Angius v Angius

[2025] NSWCA 113

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Angius v Angius [2025] NSWCA 113

Hearing dates:

7 April 2025

Decision date:

27 May 2025

Before:

Bell CJ at [1]
Mitchelmore JA at [2]
Ball JA at [92]

Decision:

(1) Appeal dismissed with costs.

Catchwords:

SUCCESSION — family provision — claim by grandchild — whether an eligible person — whether wholly or partly dependent —where deceased provided financial support to applicant as an adult

SUCCESSION — family provision — claim by grandchild — whether factors warranting — where applicant provided companionship and assistance to deceased — where deceased provided financial support to applicant as an adult — where deceased intended to appoint applicant as attorney and guardian

SUCCESSION — family provision — quantum of provision — large estate — whether provision unreasonable — where applicant has multiple sclerosis and is unlikely to receive significant financial support from parents

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 59, 60.

Cases Cited:

Alexander v Jansson [2010] NSWCA 176; 6 ASTLR 432

Andrew v Andrew (2012) 81 NSWLR 656, [2012] NSWCA 308

Ball v Newey (1988) 13 NSWLR 489

Bayssari v Bazouni [2014] NSWSC 910

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chisak v Presot [2022] NSWCA 100

Curtis v Curtis [2024] NSWCA 136

Frank v Angell [2024] NSWCA 264

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lalic v Lalic [2022] NSWSC 31

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Sun v Chapman [2022] NSWCA 132

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Category:

Principal judgment

Parties:

Jenny Angius (Appellant)
Natalie Angius (Respondent)

Representation:

Counsel:
M Painter SC with D Yazdani (Appellant)
M Pesman SC (Respondent)

Solicitors:
Mills Oakley (Appellant)
Bay Legal (Respondent)

File Number(s):

2024/00320250

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

Le v Angius; Angius v Angius [2024] NSWSC 924

Date of Decision:

13 August 2024

Before:

Richmond J

File Number(s):

2024/00320250

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 31 January 2022, Giovanni (John) Angius died. Under his final will, dated 21 April 2021, the appellant, John’s daughter Jenny Angius, is the sole beneficiary of his estate, which had a net value of $29,588,261 at time of hearing. No provision was made under that will for John’s son Robert Angius or Robert’s daughters, including the respondent, Natalie Angius. This will replaced a will John made in 2012, under which Natalie was to receive an indexed legacy of $200,000.

Natalie commenced proceedings in the Supreme Court seeking family provision under the Succession Act 2006 (NSW) (the Act). As a grandchild of the deceased, Natalie was required to show that she was wholly or partly dependent on John at any particular time, that there were factors warranting the making of an application for provision, and that adequate provision for her proper maintenance, education, or advancement in life had not been made under John’s will.

From 2007, when John’s wife Laura Angius accused John of having an affair. there was a significant rift in the family between those who supported John (including Jenny) and those who supported Laura (including Robert). John and Laura formally separated between 2010 and 2011. Laura died in 2012. In 2015, Robert became the sole beneficiary of her estate, the value of which exceeded $13 million. Robert is estranged from his children with his first wife, Silvana Salvatore, including Natalie.

When Natalie was a child, and following Robert and Silvana’s separation, John made payments to Silvana in performance of Robert’s outstanding obligations, including a property settlement of $206,000, a child benefit payment of $25,000, and a lump-sum of $3,673.86 corresponding to outstanding child support payments for a number of months. John made further ad hoc payments for the benefit of Silvana and her children.

When Natalie was around 16 years old, she reconnected with John and began visiting him. In 2014, Natalie was diagnosed with multiple sclerosis and suffered a number of other physical conditions. This impacted her ability to work, and she visited John more regularly and assisted him with some administrative and household tasks. John made money gifts to Natalie of varying sizes (between $300 and $5,000) and, made regular payments to her during periods when she was unable to work due to illness or injury. John also gave money to Natalie to assist with treating and managing her health conditions.

Natalie lives rent-free in a property owned by Silvana and has, at various times, received income from employment, workers compensation, and government entitlements. Costs associated with her health, particularly multiple sclerosis, are considerable and will increase as her condition progresses.

In late 2021, John met with a solicitor, Francis Devine, for the purpose of giving instructions to appoint Natalie as his joint attorney and guardian. Mr Devine gave evidence that John also spoke of his intention to prepare a new will making provision for his grandchildren. Natalie gave evidence that John said that his 2021 will was intended to be temporary and was made to remove Robert as a beneficiary.

The primary judge found that Natalie was partly dependent on John both as a child and as an adult. He also held that there were factors warranting her application because John’s relationship with Natalie went beyond an ordinary grandparental role and because Natalie could not expect support from Robert or significant financial support from Silvana. His Honour made an order for provision in the amount of $2,550,000.

Jenny’s appeal raised three issues: (1) whether Natalie was at any particular time wholly or partly dependent on John, (2) whether there were factors warranting Natalie’s application, and (3) whether the amount of provision ordered by the primary judge was excessive.

The Court (Mitchelmore JA, Bell CJ and Ball JA agreeing) held, dismissing the appeal:

1. The payments that John made to Natalie when she was an adult were of a nature and sufficiency that satisfied the eligibility threshold in s 57(1)(e) of the Act. Even taking in isolation the period following her diagnosis with multiple sclerosis, the financial support John provided would have been sufficient to establish partial dependency: at [58]. Even if the evidence showed that Natalie could meet her own subsistence requirements, she could still have been dependent on John in the relevant sense: at [60].

   Chisak v Presot [2022] NSWCA 100; Alexander v Jansson [2010] NSWCA 176; 6 ASTLR 432; Bayssari v Bazouni [2014] NSWSC 910; Ball v Newey (1988) 13 NSWLR 489; Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17; Sun v Chapman [2022] NSWCA 132; Frank v Angell [2024] NSWCA 264, considered.

   Curtis v Curtis [2024] NSWCA 136; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, applied.

2. The primary judge’s treatment of the evidence relating to the factors warranting an application did not disclose any House v The King error: at [65]-[75].

   Curtis v Curtis [2024] NSWCA 136; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, considered.

   House v The King (1936) 55 CLR 499; [1936] HCA 40; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, applied.

3. That the primary judge ultimately made a greater allowance for Natalie’s future needs than was advanced by her counsel was within his Honour’s discretion and was not against the evidence: [84]. That the primary judge did not accept Jenny’s submissions about what the medical evidence indicated as to Natalie’s health and future needs did not bespeak error: at [88]. In respect of the evidence of the occupational therapists, the primary judge cannot be criticised for proceeding on the basis advanced by Natalie which was unchallenged by Jenny: at [79].

   House v The King (1936) 55 CLR 499; [1936] HCA 40; Andrew v Andrew (2012) 81 NSWLR 656, [2012] NSWCA 308; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; Lalic v Lalic [2022] NSWSC 31, applied.

JUDGMENT

1. BELL CJ: I agree with the reasons of Mitchelmore JA and the order her Honour proposes.

2. MITCHELMORE JA: This appeal concerns an order for family provision that the primary judge, Richmond J, made pursuant to the Succession Act 2006 (NSW) in favour of the respondent, Natalie Angius, from the estate of her grandfather, Giovanni (John) Angius. The appellant, Jenny Angius, is John’s daughter, Natalie’s aunt, and the executor and sole beneficiary of John’s last will. Without intending any disrespect, I will refer to the members of the Angius family who are involved in these proceedings by their first names.

3. Natalie was not named as a beneficiary under John’s last will. However, the primary judge was satisfied that an order for provision should be made, having found that Natalie was an eligible person, there were factors warranting her making an application, and adequate provision for Natalie’s proper maintenance, education or advancement in life had not been made in John’s last will.

4. At the time of the hearing, John’s estate had an agreed net value of $29,588,261. The primary judge made an order for provision for Natalie in the amount of $2,550,000. His Honour also made an order for provision in favour of Thi Quy Le (Ms Le), who brought separate proceedings which were heard and determined at the same time (and from which there was no appeal).

