018, the estate of the deceased, before the payment of any costs of the proceedings, was said to consist solely of cash ($617,688), being an amount held in an interest bearing investment account ($612,289) and an amount held in a controlled monies account of the Defendants’ solicitors ($5,399).

15. [22]

    At the commencement of the hearing, the parties agreed that the estate had a current gross value of $621,614 (inclusive of the interest to be paid when the investment account matures shortly after the conclusion of the hearing): T 1.35 – T1.43. They also agreed that there had been no distribution of any of the cash in the estate to any beneficiary, or otherwise for the payment of the Defendants’ costs.

16. [23]

    There was a statement in the affidavit of Mr Hogg that an amount of $20,000, sent by cheque, at the behest of the deceased, in about September 2014, to the Plaintiff, “may be the subject of a prescribed transaction”, but since it was a payment to the Plaintiff, there is no utility in determining whether it should be so designated. It is provision that the deceased made, during her lifetime, for the Plaintiff, and it will be considered as such. No submissions to the contrary were advanced.

17. [24]

    The only eligible persons are the two children of the deceased and possibly, Brydie. Only the Plaintiff has made a claim for a family provision order.

18. [25]

    There is evidence that each of the beneficiaries named in the deceased’s Will, other than Mr Hogg, who is a party to the proceedings, was served with a notice of the Plaintiff’s application and of the Court's power to disregard her, or his, interests, in the manner and form prescribed by the regulations or rules of Court.

19. [26]

    There was no evidence read in the proceedings from either Ms Daddow or from Felicity. The Court knows virtually nothing about either, including neither of their financial resources and needs, or the reasons why each asserts that she has a legitimate claim on the bounty of the deceased. (Of course, each is entitled to rely upon the fact that she is a chosen object of testamentary bounty.)

20. [27]

    Brydie was a witness who gave evidence in support of the Plaintiff’s claim, and was cross-examined. She did not disclose any information about her financial resources and needs in her affidavit, but did provide evidence regarding why she had a legitimate claim on the bounty of the deceased.

21. [28]

    When she gave her evidence, she stated that she works “in admin” (T119.07) and that she currently lives at home with her mother (T120.14).

22. [29]

    In answers to questions from the Bench, she responded that she had not understood that the Court could make an order that her share of the estate should bear all, or part, of the burden of the additional provision, if any, made for the Plaintiff. When asked whether she had anything to say in regard to that she responded, “I haven’t really thought about it”: T130.40 – T131.01.

23. [30]

    The first Defendant, Peter Hogg, also gave evidence by affidavit, and was cross-examined. He did not include any information about his financial resources and needs, accepting that he had consciously chosen not to do so. There was no suggestion that he wished, at the hearing, to raise either of those matters. He did provide, however, evidence regarding why he had a legitimate claim on the bounty of the deceased.

24. [31]

    Jennifer Byrne was a witness whose affidavit was read. She, also, said nothing about her financial resources and needs. She did provide evidence of why she had a legitimate claim on the bounty of the deceased. She was not cross-examined.

25. [32]

    Robin raised his financial resources and needs, in the proceedings. He also gave evidence of why he had a legitimate claim on the bounty of the deceased. He was cross-examined, albeit briefly. I shall return to his evidence later in these reasons.

26. [33]

    Of course, each of the beneficiaries referred to is entitled to elect to remain silent about her, and his, financial resources and needs, respectively, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to her, or him, respectively, as a beneficiary regardless of her financial resources or needs. The Act specifically provides that his, or her, interests, as a beneficiary, cannot be disregarded, even though he or she has not made a claim: s 61. Each is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the Will.

27. [34]

    In Sammut v Kleemann [2012] NSWSC 1030, at [137] - [140], I wrote:

28. [35]

    (Indeed, the principles identified in Sammut v Kleemann, at [135] – [139], were cited, with approval, by Basten JA (with Leeming JA agreeing) in Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].)

29. [36]

    The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated:

30. [37]

    I repeated the observations that I had made, more recently, in Jodell v Woods [2017] NSWSC 143, at [29] – [31], and in Meres v Meres [2017] NSWSC 285, at [85] – [87].

31. [38]

    Even if the Court may infer that each beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than the Plaintiff, her, or his, silence does not mean that the competing claim of each of the beneficiaries should not be evaluated. As will be read, what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

32. [39]

    I have read the recent decision of Smith v Smith [2018] SASC 93, in which Judge Bochner, a Master of the Supreme Court of South Australia, referred to what I had written in Meres v Meres in respect of a beneficiary electing to remain silent about his, or her, financial resources and needs. The learned Master was dealing with a dispute about disclosure of documents, and wrote, at [27] – [29]:

33. [40]

    It may be that his Honour’s view is based, at least in part, upon the differences in the legislation, it being pointed out by his Honour, at [14], that the Inheritance (Family Provision) Act 1972 (SA) “provides little guidance as to what should be taken into consideration when determining whether a claim under s 7 should succeed”.

34. [41]

    Having carefully considered his Honour’s reasoning, and bearing in mind I am bound by the views of the Court of Appeal, I am not persuaded that the views expressed by the learned Master should cause a change to the statements that I have expressed and lead me to the conclusion that a beneficiary must disclose his, or her, financial and material resources if requested to do so.

35. [42]

    As stated, in Meres v Meres, at [85], and as stated above, the consequences of not disclosing the beneficiary’s financial resources and needs, simply means that the Court, in considering those resources and needs, draws the inference to which I have referred above.

36. [43]

    I shall refer to the evidence of each of the beneficiaries who gave evidence later in these reasons.

Issue about Property of the deceased said to have been disposed of

1. [44]

   The Plaintiff asserted that “Jennifer Byrne, Robin Amos and Peter Hogg disposed of the entire contents of the house”. He raised, in particular, concerns about a grand piano, a reed organ and a Nissan motor car, as not having been disclosed in the Defendants’ evidence regarding the estate.

2. [45]

   In a letter dated 24 February 2017, from the Defendant’s solicitors, to the Plaintiff’s solicitors, an explanation was provided going to what had happened to those items. In addition, a number of the witnesses, including Mr Hogg’s wife, Lynnette Margaret Hogg, gave unchallenged evidence that “[m]ost of the furnishings were very old and worn and had to be thrown away as the charities did not want them”.

3. [46]

   Furthermore, in his affidavit, Robin gave evidence that he had attempted to contact the Plaintiff about his possessions, but that the Plaintiff “would not accept my calls or texts”. There was really no dispute about this evidence.

4. [47]

   At the commencement of the hearing, counsel for the Plaintiff accepted that any issue about the items referred to by the Plaintiff was not one that went to the nature and value of the deceased’s estate: T2.21 – T2.22. Nothing more needs to be written about the Plaintiff’s complaint about the items referred to. I am satisfied that he was given an opportunity to retrieve items from the Kings Langley property before it was sold, or the property inside was disposed of, and that he chose not to do so.

Costs and Disbursements of the Proceedings

1. [48]

   Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

2. [49]

   As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

3. [50]

   However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

4. [51]

   Nor should parties assume that in an estate, with a modest value, as this one is, that the fees of senior counsel (who, in this case, has been retained by the Defendants) will be borne out of the estate of the deceased. In my view, briefing senior counsel, in an estate of this size, may be regarded as being unnecessary and, somewhat extravagant.

