Amos v Hogg

[2018] NSWSC 1226

Supreme Court

New South Wales

Medium Neutral Citation:

Amos v Hogg [2018] NSWSC 1226

Hearing dates:

2 – 4 July 2018

Date of orders:

15 August 2018

Decision date:

15 August 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(i) Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of orders, including any orders as to costs.

(ii) Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders.

(iii) Orders that if agreement is reached, signed Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated.

Catchwords:

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult adopted child of the deceased, makes a claim for a family provision order by way of additional provision out of the estate of the deceased – No dispute as to the Plaintiff’s eligibility as an adopted child of the deceased – Deceased divided estate into percentage shares – Plaintiff received 10 per cent under the deceased’s last Will – Modest estate in value, comprising cash – Only one of the other beneficiaries advanced competing financial claim – Other beneficiaries named in the Will of the deceased rely upon competing claim as chosen objects of testamentary bounty – Two different written and signed statements by the deceased providing reasons for the provision made for the Plaintiff – Plaintiff and deceased estranged at the date of death – Period of estrangement about 2 years – Whether estrangement, by itself, terminates obligation of parent towards a child in financial need – Plaintiff has limited income and no savings – Plaintiff suffers various health conditions – Some provision made by deceased in her lifetime for the Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

Legislation Cited:

Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Inheritance (Family Provision) Act 1972 (SA)
Succession Act 2006 (NSW)

Cases Cited:

Afoa v McBride [2017] NSWCA 323
Alexander v Jansson [2010] NSWCA 176
Anderson v Teboneras [1990] VR 527
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Collicoat v McMillan [1999] 3 VR 803
Condello v Kim [2018] NSWSC 394
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Estate of Puckridge, Deceased (1978) 20 SASR 72
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Gargano v Coves [2018] NSWSC 985
Harkness v Harkness (No 2) [2012] NSWSC 35
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134
In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 13
Jodell v Woods [2017] NSWSC 143
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Manuel v Lane [2013] NSWCA 61
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
Meres v Meres [2017] NSWSC 285
Murphy v Stewart; Estate PE Stewart [2004] NSWSC 569
Nicholas v Tubb [2016] TASSC 53
Palagiano v Mankarios [2011] NSWSC 61
Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Price v Roberts [1992] NSWCA 191
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Sammut v Kleemann [2012] NSWSC 1030
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Smith [2018] SASC 93
State of New South Wales v Thomlinson [2018] NSWCA 151
Steinmetz v Shannon [2018] NSWSC 1090
Szypica v O’Beirne [2013] NSWSC 297
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Toscano v Toscano [2017] NSWSC 419
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Worsley v Solomon [2008] NSWSC 444
Yee v Yee [2017] NSWCA 305

Texts Cited:

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5

Category:

Principal judgment

Parties:

John Allan Woodroffe Amos (Plaintiff)
Peter Hogg (first Defendant)
Therese Valerie Younes (second Defendant)

Representation:

Counsel:
Ms J McIntosh (Plaintiff)
Mr L Ellison SC and Ms L Nurpuri (Defendants)

  Solicitors:
Proctor & Associates (Plaintiff)
Lewarne & Goldsmith Solicitors (Defendants)

File Number(s):

2017/211196

Judgment

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. 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. 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. 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. 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. 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. 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

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.

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.

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.)

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.

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”.

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.

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.

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.

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.

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.)

18. There were no liabilities disclosed in the Inventory of Property.

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.

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.

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).

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.

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.

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.

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.

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.)

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.

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).

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.

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.

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.

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.

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.

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

“The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased…

However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must 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: s 65(1)(c) of the Act.)

Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to ‘the means’ of the beneficiary, but the Court may still consider ‘the deserts of the several claimants’ and the ‘relative urgency’ of the various moral claims upon [the deceased's] bounty.

The Court will, thereby, give due regard to ‘what the testator regarded as superior claims or preferable dispositions’ as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier.”

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].)

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:

“The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.”

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].

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.

37. 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]:

“These statements appear to be at odds with the statements previously referred to, where it is indicated that the financial position of beneficiaries is relevant to both the jurisdictional question and the question of quantum.

…

These statements also appear to be at odds with basic principles of disclosure; if a document is relevant to an issue in dispute between the parties, then it is disclosable. The High Court has made it very clear, as long ago as 1957 and as recently as 2005 that the financial circumstances of all of the beneficiaries under a will are relevant when determining whether a claimant has been left without adequate provision and whether there has been a ‘breach by a testator of his duty as a wise and just husband or father’.”