5. By her grounds of appeal, Jenny challenges his Honour’s finding that Natalie was an eligible person (ground 1) and that there were factors warranting the making of provision (ground 2). Jenny also challenges the amount of the provision that his Honour awarded to Natalie (ground 3). For the reasons set out below, I would dismiss the appeal.

Background to the proceedings

6. The general background to the proceedings was summarised in the reasons of the primary judge. John was born in Italy in October 1936. He married Laura in 1957, and in 1958 they emigrated to Australia. They had two children together, Jenny and Robert. Robert has six children, four (including Natalie) with his first wife, Silvana Salvatore, and two with his current partner, Jacqueline Varela: at [16]. Jenny has two children, one of whom, Gabrielle, gave evidence in the court below: at [16].

7. From some time in the 1990s, John and Laura resided in a house that they owned in Denning Street, South Coogee (the Coogee Property): at [17]. It appears that John and Laura also jointly owned premises in Alfreda Street, Coogee, from which a pool hall business was operated: at [23]. John and Laura also owned commercial premises in Waterloo, from which John operated a smash repair business until 2008: at [18]. Between 2008 and 2010, that land, together with an adjoining lot that John owned and an adjoining lot owned by a third party, was redeveloped into retail/commercial premises and residential apartments: at [20]. Upon completion of the redevelopment John and Laura became the registered proprietors of a number of the retail/commercial premises and residential units: at [32].

8. In or about February 2007, there was an altercation between John and Laura at the pool hall premises in which Laura alleged that John was having an affair with Ms Le, who was managing the pool hall business: at [24]. This was the first of a number of altercations on the same subject. On 10 May 2011, John and Laura executed an agreement recording that they had separated on 30 September 2010. Subsequent agreements and variations set out arrangements for their respective property interests so that they would ultimately own particular properties in their own names: at [34]. The primary judge found that from around 2007 or, at the latest, the time of their separation, there was “a significant rift in the Angius family between those supporting Laura and those supporting John”: at [38]. Robert aligned with Laura, while Jenny aligned with John: at [38].

9. In April 2007, Laura had executed a will under which Jenny and Robert were appointed as executors and the residue of the estate was left to them in equal shares: at [26]. However, a later undated document was subsequently determined to be Laura’s last will: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895. Following her death in January 2012, there was protracted litigation between Robert and John, and Robert was held to be the principal beneficiary of Laura’s estate: Gordon Sailer v Robert Angius [2015] NSWSC 853.

10. On 14 September 2012, John made a will in which he appointed Jenny and his granddaughter, Gabrielle, as executors. His Honour summarised the substance of the will in [73]. Relevantly for present purposes, John made seven pecuniary legacies, each of which was indexed, including $200,000 to each of Robert’s children with Silvana, $200,000 to Jenny’s son, $1,000,000 to Gabrielle, and $1,000,000 to Robert. He gave the balance of his estate in equal shares to Jenny and Gabrielle.

11. Following Laura’s death, John became the sole proprietor of the Coogee Property. In 2015, the administrator of Laura’s estate obtained an order under s 66G of the Conveyancing Act 1919 (NSW) to sell the property; and in 2017, John successfully re-purchased it at auction: at [47]-[48]. He returned to live in the Coogee Property in August 2016 and sold the apartment in Waterloo into which he had moved following the separation: at [53]. In December 2012, John purchased a property in Burradoo essentially as a holiday home: at [45].

12. On 21 April 2021, John made his last will, which named Jenny as his sole executor and beneficiary. If Jenny did not survive John, he directed that any of her children who attained the age of 25 years should share equally in his estate: at [69]. John’s last will made no provision for Robert or any of Robert’s children, including Natalie: at [74]. By the time John made this will, the Supreme Court proceedings concerning Laura’s estate had concluded, leaving Robert the sole beneficiary. The net distributable value of Laura’s estate was estimated by the administrator to be in excess of $13 million: at [71].

13. John was hospitalised frequently throughout 2021 for issues relating to his heart: at [60]. On 23 January 2022, he tested positive for COVID-19. On 31 January 2022, John died, aged 85 years: at [65]. On 30 January 2023, Natalie commenced the proceedings in the court below seeking family provision under John’s last will: at [68].

14. Probate of John’s last will was granted on 23 May 2023: at [75]. According to the Joint Agreed Schedule of Assets and Liabilities before the primary judge, the estate had a net value (after liabilities) of $29,588,261: at [76].

The provisions of the Succession Act and applicable principles

15. The applicable provisions and principles were not in dispute before the primary judge and it is useful to address them before turning to the evidence, the primary judge’s findings, and the appeal.

16. Section 57(1) of the Succession Act identifies the eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person, including, relevantly for present purposes:

(e) a person—

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member …

17. Sections 59(1) and (2) provide:

59 When family provision order may be made (cf FPA 7–9)

(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

(a) the person in whose favour the order is to be made is an eligible person, and

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

18. Section 60(1) of the Succession Act provides that the Court may have regard to the matters in s 60(2) for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person, and whether to make a family provision order and the nature of any such order.

19. In Chisak v Presot [2022] NSWCA 100 at [57], White JA (Macfarlan and Gleeson JJA agreeing) described s 57(1)(e) as “merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c))”. In light of its character, White JA endorsed the interpretation of the phrase “partly dependent” in s 57(1)(e) as involving “more than minimal” dependence (citing Alexander v Jansson [2010] NSWCA 176; 6 ASTLR 432 at [13]) but doubted that it was legitimate to read in a requirement that such dependency be “significant”. In Curtis v Curtis [2024] NSWCA 136 (“Curtis”) at [31], Leeming JA endorsed the correctness of the primary judge’s observation in that case that “dependency presents a ‘lowish bar’ or a ‘relatively low’ test”.

20. Dependency in this context means “actual reliance on someone else for the total or partial satisfaction of some need”, which is not limited to purely financial or material matters and which may exist “irrespective of whether the dependent person is financially or physically able to support himself or herself”: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]-[110]. It has been said to involve “a degree of reliance so that, if the material support giving rise to dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute”: Bayssari v Bazouni [2014] NSWSC 910 at [53]. In Chisak v Presot, White JA observed that it was inherent in the inquiry as to whether a grandchild was wholly or partly dependent on the deceased “at any particular time” that the child may otherwise remain dependent on either or both parents and still satisfy the requirement in s 57(1)(e): at [56], cited with approval in Curtis at [11]. Each case depends on its own facts, and the whole relationship must be examined: Ball v Newey (1988) 13 NSWLR 489 at 490-1.

21. As a claimant either does or does not satisfy the requirement of total or partial dependency, appellate review is on the correctness standard: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [53]-[54]; Sun v Chapman [2022] NSWCA 132 at [8]-[11], [13]. By contrast, satisfaction as to the precondition in s 59(1)(b) of the Succession Act, that there are factors warranting the making of the application for provision, is subject to the House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of appellate review: Frank v Angell [2024] NSWCA 264 at [3], [62]-[66].

22. As Leeming JA observed in Curtis at [13], eligible persons “divide into two classes: the lawful and de facto spouses and children mentioned in s 57(1)(a), (b) and (c), who are generally ‘regarded as natural objects of testamentary recognition’, and those in s 57(1)(d), (e) or (f), who, without more, are not generally so regarded”. Focusing on the latter class, his Honour continued at [14]:

“In Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681, McLelland J said of the requirement to show factors warranting the making of an application that they were factors which, when added to facts which render the applicant an eligible person, gave him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. That approach was endorsed by this Court shortly thereafter in Churton v Christian (1988) 13 NSWLR 241 at 252; [1988] NSWCA 23 and has regularly been followed subsequently: see for example Lodin v Lodin [2017] NSWCA 327 at [1], [5] and [106]-[107] and Sun v Chapman [2022] NSWCA 132 at [1], [119] and [193]. The requirement was explained by Payne JA (with whom Macfarlan JA at [1] and Sackville AJA at [153] agreed) in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [97]:

Consistently with the decision in Re Fulop, the starting point for applying s 59(1)(b) of the Succession Act is that an eligible person such as an adult stepchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b), John must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition by Gina. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant: Lodin at [114] (per Sackville AJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [13]-[15] (per Basten JA).”

