Woodleigh v Williams

This is a claim for a family provision order out of the estate and notional estate of the late Dorothy Edna McDowell (“Dorothy”). The plaintiff is Ms Anne Woodleigh. She is now 63 years old and is one of Dorothy’s four children. Dorothy died on 26 March 2014 at the age of 91. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.

Dorothy made her will on 14 September 2012 (the “Will”). She appointed a friend, Mr James Harold Williams (“James”) and her late husband, Hugh Dickey McDowell (“Hugh”) as her executors. James appears in these proceedings as the first defendant.

Dorothy left her estate (the “Estate”) to her four children in equal shares. The assets in the Estate had a sworn value for probate of $41,910.08. Probate was granted to James on 10 September 2014.

Dorothy owned a property at Sackville North (the “Family Property”) jointly with her son, Robert William McDowell (“Robert”) who appears in these proceedings as the second defendant. Dorothy’s share of the property passed to Robert by survivorship upon her death.

The joint tenancy was created by a transfer dated 29 January 2008 whereby Dorothy transferred a half share in the Family Property (that she owned outright) to Robert for no recorded consideration. Robert had contributed to the purchase price of the Family Property and the construction of a home on the property in which Robert had lived for many years. The transfer reflected part of what the Court is satisfied was an arrangement or understanding between Dorothy, Hugh and Robert about Robert being beneficially entitled to the Family Property.

By summons filed on 1 December 2014, Anne applies for provision out of the Estate under Part 3.2 of the Succession Act 2006 (NSW) (the “Act”). She also applies for an order designating the Family Property as notional estate. That is the only asset available to be so designated. Mr M. Fantin of Counsel appeared for Anne. Mr D. Liebhold of Counsel appeared for the defendants.

In addition to Robert and Anne, Dorothy’s two other children, John McDowell and Jeanette McQuillan are the only other eligible beneficiaries in the estate. Although they had notice of these proceedings, they played no part in them.

The Court has decided that no further provision should be made for Anne. In those circumstances, no notional estate order can be made. Even if the Court were persuaded that an order for provision ought be made, the Court would not have acceded to Anne’s application to designate the Family Property as notional estate. To do so would have undone Robert’s reasonable and legitimate expectations based on his financial contributions to its purchase and in building his family residence there. Such designation would have resulted in the sale of the Family Property and Robert being displaced from the house that he had built and lived in for over thirty years.

Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are “eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person”. Section 58(2) requires an application for a family provision order to “be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown”.

Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are:

In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

By reference to the language of the Act, the questions and issues which the Court must take into account are:

Having identified what I consider to be the correct approach under the Act to an application of this kind, I will make some preliminary observations and then deal with the credit of the witnesses before setting out the facts.

At the date of Dorothy’s death, her liabilities totalled $200.48 consisting of an outstanding amount to Telstra and a pharmacy bill. The following amounts had been paid out of the Estate at the commencement of the hearing:

Mr Liebhold submitted that Anne was not a truthful witness. He drew attention to various parts of her evidence which contradicted her affidavit evidence and changed again throughout the course of her cross-examination. Those parts included her address, the number of persons with whom she was cohabiting, the address of her husband (from whom she is separated), her assets, her liabilities, the number of bank accounts she held, her rental costs and her ability to use a computer.

When I asked her what she wanted from the litigation, she said [T70:37- T71:25]:

These were all matters which her present circumstances are able to meet although with little left over [T77:3- T202:50]:

More tellingly Anne went on to say that her reason for bringing the proceedings was because she considered the beneficial dispositions to be unfair [T201:22-T206:15]:

The Court accepts Mr Liebhold’s criticism of Anne as a witness. The Court’s overall impression is that Anne has long harboured deep resentment towards Robert and Andrea both during Dorothy’s lifetime and now in death. Anne clearly felt that Hugh and Dorothy had shown undue favouritism to Robert and Andrea in connection with the Family Property. Her evident animosity to her brother and his wife did not give the Court any assurance her evidence could be relied on in relation to any matter of controversy. The Court concludes that Anne was and is so jaundiced by her resentment that she cannot be relied on as a witness of truth against Robert’s interests unless her evidence is independently corroborated or is against interest.

James impressed me as an honest and reliable witness. He had met Hugh many years before through the scouting movement. He had been asked by Dorothy to be her executor. He was not a beneficiary under the will and was independent of the parties. He had no reason not to tell the truth and the Court accepts his evidence.