The relevance of this material having been established, I do not see how a defendant can elect not to disclose it. This is particularly so where the plaintiff has called for disclosure of these documents”.

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”.

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.

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.

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

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.

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”.

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.

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

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.

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

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

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.

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.

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.)

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.

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.)

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.

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.

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.

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.

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

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.”

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.

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.

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.

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.)

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.)

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.

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.

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.

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.

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

The deceased’s testamentary statements

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.

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.

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.

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):

" ... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim."

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].

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.

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”:

“Maurice and I want our estate to go to our son John Allan Woodroffe Amos when we depart this earth; because he has looked after my Husband and myself very well, in our old age, and our daughter, Judith Anne Daddow very seldom gets in touch with us. We don’t want her to miss out altogether as she was a very attentive and good daughter before she married Herb Daddow & resided in South Australia.

So we want Judith to share with the grandchildren, Robin, Brydie & Felicity, if she survives 30 to 60 days. Judith has a roof over her head but John hasn’t.”

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.

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

“I,    NANCY JEAN AMOS, of ### Anderson Road, Kings Langley in the State of New South Wales, hereby state as follows:-

1.   In the event that my husband, Maurice Amos predeceases me, I give devise and bequeath my estate to my son, John Allan Woodroffe Amos (“John”), as he has no house of his own due to the breakup of his marriage. John is our carer with Centrelink and he has looked after us very well in our old age. He does the washing and ironing, the lawn mowing the garden which is large. He prepares our breakfast and dinner at night and does so much of the shopping. He also takes us for all our appointments which are many and I am wheelchair bound. John has painted two of our bedrooms and re-varnished our window frames and put up new curtains. John was showering my husband for many weeks on his return from the nursing home, which he is now able to do himself.

2.   Our daughter, Judith Anne Daddow (“Judith”) seldom gets in touch with us. She has a home of her own in South Australia.

3.   Our daughter Judith is 64 now. She was a very attentive and good daughter before she married Herb Daddow and moved to South Australia. Provided our son John does not survive both of us, we want Judith to share our Estate with our grandchildren if she survives for 60 days.”

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.

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.

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

“I Nancy Jean Amos of room 205 Anglican Retirement Village Castle Hill have today provided instructions to my solicitor Therese Valerie Younes to draw a new Will for me.

I want to put down in writing simultaneously today the reasons why I have changed my Will so substantially.

My husband Maurice Amos died on 16 June, 2012. Prior to my husband passing away my Son John Amos moved in with my husband and I to our home at ### Anderson Road, Kings Langley. We didn’t ask my son to move in but he just moved in with my husband and I approximately 7 years ago.

My son did not pay any money after moving in. My son didn’t pay any food or any expenses for the house. I paid for all the Bills for the house and I paid all the food expenses. Prior to my husband Maurice passing away He was in Westmead Hospital and my son John would not take me to visit my husband. The lady who would assist me with showering from Homecare used to take me to visit my husband. I was fortunate enough to be able to say my goodbyes before my husband passed away because the lady who showered me took me to visit my husband.

I have an AVO order in place currently against my son which was applied for and obtained by the Police on my behalf. My son physically assaulted me on 3 July, 2014 and I was required to be hospitalized at Blacktown hospital. I was taken to hospital by ambulance and my son said to the ambulance driver to take me into the mental ward at Blacktown Hospital. My hand and my arm were very bruised because of the assault and the Police photos of the bruising. I was able to contact a Solicitor with the help of the Social Worker from the hospital. My son snatched the mobile out of my hand whilst I was trying to call the Police when he and his daughter Bridie were both verbally abusing me. I have asked the Police not to charge my son with the assault but just to record it as I didn’t want my son to get in trouble but I am not sure what the Police have done.

My son has treated me badly over the seven years that he was living with me. My son would verbally abuse me constantly over the last two years since my husband passed away. The abuse got worse after my granddaughter Bridie Amos also moved in with me at my Kings Langley home. The hospital was concerned about me returning home to my abusive son so respite care was arranged for me to have accommodation until my son vacated the Kings Langley home.