23. Specifically in relation to claims for provision made by grandchildren, the following general principles that Hallen AsJ formulated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 (“Bowditch”) at [113] have been approved by this Court as “a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind” (Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [67]):

“(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.”

24. If there are factors warranting the making of the application, before making any order the Court is also required to be satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made in the deceased person’s will (s 59(1)(c)). It may then make such order for provision as it thinks ought to be made, having regard to the facts known to the Court at the time it is made (s 59(2)). The appropriate order should be made by reference to “perceived prevailing community standards of what is right and appropriate”: Andrew v Andrew (2012) 81 NSWLR 656, [2012] NSWCA 308 at [16] (“Andrew”), citing Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46 (Sheller JA). That standard has been described as “imprecise, variable and contestable”: Andrew at [16], referred to with approval in Chapple v Wilcox at [12] (Basten JA). Appellate review of the determination of the amount of provision is also on the House v The King standard.

25. The primary judge reproduced Henry J’s valuable summary of the relevant authorities in Lalic v Lalic [2022] NSWSC 31, part of which is particularly pertinent to the issues on ground 3 of the appeal:

“[51] A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant’s proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant’s needs also requires consideration of the size of the estate and others’ claims on it: Chan v Chan [2016] NSWCA 222 at [22].

[52] Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 at [7]–[8]; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114].

[53] The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA). …”

Natalie’s claim for provision

26. In the court below, Natalie read four affidavits that she prepared and was cross-examined at length: at [132]. Natalie also relied on evidence from four lay witnesses, three of whom were cross-examined, being Natalie’s mother, Silvana; Dominic Dodaro, a friend of Natalie’s since 2007; and Francis Devine, a solicitor who met Natalie and John at the Coogee Property in December 2021 for the purpose of taking instructions to prepare an enduring power of attorney and an appointment of an enduring guardian for John.

27. In addition to the lay evidence, Natalie relied on the evidence of her treating specialists, Dr Judith Spies, neurologist, and Professor Cherry Koh, colorectal and general surgeon, as to a range of medical issues with which Natalie has been diagnosed (the most significant of which was multiple sclerosis). Both Dr Spies and Professor Koh were cross-examined: at [136]. After the hearing concluded, Natalie was given leave (which was not opposed) to reopen her case to tender an updating report from Dr Daniel Guilfoyle (prepared in consultation with Dr Spies). Natalie also relied on a report as to her needs prepared by Mr Christian Byrnes, occupational therapist, who was not cross-examined: at [136].

28. Jenny gave evidence in the court below as did her daughter, Gabrielle. Jenny also relied on a report of Dr Stuart Pincott, colorectal and general surgeon, and a report of Ms Sanja Zeman, occupational therapist, who responded to Mr Byrnes’ report.

29. Natalie impressed the primary judge “as an honest witness who gave every appearance of trying to answer the questions she was asked honestly and to the best of her recollection”. His Honour noted that some caution was required regarding her evidence about her relationship with John, but generally accepted Natalie’s evidence: at [132]. His Honour also generally accepted Silvana’s evidence, acknowledging that her relationship with Natalie called for some caution in doing so: at [133]. Mr Dodaro impressed the primary judge as an honest witness and he accepted his evidence: at [134]. His Honour also accepted the evidence of Mr Devine, which was not ultimately challenged and was supported by a detailed file note he took when meeting with John: at [135].

30. The primary judge treated the evidence of Jenny and Gabrielle with caution “given their interest in the outcome of the proceedings”: at [269]. Nonetheless, his Honour did accept that each of Jenny and Gabrielle had a loving relationship with John, and that each had regular contact with John, particularly Jenny whose home was in the same street as the Coogee Property: at [269].

31. In relation to the expert evidence, the primary judge recorded that it was not in dispute that Mr Byrnes and Ms Zeman were in “substantial agreement”. His Honour also did not understand there to be any serious dispute about the diagnosis and prognosis of Natalie’s medical conditions: at [139].

When Natalie was a child

32. Natalie was born in 1990 as the third of four daughters born to Silvana and Robert: at [310]. Silvana and Robert separated in 1997: at [311]. When Silvana and Robert divorced in 1999, the four children were aged between six and 12 years old: at [310]. Silvana gave evidence that her father and John negotiated the outcome of the divorce, which involved a payment to Silvana of $206,000 as a property settlement and $25,000 for the benefit of the children. John made both of those payments: at [312]-[313].

33. Robert had an ongoing obligation to make child support payments of around $250.00 per month for each of the children who were living with Silvana until they reached the age of 18: at [316]. The primary judge was satisfied that in June 2002, John paid an amount of $3,673.86 in respect of outstanding child support payments that Robert was required to but had not made: at [317]. After that time all child support payments were made, although his Honour did not consider it necessary to determine whether John made them (Silvana believed he had): at [318].

34. Silvana also gave evidence that after the child support payments ceased in 2009 (when her youngest daughter turned 18), John continued to support her and her daughters, by giving her cheques three or four times a year (in addition to Christmas and Easter). The amount of each cheque varied, ranging between $2,000 and $5,000. John also gave Silvana cash in smaller amounts. John said to Silvana on more than one occasion that these payments were “for the kids”: at [319].

Natalie’s relationship with her grandfather

35. Natalie met John in 2006 or 2007, when she was 16 years old: at [295]. Natalie gave evidence that she initially visited John on average weekly, either at his smash repair workshop or at the pool hall in Coogee. After John moved into an apartment in Waterloo, Natalie visited him there on average weekly. After Laura died and John returned to the Coogee Property, Natalie visited him there: at [295].

36. In 2014, Natalie was diagnosed with multiple sclerosis. The primary judge summarised her medical history associated with that condition at [294]:

“It is not in dispute that Natalie suffers from multiple sclerosis, having been diagnosed with this condition in 2014. She also has experienced the following symptoms caused by her multiple sclerosis: foot drop, trigeminal neuralgia and greater auricular neuralgia, optic neuritis in the left eye, severe vertigo and balance issues, bladder issues causing incontinence, difficulty swallowing food, sensation of pins and needles throughout the left side of her body and fatigue. She also suffers from a number of other serious medical conditions including pericarditis and post-inflammatory syndrome having been diagnosed after receiving her COVID-19 vaccine in 2021; various respiratory conditions including asthma (diagnosed in around 2010); sleep apnoea (diagnosed in around 2021) and lung nodules (diagnosed in 2021); carpal tunnel syndrome (diagnosed in 2019); acute complicated appendicitis with perforation and peritonitis and visceral hyperalgesia and motility disorders (diagnosed in 2022), and Hashimoto’s disease (diagnosed in January 2023). She put into evidence extensive medical records regarding the diagnosis and treatment of these conditions.”

37. In the six years before John died, Natalie’s contact with John increased. From 2019, as her own health was declining and she was working less, Natalie visited John two to three times a week, except during lockdowns associated with the COVID-19 pandemic: at [295]. On occasions, John would take her to dinner at places he frequented: at [296].

38. Natalie gave evidence that in the same week as she met John, she went to visit him at his panel beating shop and he gave her a cheque that was payable to her for $2,000. Not long after that, he gave her a further cheque for $5,000 and said to her, “Go and buy yourself a car to learn on”: at [295]. According to Natalie, when she visited John he would give her cash for the household, on one occasion in a large amount ($5,000 in around 2014) but more regularly in amounts of around $300. Natalie recalled that John wrote several large cheques over the years which he made payable to Silvana, to help her out. When he gave them to Natalie he would say words to the effect of: “Give to your Mum to help her for your family”.