5. [52]

   I shall consider limiting the fees recovered out of the estate for senior counsel to an amount reasonably attributable to the rate charged by junior counsel. This will not prevent senior counsel recovering his fees; but it will prevent the whole of those fees being treated as a liability of the estate. (Junior counsel appeared with senior counsel without charge to the estate.)

6. [53]

   In an affidavit affirmed on 21 May 2018, by Mr P C Proctor, the Plaintiff’s costs and disbursements, including the costs of mediation, to the conclusion of a 3 day hearing, were estimated to be $71,400. Because the affidavit did not disclose the basis on which the costs and disbursements had been calculated, in answer to a question from the Bench at the commencement of the hearing, counsel for the Plaintiff, stated, that the costs and disbursements had been calculated on the indemnity basis, and that the Plaintiff’s costs and disbursements, calculated on the ordinary basis, were $56,800: T2.39 – T3.07.

7. [54]

   (Counsel for the Defendants accepted the estimate, given from the Bar table, only for the purposes of estimating the value of the estate out of which an order for provision might be made”: T3.07 – T3.16.)

8. [55]

   In an affidavit sworn on 18 May 2018, Ms Younes, revealed that the “Executors’ Solicitors” costs currently outstanding were $24,446; that the costs up to the conclusion of the 3 day trial were estimated to be a further $18,000; and that “[senior] Counsel’s fees up to the conclusion of the 3 day trial, including the fees currently outstanding, is estimated to be $43,000”. The estimated total of the Defendants’ costs and disbursements is, therefore $85,446.

9. [56]

   Whilst the estimates provide some basis for calculating the total of the legal costs and disbursements that may have to be paid out of the deceased’s estate before any distribution of that estate can take place, it is to be remembered that they are estimates only. In addition, in many cases, costs may not be ordered to be paid on the usual basis, because of the service of an Offer of Compromise or a Calderbank offer.

10. [57]

    In this regard, the parties requested the Court to not resolve the issue of how the costs and disbursements of the proceedings should be borne, as there may be relevant documents that impact upon that issue.

11. [58]

    Upon delivering these reasons, I shall set down the costs argument, if one remains, for hearing after allowing the parties to reach agreement on costs, including the quantum of costs. Needless to say, increasing the costs because of further argument should be avoided, if that is possible.

12. [59]

    The parties also agreed that, in the event the costs estimates prove accurate, and if an order is made that the costs are to be paid out of the deceased’s estate, the value of the estate, out of which an order could be made, would be about $479,368: T4.01 – T4.08. Accordingly, this is an estate of modest value, particularly if the whole of the estimated costs are deducted.

The Deceased’s Prior Wills

1. [60]

   In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which had made much more generous provision for the applicant, stated that “the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only will that matters is the deceased’s last will.”

2. [61]

   Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions.

3. [62]

   It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters that to which the Court may have regard, is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”: s 60(2)(j) of the Act.

4. [63]

   The deceased made a number of Wills prior to her last Will. The earliest one in time, the subject of evidence, is a Will made by her on 3 April 2002. As best as can be gleaned (since the copy in evidence contains handwritten alterations, deletions and interlineations), the deceased, relevantly, left the whole of her estate to Maurice, but, if he did not survive her, she provided for the whole of her estate, after the payment of debts, funeral and testamentary expenses, to pass to the Plaintiff.

5. [64]

   (The Will also directed that in the event the Plaintiff sold the Kings Langley property, $10,000 of the proceeds of sale should be given to Ms Daddow. In the event that the deceased was not survived by Maurice and the Plaintiff, her estate was to be divided equally between Robin, Brydie and Felicity.)

6. [65]

   The next Will in time, on the evidence, is one made by the deceased on 15 February 2010. In this Will, too, the deceased left the whole of her estate to Maurice, provided he survived her by 60 days; but, if he did not survive her, she provided for the whole of her estate, after the payment of debts, funeral and testamentary expenses, to pass to the Plaintiff, provided he survived her by 60 days, absolutely. (In the event that the Plaintiff did not survive, she provided for 50 per cent of her estate to pass to Ms Daddow, and the remainder to “be divided equally between Robin, Brydie and Felicity.)

7. [66]

   The second last Will is one made by the deceased on 28 July 2014. In this Will, the deceased appointed Peter Hogg to be the sole executor. She made bequests of personal items to Robin, Felicity and Brydie, and then provided that the executor was to hold the whole of the rest and residue of the deceased’s estate, on trust, to sell, call in, or convert the same into money, at such times and in such manner as they thought fit, pay all just debts, funeral and testamentary expenses and all duties and any other costs fees or expenses associated with her estate, and, subject thereto, to divide the balance of her estate into different percentage shares, namely 10 per cent to the Plaintiff; 10 per cent to Judith; 50 per cent to Robin; 10 per cent to Felicity; 10 per cent to Brydie; 5 per cent to her friend, Jennifer Byrne; and 5 per cent to her nephew, the executor, Peter Hogg.

8. [67]

   Ms Younes took instructions for, and prepared, the 2014 Will. She had been contacted by a social worker at the Blacktown Hospital to see the deceased, which she did, on two occasions. She took instructions, initially, from the deceased when in Hospital, and, subsequently, saw the deceased at her office when final instructions were given and the 2014 Will was executed.

9. [68]

   Prior to meeting her at the Blacktown Hospital, Ms Younes had not met the deceased, or any of the other persons associated with this case: T132.14 – T133.05.

10. [69]

    Prior to the 2014 Will being signed, Ms Younes was provided with a letter from a geriatrician, confirming the capacity of the deceased to give instructions. Ms Younes requested this to be provided by the deceased as she “hadn't met Nancy prior to early July 2014, [and] I just wanted to make sure cognitively - I'd seen her at the hospital, she seemed fine, shaken up, but just from a cognitive point of view, I just wanted to get some satisfaction that she had proper capacity”: T134.24 – T134.30.

11. [70]

    Reference has already been made to the last Will of the deceased.

The deceased’s testamentary statements

1. [71]

   The language of the Act, in s 100, permits the Court to take into account the deceased’s expression of testamentary intention, even though not incorporated in a properly executed Will.

2. [72]

   In relation to the written statements made by the deceased that are referred to, and otherwise in the evidence to which I shall refer, I have borne in mind that the Court must exercise caution in determining whether to accept the evidence, and, if accepted, carefully consider the weight to be attached to it.

3. [73]

   Also, it is to be remembered that the truth of the version of events said to have been given by the deceased to the deponent of an affidavit, or to the author of a report, or to the author of parts of the hospital records, cannot be tested by cross-examination.

4. [74]

   In relation to such declarations by the deceased, I bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 152):

5. [75]

   I remember, as well, that the fact a statement is made by the deceased does not mean, necessarily, that it must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

6. [76]

   Yet, where the truth of the statement made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statement.

7. [77]

   In an undated document, in the handwriting of the deceased, which document must have been written before the death of Maurice, the deceased set out her testamentary intentions and then wrote, under the heading “Explanation”:

8. [78]

   Needless to say, the Plaintiff did not dispute the facts asserted in this statement. In any event, I consider that it accurately records the deceased’s acknowledgement of the assistance provided to her and to Maurice by the Plaintiff.