Prior to my recent hospitalization I received a telephone call from my GP and he said can I come and see you. The Doctor called me at home. At this time the Doctor was on holidays and asked if he could be excused as he would be coming in his jeans. The Doctor tested my blood pressure and pulse. The Doctor also said can I test your mind and then proceeded to ask 30 questions and I got 29 out of the 30 questions correct. I thought it was very odd indeed that the Doctor would come and visit me at home especially given he was on holidays. I think my son John asked the Doctor to come and see me as my GP is also my sons [sic] Doctor. The Doctor gave me a hint and said: ‘My mother lived until 96 and I could have sold the house from under her.’ I thought this was a bit odd too and perhaps the Doctor was trying to warn me about things.

In hospital I had a test also of 100 questions and I got 93 out of 100 correct. I was told by the hospital that there was nothing wrong with my mind.

I have been assisted greatly by my grandson Robin Amos with trying to find some nursing home care. My son John Amos would drink quite a lot at night and after he was drinking he would become more aggressive. My grandson got rid of his mobile telephone because his father would often call him and annoy him after my son John had been drinking.

I am proposing to give to my son John Amos an amount of $20,000 from the sale of the Kings Langley property. This gift is to make sure that my son can find some accommodation for himself.”

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.

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.

85. The handwritten document stated:

“I, Nancy Jean Amos of Apartment ### Windsor Road the Willows Retirement Village, Winston Hills NSW 2153 have today provided instructions to my solicitor Therese Valerie Younes to draw a new Will for me. I want to put down in writing simultaneously today the reasons why I have changed my Will so substantially.

My Husband Maurice passed away on the 16th June 2012. Prior to my husband passing, my son John’s wife, Carol, left their home with my 2 grandchildren, Brydie and Felicity. My son John A W Amos and his son Robin Amos moved in with my husband and I to our home at ### Anderson Rd, Kings Langley. We did not ask my son to move in but he just moved in approximately 7 years ago and became my carer. He did not pay any board or food.

Prior to my husband Maurice passing away he was in Westmead Hospital because he had a fractured pelvis. He fell out of bed in the nursing home. He had dementia following 3 mini strokes and my son would not take me to see him. The lady who assisted me was the lady who came from Home Care to shower me. I owe this dear lady so much. She rang my son and said I want your mother’s wheelchair out in my car by 4.30 pm and she took me to see my husband, who by now developed pneumonia. I was able to tell him Jesus was waiting for him with open arms. I was able to hug and kiss him, and he passed away at 5.30 am the next morning. Praise God!! I was able to be with my Darling before he went. We were married for 68 ½ years. He was 88 a wonderful husband and father.

My granddaughter Brydie was not happy at home with her mother and sister so I asked John if he would like to ask her to come and live with us. I thought it would be nice for her to be with her father for a change. She moved in before Christmas. I asked her to pay $50 board. She bought quite a lot of her own food and John called me “a greedy selfish old-woman”.

Things got worse John turned her against me. I rang the Government Dept for people who have carers who verbally abuse them. I wanted someone to come out and speak to them, but they replied I could only call the police.

One night at 11.00 pm I was getting ready for bed and they were both abusing me so I picked up my mobile phone to call the police and John snatched the phone out of my hand badly bruising my hand and my arm. Brydie called our Doctor who told her to call the ambulance and John told the driver to take me to the mental ward at Blacktown Hospital. I didn’t get a bed for a couple of days. On the 3rd day I was put in emergency and the Head of Paediatrics came to talk with me after a while he said I’ll get a lady to talk with you; she gave me a 100 questions and I got 92 correct. The Doctor said there is nothing wrong with you.

Whilst I was in hospital my home Doctor Dr Chong called as he often did to see how I was. When John answered the door Dr said where is your mother and John answered “She is in hospital and she is not coming home”. Dr said, “Wait a minute this is your mother’s home”.

The Police came to the hospital to see me and they had John and Brydie removed from the house and put an AVO on them both not to see me for 12 months.

I asked the police not to charge John just to record it in case it happened again and they said no he had to be charged it was violence.

The hospital staff were concerned about me returning home so respite care was arranged for 6 weeks whilst my grandson and friends helped me to sell my home and I moved into ‘The Willows’.

I have been greatly assisted by my grandson Robin Amos. John my son has disowned his son because he helps me and we love one another very dearly.