39. In 2014 and 2015, following her diagnosis with multiple sclerosis, Natalie was unwell and was “in and out of hospital”. She was employed as a Customer Service Agent at IHG Hotels but was not working at that time and did not have any leave entitlements. She was able to obtain a sickness allowance from Centrelink of about $500 per fortnight. Natalie’s evidence was that when she told John about this he said to her words to the following effect: “You will need money for medical expenses and living. I give you another $500 a week. That’s like your wage.” According to Natalie, John started giving her $500 each week when she visited him or went to dinner with him.

40. Natalie returned to work a few months later when her health stabilised somewhat. However, she was then stood down from her job in the hotel because of a foot drop she developed from her multiple sclerosis, which meant that she could not stand for long periods. Natalie was not able to claim the Centrelink benefit at that time because she was cleared by her doctors to do some work. When she told John, he started giving her $1,000 per week. She recalled him saying to her at time words to the effect: “Don’t worry, it’s not worth it, forget this bloody job. It’s a waste of money to fight them in Court. I’ll help you out. I’ll look after you.”

41. Natalie was eventually able to obtain a job at Service NSW. In 2019, she was placed on workers compensation when she developed carpal tunnel syndrome, and her wages were reduced. When Natalie told John about this, he gave her on average $300 each week, saying words to the effect: “It’s OK, I help you anyway. You’re sick. No worries.” From around March 2021, when on Natalie’s evidence she was helping John more, he would give her on average $400 each week.

42. Mr Dodaro gave evidence that he and Natalie became long term friends after meeting in 2007 when they were both working at Westfield Bondi Junction. Following Natalie’s diagnosis, he would drive her to appointments or would stay with Silvana until Natalie returned from appointments. Mr Dodaro met John in or around 2008 at his pool hall in Coogee, which he visited with Natalie. He also saw John at South Sydney Juniors between 2010 and 2016, as they both regularly played poker machines. Sometimes Natalie was present, either with Mr Dodaro or with John. Mr Dodaro gave evidence that on more than five occasions he saw John hand cash notes to Natalie. On at least three or four occasions, Natalie told Mr Dodaro afterwards that John had given her sums in the order of $200 or $300.

43. Mr Dodaro gave evidence of a conversation he had with John on an occasion in or around 2016, when they were playing poker machines side by side, in words to the following effect:

“Me:   ‘I just came back from overseas. We have some land in Lebanon with olive trees.’

John:   ‘Oh this is rubbish business. I have building here in Alexandria. I am building penthouse units. Come and invest your money here.’

Me:   ‘You don’t need money. You are in the age of retirement now. Why are you still working?’

John   ‘I have a family. I have grandchildren. I have to look after all my grandkids. My son is no good towards his kids. So, I have to look after them.’”

44. What John said to Mr Dodaro reflected evidence that John gave in the proceedings involving Laura’s estate, in an affidavit of 26 October 2014:

“182. I continue to give financial assistance to my two children in the form of accommodation in family owned properties free of payments of rent or mortgage and allowing them to collect rent from family owned properties. This is so even where such properties having been purchased by money I placed in my and Laura’s names and where I continue to pay the bills for these properties. I also provide money to Robert and his children and Jenny and her children when they need it and from time to time by giving them cash or paying their bills. I have not exercised any right to demand payment under the mortgages in my favour over the properties I placed in their names. My children have the use of properties and businesses which Laura and I provided without Laura and I receiving any or adequate consideration.”

(Emphasis added.)

45. Natalie gave evidence of a conversation that she had with John when she visited him in hospital on 16 June 2021, in which he told her that he had recently changed his will because he did not want Natalie’s father, Robert, to have any more control over anything. John said that he had left everything to Jenny “only for now”, and that this was temporary and he needed to change it: at [302]. In a subsequent conversation at the Coogee Property in around September or October 2021, John reminded Natalie that his will had to be changed and said something about what he wanted in the new will, including that Natalie and her sisters should have the house in Burradoo: at [303].

46. On 20 December 2021, Mr Devine attended the Coogee Property and met with John. Natalie gave evidence that the meeting came about at John’s request, as he wanted to “make new papers, guardianship and attorney and will”: at [304]. She obtained Mr Devine’s details from the internet. According to Mr Devine, he spent some two hours with John, taking care to ensure that he took John’s instructions privately. Based on the file note that Mr Devine prepared of the meeting, and Mr Devine’s evidence in cross-examination, the primary judge made the following findings about Mr Devine’s meeting with John at [330] (I have omitted content that related only to Ms Le):

“(1)   Though Natalie organised the meeting, John was Mr Devine’s client, and neither Natalie nor Ms Le were present during the meeting.

(2)   The purpose of the meeting was for John to give instructions for the appointment of Natalie and Ms Le as attorneys and guardians, and not the making of a new will. Importantly, their appointment was to be on the basis that their decisions in both capacities would need to be joint. It is likely given that Mr Devine’s file note records ‘Does not want to go to nursing home’ that the genesis of the meeting was John’s desire to prevent that occurring.

(3)   John had no difficulty in identifying his assets and the names of his children and grandchildren.

(4)   Mr Devine asked a number of questions directed to determining if John had mental capacity to execute the power of attorney and guardianship documents and satisfied himself that he did. His file note records that his reason for that conclusion was that John was aware of his assets, potential beneficiaries, possible claims, the effect of enduring guardian and the separate effect of enduring power of attorney and ‘appears to have no abnormality of the mind or defect of reasoning’.

(5)   …

(6)   Under the heading ‘Client concerns’ the file note records the following:

Understand his potential intestacy will automatically flow to his two children.

Although does not want his children to take all of estate.

Does not believe now is the right time to get to (sic) execute will.

Thinks his kids might do something to him that warrants cutting them out.

Thinks executing a will now is a concession or a curse of him conceding to death.

(Some what rational concern/superstition for an Italian man)

Wants to consider what charities to give his estate before giving full instructions on Will.

Does not want Robert’s mistress to take anything from his estate.

Would rather his grandchildren take from estate.”

47. As the primary judge observed, Mr Devine’s file note was significant for Natalie’s claim because it recorded John recognising “a testamentary intention to benefit Natalie (and his other grandchildren)”: at [332]. Although Mr Devine prepared the documents, given the time of year he did not have an opportunity to arrange to go back and visit John to have the documents executed before John died.

The decision of the primary judge and Jenny’s appeal

48. Consistently with the provisions of the Succession Act and the authorities to which I have referred above, before making any order for family provision the primary judge needed to be satisfied of each of the following (see Curtis at [17]):

1. Natalie was at any particular time wholly or partly dependent upon John;

2. having regard to all of the circumstances of the case, there were factors warranting Natalie applying for provision; and

3. adequate provision for Natalie’s proper maintenance, education or advancement in life had not been made in John’s will.

49. Ground 1 of Jenny’s appeal is concerned with the primary judge’s conclusion on the first of these matters, while ground 2 is concerned with the second. Jenny accepted that if both grounds 1 and 2 were to fail, Natalie would be entitled to provision. The amount of provision that the primary judge awarded to Natalie is the subject of ground 3.

Natalie’s eligibility: ground 1 of the appeal

50. The primary judge set out his conclusion regarding the application of s 57(1)(e) of the Succession Act at [357]:

“In relation to dependency, I am satisfied on the evidence that Natalie was partly dependent on the deceased both in her childhood and as an adult. In relation to her childhood, I have accepted the evidence of Silvana that the deceased provided financial support to her and her children (including Natalie) of three kinds: by making a payment to her of a property settlement on behalf of Robert; by making at least some of the child support payments which Robert was required to make; and third, by making regular payments, including amounts between $2,000-$5,000 for the benefit of the kids. This evidence is corroborated by a statement in John’s affidavit of 26 October 2014 set out at [47] above. I am also satisfied that he gave significant financial assistance to Natalie, particularly after her diagnosis with multiple sclerosis in 2014.”