9. [79]

   The deceased left a document, dated 15 February 2010, headed “Testamentary Statement”, which provided:

10. [80]

    Again, there was no dispute about the facts asserted in this “Testamentary Statement” so far as they relate to the Plaintiff. Again, I consider that it accurately records the assistance provided by the Plaintiff to the deceased and Maurice.

11. [81]

    Ms Younes also prepared a document, dated 28 July 2014, upon the oral instructions given by the deceased, initially, whist the deceased was in hospital, and completed on the deceased’s attendance at Ms Younes’ office a few weeks later. No written notes were provided by the deceased to enable the preparation of the document. Ms Younes spoke with the deceased to obtain the instructions to enable the document to be prepared and some of it was prepared in the deceased’s presence: T134.08 – T135.06.

12. [82]

    The document, which was signed by the deceased, whose signature was witnessed by Ms Younes, provided:

13. [83]

    Many of the matters of fact asserted in the 2014 Statement were disputed by the Plaintiff. The inconsistency in regard to the Plaintiff’s conduct, whilst he was living with the deceased, from the deceased’s earlier statements of his conduct, is obvious.

14. [84]

    With the last Will, the deceased left a three page document, in her own handwriting, in which she stated “the reasons why I have changed my Will so substantially”. The original document was given to Ms Younes and retained by her in the solicitors’ Will file: T135.08 – T135.22.

15. [85]

    The handwritten document stated:

16. [86]

    At least some of the facts stated in the deceased’s handwritten document are not in issue. However, I shall next refer to the event of 3 July 2014, that preceded the deceased being admitted to the Blacktown Hospital, as there was a real dispute about what had occurred. It was upon these events that much of the cross-examination of the Plaintiff and, to a lesser extent, Brydie, revolved.

Events following death of the Plaintiff’s father

1. [87]

   The Plaintiff asserted that the deceased’s “behaviour started to deteriorate” after the death of Maurice and that at about the end of 2013 she “started to become verbally abusive. I would be doing something, not saying anything to the deceased and she would suddenly start yelling at me. I did not know what I had done. This started to happen more regularly being about once a fortnight and then more often about once a week”.

2. [88]

   He also wrote that the deceased had a “major episode” towards the end of 2013 and that “she was admitted to the dementia ward at Blacktown Hospital for assessment”. (It should be mentioned that no hospital records relating to any admission to Blacktown Hospital forms part of the medical evidence upon which either party relies.)

3. [89]

   The Plaintiff, somewhat surprisingly, wrote nothing about the event that occurred on 3 July 2014 in his affidavit in chief affirmed on 3 July 2017.

4. [90]

   In his affidavit in reply, affirmed 20 December 2017, by reference to the Hospital records, the Plaintiff denied that either he, or Brydie, had abused the deceased on the evening of 3 July 2014 and that he had done nothing to cause the deceased’s arm to be bruised. He then wrote:

5. [91]

   He then stated:

6. [92]

   Brydie wrote about the event occurring 3 July 2014 in the following terms:

7. [93]

   Perhaps, the most detailed statement about the event is one that is said to have been given by the deceased a few days after the event, and which appears in the documents referred to as part of Ex. D2, being “COPS Entries NSW Police” at Ex. D2/166 – 167, which, relevantly, states:

Medical Records

1. [94]

   Both parties exhibited contemporaneous medical, and other, records relating to the deceased. It is necessary to consider these records and refer to them. There were records that formed an exhibit to the Plaintiff’s affidavit affirmed 20 December 2017. The records relied upon by the Defendants, were tendered as Ex. D2.

2. [95]

   At the request of the Court, senior counsel caused to be prepared a typed transcript of those parts of Ex. D2 upon which the Defendants relied and counsel for the Plaintiff did not dispute the accuracy of that transcript. I shall refer to the typed transcript as well as other relevant parts of the medical records in Ex. D2 hereunder.

3. [96]

   (I remember that care must be taken before relying on the history given, or the circumstances of an incident, recorded in clinical notes, or other medical records, as cogent evidence of disputed facts in issue in court proceedings: Afoa v McBride [2017] NSWCA 323, at [70].)

Pre-July 2014

1. [97]

   The first record in time is one from Blacktown Hospital, and relates to the deceased’s admission on 24 January 2011. She was referred by Brydie. The Plaintiff and Brydie are referred to as “Contact Person[s]”.

2. [98]

   There is a Rehabilitation & Aged Care Services report dated 30 March 2011. The deceased is said to have been living with her husband and son and that her son was their “carer”, although, at that time, he was in hospital. The Plaintiff was disclosed as doing all the home maintenance, transport and banking. It goes on to note that the carer “has [his] own health issues – [he] was recently in Hospital – [he] also cares for [his] father …who has vascular dementia”.

3. [99]

   The report also discloses that the deceased was “aware of place and time” and that she had been “an accounting person, manager” when working. It stated that the deceased was “happy with home care”. It also revealed that the deceased’s daughter “in SA, occas. Phone calls, not much contact”. The deceased was said to read, watch television, manage accounts, and “rings or sends cards to elderly people in parish”.

4. [100]

   Progress Notes dated 30 March 2011, relating to the deceased, stated:

5. [101]

   In an Aged Care Client record also dated 30 March 2011, under the heading “Comments”, the following appears:

6. [102]

   By letter dated 1 April 2011, sent to her, the deceased was advised that she had been approved as being eligible to receive residential respite care at a low level, which allowed her up to 63 days of subsidised residential respite care in a financial year, as well as a Community Aged Care Package.

7. [103]

   In Clinical Notes dated 12 June 2012, an assessment was completed with the deceased and the Plaintiff, who was, again, described as the deceased’s “main carer”. There was a reference to him “helping with house maintenance, transport and shopping”. The deceased was noted as “a member of Anglican Church and belongs to praying group”.

8. [104]

   In an Aged Care Client Record dated 18 June 2012, the following appears:

9. [105]

   By letter dated 18 June 2012, sent to her, the deceased was advised that she had been approved as being eligible to receive permanent residential care at a low level, and residential respite care at a low level, the latter of which allowed her up to 63 days of subsidised residential respite care in a financial year, as well as a Community Aged Care Package.

10. [106]

    These records reveal information that is consistent with the Plaintiff being a loving son who was, and had been, providing care and attention to the deceased.

3 July to 14 July 2014

1. [107]

   The Blacktown Hospital Emergency Department Clinical Record, revealed (with minor editorial corrections) the “registration date/time 03/07/2014 23:21” and stated:

2. [108]

   Hospital Progress Notes dated 4 July 2014, reveal (with minor editorial corrections) that the deceased was said to have been brought in the night before because the patient was agitated at home. They went on:

3. [109]

   Handwritten “Progress / Clinical Notes”, which are also dated 4 July 2014, stated (with editorial corrections):

4. [110]

   The Notes also reveal, in relation to the deceased’s mental state examination, that she was “alert and oriented”; that her attitude towards the examiner was “co-operative”; that her “behaviour and psychomotor activity” was “normal”; that both her speech and mood were “normal”; that her “affect” was “appropriate; and that:

5. [111]

   The Progress Notes of 5 July 2014 reveals:

6. [112]

   The Progress Notes of 7 July 2014 reveal (with minor editorial corrections):

7. [113]

   A Report dated 7 July 2014, prepared by the Geriatric Registrar of Blacktown Hospital, states:

8. [114]

   (As I understand it, the Addenbrooke’s Cognitive examination is a brief, but sensitive and specific, cognitive screening instrument, being an extension of the Mini-Mental State Examination, which attempts to address the neuropsychological omissions and improve the screening performance of the latter. It encompasses tests of five cognitive domains: attention/orientation, memory, language, verbal fluency, and visuospatial skills. It is scored out of 100, with a higher score denoting better cognitive function.)