John told me he didn’t love me he only wanted my home. He was so upset I was getting so old. I am 91 and he was not well enough to look after me. He has diabetes and a bleeding ulcer under one foot. I was always mopping up blood and I told our Doctor I was so distressed about him and he said ‘You can drag a horse to water but you can’t make it drink’. John’s daughter Brydie said ‘I was killing him’.

When I returned from respite in A.R.V. I found John had stolen my husband’s Wills, my Will and my identity. He had taken my Medicare Card and Pensioner Concession Card and it took me a long time to regain my identity.

I have given my son John A W Amos $20,000 from the sale of my home. This gift was to make sure my son could find some accommodation for himself.

[Signed: Nancy Jean Amos]

I gave this letter to solicitor today 16.6.2016”

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

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”.

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.)

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.

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:

“I spoke to Dr Chong that evening and told him about Nancy’s erratic behaviour. He spoke to her on the phone and she got worse. I spoke to Dr Chong again and he told me to move away from her and leave her alone and he would ring the ambulance. The ambulance turned up a short time later and took Nancy to Blacktown Hospital…

I did not grab Nancy by the arm and cause a bruise. I was not verbally abusive toward her…”

91. He then stated:

“108.   On 3 July, 2014 I was at Anderson Road, Kings Langley with Nancy, and my daughter Brydie. I had been at home looking after Nancy through the day and had prepared a cooked meal for dinner which she ate.

109.   Brydie and I had finished dinner and I was in my bedroom. I heard raised voices of Brydie and Nancy and it appeared to be a disagreement.

110.   I went out of my room and Nancy and Brydie were in the Family Room still arguing. I believe it was about how much rent Brydie was paying. I intervened and Nancy started making accusations against Brydie and I such as “you are against me”. I told her “that isn’t true”.

111.   Nancy’s disposition became worse and very antagonistic and she said such things as ‘I’m not being looked after’, and ‘I am not getting what I asked for’. I said ‘that’s not true Nancy, only last week we went to Blacktown on the Tuesday, as we normally do and on the Friday, we went a saw Auntie Betty.’

112.   Before I realised it, she had opened the back door to the verandah [sic] and went out without her walker and began to lose her balance, grabbing things to prevent her falling. I heard her banging things on the verandah [sic].

113.   I remained inside and called Dr Chong on my mobile phone and he advised us to leave her alone and asked to put her on the phone.

114.   I went out to her and handed her my mobile phone and said to her ‘Its [sic] Dr Chong on the phone, he wants to talk to you.’

115.   She took the phone and spoke to Dr Chong for a short time and handed the phone back to me. She then made her way inside and still appeared quite agitated.

116.   Dr Chong said to me ‘I’ll call the hospital and let them know what is going on. I want you keep away from her until the ambulance people arrive’.

117.   The ambulance, who I believe were called by Dr Chong, arrived within a matter of minutes. Brydie let them in to lounge room where I spoke to them and explained to them what had happened. I gave them her medicare card and health care card, which is the normal thing to do and they into the family room where she was sitting and they lifted her up, one on each side, grabbing hold of her arms and marched her out the door and down the stairs. At no time was there any contact made between myself or Brydie with Nancy.”

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

“20.   On 3 July, 2014 I was at Anderson Road, Kings Langley with Nancy, and my father. Nancy appeared to be acting irrationally at the time and proceeded to walk out onto the balcony and call out for help. My father and I decided to call Nancy’s GP, Dr Chong who was located at Boomerang Place, Kings Langley. Dr Chong advised me that we call an ambulance, leave her alone and let them make an assessment.

21.   The paramedics attended and had to help her down the stairs each holding her arms firmly on each side as they descended the stairs as she was very unsteady on her feet.

22.   Nancy was then taken to Blacktown Hospital by Ambulance.”

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:

“About 23:00 on 03 July 2014 the victim was having a discussion with POI 2 [Brydie] regarding payment of board of $...... per week, when POI 1 [the Plaintiff] said that it was too much and that it should only be $...... per week. The discussion become heated and evolved into an argument where POI and 2 yelled abuse at the victim. The victim due to her age and frail state felt intimidated and unsafe and stated to POI 1 that she was going to call the police. POI 1 immediately stated ‘No your [sic] not?’ The Victim picked up her mobile phone as she said this and POI 1 has grabbed the Victim by the left wrist with force causing a bruise and snatched the mobile phone out of the Victims [sic] hand. Within moments POI 2 stepped forward and took hold of another phone that was on the lounge next to the victim and POI 1 took a wireless phone away from the Victims [sic] reach. The victim feeling scared has managed to walk to the outside deck and attempted to call for a neighbour to assist her, the victim is very unstable on her feet, as she was calling for help POI 1 came to the door and told the victim that her Doctor has told her to come inside. The victim shuffled her way along the bannister railing holding herself up, POI 1 did not assist her with walking and left her to struggle to walk from the railing to the door, the victim had to lean on a home made gate that was damaged to be able to walk across the deck area to go back inside the house. POI 1 has called for an Ambulance to attend the location and gave instructions to the Ambulance officers to take the victim to the ‘mental part of the hospital’. The victim was conveyed to Blacktown Hospital.”