51. The focus of ground 1 was his Honour’s conclusion that Natalie had established that she was partly dependent on John for the purposes of s 57(1)(e) of the Succession Act by reason of the payments his Honour found John to have made. Jenny took issue with his Honour’s findings of partial dependency both when Natalie was a child and when she was an adult.

52. Of the three kinds of financial support on which his Honour relied in concluding that Natalie was partly dependent on John as a child, Natalie accepted the correctness of Jenny’s submission that only the first two, being John’s payment of the property settlement and his making at least some of the child support payments, both on behalf of Robert, occurred when Natalie was a child. The parties were otherwise in dispute as to whether those two kinds of payments, by which John discharged legal obligations that Robert owed to Silvana, could be relied upon by Natalie to establish partial dependency on her part. Ultimately, however, it is unnecessary to reach a concluded view as to whether payments of that nature would satisfy the test of partial dependency, as the payments that John made to Natalie when she was an adult are more than sufficient to satisfy partial dependency for the purposes of s 57(1)(e) of the Succession Act.

53. I have set out in some detail above Natalie’s evidence regarding the payments that John made to her as an adult, including after she was diagnosed with multiple sclerosis in around 2014. As Natalie emphasised before the primary judge and again on appeal, that evidence included:

1. in 2014 and 2015, John supplementing the Centrelink payments that Natalie received when she was unable to work for IHG Hotels due to illness, making a weekly payment to her of $500;

2. shortly thereafter, when Natalie had returned to work but was stood down by IHG Hotels and had no other income, John making weekly payments to Natalie of $1,000; and

3. from 2019, when Natalie (then employed at Service NSW) was placed on workers compensation, John giving Natalie cash amounts of between $300 and $400 per week on average until he died.

54. It was put to Natalie in cross-examination that she had exaggerated her evidence about the frequency with which John gave her cash and the amount of cash he gave, which she denied. Natalie was questioned more particularly about her evidence regarding the period from 2019, and she accepted that in light of the COVID-19 pandemic and the lockdown she did not receive cash from John as often as she had before because she was not visiting as regularly (she did not want to make John sick and she was immunosuppressed). That frank acceptance on her part was consistent with her affidavit evidence, as Natalie pointed out during cross-examination, that what she was recalling was an average weekly amount, with an increase in that average from $300 to $400 from about March 2021.

55. Jenny sought to characterise John’s payments to Natalie as an adult as neither sufficiently large nor sufficiently regular as to create dependency and thereby eligibility, describing them in the written submissions as no more than an occasional gift of grandparental affection. Natalie’s evidence as to those payments, the primary judge’s acceptance of which was not relevantly challenged, presented an insuperable obstacle to that characterisation. There was ample evidence to ground the conclusion at [299] that John made frequent and regular cash payments to Natalie in amounts that were more than occasional gifts and were of real assistance to her circumstances at the times that he made them. As the primary judge recognised at [299], her evidence as to the nature of the payments and the reason John made them was corroborated by:

“…the evidence of Mr Dodaro, which was unchallenged that first, he saw John give cash to Natalie at South Sydney Junior’s on more than five occasions and second that John said to Mr Dodaro in 2016: ‘I have grandchildren. I have to look after all my grandkids. My son is no good towards his kids. So I have to look after them’. Mr Dodaro’s evidence of this conversation with John is also consistent with evidence Natalie gave as to the statements to her by John as to why he was making cash payments to her.”

56. Jenny sought to confine the significance of Mr Dodaro’s evidence on the appeal, submitting that it evidenced, at most, payment of $1,800 in gifts from John to Natalie over a six year period. That submission assumed that when Mr Dodaro said he saw John give Natalie cash “on more than five occasions”, he can only have meant six occasions. There is no basis for that assumption, noting, as did the primary judge, that Mr Dodaro was not challenged as to this part of his evidence. Further, the focus on the number of occasions Mr Dodaro could recall distracted from the other respects in which Mr Dodaro’s evidence had corroborative significance, both in terms of the manner in which Natalie said she received payments from John (in cash) and the reason why John gave her the money.

57. As his Honour noted, Mr Dodaro recalled John telling him that he (John) needed to continue to make money because he had to look after all of his grandchildren. That evidence was consistent with Natalie’s evidence of what John said when he agreed to give her money on a regular basis (including that he would help her out and look after her); and with the extract of John’s own evidence in the proceedings involving Laura’s estate, that he provided money “to Robert and his children and to Jenny and her children when they need it and from time to time”. Jenny submitted on the appeal that the extract from John’s 2014 affidavit indicated no more than that he made payments to Robert’s family as a group, and to Jenny’s family as a group, with Robert and Jenny being the only recipients identified. That submission did not reflect John’s reference to making payments to Robert “and his children”, and to Jenny “and her children”. So far as Robert was concerned, by 2014, when John prepared the affidavit, John had long been making payments to Silvana for her children, and had also given Natalie money for that purpose, and on her own account.

58. Having regard to the authorities to which I have referred above, the payments that his Honour found John made to Natalie when she was an adult were of a nature and sufficiency that satisfied the eligibility threshold in s 57(1)(e) of the Succession Act. As Natalie submitted, even taking in isolation the period following her diagnosis with multiple sclerosis in 2014 and 2015, the financial support John provided, first to supplement her income and then in place of it, would have been sufficient to establish partial dependency. The primary judge described the significance of the financial support that John provided in that period at [362], in the context of factors warranting:

“This financial support continued and increased after Natalie was diagnosed with multiple sclerosis in 2014 and I infer that this was because the deceased recognised the seriousness of her illness and considered it was necessary (given the lack of support from Robert) that he should assist her financially.”

59. Jenny also submitted on the appeal that the support that John provided was not directed to Natalie’s needs, such that it could not amount to dependency. She emphasised the following: Natalie paid no rent; she was employed (albeit for a brief period); she had other funds available to her on the basis of her banking records, primarily from Mr Dodaro and her mother; and she engaged in discretionary spending. As Natalie submitted, this submission overlooked the evidence before the primary judge about these matters, which included:

1. In relation to the availability of funds from Mr Dodaro, evidence from both Natalie and Mr Dodaro that he deposited funds into her bank accounts for the purpose of various poker machine activities and that those funds remained his. The primary judge described Mr Dodaro’s evidence as serving “to explain the large number of deposits and withdrawals to and from Natalie’s bank accounts over the relevant period” and accepted that evidence: at [327].

2. As to the availability of funds from Silvana, Natalie gave evidence that she organised things for her mother such as shopping, car servicing and home repairs, and her mother provided her with funds for those purposes.

3. When asked about her discretionary spending, Natalie gave the following evidence (recalling the primary judge’s general acceptance of her evidence):

“Q. You’re not making any sacrifices in order to afford things like cigarettes, are you?

A. I’m not really understanding what you mean. I rarely eat out. I don’t buy many clothes. Like, only when I desperately need it. I don’t do a lot of shopping or eating out the way you’re making it. I’m not saying I don’t, but very, very little. Very little. The only thing I have to buy is shoes almost every month because it burns a hole in my foot because how I walk with my foot drop.”

4. It was the case, as Jenny also submitted, that Natalie had cosmetic orthodontic treatment; however her evidence was that she paid for that out of her superannuation.

60. Even if the evidence showed that Natalie could meet her own subsistence requirements, she could still have been dependent on John in the relevant sense. As Meagher JA said in Tobin v Ezekiel at [109]-[110], dependency is not “restricted to requirements of basic necessity” and may exist even where the “dependent person is financially or physically able to support himself or herself”.

61. The primary judge’s conclusion that Natalie satisfied the criterion for eligibility in s 57(1)(e) of the Succession Act was correct. I would dismiss ground 1.