9. [115]

   In the Addenbrooke’s Cognitive Examination document, completed by the deceased, at least in part, under the heading “Language” there is a notation “Ask the subject to write two (or more) complete sentences about his/her last holiday/weekend/Christmas”. In the deceased’s handwriting, the following appears:

10. [116]

    The Progress Notes of 8 July 2014 reveal (with minor editorial corrections):

11. [117]

    The Progress Notes on 10 July 2014 reveal (with minor editorial corrections):

12. [118]

    A Forensic Medical Unit Domestic Violence ProForma (diagrams), completed on 10 July 2014, reveal several bruises on the left arm and both wrists of the deceased.

13. [119]

    The Aged Care Client Record dated 10 July 2014 reveals that the deceased suffered from pain, polymyalgia rheumatica, osteoporosis with multiple pathological fractures, hypothyroidism, anxiety, recurrent cellulitis, non-specific skin eruptions to left heel, constipation, gastro-oesophageal reflux, macular degeneration and urinary incontinence. She was also noted as having “anxiety, sadness & sleep [disruption] from stressful relationship with close family” and to be “physically limited by pain & poor standing balance & endurance” with “functional ability limited by lower limb weakness, generalised pain, shortness of breath on exertion, fatigue” and that she was “prone to bone fractures”. She was also noted as having “poor hearing in left ear”, and “decreased peripheral vision & some difficulty with vision from right eye”.

14. [120]

    The Record also stated that:

15. [121]

    The Progress Notes of 11 July 2014 reveal:

16. [122]

    There is a “Note” dated 11 July 2014 in the Progress Notes in the following terms:

17. [123]

    The Hospital records reveal that the deceased was discharged from Blacktown Hospital on 14 July 2014. She was transferred to Donington Court Flinders Village, at Castle Hill.

The Plaintiff’s financial resources and needs

1. [124]

   Because there was no dispute about it, I shall next deal with the financial resources of the Plaintiff. I should point out that no affidavit was filed on his behalf before the hearing in accordance with Paragraph 17 of Practice Note SC Eq 7, and a direction made by the Court, when the matter was set down for hearing, regarding compliance with that Paragraph of the Practice Note was not complied with.

2. [125]

   Needless to say, a Plaintiff (and any beneficiary who advances a competing financial claim), should state, in detail, his, or her, financial resources and needs in accordance with the Practice Note and in accordance with the directions of the Court so that the Court is aware of his, or her, current financial resources at the date of hearing.

3. [126]

   Perhaps, because Robin, who was advancing his financial resources and needs as a competing claimant upon the bounty of the deceased, also, had not complied with the Practice Note in this regard, the parties accepted that, to the extent there was no updating affidavit of financial resources (and needs), the affidavit sworn by the relevant deponent which set out his respective financial resources and needs, should be regarded as his financial resources (and needs) at the date of the hearing: T48.14 – T48.25.

4. [127]

   The Plaintiff deposed to be in receipt of about $900 per fortnight, by way of disability support pension. He stated that “about $400 per fortnight is taken for accommodation”. In fact, the copy of the Retirement Village Contract (Ex. PC) tendered at the hearing, revealed that the “recurrent charges” that he must pay to occupy the premises, described by him as a “bedsit”, where he lives in the Cardinal Gilroy Village, Merrylands, are a “single occupancy base fee of $174.80 per fortnight” and that the “Additional Fee” that he is required to pay is $150 per fortnight, making a total fortnightly expense for accommodation of about $325 per fortnight. Exhibit PC also revealed that the Retirement Village Contract had been entered into in September 2014.

5. [128]

   The Plaintiff accepted that he had been living there for a little less than 4 years. He does so under licence, which permits him to occupy his residential unit, the common areas, and the communal services, of the retirement village. (Indeed, there is even permission given to “park one motor vehicle in each Car Space included with the Premises”: Clause 20.)

6. [129]

   The Plaintiff does not co-habit with any other person.

7. [130]

   The Plaintiff stated that he has no assets; that he has some clothing and personal effects, of little value; and that he has “no financial resources at all”. (He also referred to the items referred to earlier that he said had been lost to him at the time he vacated the Kings Langley property.)

8. [131]

   The Plaintiff said that he has Type 1 diabetes and heart disease. He suffers from depression. He says he needs “to be within 20 minutes travel of a major hospital”. He takes about 22 tablets of prescribed medication per day and injects insulin four times per day. He also stated that he has no feeling from the knee down and wears special shoes. He may have to have his leg (or foot) amputated. He does not have the use of two fingers on his left hand, and he suffers pain in his fingers.

9. [132]

   The Plaintiff was diagnosed with atrial fibrillation in September 2017 and had surgery for the insertion of two stents. He also had a “mild heart attack” in November 2017.

10. [133]

    The Plaintiff tendered a report dated 25 June 2018, from his current general medical practitioner (Ex. PA), that confirmed that the Plaintiff has been recently admitted to Westmead Hospital and that he has been diagnosed with “Atrial fibrillation”; that he “has lost the vision in his [left] eye due to diabetes and its complications” and that he is under the care of a Consultant Opthalmologist; that in April 2018, he was diagnosed with “Moderate, Acute Right Sciatica”; and that he has been started “on medication to manage his stress and anxiety”. In addition, it identified his current medication.

11. [134]

    In his last affidavit, the Plaintiff stated that the costs of his medical expenses are about $170 per month and that these expenses are likely to increase.

12. [135]

    I am satisfied that, at the age of 68, and bearing in mind his medical condition, that the Plaintiff does not have an earning capacity.

13. [136]

    As to his needs, the Plaintiff said that he requires accommodation and that he would like to purchase a house in the Hunter Valley “as my daughter Brydie lives at Kurri Kurri”. He said he had looked at a number of homes for sale in the Maitland area and that there are many within the price range of $350,000 to $400,000. The copy of the two advertisements for the sale of homes that he provided (without disclosing whether he had inspected either), were of properties with two bedrooms, one bathroom and a car space. One of them had a sale price of $395,000 whilst the other was described within the range of $348,000 to $378,000. The latter property, which was a townhouse, was described as being “located in a gated estate”. (This information was included in his first affidavit that was affirmed about 12 months prior to the hearing.)

14. [137]

    He also stated that he would like to buy a car ($7,000), even though he has not had a driver licence since mid-2016; that he would need furniture and a piano ($10,000); and that he “would like to go back to University and do my PhD. I expect that this would cost me in the vicinity of $15,000 per year for three years”. (There was no evidence that he had completed a Master’s degree or that he would otherwise qualify for acceptance. Nor was there any evidence of any steps taken by him to enable a finding that pursuit of post-graduate work could soon occur.)