Robert also impressed me as a truthful witness. He answered in a straightforward manner and remained consistent in his evidence under cross-examination. He was frank in his admission that there had been no love lost between him and Anne for many years.

Andrea is clearly a business-like, no nonsense person. Robert left her in charge of the family finances because she was obviously well suited to that task. I was left in no doubt of her candour. She did not seek to paint her relationship with Dorothy as idyllic and volunteered that they had words from time to time. She also was entirely believable in her description of the pain she had felt as a result of being called unflattering names by Anne. Her evidence that the family kept large amounts of cash “in a sock drawer” struck me as entirely credible, particularly in an era years before the age of electronic banking.

Anne told the Court that she needed $350,000 - $450,000 to purchase her own accommodation. It was unclear whether she was content with the 2004 Hyundai Elantra that she had recently purchased for $500 or whether she pressed for $15,000 to purchase a new car. The Court will assume that she presses for a new car.

Anne is in receipt of a disability support pension of $1,780 per month and, by the conclusion of her evidence, it was established that she has an expenditure of approximately $1,327.87 per month. This leaves her with approximately $510.93 of discretionary income per month.

Anne has two adult children who are not dependent on her. Her asset pool is very small:

She has $1,000 of outstanding debt owed to Centrelink.

Anne lives in rental accommodation for which she pays $200 per week. She shares that accommodation with two other persons, one of whom is her step-daughter. Despite this, Anne submitted, and the Court accepts, that she is financially independent from those with whom she cohabits.

Anne is separated from her husband.

Anne’s evidence is that in 2006 she had a ‘falling out’ with Robert and since that time has stayed away from the Family Property.

Robert is 62 years old and lives with his wife Andrea McDowell (“Andrea”) on the Family Property. Robert is in receipt of a disability support pension of $640 per fortnight. Andrea receives a carer’s pension of $644 per fortnight and a carer’s allowance of $121.70 (it is unclear if this is a weekly or fortnightly payment but nothing turns on the matter). Robert and Andrea’s assets are as follows:

Robert and Andrea’s only liabilities are the monies owing to their solicitor in this matter. At the conclusion of proceedings, those costs totalled $47,128.33.

Because Anne is Dorothy’s daughter, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Dorothy’s death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [12] above are all answered “yes”.

The Provision referred to in the question posed in sub-paragraph [12(5)] above is a quarter of the residue of the Estate and half of Dorothy’s remaining jewellery. At present, the residual Estate is comprised of $21,371.67 being held on trust by the solicitors for the defendants along with some personal effects of little known value. If the Court indemnifies the Estate in these proceedings, there will be no remaining cash.

The most significant and controversial factual matter in these proceedings was Robert’s claim of his expectations and interest in relation to the Family Property.

It was Robert’s evidence, and the Court accepts, that in 1973 Robert and Hugh agreed that if Robert made payments of $30 per fortnight to Hugh, he would be repaid that money upon Hugh’s retirement. The Court also accepts that the logic behind the arrangement on Hugh’s part was to forego more of his salary into his retirement fund so that his final payout figure would be higher.

Robert dutifully paid Hugh $30 in cash every fortnight for the decade that followed until December 1983. At this time, Hugh and Dorothy were living together at a property in Seven Hills (the “Seven Hills Property”) which was encumbered. Hugh had acquired two and a half years’ worth of accumulated leave and planned to retire early on half pay for five years. Upon retirement, Hugh and Dorothy moved up to Budgewoi where they owned another house (the “Budgewoi House”).

Robert’s evidence, which was not tested further, was that he owned a third share of the Budgewoi House. Although nothing turns on this, the Court accepts that Robert’s share was likely held on trust for him as a result of his monetary contributions to Hugh. When the Budgewoi House was sold later in 1985, Robert’s third share of the proceeds of sale were incorporated into the newly acquired Family Property as payment for the electricity connection.

In 1978, Robert and Andrea married and Hugh asked the newlywed couple if they would move into the Seven Hills Property and service the mortgage instead of paying rent, which Hugh considered to be a waste of money. For the next three years, until 1981, Robert paid the mortgage on the Seven Hills Property which amounted to $30.69 per month. Additionally, for this period he paid the outgoings.

In December 1978, Hugh started to need additional spending money to get by. Robert began paying him $50 per week to top up his (Hugh’s) half pay. This continued until 1985.