Medical Records

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.

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.

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

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]”.

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”.

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”.

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

“Client … says her condition is deteriorating and she may need [increased] … services soon. She is worried about her son’s health & would like access to residential respite care.”

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

“Mrs Amos is an 86 year old lady who lives with her husband in their own home. Her husband has vascular dementia and other medical and physical issues. Her son has moved in to care for his parents. Mrs Amos suffers from pain and fatigue as a result of rheumatoid arthritis and osteoporosis. She also has crush fractures in her spine caused by osteoporosis, fractures of the pubic rami, polymyalgia rheumatica, hypothyroidism and oedema especially in her ankles. This affects her ability to manage independently at home. She has assistance from HACC services for housework. Her son, who has his own health issues, assists with all other activities. Mrs Amos is worried about her son’s heath and would like access to a CACP [Community Aged Care Package] to assist with her care and low level residential respite to give her son a break from caring for her.”

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.

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”.

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

“Mrs Amos is an 88 year old female who lives with her supportive son who is her main carer.

…

She would like to remain in her current accommodation as long as possible and CACP will be beneficial to assist with it. She also would like to use residential respite to give her carer a break and put her name on the waiting list for permanent residential care. She needs low level care.”

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.

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

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

“Presenting information: BIBA [brought in by ambulance] as patient’s family concerned about her mental wellbeing as she has been agitated as per CDA [Central District Ambulance]. On seen patient mildly agitated however settled as soon as she left the house. Patient states her son and granddaughter are trying to control her life. OE [on examination] patient airway, patient co-operative, pleasant manner, not agitated, nil behaviours, disturbance noted TA triage, strong radial pulse.”

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:

“[1.59 p.m.]

Chief complaint

Patient brought in by ambulance. Family phoned GP whom advised them to phone the ambulance/police because the patient was agitated at home this evening.

Ambulance personnel report that the patient was slightly distressed when they arrived but very quickly settled when she was removed from the home environment.

…

She can only mobilise with a wheelchair outside the house and is dependent on them for help, her son has refused on multiple occasions to help her, not taking her to her husband when he was dying, he is refusing to take her to her sister who is currently very ill. He is also withholding objects from her like her mail, gifts that friends have brought, and putting it out of reach.

On arrival in the [Emergency Department] the son told the triage nurse that his mother should be committed to a mental institution and that he does not want to be contacted and that he does not want to have her back home even though it is Mrs Amos’ home he is living in currently.

…

The patient is oriented in time place and person.

She is very bright with good long and short term memory.

…

[3:05 p.m.]

[Background] - 89 year old Caucasian female was [brought in by ambulance] as son/granddaughter was concerned about her mental wellbeing, as per CDA, patient was mildly agitated but settled as soon as she left home.

…

‘Do you believe you have any mental health issue?’ ‘No, obviously not, my son want [sic] to label me as a mental patient, he wants to take my home over’

…

‘The only issue is my property, my son wants to take that from me. He wants to put me in a mental place. … I still manage my finances by myself, pay my bills, John even don’t [sic] pay anything for food!’

Denied depressive symptoms, stated his [sic] sleep is usually good but due to the current home situation her sleep is not the best. Stated on one occasion his [sic] son grab her on right hand made a bruise. ‘My left hand is still sore, look at the bruise’. I saw the bruise in her left arm.

…

[4:11 p.m.]

Interview with Carer/Son - Son’s concerns

Son and granddaughter presented at Social Work department at 9am today to discuss with social worker concerns re patient’s mental stability and her need for placement. Son advised that he called an ambulance last night because he could not calm his mother down and their GP advised to do so. He said his mother was on the veranda yelling and screaming.