15. [138]

    The Defendants disputed that the Plaintiff had the needs to which he referred. In relation to the asserted need for accommodation, I accept the submission made by senior counsel, that, so long as the Plaintiff complies with the terms of the Retirement Village Contract, he is secure in his current accommodation for as long as he wishes to remain living there: see, Clause 11 of the Retirement Village Contract.

Credit of the Witnesses

1. [139]

   It is apparent that some of the underlying issues turn, at least in part, on questions of credit. Somewhat surprisingly, following all of the evidence having been given, there was not really much left in issue between the parties.

2. [140]

   The Plaintiff was a somewhat unimpressive witness. I do not suggest that he was intentionally misleading the Court, but it is clear that he was greatly upset by the events, particularly those events that followed the death of his father, involving the deceased, and that in about 2014, he was also struggling with his own debilitating health issues.

3. [141]

   Furthermore, it is clear that he felt aggrieved by what he perceived as the deceased’s lack of gratitude for all that he had done, not only for her, but also for Maurice. In explaining his conduct, after the event of 3 July 2014, he stated that he felt that the deceased, and other members of the family, had not recognised how unwell he was, and that she, and they, offered him no support when it became clear that he was having difficulty looking after the deceased and also himself. Whilst giving his evidence, his sense of grievance was palpable. In my view, this sense of grievance affected the manner of giving his evidence, and, indeed, in respect of some parts thereof, affected the accuracy of that evidence.

4. [142]

   The following passages of his evidence, in cross-examination, at T106.33 – T106.44, at T107.07 – T107.18, and at T108.35 – T108.42, provide ample support for the conclusion stated above:

5. [143]

   It is clear that some of his evidence on the topic of his conduct between 3 July 2014 and the date of the deceased’s death over two years later was inconsistent with other objective evidence. Importantly, he stated that after the event of 3 July 2014, the deceased did not “show any signs that she wanted any love from us” (the Plaintiff referring to himself and Brydie).

6. [144]

   Inconsistently, with this evidence, the Plaintiff tendered a Christmas card, sent to him by the deceased, in 2015, in which she expressed loving sentiments towards him: Ex. PB. Its contents suggested recollection of the Plaintiff as a young child in very fond terms. The card concluded: “Lots of love from your Mother”.

7. [145]

   When it was put to him that the Christmas card was “quite a decent and affectionate card” he responded “No, it absolutely alarmed me…because she knew what I had gone through in hospital, she knew that I was about to lose my foot, she knew all the complications I had, she knew that I was made homeless out of the situation…I was discharged from hospital as nowhere to go”: T80.20 – T80.42.

8. [146]

   In addition, the Plaintiff accepted that the deceased had caused a cheque for $20,000 to be sent to him after the events in July 2014, which amount he maintained that he had used to pay medical expenses. He accepted that he had not acknowledged receipt of the cheque in any way. Indeed, when this was raised with him by the Court, he responded at T109.00 – T109.10:

9. [147]

   (There was no evidence, and it had not been suggested, at any time, before this evidence was given, that the value of the property said to be missing was anything like “a couple of hundred thousand dollars” or that it was his property.)

10. [148]

    Later, when the topic was raised again by the Court, the Plaintiff gave the following evidence at T114.08 – T115.08:

11. [149]

    Even if he was shocked and heavily medicated, as he alleged, his failure to acknowledge receipt of the cheque of a not insignificant amount, and to thank the deceased for it, or to acknowledge receipt of the Christmas card, does him no credit. His conduct is consistent with recorded statements, expressed to the Hospital staff, namely, that he “never wanted to see her again and did not want to be contacted about what happens to her from here”: Ex.D2/91. In this regard, I am of the view that his statements to the effect that the deceased did not show signs of love towards him cannot be accepted.

12. [150]

    His failure to attend the deceased’s funeral is also consistent with the sentiments that he expressed to others, of not wanting to have anything further to do with members of his family (other than Brydie).

13. [151]

    I do not accept the Plaintiff’s evidence that the deceased did not make any attempts to resurrect their relationship after the events of 3 July 2014. Nor do I accept the reasons why he did not take any steps to resurrect the relationship with her, namely that he was shocked, or under the influence of medication. Even if he were, that would not have made attempt at reconciliation impossible.

14. [152]

    I am satisfied that, despite the two attempts made by her, the Plaintiff made a conscious choice to not make contact with the deceased.

15. [153]

    Another part of the Plaintiff’s evidence that I find to be inconsistent with the objective evidence, relates to his failure to take the deceased’s personal effects to her after she was taken to hospital. It is inconceivable that he did not have the ability to drop off a bag of personal effects to the deceased, particularly when he was at the Hospital on 4 July 2014, having been driven there by a friend (T99.41 – T99.49). He chose to leave the bag at the front door of the Kings Langley Property until days later, when Brydie took it to the Hospital. I do not accept his evidence on this topic, where it conflicts with the evidence of Mr Hogg.

16. [154]

    Another part of his evidence that I do not accept relates to a text message sent on 17 July 2014, identified in Ex. D3, to Mr Hogg, which message was in the following terms:

17. [155]

    In his affidavit, he explicitly denied having sent the text message, adding “On 17 July 2014, I had no personal possessions with me. I did not have a mobile telephone or telephone charger with me as it was left [at the Kings Langley property]”.

18. [156]

    In cross-examination, he recanted the denial, saying that “I have no recollection” (T59.08 – T59.11); then that “I really can't say because of my, my medical state at the time” (T60.30 – T60.32); and then, when it was put that it was “the very message transmitted by you to Peter Hogg on 17 July at 8.05 a.m.”, he responded “Well, well, it could be.”: T60.47 – T60.49.

19. [157]

    Yet, I do accept the Plaintiff’s evidence that he made a significant contribution to the conservation of the Kings Langley property, particularly whist Maurice was alive, and to the welfare of the deceased and Maurice. However, in relation to him being their carer, it is to be remembered that he received a carer’s allowance.

20. [158]

    Whilst it is difficult to conclude that the Plaintiff did not contribute financially to the household, as alleged by the deceased, the Plaintiff’s evidence regarding his payment of board (in the affidavit said to be $200 per week, but in his oral evidence, $120 a week, whilst Maurice was alive, and then $100 to the deceased), is somewhat inconsistent: T110.01 – T110.33.

21. [159]

    Even if he did pay board of $100 per week to the deceased, it was far less than what he would have had to pay to rent premises (if what he currently pays is used as a guide). He lived in the Kings Langley property for nearly 11 years.

22. [160]

    Brydie affirmed an affidavit read in the Plaintiff’s case. I considered that she was endeavouring to tell the truth when cross-examined. Yet, in her affidavit, she was extremely vague about what had occurred on the evening of 3 July 2014, which had led to the deceased being admitted to Blacktown Hospital.

23. [161]

    However, her failure to recollect the details may be explained by the high level of emotion that existed at the time, as well as the time that has passed since the event.

24. [162]

    Yet there is one aspect of her evidence that I do not accept, namely, her denial that there was only one attendance by her at the Blacktown Hospital when she had harsh words with the deceased and with members of the Hospital staff. In this regard, I refer to the Hospital records referred to above, in which the events said to have occurred on 7 July 2014 and on 8 July 2014, involving Brydie were stated.