Factors warranting: ground 2 of the appeal

62. The primary judge concluded at [365] that he was satisfied that Natalie had established that there were factors warranting her application. Given the economy with which his Honour expressed his reasons for that conclusion, it is convenient to reproduce what his Honour said:

“[361] Turning now to the question of whether there are factors warranting Natalie’s application, it is necessary to have regard to the ‘guidelines’ in Bowditch, set out earlier. As to (a), while the responsibility to make provision for a grandchild normally rests with the parent (or parents), in the present case Robert did not accept that responsibility following his divorce from Silvana. The deceased took on that responsibility in place of Robert. This is confirmed by the deceased’s affidavit to which I have already referred. To the extent that Robert did provide support for Natalie (and her sisters) during her childhood, it was limited to the relatively modest child support payments (some of which he may have made) and did not extend beyond that which is consistent with his attitude towards Silvana and their children (including Natalie) as ‘bastards’ and ‘scum’.

[362] As to (b), while Natalie resided with her mother rather than the deceased, the deceased did assume a role of providing financial support to Silvana to assist her with the financial burden of bringing up her four children (and his grandchildren). This financial support extended beyond the typical support which a grandparent may be expected to provide to a grandchild. This financial support continued and increased after Natalie was diagnosed with multiple sclerosis in 2014 and I infer that this was because the deceased recognised the seriousness of her illness and considered it was necessary (given the lack of support from Robert) that he should assist her financially.

[363] As to (c), Natalie provided companionship and assistance to John in the various ways referred to at [300]-[301] above. In relation to (d) and (e), while the generosity of a grandparent to a grandchild is not, of itself, sufficient to convert the grandparent relationship into one of testamentary obligation to a grandchild, there is direct evidence here that the deceased did regard his grandchildren, including Natalie, as a natural object of his testamentary intentions. This is confirmed both by his 2012 will which included his grandchildren as beneficiaries (including Natalie), the deceased’s explanation for how he came to make his 2021 will and his statement to Francis Devine in December 2021 that on making a new will his grandchildren would benefit.

[364] In relation to (f) concerning the inheritance or financial support which Natalie might fairly expect from her parents, it is clear from the evidence that Silvana does not have the financial capacity to provide significant financial support to Natalie. In so far as Robert is concerned, I accept the submission made for Natalie that, given the history of Natalie’s relationship with him, there is no basis to consider that Robert will support Natalie.

[365] Bearing in mind these matters, and all the circumstances of the case, I am satisfied that Natalie has established that there are factors warranting the making of her application.”

63. In the court below, Jenny made only brief written submissions on factors warranting and did not address the Bowditch guidelines. By contrast, her submissions in support of the second ground of appeal were directed at his Honour’s application of the Bowditch guidelines, in particular his Honour’s treatment of the respective financial position of Robert and Silvana. Jenny submitted that this was relevant to two aspects of the Bowditch guidelines, namely, the need to consider Natalie receiving provision from her parents and the financial support that Natalie could expect to receive from her parents when they were alive.

64. In relation to Robert, Jenny submitted that he was extremely wealthy and Natalie was entitled to be recognised in his testamentary disposition or would otherwise have a strong claim for provision. Jenny also pointed to an email from Robert to Natalie in October 2016, in which he suggested that he might want to help her given her diagnosis, and an email Robert sent to the solicitors for John’s estate in 2023 in which he offered to assist Natalie with her claim, which offer was open for 7 days. Jenny also submitted that the primary judge conflated John’s assumption of some responsibility for Robert’s child support obligations with Robert’s presumed testamentary obligations, and erred in finding that Natalie was unlikely otherwise to receive any support from Robert.

65. The submissions that Jenny advanced in relation to the primary judge’s treatment of the prospect of Natalie receiving assistance or provision from Robert did not disclose any House v The King error. The primary judge accepted Natalie’s submission that given the history of her relationship with her father there was no basis to consider that Robert would support her, either by way of an inheritance or any other financial support: at [364]. His Honour provided some of that history at [361], referring among other things to evidence that Jenny gave about Robert’s attitude towards Silvana and her children, with Robert having described them to her as “bastards” and “scum”. Natalie’s written submissions before the primary judge, under the heading “Possibility of Robert contributing”, referred to this and other evidence that Jenny gave about Robert as providing relevant background against which his Honour would not accept that Robert would support Natalie.

66. In that part of the written submissions to the primary judge, Natalie also addressed the October 2016 email exchange in which Robert suggested he might be willing to help Natalie given her diagnosis. When asked in re-examination why she did not reply to the email her father sent about this, Natalie gave the following evidence:

“Look, I’m terrified of my father. He destroyed my whole family. You don’t understand. He destroyed everyone. He’s dangerous. He’s never helped. I don’t want to know.”

67. The primary judge referred to this part of Natalie’s evidence and accepted it when he came to address the consideration in s 60(2)(l) of the Succession Act, which is directed at whether any other person is liable to support the applicant for provision. His Honour described Natalie’s reaction to the email as “consistent with the other evidence referred to above regarding Robert’s relationship with Silvana and Natalie”: at [429]. His Honour was thus aware of the email exchange. That his Honour did not accept the complexion that Jenny sought to put on it, having regard to Natalie’s submissions and the other evidence before him, and concluded that Robert would not financially support Natalie either while alive or by way of provision in his will, did not give rise to any error of the nature articulated in House v The King.

68. In relation to Silvana, Jenny submitted that she was wealthy in her own right, pointing to her ownership of three properties: two located in Maroubra which were unencumbered (one of which was in her name and one that she shared with her sister), and a third in Toukley which was subject to a mortgage and was tenanted. Jenny submitted that in light of Silvana’s asset position, the primary judge’s conclusion at [364] that she did not have the financial capacity to provide significant support to Natalie was against the weight of the evidence. That submission did not fairly reflect the entirety of the evidence regarding Silvana’s financial position and his Honour’s reasons on that issue. The primary judge encapsulated what the evidence disclosed as to Silvana’s financial position at [428], when dealing with s 60(2)(l):

“Silvana owns her house (which is unencumbered), she owns a half interest in the house next door (where Natalie presently lives in the unit upstairs with the ground floor rented out at $550 per week) and a property at Toukley (subject to a mortgage of $310,000) which is rented out at $350 per week. She has a modest income as a bank teller and no other significant assets. She has three other daughters and health challenges of her own.”

69. Jenny’s submission gave undue emphasis to the first part of [428] without bringing to account the balance of the paragraph. His Honour’s conclusion at [364] that Silvana did not have the financial capacity to provide “significant” financial support to Natalie was open on the evidence and was not affected by House v The King error.

70. In her written submissions, Jenny took issue with other aspects of the primary judge’s application of the Bowditch guidelines. In so far as his Honour found at [361] that Robert’s provision for Natalie during childhood was “limited to the relatively modest child support payments (some of which he may have made)”, Jenny submitted that this was inconsistent with his Honour’s finding that Silvana did not establish that it was John, and not Robert, who made child support payments generally (at [318]) and on that basis was unreasonable and unjust. The submission appeared to misunderstand the point his Honour was there making. The significance of the child support obligations in this part of his Honour’s reasons was the modesty of the amount, not the fact of who paid them. His Honour assumed for that purpose, in Robert’s favour, that he made some of those payments, noting that his Honour positively found that John did make a single lump sum payment for outstanding amounts.

71. Next, Jenny submitted that the matters of companionship as between Natalie and John to which the primary judge referred in [363], did not go beyond ordinary grandparental relations and his Honour erred in reaching the contrary conclusion. Jenny referred in this regard to evidence that other family members, including Jenny and Gabrielle, were more frequent visitors, that Natalie’s visitations were limited by the COVID-19 pandemic, and the suggestion in some of the evidence that Natalie was an infrequent visitor. In considering that submission, it is necessary to consider the earlier paragraphs to which his Honour cross-referred in [363], namely:

“[300] Natalie deposed that from around 2017 until John’s death, she helped him with tasks including shopping, light cooking (although most of the cooking was done either by his cleaner Linda or Ms Le, if she and John were not eating out), paperwork for his court matters, emails to his accountant, and the payment of his various bills, as John was not ‘computer literate’.

[301] She deposed that she spent more time with John from 2019, when she ceased working and was placed on Workers Compensation as he did not like to be left alone.”

72. That others might have spent more time with John or that Natalie’s visits with John were limited during the COVID-19 pandemic does not give rise to any reviewable error in his Honour’s characterisation of Natalie’s evidence as going beyond ordinary grandparental relations. Further, as Natalie submitted, any attempt to diminish the significance of the companionship and assistance that his Honour found she provided would need to bring to account the fact that John gave instructions to Mr Devine to appoint Natalie as his joint attorney and guardian, which his Honour addressed at [421].

73. Jenny also submitted that the intentions expressed by John in his 2012 will were not relevant, particularly as it was made before Robert was awarded the whole of Laura’s (substantial) estate. She submitted that the “better way” to view John’s intentions was that he saw Robert’s side of the family (including Natalie) as benefitting from Laura’s estate and Jenny’s side of the family as benefiting from his own. The view that Jenny advanced was not supported by Natalie’s evidence about her conversations with John in 2021 in which he explained how he came to make his last will, which his Honour implicitly accepted at [363].

74. Jenny further submitted that evidence of John’s meeting with Mr Devine in December 2021 spoke only to his intentions with respect to appointment of attorneys and guardians and that testamentary gifts were not discussed, from which it followed that his last will was the best expression of John’s testamentary intent. As with the other submissions, this submission rested on an unduly narrow view of the evidence, in this instance the evidence of Mr Devine. His file note recorded an express wish on John’s part that his grandchildren should benefit.

75. Jenny has not established any error of the nature identified in House v The King in his Honour’s consideration of factors warranting. I would dismiss ground 2.

The amount of provision: ground 3 of the appeal

76. His Honour’s conclusion in relation to provision was as follows at [433]:

“In my view, in all the circumstances, particularly the matters under s 60(2) addressed above, the deceased made inadequate provision for Natalie in the 2021 will. The appropriate order for provision to be made out of John’s estate for Natalie is to be inferred from her needs which are considerable. The claim for provision which Natalie makes, set out at [410], reflects the appropriate approach for estimating the amount for her proper maintenance, education or advancement in life. In my view, a sum sufficient to provide a suitable buffer and income in relation to her future medical and care needs is $1,500,000. That amount, conservatively invested, will generate sufficient income to meet her needs and provide the appropriate buffer sought. Accordingly, in my opinion an order for provision should be made from the deceased’s estate by a lump sum in the amount of $2,550,000.”

77. By ground 3, Jenny contended that the amount the primary judge awarded was so far beyond community expectations as to render it unreasonable. Additionally, Jenny contended that there was an error in the way the primary judge treated the occupational therapy evidence, proceeding on the basis that it was not in dispute that the occupational therapists were in substantial agreement when that was not the case.

78. The additional point may be dealt with shortly. As senior counsel for Natalie pointed out in his oral submissions on the appeal (the additional point only being raised in Jenny’s written reply), Jenny made no written or oral submissions to the primary judge that addressed any material differences of opinion between Ms Zeman and Mr Byrne. Jenny’s opening submissions on quantum were brief, submitting that adequacy of provision should not arise and in any event any obligation John owed could not extend to provision of accommodation or a significant capital sum, and indeed such provision as John made during his lifetime discharged his obligations. Jenny’s closing written submissions, filed four days after Natalie’s closing submissions, addressed the evidence of Dr Spies in some detail regarding Natalie’s medical needs and what provision if any should be made in that regard, but said nothing about the evidence of the occupational therapists.

79. Natalie’s closing submissions, on the other hand, did call attention to the evidence of the occupational therapists in relation to accommodation (noting Ms Zeman’s view that modified accommodation was not yet necessary) and Natalie’s likely future medical needs. In oral closing submissions, senior counsel for Natalie noted that Jenny’s submissions did not mention Ms Zeman’s evidence and submitted that there was very little disagreement between the occupational therapists other than in relation to timing. No responsive submission was made in the course of the oral submissions on behalf of Jenny which followed. The primary judge cannot be criticised for proceeding on a basis that reflected the submissions Natalie made and that Jenny did not challenge. There can be no failure on his Honour’s part to consider the aspects of Ms Zeman’s evidence to which Jenny sought to draw this Court’s attention but did not raise with his Honour.

80. The more fundamental point that Jenny advanced on ground 3 was directed at the amount of the award that his Honour made. Jenny submitted that the provision of both permanent accommodation and the very significant lump sum went far beyond what was expected of a grandfather, even one who knew about Natalie’s condition as John did. Jenny noted in this respect that the amount of provision his Honour ordered exceeded the amount for which Natalie had contended at the hearing.

81. Before embarking on an analysis of Natalie’s circumstances, including by reference to the matters in s 60(2) of the Succession Act, the primary judge referred to a number of authorities on the question of provision and the evaluative judgment involved in any assessment of what “proper” provision entails by reference to perceived prevailing community standards. In that context, his Honour observed that John’s was “on any view a large estate, with a net value of approximately $29.5 million”. The significance of this was that “any order for provision which is made is unlikely to impose any financial hardship, or have a material adverse effect, on the position of Jenny (the sole beneficiary) or other claimant”: at [371]. His Honour’s recognition that “this may be said to remove a limiting factor often present in family provision cases where eligibility is made out” was consistent with the authorities to which I have referred at [24] above.

82. In addressing s 60(2)(d), (e) and (g) of the Succession Act (Natalie’s financial resources (including earning capacity), needs, and age), his Honour noted that Natalie was, at that time, 34 years of age and single, unemployed, and living alone in a property owned by Silvana: at [404]. His Honour subsequently observed that Natalie’s age was significant “because one aspect of her medical issues is that multiple sclerosis causes significant disability without significantly compromising life expectancy”: at [419]. Natalie’s income at the time of the hearing comprised workers compensation benefits of $4,069 per month (after tax), but these expired in April 2024. His Honour noted that this income “was sufficient to meet Natalie’s living expenses, but only because Natalie was limiting her consultations with specialists regarding her various medical conditions”: at [405]. His Honour described Natalie’s assets as “minimal” and found that her asset position “was unlikely to improve significantly”: at [406]. His Honour then summarised Natalie’s submissions as to future needs:

“[407] Natalie’s own assessment of her future needs are set out in one of her affidavits and revised in her closing submissions as follows: (a) a new motor vehicle at a cost of $50,000 (and a modified motor vehicle in the future with a cost of $100,000); a CPAP machine at a cost of $2,500, together with CPAP expendables of $500 per annum; (b) stem cell therapy at a cost of between $100,000 to $300,000; a two bedroom apartment, single level and NDIS compliant at a cost in the range of $850,000 to $900,000 which will need to be modified at a cost of approximately $71,752.

[408] In addition, she seeks a sum based on recommendations of the occupational therapist, Mr Byrnes, on whose report she relied, and Dr Spies to account for her likely future needs comprising the following:

(a)   Therapy and intervention costs of $12,000 as one-off costs and annual costs of $7,339.20 (there being little doubt that Natalie will require life-long specialist care);

(b)   In-home assistance starting at 13.76 hours a week now ($810.89 per week) increasing to 50.34 hours per week at stage 2 in 2028 ($2,858.03 per week), and 108.1 hours per week from 2038 ($6,096.96 per week).

[409] These estimates are consistent with the report prepared by the Menzies Institute for Medical Research, ‘Health Economic Impact of Multiple Sclerosis in Australia in 2021’ (published in February 2023) which estimates that the average direct and indirect costs for a person living in Australia with multiple sclerosis is in the order of $37,439 per annum.

[410] Natalie does not contend that John’s estate should meet all the needs described above. Rather, it is submitted that applying a broad brush the Court should, standing in the deceased’s shoes, make a provision to significantly improve her life beyond mere survival which could be achieved by $950,000 for a suitably modified apartment, $100,000 for a suitably modified car and a sum sufficient to provide a buffer and income in relation to future medical and care needs.”

(Emphasis added.)

83. Contrary to Jenny’s submission that his Honour’s award bore no relationship to the amount articulated by senior counsel in an exchange with his Honour in the course of closing submissions, the above summary reflected the submissions advanced on Natalie’s behalf in closing submissions, including the submission that senior counsel advanced in a passage that Jenny extracted in her submissions on the appeal. The passage was directed at what his Honour ultimately described in [410] as “a sum sufficient to provide a buffer and income in relation to future medical and care needs”. In response to a question from his Honour as to whether he had the evidence to allow him to calculate that figure, senior counsel directed his Honour to the evidence of Mr Byrnes concerning the cost of care. As senior counsel pointed out, that cost started at $40,000 a year and would, on Mr Byrnes’ evidence, increase over time, as his Honour set out in [408(b)]. The exchange then continued:

“PESMAN: …Honestly, we can’t sensibly, in light of the statutory benefits, ask your Honour for the ten or $15 million that would require. But what your Honour can do is pick a number at 5% present interest rates that ameliorates that need.

HIS HONOUR: So, what number is that? I just didn’t know really what – I need you to particularise your claim at least as to quantum.

PESMAN: Well, that is a number between 500 and 750,000, which would provide an amount of between 25 and $40,000 a year, consonant with the lowest figure provided by Mr Byrnes.

HIS HONOUR: I see. All right.

PESMAN: But the difficulty I have in answering your Honour’s question is that the needs are far greater than that. But, I can’t ask the estate to provide for all of those needs.”

(Emphasis added.)

84. On the appeal, Jenny emphasised the first passage I have emphasised in this extract. It is important, however, also to recognise that the amount for which Natalie submitted was consonant with the lowest figure Mr Byrnes provided (as I have underlined); and it was also qualified by reference to the prospect, consistently with Mr Byrnes’ evidence and supported by Dr Spies, that Natalie’s future needs would be far greater than would be met by that amount. That his Honour ultimately made a greater allowance for Natalie’s future needs was within his Honour’s discretion and was not against the evidence.

85. Relatedly, Jenny was critical of the primary judge’s assessment of the expert evidence regarding Natalie’s medical condition, submitting that the award did not correctly take into account her current health and level of disability. She pointed to the following matters in particular:

1. Natalie’s level of non-MS medical impairment was sufficiently low that she ceased to be eligible for Workers Compensation based on a low amount of whole person impairment.

2. Natalie’s medical records reflected that her health was stable and was not showing symptoms of relapse or progression. Her condition at the date of the trial did not suggest a high degree of impairment, noting that she was assessed by two occupational therapists as being capable of returning to work, which was not contradicted by Dr Spies.

3. The lack of Medicare or Pharmaceutical Benefit Scheme coverage for physiotherapy and stem cell treatment were of little moment, as physiotherapy was only recommended during the early stages of her diagnosis and stem cell treatment was “the most extreme” option, more suitable for people who were not responding to other treatment.

86. As Natalie submitted, Jenny’s focus on Natalie’s health at the time of the hearing failed to account for the evidence that her lifetime needs would grow as her condition deteriorated. The evidence of Dr Spies, and the updating report of Dr Guilfoyle, provided ample support for the longer term view that the primary judge adopted in this regard. His Honour addressed Dr Spies’ evidence in the context of considering s 60(2)(f) (any physical, intellectual or mental disability) at [411]-[419]. As his Honour there noted, as Natalie’s treating specialist since her diagnosis in 2014 her evidence was that Natalie has had aggressive multiple sclerosis from the outset, with multiple predictors of long-term disability. She had subsequently developed other medical conditions and her condition required close monitoring and regular management. Significantly for the purposes of Jenny’s submissions on the appeal, Dr Spies said in her report, as summarised by the primary judge at [413], that:

“…(d) most patients with the sort of multiple sclerosis Natalie has (high lesion burden especially with brainstem and spinal cord lesions) will eventually enter a secondary progressive phase of the disease where disability progresses in the absence of further relapse. The time at which this occurs is impossible to predict in an individual, but multiple population studies indicate a median of approximately 20 years since first symptoms. Natalie is already 10 years post first symptoms; (e) many costs associated with multiple sclerosis are not covered by Medicare, most importantly physiotherapy; …”

87. When cross-examined, Dr Spies adhered to her evidence in relation to Natalie’s diagnosis and the aggressive nature of her multiple sclerosis. She agreed that Natalie’s condition had been stable for the last 12 to 18 months, albeit with residual defects, observing in that context that “MS doesn’t go away, it sort of stays there and you get accrual of things with new lesions”. As I noted above, after the hearing concluded Natalie was given leave to reopen her case to tender the report of Dr Guilfoyle, which followed a further MRI scan. The primary judge observed at [416] that the report indicated “that her multiple sclerosis is no longer stable and recommends ‘instituting further highly effective multiple sclerosis disease modifying therapy to try to regain control of her aggressive relapsing condition (particularly in light of her extensive burden of old disease)’”.

87. That the primary judge did not accept Jenny’s submissions about what the medical evidence indicated as to Natalie’s health and, importantly, her future health-related needs did not bespeak error on his Honour’s part when considering the question of what constituted proper provision from John’s estate. Jenny also submitted that the primary judge’s award made no account for the expectation that Natalie’s parents were the primary port of call for such assistance, and instead imposed the entire burden of her care on to her grandfather’s estate. I have dealt already with what his Honour said regarding Silvana and Robert in the context of considering s 60(2)(l) and whether anyone else was liable to support Natalie. at [427]-[428]. The view that his Honour formed of their respective capacities and willingness to assist was well open on the evidence.

88. The primary judge did not consider the matters to which I have referred, and with which Jenny took issue, in isolation. His Honour also considered the other matters identified in s 60(2) of the Succession Act. Those matters included:

1. As to s 60(2)(a) (the relationship between Natalie and John), Natalie “shared a close and loving relationship with the deceased, particularly towards the end of his life”, involving frequent visits, meals together, financial support, care and assistance: at [401].

2. As to s 60(2)(b) (the nature and extent of any obligations or responsibilities owed by John to Natalie, to any other applicant for family provision or to any beneficiary), his Honour considered that John had a moral obligation or responsibility for Natalie “in the particular circumstances of this case”: at [402].

3. As to s 60(2)(h) (any contribution by Natalie to John’s estate or his welfare), his Honour found that Natalie had provided assistance to John in the last four or five years of his life, referring again to the matters he identified in [300]-[301]. The closeness of the relationship at the end of John’s life was supported by John’s intention, in December 2021, to appoint Natalie as one of his (joint) attorneys and guardians: at [420]-[421].

4. As to s 60(2)(i) and (j) (provision made by John during his life and his testamentary intentions), his Honour found that John made provision to Natalie during his lifetime but not in his will: at [422]. Nonetheless, his bequest of $200,000 to Natalie under his 2012 will (which predated her multiple sclerosis diagnosis) demonstrated that he regarded her as a proper beneficiary of his estate: at [423]. In addition to John’s statements to Natalie about his intentions, his intention to provide for all of his grandchildren, including Natalie, was confirmed by Mr Devine’s evidence of their meeting on 20 December 2021: at [425].

90. Natalie readily accepted that the amount that the primary judge awarded her as appropriate provision was, on any view, a large number. However, as she submitted, that amount, and his Honour’s assessment of community expectations in relation to it, was the product of an evaluative judgment that his Honour undertook in the context of the “extremely large” estate and the particular circumstances of the relationship between Natalie and her grandfather, including Natalie’s health. His Honour’s evaluative judgment was not the product of any error of the House v The King kind. I would dismiss ground 3.

Conclusion

91. It follows that the appeal should be dismissed. I propose the following order:

1. The appeal is dismissed with costs.

92. BALL JA: I agree with Mitchelmore JA.

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Decision last updated: 27 May 2025