…

Social worker questioned son about bruises on his mother’s arm. Son and granddaughter stated that she bruises easily and they were from her repeatedly banging her arm on the veranda railing when she was distressed the previous night.

Son stated that he will not have his mother back home and that he can no longer care for her. Son stated that patient needs a cognitive assessment and to be placed in care.

…

Patient Interview - Patient concerns

Patient was interviewed in Emergency Department with patient consent. Patient advised that social worker had already spoken with son. Patient presented as lucid and clearly outlined events of the night before. Patient became distressed and anxious when she related events. Patient stated that the bruising on her arm was from her son grabbing and pulling her by her arm to take the phone from her hand. Patient stated she was trying to phone the police as she was afraid as they had been having an argument about the car. She stated as he grabbed the phone her granddaughter grabbed her mobile. She became more fearful and ran on to the veranda to call the neighbours for help. She stated her son then called the police and ambulance on the direction of her GP.

Patient stated that her son has a very controlling personality and plays mind games with her. She states he and her granddaughter are verbally abusive. He [sic] stated that her son has refused to take her to see her dying sister, to go a friend’s 90th birthday celebration, refuses to take her to church or to visit her husband’s grave. She stated he will not give her her mail and takes mail from her friends. Patient stated that he has become more controlling over the last 6 months - after she asked to see a copy of her Will. Plaintiff stated that her son is worried she is going to change the will, of which he is the sole beneficiary. Plaintiff confirmed that her son is her enduring [power of attorney] and guardian.

…

Social Work Concerns/Intervention

Patient does not appear to present with impaired cognition or capacity. Bruising on arm appears to be that of being grabbed.”

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

“[4:00 p.m.]

States relationship worsened when he asked for her Will, states son grabbed arm yesterday [leading to] bruised [left] arm, adopted son verbally abusive. States son has turned granddaughter against her as well.

[7:10 p.m.]

Patient does not want to press charges and does not want son to move out of house. Wants son to ‘learn his lesson’.

Nephew (Peter) and his wife present ‑ not aware of current situation. Have not noticed any cognitive issues. Keen for patient to sell the house and move into a retirement village with her sister (The Willows).”

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:

“This patient is oriented to time place and person. She is very bright with good long and short term memory.

…

Mrs Amos appears mentally in good condition with no signs of any mental health problems.”

111. The Progress Notes of 5 July 2014 reveals:

“[6:55 a.m.]

Noted bruising to left arm and lower legs.”

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

“[1:20 p.m.]

Patient seen by social worker regarding family issues. Visited by Granddaughter who verbally abused her and then verbally abused a nurse then left the ward. Patient very distressed and has a good friend visiting at the moment.

[2:45 p.m. - Social Worker Notes]

Issues:

1.   Patient’s son continues to claim that GP supports patient’s cognitive decline and irrational behaviours. Son also states that service provider Bridgette (Homecare) acknowledges patient’s erratic behaviour at home. Son has refused to bring patient’s personal belongings to hospital as he has no car to transport them and has declined patient’s friends from picking them up at the house. Son states he will not give patient her mobile phone or other personal belongings as their GP has advised him against [to] do so. Patient’s granddaughter was abusive to patient on the ward saying that she never wants to see or speak to patient again and that she was moving out of the home. She was also threatening to nursing staff upon leaving the ward. Immediately after granddaughter contacted social worker by phone saying she was upset and apologises for threatening nurses – states she did not want the police called. Granddaughter denied abusing patient.

2.   Social Worker Contact with Service Provider

Bridgette stated that patient has become more agitated at home over recent months. [Bridgette] stated that she believes that this is due to patient having no freedom in her own home and because her son reacts and yells at her. She stated patient is not difficult at home and managing ok.

3.   Jennifer Byrne – friend - contacted by phone. Jennifer stated that patient’s son has treated patient terribly for years. Jennifer has known patient for 30 years and sees her weekly. Jennifer confirmed son being emotionally abusive, controlling, refusing to take her out, and taking her mail. Jennifer has seen son losing his temper and has had patient on the phone, crying and shaking in fear. Jennifer has agreed to the appointment of an enduring POA/guardian.

Social worker intervention:

1.   Met with Team to discuss discharge plan. Agreed for family conference Tuesday 11am. Son has agreed to attend as long as patient not present as this is not good for his health.”