25. [163]

    I accept Mr Hogg’s evidence that he had only one attendance at Blacktown Hospital, during which he had a conversation with Brydie, and that this had occurred, not in the afternoon, but in the evening, after he had finished work, had gone home and then had gone to the Hospital: T139.05 – T139.36.

26. [164]

    In relation to the dispute about what had occurred, which resulted in the deceased being taken to Blacktown Hospital on 3 July 2014, I remember that in making a finding of serious misconduct against the Plaintiff (and also Brydie), the Court is obliged to take into account the gravity of the allegations made against him (and her): s 140(2)(c) of the Evidence Act 1995 (NSW).

27. [165]

    Section 140(2)(c) is generally regarded as giving effect to the principles stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. His Honour rejected, at 361, the suggestion that the common law developed a third standard of persuasion, other than proof on the balance of probabilities and proof beyond reasonable doubt. His Honour went on to say (at 362) that in a civil case:

28. [166]

    In this case, the allegation made against the Plaintiff is not limited to the finding that he caused the bruising found on the deceased by grabbing her arm, but also that he has lied to the Court about having done so. In relation to Brydie, the allegation that she, also, has lied to the Court.

29. [167]

    I also remember that where evidence cannot be tested by cross-examination, as the deceased’s statements cannot be, it may be treated with reserve. That is especially so in a case in which it is contradicted by other evidence and where the party against whom it is adduced has been unable to test it by cross-examination: State of New South Wales v Thomlinson [2018] NSWCA 151, at [35].

30. [168]

    Having considered all of the evidence, I am unable to be satisfied that the Plaintiff intentionally caused the bruising to the deceased by grabbing her arm. Nor am I satisfied that he has lied to the Court about the events that occurred by denying the event that occurred. Whilst an actual finding of a battery would not assist the Plaintiff’s case for a family provision order, it is to be noted that there was no suggestion of any other conflict between them that resulted in physical injury to the deceased.

31. [169]

    I next turn to the evidence of Peter Hogg. I am satisfied that he was a truthful and reliable witness who gave his evidence clearly and honestly. In particular, I have no hesitation in accepting the following facts about which he gave evidence:

32. [170]

    I shall next deal with the evidence of the witnesses in the proceedings whose affidavits were relied upon by the Defendants. As stated, Judith and Felicity did not give evidence in the proceedings. Only Ms Younes, Mr Hogg and Robin were cross-examined.

33. [171]

    I have no doubt that I should accept the evidence of Ms Younes. The two affidavits which were served that were sworn by her went to formal matters (the value of the estate and costs). Whilst she was cross-examined as to the events that occurred involving her, as the author of the 2014 Will and the final Will of the deceased, it was not suggested that her evidence on the topics should not be accepted.

34. [172]

    I have included some of the evidence of Ms Younes as to how she became involved with the deceased and how the deceased’s two Wills and the 2014 testamentary document were created. I have also referred to the handwritten document of 2016 having been simply handed to her by the deceased and retained by her in the Will Deed Packet: T136.17 – T136.21.

35. [173]

    She also confirmed that it was the deceased who raised having given $20,000 to the Plaintiff from the proceeds of sale of the Kings Langley property and that “she realised that John was living in her home, she realised her home would need to be sold to pay the ingoing contribution to the nursing home and she wasn't going to return home on her own, and she wanted to pay $20,000 to give to John to help him rehouse himself”: T136.47 – T 137.10.

36. [174]

    Ms Younes also gave evidence of having had several telephone discussions with the deceased after the preparation of the 2014 Will. She also gave evidence of her conference with the deceased concerning the 2016 Will, but the subject of these conversations is not relevant.

37. [175]

    I should also mention that Ms Younes gave evidence that the deceased had been brought to her office by Ms Jennifer Byrne and that Ms Byrne waited in the reception area whilst Ms Younes conferred with the deceased: T134.47 – T134.49. Apart from being introduced and some pleasantries, she did not have any conversation with Ms Byrne: T135.03 – T135.05.

38. [176]

    Ms Younes also stated that the only occasion when she met Mr Hogg was when he accepted appointment as the deceased’s Attorney, under a Power of Attorney, the exact date of which Ms Younes could not recall: T136.01 – T136.07.

39. [177]

    Finally, in answer to questions from the Bench, Ms Younes confirmed that she had provided a copy of the 2014 Statement and a copy of the 2014 Will to the deceased on 28 July 2014 and that she had not asked the deceased, subsequently, to prepare the handwritten document that was provided at the time of taking instructions for the 2016 Will.

40. [178]

    Robin gave evidence about his financial resources and needs as follows:

41. [179]

    He was cross-examined, albeit briefly, but only in relation to whether he was in a personal relationship with the co-owner of the real estate that had been purchased, Ms Kimberley Irvine. He denied that he was in a personal relationship with her: T169.20 – T169.44.

42. [180]

    He also gave other evidence about which he was not cross-examined, and which I accept. His evidence included:

43. [181]

    Ms Byrne gave evidence, also, and was not cross-examined. Her evidence, which I accept, included:

44. [182]

    Mrs Lynnette Hogg, the wife of Peter Hogg also gave evidence by affidavit, upon which she was not cross-examined, which evidence I also accept. The evidence included:

45. [183]

    An affidavit was sworn by Ms Mary Burns, and was read in the Defendant’s case. She, too, was not cross-examined. I accept her evidence, which included the following:

46. [184]

    Finally, Ms Patricia Anne Quayle, who was another friend of the deceased, swore an affidavit read in the Defendant’s case. She, too, was not cross-examined. She gave evidence, which I accept, that included:

The Relationship of the Plaintiff and the deceased

1. [185]

   It is clear that the Plaintiff lived in the Kings Langley property for about 10 years prior to the event of July 2014.

2. [186]

   Of course, during the whole of the period that he lived in the Kings Langley property, and whilst he was the carer for both of his parents, the Plaintiff received a carer’s pension (T109.37 – T109.49); he paid only “a small amount of rent”, although he “did the lawns and the maintenance” (T110.00 – T110.06).

3. [187]

   Because a considerable amount of time was spent on this issue, and because the principal submission made on behalf of the Defendant was that the relationship of the Plaintiff and the deceased was such that he should be regarded as having been “estranged” from the deceased and, as a result, should not receive any further provision out of the deceased’s estate, I shall deal with this issue next.

4. [188]

   The relationship of the Plaintiff, and others, particularly Robin, with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. Also, although the reference to conduct does not expressly refer to the conduct of the deceased, “that must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones, per Basten JA, at [25].

5. [189]

   An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances.

6. [190]

   In Price v Roberts [1992] NSWCA 191, Clarke JA wrote, at 5 – 6:

7. [191]

   In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

8. [192]

   The Defendants rely upon Murphy v Stewart; Estate PE Stewart [2004] NSWSC 569, in which case Palmer J wrote, at [41]:

9. [193]

   There can be no doubt about the correctness of Palmer J’s statement. However, it is to be noted that in the case with which his Honour was dealing, there was a history of violence and drunkenness by the Plaintiff in the relationship, almost from its commencement and there were physical injuries caused to the deceased by the beatings given her by the Plaintiff. There was no dispute about the conduct of the Plaintiff as found by his Honour.