In 1980 Robert decided that he would prefer to live in a rural location and Hugh told him to pick a block of land that he (Robert) would like to live on. Robert made that selection and on 5 September 1981 the Family Property was purchased. Hugh and Dorothy appeared on the title as joint tenants.

The money to purchase the Family Property came from a retirement cheque that Hugh received for between $40,000-$50,000 (doing her best, Andrea could not recall the exact figure). The purchase price of the property was $36,700 which left between $3,300 and $13,300 in reserve. The Court accepts Robert’s evidence that the cheque was understood by him and Hugh to be the repayment to Robert of the payments he had been making to Hugh.

Upon moving out of the Seven Hills Property, Robert and Andrea lived in a caravan on the Family Property while their home was being built on the site. They paid for all of the building work that took place. I accept Andrea’s evidence that the contract for the building work (which was in evidence) was in Dorothy and Hugh’s names at the builder’s insistence because they were on the title to the Family Property. Whilst the Court was not shown every receipt that would have accounted for the construction of the home, I am satisfied, from the receipts that were tendered, and from Andrea’s account of events during her oral evidence, that Robert and Andrea did in fact pay for the construction of the house on the Family Property. The absence of many receipts after 35 years is unsurprising. I accept Andrea’s evidence that part of the funds came from cash reserves that Robert “kept in his sock drawer”.

The receipts that were tendered included the following:

In 1985 Hugh and Dorothy sold the Budgewoi Property with Robert’s third share of the sale proceeds going to pay for the electricity connection for the Family Property. Hugh and Dorothy purchased a mobile home and lived in it on the Family Property close to Robert and Andrea’s house. By 2005 Andrea had become Dorothy’s carer.

It was submitted on behalf of the defendants, and is accepted by the Court, that the total value of the ongoing monetary contributions made by Robert to his father in addition to the cost of the purchase of the Family Property and construction of the house exceeded $90,000.

Robert’s and Andrea’s evidence about the contributions and arrangements in relation to the Family Property was corroborated by James’ evidence, which the Court accepts. In particular, James’ evidence was that Hugh told him “If it wasn’t for Robert we would not be in the financial position we are in. Robert has been topping up my retirement fund and when we are a bit short of a quid he helps us out”. Hugh also said “Now that I am retired and on half pay and the pay is a lot less, Rob is helping me out by making sure I have enough to retire on. Plus he even owns a third of the place up at Budgewoi”. Finally, James recalled Hugh saying not long after Robert and Andrea had built their house on the Family Property, “This place belongs to Rob for all the help he’s given me and continues to give me”. James also gave evidence that Dorothy had told him in or about July 2008 (being after the events recorded in the next section of these reasons) “Robert has done so much for Hugh and me over the years, like when he helped top up Hugh’s super payments”.

Mr Fantin submitted on behalf of Anne that Robert influenced Dorothy to enter into the joint tenancy between them for the Family Property after a family dispute. While the Court does accept that some kind of negotiation occurred between Robert and Dorothy that involved each of them engaging separate lawyers and Robert lodging a caveat over the Family Property, the Court does not accept that the joint tenancy was entered into as a result of any undue influence on the part of Robert. Rather, the Court is satisfied that the tenancy was created to reflect Dorothy’s and Robert’s mutual intention that Robert was entitled to the full beneficial interest in the Family Property on Dorothy’s death. This is clear from the first piece of correspondence between the solicitors evincing a clear agreement between Dorothy and Robert to create a joint tenancy which predates the lodgement of the caveat.

Nevertheless, I will set out the evidence in respect of the lodgement of the caveat.

There is no evidence to support the suggestion that Robert exerted pressure upon Dorothy before the first letter dated 1 March 2006 (set out in paragraph [48(1)] above). The request for particulars (see paragraph [48(5)] above) suggests there was a disagreement between Dorothy and Robert. Robert says that there was no dispute. Even if there was, the resolution of that dispute does not naturally lead to an inference of improper pressure, particularly given that Dorothy engaged her own solicitor. An equally available explanation is that put forward by Mr Liebhold: that Dorothy, as older people have a tendency to do, said one thing to Robert, something different to Anne and something different again to her solicitor. Even if there was a dispute, the independent circumstances that have been proven (see paragraph [54] below) support Robert’s version of events that justifies Dorothy ensuring he ultimately received the entire interest in the Family Property.