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

“Upon assessment today she was able to score 92/100 on the Addenbrooke’s Cognitive examination”. This indicates that she is cognitively intact and has the capacity to make her own informed decisions.”

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.)

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:

“My son who is my carer did not want to have anything to do with last Christmas. So my sister & her son & his wife took me up to the Blue Mountains for Christmas Dinner & we had a wonderful time. Praise my Lord.”

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

“[12:05 p.m.]

Family conference: Dr Cheuk … son John.

Discussed circumstances around patient’s admission:

•   Patient’s son states she had an unwitnessed fall out on the virandah [sic] and that she was having a ‘melt down’, screaming for help. Denied physically harming.

•   Noted [increase] in difficult behaviour and suspects a mental …

•   Limits patient’s visits for her own good given her frailty

Explained that the collateral history from patient’s family & friends do not support his claims

GP has noted that patient has been [increasingly] agitated due to limitations placed on her by him.

Recent MMSE was 29/30.

Son keen for patient to go into placement & he wants to remain in the house.

Explained that given patient is cognitively intact she can make her own decisions re [discharge] destination

Options include

(1)    going into placement and/or selling her house

(2)   … home … services and son has to move out

The final decision will be up to Mrs Amos.

Her son states that he will challenge her decision with a solicitor if she decides to either sell the house/have him move out as it is his right to stay in the house.

Son does NOT want to be contacted/involved in any decisions/medical progress

…

[12:40 p.m.]

Social worker attended [family conference] as per Treating Team entry. Dr Cheuk outlined reason for admission and concern for patient wellbeing if she returns home. Dr Cheuk also advised son that patient was advised she had the right to take legal action re accusations of son’s treatment of her, i.e. bruising on arm. Son advised there are nil medical issues and nil mental health issues: Son also advised patient has been assessed as having nil cognitive issues and therefore is fully competent to make her own decisions.

Son stated that he would not have his mother back in the house, never wanted to see her again and did not want to be contacted about what happened to her from here. Son denied all patient’s concerns regarding her care at home. Social worker outlined how Treating Team had come to this decision … Son stated that none of this is true and patient has everyone fooled.

…

Son stated that he will not be moving out of the house and will take his mother to court if she tries to sell the house or change the will. Son advised that is his right to follow through but that in the meantime discharge will be planned as follows:

(1)   Patient to decide where she wants to live – at home or in a supported aged care environment.

(2)   Patient to decide in this process if she will sell the home or leave son living there.

(3)   Treating Team and social worker to progress discharge in accordance with patient’s wishes.

Post [Family Conference]:

Social worker was contacted by patient’s granddaughter wanting to know outcome of [family conference]. Granddaughter advised as per above. Granddaughter stated she is very worried about her father as he has diabetes, a heart condition and has bi-polar disorder. Social worker questioned is she concerned that her father will harm himself. She stated yes as he had nowhere to go if house is sold. Granddaughter advised to contact GP or MHT [Mental Health Team] if she has concerns for her father’s safety. Granddaughter wanted to know what her grandmother’s plans were re selling house and would her father get any money. Social worker stated that this was unknown as patient had yet to plan her discharge.

…

GP, Dr Cheung stated that he feels things escalated in family home since granddaughter arrived to live with them. GP stated that patient feels granddaughter and son are ganging up on her. GP confirmed 29/30 for MMSE. GP advised son had said to him that his mother needed to be kept in hospital and he could not look after her in his home? GP stated that he pulled son up on referring to the home as his and told son that patient would have to explore LL care in an ACF or son & granddaughter to move out and patient get a fulltime carer to live in with her.

…

[7:15 p.m.]

Patient’s granddaughter was seen talking to patient aggressively. Granddaughter has left the room crying with an older male.

…

[7:44 p.m.]

Received call from son – ‘John Amos’ …

•   Had been contacted by son (Nancy’s grandson Robin) that accusation of ‘abuse’ was made to him by member of staff: Regarding an arm.

John was very ‘disappointed’ and felt his mother (Nancy) was ‘manipulative’. Mr Amos proceeded to become verbally aggressive and distraught.

…

[9:00 p.m.]

When patient’s family visited patient at 1915 hours, no nursing staff approached family. But from a distance nursing staff observed that patient’s granddaughter was abusive towards patient. Granddaughter was angry, shouting [in a] commanding manner. DR after hours was notified about granddaughter’s behaviour. NO member of staff has approached family yet. DR after hours advised to call security if situation changes. DR has advised to tell granddaughter to leave if not call security. By this time granddaughter has left ward crying.

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

“[1:00 p.m.]

Patient has had the police involved & has made a statement

Remains anxious about her current situation

…

[5:05 p.m.]

Ongoing social worker intervention

Notes written in retrospect from today.

Social worker contacted DVLO at Blacktown Police this morning as per patient’s request on 9/7/14. DVLO unavailable on 9/7/14. Social worker also consulted with Elder Abuse Hotline re process and protocol. Social worker advised to contact DVLO at Blacktown Police. Report made to DVLO, Janelle Wearne this morning. Social worker advised that police would come to hospital to follow up today.

…

Police arrive within the hour – before lunch. Police took patient’s statement and advised that Police would be taking out an AVO on patient’s son John Amos and granddaughter Brydie Amos. Neither are to approach patient. AVO would also include an exclusion order i.e. that neither party are able to reside at patient’s address. Social worker was present for statement taking. DVLO at Blacktown also requested that if patient consented that the Forensic Medical Unit be contacted to conduct an assessment in case issue goes to court. Patient consented to Forensic Medicine being contacted. Social worker left message on forensic medical unit voicemail referring patient – after discussion with Treating Team RMO. Forensic Medical Unit arrived after lunch. Patient interviewed re alleged assault. Social worker did not remain for interview.”

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.

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”.

120. The Record also stated that:

“She received assistance from HAAC services 3 days per week with personal care and one day per fortnight with domestic care. She attended shopping with her son weekly. Her son attended to meal preparation, laundry and home maintenance.”

121. The Progress Notes of 11 July 2014 reveal:

“[4:30 p.m.]

Patient seen on the ward re follow up to week’s events. Patient advised son has taken her Medicare and pension card. Police Assistance Line contacted by patient. Event number provided for re-issue of cards.

…

Legal Issues

1.   AVO has been issued to son.

2.   No AVO to granddaughter but she has been warned.

3.   Friend Jennifer Byrne is now enduring POA/guardian. Paperwork to be provided.

4.   Patient’s home is secure – locks have been changed and son has an exclusion order not to reside there.”

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

“Son John Amos is not to approach or contact patient. Patient has an AVO on son due to episode of Elder Abuse. Granddaughter Brydie Amos is also not to approach or contact patient. Please call security if there are issues.”

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

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.

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.

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.

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.

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.)

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.

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.

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.

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).

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

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

1. the person or persons for whom provision is to be made, and

2. the amount and nature of the provision, and

3. 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, and

4. any conditions, restrictions or limitations imposed by the Court.

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).

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

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

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.

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.

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

“On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:

‘The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.’

Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:

(a)    The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:

‘... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’

(c) There is no rule that, irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d)    The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e)    As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):

‘If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.’

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].

(g)    The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows:

‘As explained by the primary judge, the term “estrangement”, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the “natural” process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience.’

His Honour added:

‘The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.

…

Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of “love and support” from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother’s will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.

…

Although the mother’s reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter’s share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.’ ”

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

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.

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.

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.

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.

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.)

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.

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”

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

“[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

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.

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]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].”

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

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.

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.

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.

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.

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.

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.

253. 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.

254. 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.

255. 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).

256. 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.

257. 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.

258. 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].

259. 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.

260. 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.

261. 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.

262. 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:

“[P]erfect harmony between parent and child is in the nature of things not to be looked for … Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in all of the circumstances and make the judgment that it considers that a wise and just parent would have made in the circumstances”.

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

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.

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.

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.

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.

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.

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.

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.

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:

1. by Mrs Daddow, as to 3.0 per cent, thereby reducing her share of residue from 15 per cent to 12.0 per cent;

2. by Ms Byrne, as to 3.0 per cent, thereby reducing her share of residue from 15 per cent to 12.0 per cent;

3. by Mr Hogg as to 1.5 per cent, thereby reducing his share of residue from 10 per cent to 8.5 per cent;

4. by Felicity Amos by 1.5 per cent thereby reducing her share of residue to 8.5 per cent; and

5. by Brydie Amos by 1.0 per cent thereby reducing her share of residue to 9.0 per cent.

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.

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.

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.

281. The Court:

1. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs.

2. Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders.

3. Orders that if agreement is reached, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date will be vacated.

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Decision last updated: 16 August 2018