10. [194]

    In the present case, there is a significant dispute about the Plaintiff’s conduct on 3 July 2014. It has not been possible to come to a concluded view that it was the Plaintiff (or Brydie), who caused the bruises to the deceased. (In considering the evidence, I have taken into account that the deceased has given her own version of events, which cannot be challenged.)

11. [195]

    Furthermore, it seems unlikely, even if the Plaintiff caused the bruising which the deceased suffered, that he did so intentionally. I tend to accept his evidence that he would never have harmed the deceased, or done anything to cause her to be fearful, intentionally.

12. [196]

    Also, without in any way condoning it, there was one isolated incident of conduct, which involved an injury to the deceased, that has been alleged, in the whole of the period of time that they lived together. Had there been any other incidents, it is likely that the deceased would have told one, of the several close friends, who has given evidence.

13. [197]

    This is not to say that some of the comments made by the Plaintiff that the deceased was “living too long” would not have been hurtful to the deceased. Even if the statements echoed what the deceased had said to him, they should not have been repeated by him to others.

14. [198]

    The parties accepted that the nature of the relationship and what is described as “estrangement” complicates the assessment of the obligation owed by a deceased parent to the Plaintiff. It is his conduct, after the events occurring on 3 July 2014, about which conduct there can be no dispute, which, in my view, goes to the Plaintiff’s “character and conduct” and affects the entitlement to additional provision.

15. [199]

    In this regard, the view I have arrived at is that, acting wisely and justly, the deceased was entitled, when making her Will in 2016, to regard the Plaintiff's comments made before July 2014, and his conduct during the last two years or so of her life, in particular, as hurtful and undutiful, to an extent bearing heavily on the amount of the provision she should make for him out of her estate.

16. [200]

    However, as will be read, acting wisely and justly, the deceased was obliged to have considered his character and conduct before that time as well.

The Statutory Scheme

1. [201]

   Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff’s eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes.

2. [202]

   It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order (s 59(1)(c)). Only then, may the Court make “such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”(s 59(2)).

3. [203]

   The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court.

4. [204]

   Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

5. [205]

   The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).

6. [206]

   Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].

7. [207]

   Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

8. [208]

   In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]:

9. [209]

   The concept of “advancement in life” extends to a person’s adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].

10. [210]

    In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575:

11. [211]

    In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote:

12. [212]

    The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

13. [213]

    The words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476:

14. [214]

    Their Lordships went on to state, at 478:

15. [215]

    Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

16. [216]

    In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

17. [217]

    In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, at [114], Callinan and Heydon JJ wrote:

18. [218]

    Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

19. [219]

    In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

20. [220]

    His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [123]:

21. [221]

    In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

22. [222]

    However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

23. [223]

    Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:

24. [224]

    In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added:

25. [225]

    As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

26. [226]

    If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

27. [227]

    The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant’s favour.

28. [228]

    Section 60 of the Act provides:

29. [229]

    It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

30. [230]

    The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

31. [231]

    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

32. [232]

    A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

33. [233]

    Under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

34. [234]

    Section 65(1) of the Act requires the family provision order to specify:

35. [235]

    The order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

36. [236]

    Section 66 of the Act sets out the consequential and ancillary orders that may be made.

37. [237]

    Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).

Estrangement

1. [238]

   On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] – [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.

2. [239]

   That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53, at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190]. I have recently referred to the principles in Gargano v Coves [2018] NSWSC 985.

3. [240]

   I repeat what I wrote in Underwood v Gaudron [2014] NSWSC 1055, at [230] – [233]:

4. [241]

   Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27].

5. [242]

   I have carefully read all of the affidavits from the close friends of the deceased, all of which are consistent, and all of which demonstrate the deep level of distress that the deceased felt, particularly in regard to some of the Plaintiff’s conduct. For his part, the Plaintiff says that he found some of the conduct of the deceased, bearing in mind he was, and had been, her primary carer, difficult to comprehend.

6. [243]

   When one reads all of the evidence, it is clear that each of the deceased and the Plaintiff placed responsibility for the estrangement in the hands of the other. The subjective perception of the events existing at the time of those events, which subjective perception the Court is unable to replicate, can often create this result, with the consequence that the Court often accepts the estrangement as a background fact and as part of the platform from which it must then determine the result of the case. Experience dictates that very rarely can one party be absolved, completely, from all responsibility for the breakdown of the relationship.

7. [244]

   What is often clear is that for the period of the estrangement between child and parent, there does not exist between them the companionship and support which might be seen in an harmonious parent/child relationship.

8. [245]

   The Court, of course, in this case, has the evidence of the deceased’s state of mind, and, in particular, how the events that involved the Plaintiff affected her testamentary intentions. That she was well aware of the Plaintiff’s entitlement to provision cannot be disputed. In fact, she made some provision for him in each of her Wills and made various testamentary statements going to her reasons for making the provision that she did. It just so happened that there was a significant change in that provision from 2014.

9. [246]

   (I have earlier referred to the Christmas card that the deceased sent to the Plaintiff, in 2015, which suggested that the deceased, at least, was willing to continue her relationship with the Plaintiff. I have also not forgotten the cheque that she had caused to be sent to him shortly after the events in July 2014. In some of her conversations with others, she appears to have recognised a continuing obligation to him.)

10. [247]

    Overall, when I consider the whole of the relationship of the Plaintiff and the deceased, I am satisfied that that the estrangement that existed for the last two years of the deceased’s life, and to the extent that it is established, the Plaintiff’s conduct after Maurice’s death, does not prevent him from obtaining a family provision order. I reject the Defendants’ submissions that the estrangement entitles the Court to resist, completely, any grant of relief to the Plaintiff upon the basis that adequate and proper provision has been made for him.

11. [248]

    Yet, there can be little doubt that the existence of the estrangement and the Plaintiff’s conduct in the last few years of the deceased’s life should be taken into account in calculating the quantum of the provision that ought to be made for her. In all the circumstances, I am of the view that his conduct does mean that there should be restraint in the amplitude of that provision.

Qualifications on “Principles”

1. [249]

   As long ago as 1980, in White v Barron at 440, Stephen J wrote:

2. [250]

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

3. [251]

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

4. [252]

   The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 by Basten JA, at [18] – [20], and by Barrett JA, at [66] – [67]; in Burke v Burke, at [84] – [85]; and, in Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

Determination

1. [253]

   Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.

2. [254]

   What is written below should be read as a continuation of what has been written above, and also upon the basis that I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.

3. [255]

   It is to be noted that this is not a case where no provision was made for the Plaintiff. He receives 10 per cent of residue, which, without these proceedings, would have been in the order of $62,000.

4. [256]

   I have concluded, having regard to his financial resources, his debilitating medical condition and his disabilities, the fact that he has no earning capacity, that he is not cohabiting with any other person, and that there is no other person liable to support him, notwithstanding the Plaintiff’s conduct towards the deceased, and the fact that they had no relationship for about the last two years of her life, that the provision made for him in the Will of the deceased is not adequate for his proper maintenance and advancement in life. It cannot be forgotten that apart from the 4 years before her death, the deceased seemed to have considered him to be a loving and dutiful son.

5. [257]

   In all likelihood, the true facts of what occurred on the night of 3 July 2014 will never be known. The events on that night must be considered in perspective and also in light of the years preceding the event, throughout which the deceased regarded the Plaintiff lovingly.