On 24 July 2007 Robert and Dorothy made statutory declarations for the Office of State Revenue in respect of the stamp duty that would be payable on the transfer to Robert of an interest in the Family Property. The copies in evidence before the Court were file copies. Robert’s statutory declaration was unsigned and undated with the exception of “July 2007” written in the execution clause. Dorothy’s however, was signed, dated and witnessed.

Robert’s statutory declaration said:

Dorothy’s Statutory Declaration said:

The original statutory declarations were not available to the Court as they had been sent to the Office of State Revenue at the time of transfer and subsequently destroyed. There was unobjected evidence from Mr McKeown that the file copies were accurate. The Court accepts the copies as a true and correct copy of the originals and that their contents are true. Duty was paid on the transfer on 6 December 2007.

However, quite apart from the Court’s views of the witnesses and the evidentiary weight of the 2007 statutory declarations, the following uncontroverted facts inform the Court’s conclusion that Dorothy (and Hugh) intended the Family Property for Robert and his family and Robert always understood that to be the case:

It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [12(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Anne is not adequate for her proper maintenance, education or advancement in life. If that question is answered “yes”, then the Court’s discretion to make a family provision order in favour of Anne is enlivened.

In Verzar v Verzar [2014] NSWCA 45 (“Verzar”), Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry:

In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 (“Camernik”) both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children.

Applying the principles just set out, the Court is not satisfied that the Provision is inadequate for Anne’s proper maintenance, education or advancement in life. The question posed in sub-paragraph [12(6)] above is answered “no”. The reasons for this conclusion are set out in the following paragraphs.

The Court has had regard to the factors set out in s 60(2) of the Act (see paragraph [12(10)-(11)] above which will be addressed in turn.

Mr Fantin submitted that Anne is in receipt of a disability support pension with income of approximately $1800 per month and expenses of approximately $1700 per month. She has few assets and no superannuation. No submissions were made in respect of the impact that any order for provision might have on Anne’s pension entitlements.

It was Mr Fantin’s case that Anne required a one bedroom unit in a strata block with low strata fees. There was no evidence as to how much this might cost. The only evidence available to the Court were printouts of advertisements in respect of three bedroom homes advertised for sale in her residential area which were listed for, on average, $350,000.

Mr Fantin also submitted that Anne required spinal surgery in respect of an injury she had sustained in a fall. The medical evidence produced to the Court showed that Anne had been referred to physiotherapy for an injury to her lumbar spine but there was insufficient admissible evidence as to her need for surgery or any quantification of what this might cost. There was also a suggestion that she had a benign lump in her breast but this was not developed in argument and no evidence was tendered suggesting that this required treatment.

Mr Liebhold submitted that Anne had only demonstrated her wants rather than her needs and that her claim should be dismissed for three reasons.

The first reason was a lack of full and frank disclosure in giving evidence.

The Court does not accept this submission. In particular, Mr Liebhold drew to the Court’s attention the inconsistencies between Anne’s affidavit evidence and the oral evidence that emerged during her cross-examination. It was his submission that details of her address, assets, living arrangements, liabilities, number of bank accounts, income, expenditure and knowledge of computers among other things changed too frequently for her to be considered by the Court to be a credible witness. As noted in paragraph [19] above, the Court does not consider Anne to have been a credible witness in relation to matters of contention. However, while her answers to questions may have changed since the time of swearing her original affidavits and even through the course of questioning, the Court is satisfied that the requisite level of disclosure in relation to her financial circumstances was achieved for the purposes of these proceedings by the production and tender of a number of her historical bank records.

As part of his criticism of Anne’s level of financial disclosure, Mr Liebhold also submitted that the Court should have been given evidence of the financial circumstances of the persons with whom Anne resides under her current rental arrangement. That submission is also rejected. The persons with whom Anne resides live independently to her in a ‘flat-mate’ type arrangement. She is wholly financially independent from them and, as such, their financial position is irrelevant.

The second reason to reject Anne’s claim was that Anne had failed to establish that the Provision was not adequate for her proper maintenance, education or advancement in life. That submission is accepted.

Applying the approach set out in Verzar (see paragraph [56] above), there is no doubt that Anne’s financial position is very modest, with no assets to speak of and a small surplus of income over expenditure. However, absent introduction of the Family Property, the one quarter share in the Estate is adequate for her proper maintenance given the very small size and nature of the estate.

In terms of closeness of relationship and assistance to Dorothy, Robert had a much greater claim than Anne. Robert’s claim to the Family Property has an economic and moral basis that tells strongly against it being brought into consideration for the purpose of considering the adequacy of the Provision and the Court declines to do so.

To the considerations in the previous two paragraphs the Court adds the matters identified by Hallen J in Camernik. This is not a case where the size of the estate and the relationship between Dorothy and Anne was such that the community would expect Dorothy to have provided Anne with an unencumbered home. That conclusion is not changed in the circumstances of this case even when Anne’s limited income and the likely vicissitudes of Anne’s advancing years are taken into account.

The Court should also record that in making this submission Mr Liebhold invited the Court to make a finding that Anne spends, on average, $933 per month gambling. Answering the question of where the money Anne was withdrawing was going would not have altered the conclusion in the preceding paragraphs. Despite this, while I am not satisfied that it would be sustainable for Anne, on her income, to spend $233.25 each week on any form of gaming, I am satisfied that she does spend a portion of her income gambling. Her regular pattern of withdrawing cash from “UBET QLD” on her way home from doing her groceries is inconsistent with her own evidence that she could withdraw that cash from Woolworths, Coles or Aldi, as she had done on previous occasions at the time that she was paying for her groceries.

The Court does not accept Anne’s evidence that stopping at UBET on the same days as she has been to one of those stores is consistently an afterthought or part of a convenient routine of withdrawing cash from a card that had previously been tampered with at a regular ATM. Even if Anne was not using this money for gambling, her evidence is that the withdrawals were used by her to purchase miscellaneous items such as cigarettes, meat from the butcher and gifts for friends. This demonstrates that she has access to sufficient – although by no means copious - income to meet her discretionary and other needs as they arise.

The third reason advanced by Mr Liebhold was that no notional estate order should be made even if the Court was satisfied that the Provision was not adequate.

The Court accepts Mr Liebhold’s submission that even if an order for provision were to be made, it would not be just to make a notional estate order in this case. The Family Property, despite being purchased in the names of Hugh and Dorothy, was clearly always intended to be Robert and Andrea’s home and understood by Robert to be such. By way of brief summary, Robert and Andrea picked the property and paid for the construction of their house on the Family Property and oversaw every element of its building. They lived in a caravan on the site while waiting for the completion of the main residence. Dorothy and Hugh made no claim on that residence and lived in the mobile home at the Family Property after they moved from Budgewoi. As is discussed more fully in what follows, having regard to s 87 of the Act (see paragraph [88] below) the importance of not interfering with Robert’s reasonable expectations in relation to the Family Property and the substantial justice and merits of this case militate against making an order designating the Family Property as notional estate.

Even if the Court had been satisfied that the Provision was not adequate such that an order for further provision should be made, the ultimate decision in these proceedings would have been no different. To demonstrate this, it is necessary to answer questions (12) to (18) set out in paragraph [12] above.

Section 78 of the Act relevantly provides that “the Court may make an order designating property as notional estate only for the purposes of a family provision order to be made under Part 3.2”. Because the Court has not found that the Provision was not adequate, the discretion to make a notional estate order has not been enlivened. However, for the purposes of what follows the Court will assume that the answer to this question is “yes” and that the amount of further provision exceeds the $21,371.67 being held in the Estate.

This and the following two questions arise by virtue of the three prerequisites to the exercise of the Court’s discretion to make a notional estate order set out in s 80(1) of the Act. They are (identified here by numbers for convenience) that the Court may make a notional estate order “if the Court is satisfied that the deceased person [1] entered into a relevant property transaction [2] before his or her death and that [3] the transaction is a transaction to which this section applies”.

Section 74 defines “relevant property transaction” to mean a “transaction or circumstance affecting property and described in s 75 or 76”. The relevant parts of those sections are:

The answer to the question is “yes”. In this case, Dorothy’s death severed the joint tenancy between her and Robert in the Family Property. This caused Dorothy’s interest in the Family Property to pass to Robert by survivorship. Subject to full valuable consideration not being given, what occurred in this case was a relevant property transaction of the kind described in s 76(2)(b) (set out in the preceding paragraph). It was, correctly, implicit in the way the parties analysed what had occurred that, insofar as Dorothy had not severed the joint tenancy before ceasing to be entitled to do so by her death, she had not been given valuable consideration for not taking that step: see Cetojevic v Cetojevic [2007] NSWCA 33 at [51] per Hodgson JA, [62]-[64] per Tobias JA, McColl JA agreeing with both Hodgson and Tobias JJA.

The Court notes in passing that it was also common ground that if the creation of the joint tenancy in 2008 could otherwise have been a relevant property transaction, it had taken place more than three years before Dorothy’s death and therefore fell outside the application of s 80 (see s 80(2)(a)).

The answer to this question is “yes”, by reason of the operation of s 77(3), which provides:

The answer to this question is “yes” by reason of the operation of s 80(2)(c) which provides that s 80 applies to “a transaction that took effect or is to take effect on or after the deceased person’s death”.

The answer to this question is “yes” for the following reasons.

Section 83(2) provides that the “principal party to the transaction, in relation to a relevant property transaction, means the party who, under section 75 or 76, enters into the relevant property transaction”. Having regard to s 75(1) (see paragraph [78] above) Dorothy is the principal party to the transaction because it was her failure to sever the joint tenancy immediately before her death that resulted in her interest in the Family Property passing to Robert.

In the circumstances of this case the Court is satisfied that the criterion set out in s 83(1)(a) has been met:

That sub-section is satisfied because Dorothy’s omission to sever the joint tenancy immediately before her death disadvantaged her estate (by diminishing it) and disadvantaged Anne, as a person entitled to apply for a family provision order, because Dorothy’s interest in the Family Property no longer formed part of the Estate and the assets available for further provision were reduced accordingly.

Based on the assumptions set out in paragraph [76] above, the answer to this question is “yes” because the Court is satisfied of the matter set out in s 88(b) that Dorothy’s estate “is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made”.

Has the Court considered the matters set out in s 87 of the Act?

Section 87 provides:

It is the consideration of the matters set out in ss 87(a) and (b) which, even if the Court were otherwise satisfied that an order for additional provision should be made, would result in the Court declining to make the order designating the Family Property as notional estate.

By reason of the matters set out in paragraphs [34] to [54] above, the Court is well satisfied that Robert had more than reasonable and legitimate expectations in relation to succeeding to the Family Property. In circumstances where those expectations were based on both economic and moral considerations having regard to the arrangements between him and his parents, the Court places a very high, and in this case decisive, significance on not interfering with those expectations.

The same considerations engage the issue of the substantial justice and merits involved in the making or refusing of a notional estate order. Those same considerations would make it a substantial injustice to Robert if the notional estate order were made. The substantial justice and merits of the situation compel the refusal of such an order.

In reaching this conclusion, the Court has not overlooked the substantial justice and merits of the situation from Anne’s point of view, including what Mr Fantin submitted was the real possibility of subdividing the Family Property so that Robert would be able to retain the residence he and Andrea had built and lived in for over 30 years. However, those matters (considered in the next two paragraphs) are far outweighed by Robert’s claim to the Family Property.

First, Anne made no financial contribution to the acquisition of the Family Property and had a limited relationship with Dorothy. In saying it was “limited”, the Court is not to be taken to be criticising Anne or suggesting that there was any moral obloquy on her part.

Second, confronted with the submission that a notional estate order would not be made because it would displace Robert and Andrea (it being obvious that they did not have the resources to buy Dorothy’s share in the Family Property back from the Estate to fund an order in favour of Anne), Mr Fantin submitted the Family Property could be subdivided so Robert and Anne would be undisturbed. However, the evidence did not satisfy the Court on the balance of probabilities that a subdivision was possible. The only evidence Anne tendered was a letter from a real estate agent which set out that the Family Property might be suitable for sub-division (emphasis added):

The Court does not consider that evidence adequate to support the making of a notional estate order on the assumption that any potential prejudice to Robert could be cured by subdividing the Family Property.

It follows that even if the Court were satisfied that an order for further provision should be made for Anne, her claim would fail because, by reference to the matters set out in s 87 of the Act, the Court would decline to make an order designating the Family Property as notional estate.

The Court is not satisfied that Dorothy did not make adequate provision for Anne’s proper maintenance, education or advancement in life. The Court therefore declines to order any further provision. Even if it were otherwise, the Court would in any event decline to make an order designating the Family Property as notional estate.

The summons will be dismissed and the Court will hear the parties as to costs if that question is not able to be agreed.