6. [258]

   In all the circumstances, I have concluded that his conduct in those 4 years before the deceased’s death is not such as would disentitle him, completely, to any additional provision if he can otherwise establish the jurisdiction of the Court.

7. [259]

   The question of the adequacy of the provision that was made for the Plaintiff’s proper maintenance and advancement in life must be considered at the date of hearing and not at the date of the 2016 Will. Yet, the provision of $20,000, gifted to the Plaintiff in 2014, is a relevant matter to be borne in mind.

8. [260]

   Since 2016, it appears that, in particular, the Plaintiff’s medical condition has worsened and he remains with virtually nothing, by way of capital, on which to rely for exigencies of life. In this regard, at his age, and in his circumstances, ten per cent of the deceased’s estate (which equated to about $62,000 had proceedings not been commenced) would not provide him with sufficient for the exigencies of life.

9. [261]

   I have also borne in mind in reaching this conclusion, that between 2002 and 2014, the Plaintiff believed that he was to receive the whole of the estate of the deceased if Maurice did not survive her. Whilst he did not give evidence that he changed his position in the expectation of that inheritance, he was clearly aware of the earlier Wills of the deceased (and of Maurice).

10. [262]

    In addition, I am of the view that whilst the deceased had some obligation to the other beneficiaries named in her Will, it was the Plaintiff who had lived with her and Maurice, and who had been their, at least until Maurice’s death, and then, her, primary carer. Her written statement in 2001, and then in 2010, make clear that the deceased made no complaint about the care that the Plaintiff had provided to them. Furthermore, none of the beneficiaries, other than Mrs Daddow, and perhaps, Brydie is an eligible person.

11. [263]

    There is another matter which I must consider in reaching the conclusion, and that is that only Robin is a competing financial claimant on the bounty of the deceased. I have earlier referred to his financial resources and needs. I have also set out what flows from a beneficiary’s silence.

12. [264]

    Of course, I have not forgotten that respect should be given to the judgment of a capable testatrix as to who should benefit from the estate, if it can be seen that she has duly considered the claims on the estate: Sgro v Thompson [2017] NSWCA 326, at [83] and [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127].

13. [265]

    In this case, the deceased clearly did consider his claim on her bounty. She would have known the true state of their relationship at the time she made her last Will, whereas the Court, some years after her death, has to assess, as best as it can, where the truth lies, having regard to the conflicting versions given by the Plaintiff and others. The Court can never be certain that it knows all the circumstances.

14. [266]

    Bearing in mind the detailed written statement at the time of her last Will that the deceased made, I have given considerable weight to the fact that she made such a careful assessment of her obligation to the Plaintiff. What she wrote, to the extent that it has been established as being accurate, demonstrates that the Plaintiff was, at least in part, a victim of his own actions.

15. [267]

    Some might consider that the Plaintiff’s conduct, particularly, from early July 2014, demonstrates a significant lack of love and respect for the deceased, and his silence, in response to the receipt of $20,000 in 2014, and to the Christmas card, written in loving terms, that she sent to him in 2015, and also his willingness to wound the deceased by his silence, is such as to disentitle the Plaintiff from any provision. Certainly, that was the case advanced on behalf of the Defendants.

16. [268]

    Yet, as a matter of human behaviour, a wise and just parent will realise, as stated by Holland J in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 540:

17. [269]

    I also bear in mind her earlier Wills and the statements made by her at the time she made each.

18. [270]

    Bearing in mind that the adequacy of the provision required by the Act is measured by reference to the “proper” maintenance, education or advancement of the applicant for provision, I am satisfied, in all the circumstances, that the Plaintiff has established the jurisdiction of the Court to make an order in his favour. As I have previously noted, there has been a change in the Plaintiff’s circumstances, since 2016, of which the deceased would not have been aware, namely, that the Plaintiff’s medical condition has worsened. The Court must have regard to the circumstances, as they are relevant at the time the Court has considered this application.

19. [271]

    The question of what additional provision for the Plaintiff’s maintenance and advancement in life ought to be made, having regard to all of the circumstances of the case, is more difficult. It involves an intuitive, or an evaluative, judgment. The measure to be applied is not what has been given to other beneficiaries, but what the Plaintiff needs for his proper maintenance and advancement in life, giving due regard to all the circumstances of the case. It is not a mathematical assessment, or one that is dependent upon only calculating the costs of meeting demonstrated need.

20. [272]

    In my view, in lieu of his entitlement under the Will of the deceased, the Plaintiff should receive 20 per cent of the residue of the deceased’s estate. That provides him with an additional 10 per cent of the residue.

21. [273]

    On the present estimates, assuming costs come out of the estate, the amount of the total provision that he receives will be about $95,000. This will provide him with a capital sum for exigencies of life. After paying for a piano, and a car, if that is what he wishes to do, the balance can be used to provide a sum for exigencies of life, and to supplement his income, which should improve the general quality of his life.

22. [274]

    I do not consider the purchase of accommodation to be a “need” of the Plaintiff, and even if it were, that the deceased owed a duty to the Plaintiff to make such provision for him, or that she was bound to leave to him an amount sufficient to purchase an unencumbered residence. As stated, he is secure in the accommodation in which he has lived since about late 2014, provided he complies with his obligations under the Agreement. There was no evidence that he would not do so. In any event, the size of the deceased’s estate is not so large that it should bear the costs of providing the Plaintiff with an unencumbered home.

23. [275]

    Nor do I think that the Plaintiff should receive any additional lump sum by way of provision to reflect any difference between indemnity costs and ordinary costs. The size of the estate does not warrant increasing the lump sum for that purpose. Furthermore, the Plaintiff’s conduct to which I have referred, as well as the competing claims of the beneficiaries, recognised by the deceased in her Will, restrains the amplitude of the provision that ought to be made for the Plaintiff.

24. [276]

    Section 65(1) requires the Court to specify, amongst other things, the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided. In this regard, there were no submissions made and I have had to make my own assessment of how the burden of the provision should be borne.

25. [277]

    In this regard, each of the beneficiaries, other than Robin, has said nothing about his, or her, financial resources and needs. Doing the best I can, and taking into account what I know about the beneficiaries and the relationship of each to the deceased, the burden of the provision should be borne as follows:

26. [278]

    Robin should not bear any part of the burden of the provision made for the Plaintiff bearing in mind his competing claim, both financially, and otherwise, upon the deceased.

27. [279]

    If one considers that 1.0 per cent of the estimated value of the estate (after costs have been deducted from the gross value of the estate) equates to about $4,800, it can be seen that the share of Mrs Daddow and Ms Byrne will be reduced by about $14,400, whilst the share of each of Mr Hogg and of Felicity will be reduced by about $7,200. Brydie’s share will be reduced by $4,800. Each of the beneficiaries who is bearing part of the burden of the additional provision for the Plaintiff will not, thereby, be deprived of a substantial part of the provision made for her and him.

28. [280]

    It will be necessary to hear the parties on how the costs of the proceedings should be borne. It is obvious that they have spent, in costs, more than double the amount of the increase in the provision made for the Plaintiff. This is regrettable, but will need to be dealt with bearing in mind the request made regarding costs to which I have referred.

29. [281]

    The Court: