Ballam v Ferro

[2022] NSWSC 1200

Supreme Court

New South Wales

Medium Neutral Citation:

Ballam & Ors v Ferro & Anor [2022] NSWSC 1200

Hearing dates:

31 May, 1-3 June 2022

Date of orders:

7 September 2022

Decision date:

07 September 2022

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See Paragraphs [29] and [52]

The proceedings are adjourned to 2:00 p.m. Wednesday, 14 September 2022, or such other date as is agreed at the date of these reasons being delivered.

Catchwords:

SUCCESSION – Probate and family provision claims – Proceedings commenced by three Plaintiffs, each seeking a family provision order under the Succession Act 2006 (NSW), Ch 3, as adult grandchildren of the deceased – Defendants file Cross-Claim for grant of Probate in solemn form of Will made by deceased in 2012 – Plaintiffs put Cross-Claimants to proof of the validity of the 2012 Will including whether it was duly executed – Whether the deceased had testamentary capacity at the time he gave instructions for, and executed, the last Will made in 2012 – Whether the deceased knew and approved of the terms of the 2012 Will – Whether suspicious circumstances – No dispute that if 2012 Will not the last valid Will of the deceased that probate in solemn form should be granted to the Defendants/Cross-Claimants of duly executed Will made by the deceased in 2005

In family provision claims, the Defendants dispute eligibility of Plaintiffs – Whether each of the Plaintiffs wholly or partly dependent on the deceased – No dispute, if each Plaintiff is an eligible person that there are factors warranting the making of application – No dispute that if eligibility and factors warranting proved, then adequate and proper provision not made in the Will of the deceased for each applicant – Then, whether order for provision ought to be made and, if so, the nature and quantum of the provision to be made

POWERS OF ATTORNEY ACT 1998 (Qld) – Late application by Plaintiffs for amendment to proceedings or otherwise – Application opposed – Plaintiffs commence separate proceedings in Court by Statement of Claim seeking compensation pursuant to s 107 of the Powers of Attorney Act 1998 (Qld) out of estate of the deceased – Where the Supreme Court of Queensland may compensate the Plaintiffs out of the principal’s estate in an amount “the court considers appropriate” – Question whether the proceedings should be determined in New South Wales as part of these proceedings – Late agreement that if 2012 Will found to be the last valid Will these proceedings should be dismissed

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2)

Civil Procedure Act 2005 (NSW) ss 56, 61

Conveyancing Act 1919 (NSW) s 163B

Evidence Act 1995 (NSW) s 140(1)

Family Provision Act 1982 (NSW)

Land Act 1994 (Qld)

Land Title Act 1994 (Qld)

Powers of Attorney Act 1998 (Qld) s 107

Succession Act 1981 (Qld) s 41(8)

Succession Act 2006 (NSW) Ch 3, ss 3(1), 6, 48(1), 57(1), 58, 59(1)(b), 61(1), 63(5), 84, 99(1)

Supreme Court Rules 1970 (NSW) Pt 78, r 66

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28

Cases Cited:

Afoa v McBride [2017] NSWCA 323

Anderson v Teboneras [1990] VR 527; [1990] VicRp 47

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Battenberg v Phillips [2020] NSWCA 249

Blendell v Blendell [2020] NSWCA 154

Blendell v Byrne [2019] NSWSC 583

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550

Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

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

Chisak v Presot [2021] NSWSC 597

Chisak v Presot [2022] NSWCA 100

Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Easterbrook v Young (1977) 136 CLR 308; [1977] HCA 16

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Harkness v Harkness (No 2) [2012] NSWSC 35

In the Estate of Musgrove; Davis v Mayhew [1927] P 264

Jones v Jones [2014] NSWSC 960

Khadarou v Antarakis [2022] NSWCA 99

Kyros v Stavrakis [2009] NSWSC 163

Lim v Lim [2022] NSWSC 454

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327

Matthews v Wear [2011] NSWSC 1145

McKenzie v Baddeley [1991] NSWCA 197

Morrison v Carruthers [2010] NSWSC 430

Oxley v Oxley [2018] NSWSC 91

Page v Hull-Moody [2020] NSWSC 411

Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275

Phillips v Phillips; Phillips bht NSW Trustee & Guardian v Phillips [2017] NSWSC 280

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 7107

Power v Smart [2018] WASC 168

Re Burt [1988] 1 Qd R 23

Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Re R [1950] 2 All ER 117; [1951] P 10

Robertson v Barker [2021] NSWSC 1682

Sammut v Kleemann [2012] NSWSC 1030

Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65

Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018] NSWCA 284

Smart v Power [2019] WASCA 106

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

Sun v Chapman [2022] NSWCA 132

The Estate of Milan Zlatevski; Geroksa v Zlatevski [2020] NSWSC 250

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

Veall v Veall (2015) 13 ASTLR 462; [2015] VSCA 60

Wharton v Bancroft [2011] EWHC 3250 (Ch)

Wilcox v Wilcox [2012] NSWSC 1138

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Yee v Yee [2017] NSWCA 305

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co)

Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Maree-Marcelle Ballam (first Plaintiff)
Claudia Puglia (second Plaintiff)
Benjamin Puglia (third Plaintiff)
Carmelina Ferro (first Defendant)
Daniela Cantale (second Defendant)

Representation:

Counsel:
L Ellison SC (Plaintiffs)
T Alexis SC with S Speirs (Defendants)

Solicitors:
Unsworth Legal (Plaintiffs)
Di Girolamo Lawyers (Defendants)

File Number(s):

2021/189997; 2022/150470

Publication restriction:

Nil

Judgment

Introduction and the parties

1. In their Summons filed on 2 July 2021, the three Plaintiffs, Maree-Marcelle Ballam, Claudia Puglia and Benjamin Puglia, each of whom is a grandchild of Rosario Maiorana (the deceased), sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). Their mother, Vincenza Puglia, a child of the deceased, predeceased him, having died in September 2003.

2. The Defendants named in the Summons are Carmelina Giacomina Ferro and Daniela Loredana Cantale, each of whom is a child of the deceased and his wife, Maria, and a sibling of Vincenza. Each is, therefore, a maternal aunt of the Plaintiffs.

3. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional 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.

4. Regrettably, the matter did not continue in this straightforward way. Indeed, the death of the deceased appears to have unleashed a bitter feud between the grandchildren on the one side, and their aunts, on the other. The proceedings ended up being far more complicated, and costly, than they needed to have been, particularly, although not exclusively, due to several matters being raised, on behalf of the Plaintiffs, very late in the proceedings.

5. For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendants, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.

6. The hearing began on 31 May 2022 and continued on 1, 2 and 3 June 2022. Mr L J Ellison SC, instructed by Mr J J Buchanan, solicitor, appeared for the Plaintiffs. Mr T Alexis SC, with Mr S Spiers of counsel, instructed by Mr N A Di Girolamo, solicitor, appeared for the Defendants.

7. One reason why judgment has been somewhat delayed is because, on 5 August 2022, at my request, my Associate sent an email, in the following terms, to the legal practitioners for each of the parties:

“Dear Practitioners,

As you may be aware, the Court of Appeal has delivered judgment in Chisak v Presot [2022] NSWCA 100.

Please let his Honour know if you wish to provide any submissions, and if so, please provide those, in writing, by 4:00 p.m. on 15 August 2022.

His Honour will delay considering the matter further until such time as submissions are received or the Court is informed that further submissions will not be made.”

8. By email sent on Monday, 8 August 2022, the Plaintiffs’ solicitors responded to my Associate in the following terms:

“…

Thank you for your email.

The plaintiffs will not make any further submissions.”

9. On 10 August 2022, the Defendants’ solicitors sent an email to my Associate attaching written submissions of counsel. I will return to these submissions later in these reasons.

The Probate dispute

10. The deceased died on 20 June 2020. Maria predeceased him, having died on 2 December 2018. The deceased did not remarry, or enter into a de facto relationship, after the death of Maria.

11. As will be read, the deceased died leaving property in New South Wales. At the time of his death, the deceased’s habitual residence, and his domicile, was New South Wales.

12. On 19 August 2020, the Defendants caused to be published a Notice of Intended Application for Probate of the 2012 Will.

13. On 14 December 2020, Maree-Marcelle filed a general caveat against the grant of probate in the deceased’s estate without prior notice to her. That type of caveat is one filed under Supreme Court Rules 1970 (NSW) Pt 78 r 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Robertson v Barker [2021] NSWSC 1682 at [5]. Also see Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at [1677.3].

14. By Cross-Claim filed on 7 November 2021, the Defendants sought an order that probate, in solemn form, of a handwritten Will dated 19 December 2012 be granted to them as the substitute executors named in that Will. The original Will was deposited with the Court and remains in the Court file. At the commencement of the hearing, it was marked, without objection, as Ex A.

15. In the alternative, to ensure that a grant of administration would be made if the 2012 Will was found not to be the last valid Will of the deceased, the Defendants, as the substituted executors named therein, sought to propound a Will made by the deceased on 7 February 2005. Their primary case, however, was that it had been revoked by the 2012 Will: see, s 11(1)(c) of the Act. The original of this Will, also, was deposited with the Court. It was marked, without objection, as Ex B at the commencement of the hearing.

16. The Defendants also sought consequential relief, including an order that the Plaintiffs pay the Defendants’ costs of the Cross-Claim.

17. I shall refer to Ex A as “the 2012 Will” without any prejudgment and Ex B as “the 2005 Will”.

18. In the Defence to the Cross-Claim filed on 15 November 2021, the Plaintiffs did not admit the validity of the 2012 Will. The basis on which they sought to impugn the validity of the 2012 Will was not pleaded expressly. In fact, they did not seek, then, to assert a positive case of its invalidity, by advancing an allegation that the deceased lacked testamentary capacity, or that he did not know and approve of the 2012 Will, because, as stated by their senior counsel, he “took the view that it wasn’t proper to raise those matters without a sufficient evidentiary basis”: Tcpt, 3 May 2022, p 3(20-21). Nor was a case of undue influence, in the Probate sense, advanced.

19. Rather, the Plaintiffs put the Defendants to proof of some of the allegations asserted in the Cross-Claim including that the 2012 Will had been duly executed. (There is, of course, a difference between not admitting, or denying, due execution, and affirmatively alleging that the deceased’s signature on the 2012 Will was not authentic.) There is no doubt, however, that the Plaintiffs were actively pursuing a defence of the Cross-Claim and opposing the grant of Probate of the 2012 Will to the Defendants.

20. Subsequently, in an amended Defence to the first Cross-Claim, filed on 6 April 2022, the Plaintiffs asserted that the deceased lacked testamentary capacity when he made, and that he did not know and approve of the contents of, the 2012 Will. The particulars of the allegations provided were that “the deceased suffered cognitive impairment” and “the deceased was suffering from developing dementia of the Alzheimer’s type”. In doing so, they advanced a positive case of the invalidity of the 2012 Will at this time.

21. Whilst it will be necessary to return to the substance of the claims made, senior counsel for each of the parties agreed that the only living attesting witness to the deceased’s signature on the 2012 Will is Father Onesimus Kamau Kariba, a priest ordained in the Roman Catholic Church. He is the only person who has direct knowledge of the circumstances in which the 2012 Will was prepared, and executed by the deceased, and the only person who could testify to those circumstances. He had written out the 2012 Will, upon instructions from the deceased, whilst the deceased and Maria were living in his Parish in Poggioreale, Trapani, a small town in western Sicily, Italy.

22. Senior counsel for the Plaintiffs described Father Kariba as an “amanuensis” (a person whose job is to write down what another person says or to copy what another person has written) or a “scribe”: Tcpt, 3 May 2022, p 4(4).

23. At the date of the hearing, Father Kariba was working at a mission in Kenya and was not available to attend the hearing in person. He swore one affidavit in the proceedings that was read, and, without objection, he gave his oral evidence, including in cross-examination, remotely. I shall return to his evidence later in these reasons.

24. The Plaintiffs accepted that no inference should be drawn from the failure to call evidence from the other attesting witness. There was no dispute that Professor Gaetano Zummo, the second attesting witness to the deceased’s signature on the 2012 Will, had predeceased the deceased, and that he had not sworn, or affirmed, any affidavit as to the circumstances in which the 2012 Will was prepared and executed.

25. Father Kariba gave evidence, orally, about Professor Zummo’s role in the preparation, and execution, of the 2012 Will.

26. To digress, briefly, it should be mentioned that Maria made a Will, also, on 19 December 2012, her signature on which was also witnessed by Father Kariba and Professor Zummo. Probate of that Will was granted, but her estate has not been administered.

27. The parties agreed that it would be necessary to determine the Cross-Claim first, and that was the way that the hearing proceeded. Potentially, there were difficulties, to which I shall refer, caused as a result of matters raised by the Plaintiffs’ legal representatives, which meant, depending upon the result of the case, that the case would need to be adjourned part heard.

28. Following the delivery of these reasons, it will not be necessary to adjourn the proceedings, other than to determine how the costs of the proceedings should be borne if the parties are unable to reach agreement.

29. In the probate part of the proceedings, the central questions that needed to be determined, and my conclusions, are:

1. Was the execution of the 2012 Will in conformity with the internal law in New South Wales at the time of the deceased’s death? I am satisfied that the 2012 Will was so executed.

2. Did the deceased have testamentary capacity when he made the 2012 Will? I conclude that he did.

3. Did the deceased know and approve the contents of the 2012 Will? I conclude that he did.

4. Are there suspicious circumstances, and, if so, do they displace any presumption of knowledge and approval? I conclude that there are not.

5. How should the costs of the probate proceedings be determined? It is not possible to determine that question as part of these reasons.

The family provision claims

30. Prior to the commencement of the hearing, senior counsel for the Plaintiffs acknowledged that, in the event the 2005 Will was found to be the last valid Will of the deceased, they would not proceed with the claims for a family provision order. However, in submissions in reply, at 4:15 p.m. on the last day of the hearing, senior counsel informed the Court that this admission was sought to be withdrawn. I shall refer to what occurred thereafter, later in these reasons.

31. In relation to the family provision proceedings, at the time the application was made, administration of the deceased’s estate had not been granted. It is clear that a grant of administration is not required at that time. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). There is a note to s 58(1) that administration may be granted under s 91 for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person left property in New South Wales.

32. As Probate will be granted, as a result of the determination of the Cross-Claim, and before any orders are made in respect of the claims for a family provision order, nothing more need be said about this aspect.

33. As the deceased dealt with all of his estate in the 2012 Will (since that Will is found to be his last valid Will), there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the 2012 Will of the deceased (in dealing with the claim of each Plaintiff for a family provision order).

34. There was no dispute that the Plaintiffs’ Summons was not filed within the time prescribed by the Act (that is within 12 months after the date of the death of the deceased): s 58(2) of the Act. Because it was filed only a short time (11 or 12 days) outside the prescribed period, the Defendants accepted that, if an order for provision were made for any of the Plaintiffs, the parties would consent to the application being made out of time.

35. A family provision order may be made in relation to the estate of a deceased person: s 63(1)). An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

36. There is no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased.

37. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. It is the precondition of eligibility that must be satisfied for the making of a family provision order.

30. The only category of eligibility relied upon by the Plaintiffs is s 57(1)(e) of the Act, namely, that each Plaintiff is a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased.

31. Whilst there was no dispute that each Plaintiff is a grandchild of the deceased, there was a substantial dispute that each was wholly, or partly, dependent on him.

32. In the case of a person who is, relevantly, an eligible person by reason only of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act.

33. The Act does not specify the “factors which warrant the making of the application” and as Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

34. However, it is clear that the provision requires the eligible person to be someone who would be a natural object of the deceased’s testamentary recognition: Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J); Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 at [8]-[10] (White JA), [106]-[107], [114]-[117] (Sackville AJA); Khadarou v Antarakis [2022] NSWCA 99 at [9] (White JA, with whom Kirk JA and Basten AJA agreed).

35. Counsel for the Defendants did not make any submissions, in writing, dealing with the question whether there were any such factors. However, during the hearing, in answer to a question from the Bench, senior counsel for the Defendants said that submissions would be made that there were no such factors: Tcpt, 1 June 2022, p 100(22-29).

36. Subsequently, during final submissions, the Defendants accepted that there were factors warranting the making of the application by each Plaintiff: Tcpt, 2 June 2022, p 289(16-29). The concession was aptly made. I shall refer to these factors later in these reasons.

37. Assuming that the Court is satisfied that each Plaintiff is an eligible person and that there are factors warranting the making of her, and his, application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each Plaintiff has not been made by the Will of the deceased.

38. Again, counsel for the Defendants did not deal with this issue in their written submissions, but, later, in answer to another question from the Bench, senior counsel stated that, in the event that each of the necessary findings were made, the Defendants accepted that adequate provision for the proper maintenance, education or advancement in life of each Plaintiff had not been made by the Will of the deceased.

39. What would then have to be determined is what order for provision, if any, out of the estate of the deceased, did the Court think ought to be made for the maintenance, education or advancement in life of each of them, having regard to the facts known to the Court at the time the order is made: Tcpt, 1 June 2022, p 100(31-49).

40. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. In the family provision proceedings, it will be necessary to refer to the provision made for each Defendant.

41. Neither of the Defendants gave evidence of her financial and material circumstances. In those circumstances, the Court may assume that each does not wish her financial resources and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ). The Court is also entitled to infer that as a beneficiary, she, respectively, has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

42. Yet, neither of the Defendants, as a beneficiary, has to prove an entitlement to the provision made for her, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that he did for each in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). His Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

43. As will be read, the question of how the costs of the proceedings should be borne was not the subject of agreement between the parties.

44. In the family provision part of the proceedings, if each of the Plaintiffs is not an eligible person, none of the other questions earlier referred to, other than costs, need to be determined. Thus, the question that needs to be determined, and my conclusion, is:

1. Is each of the Plaintiffs an eligible person within the meaning of that term in s 57(1)(e) of the Act? I conclude that each is not.

Background Facts

53. In their proper context, it is next necessary to provide an overview of the factual background which has led to the disputes. As with all probate and family provision disputes, a proper understanding of the events is critical. I am satisfied that the following facts have been established.

54. The deceased was born in December 1931. He was about 81 years old when he made the 2012 Will.

55. The deceased married Maria on a date not disclosed in the evidence. There were three children of their marriage, being Vincenza, who was born in March 1957; Carmelina, who was born in February 1962 and Daniela, who was born in January 1969.

56. The Plaintiffs are the children of Vincenza and her husband, Mario. Claudia was born in August 1979 and is now 43 years old; Maree-Marcelle was born in April 1982 and is now 40 years old; Benjamin was born in May 1985 and is now 37 years old.

57. In July 1985, the deceased and Maria provided a personal guarantee to the ANZ Bank, in relation to a loan for $70,000, obtained by a company, Deemgrate Pty Limited (Deemgrate), controlled by the Plaintiffs’ parents. The loan was secured over the deceased’s and Maria’s property at Annandale (No 57). About a year after the loan was obtained, the deceased was informed that the loan had increased to $110,000. The deceased then went to the Commonwealth Bank to obtain a loan in order to pay out the loan that had been guaranteed from the ANZ Bank to Deemgrate.

58. Carmelina gave uncontested evidence of a note, which had been dictated by the deceased, and written by Maria. The note was signed by the deceased and stated:

“On the 3^rd of July 1985.

I and my wife and son in law went to the ANZ Bank at Maroubra Junction to guarantee my son in law. For a letter of credit. To the bank with the guarantee on our house at [No 57] for $70,000 dollars [sic] for my son in law. He told me that he had to buy goods from Hong Kong for the business that he was in.

…

After we did not here [sic] anymore about the loan until nearly a year had gone untill [sic] my son in law came to us and said that the things were not going to [sic] good and that the loan had reached to $110,000. We got such a shock that we did not know what hit us…”

59. On 28 April 1988, there was an incident when a tow truck attempted to retrieve the deceased's blue Laser car due to Deemgrate's debt, which, by then, had increased to $140,000. The deceased was said to have been embarrassed and humiliated by this incident.

60. The amount, ultimately, repaid by the deceased and Maria, pursuant to the guarantee, was not the subject of evidence. Thereafter, there was disharmony between the Plaintiffs’ father and the deceased. Indeed, the deceased did not wish the Plaintiffs to continue her, and his, relationship with Mario.

61. The deceased and Maria retired from paid work in about 1989. Between about August 1989 and March 2010, they travelled, extensively, together, spending less than 6 months of the year in Sydney; when they were in Sydney, Carmelina would see them almost daily; when they were not in Sydney, she would call them at least twice per week.

62. During this period, the deceased had some limited contact with the Plaintiffs. He did not attend any of the school events in which any of them was involved; there were no "sleep overs" by the Plaintiffs at the home of the deceased and Maria; and the Plaintiffs did not attend social events, shop with the deceased, or go on holidays, or otherwise travel with, the deceased and Maria.

63. There was no evidence that any of the Plaintiffs came, ordinarily, to rely upon the deceased for her, or his, financial, or emotional, needs during their childhood.

64. In about August 1990, the deceased and Maria purchased an investment property in Craig Avenue, Moorebank (the Moorebank Property). The Plaintiffs and their parents moved there shortly thereafter. They paid rent to the deceased and Maria whilst the family lived there.

65. Following the separation of their parents in about 2001 or 2002, the deceased and Maria permitted Vincenza and the Plaintiffs to continue to live in the Moorebank property. However, the deceased and Maria leased the Moorebank property to what was described as the Hume Community Housing Association, which, in turn, sub-leased it to Vincenza. The Plaintiffs lived in the Moorebank property, with Vincenza, until about September 2002.

66. Perhaps, because they were living with, and were dependent upon, their own parents, and then with, and upon, Vincenza, it was not submitted that the Plaintiffs were dependent, wholly, or partly, upon the deceased during the period between 1990 and 2002.

67. On 13 February 1997, the deceased and Maria appointed Carmelina as the Attorney pursuant to a General Enduring Power of Attorney, which was registered in the Office of the Registrar General in New South Wales. On 21 February 2017, it was also registered pursuant to the Land Title Act 1994 (Qld) and the Land Act 1994 (Qld) at the Queensland Titles Registry. Carmelina gave evidence that she acted in accordance with their directions and instructions when she executed documents as their Attorney.

68. Vincenza, Maree-Marcelle and Claudia, moved to another property (No 57) owned by the deceased and Maria, in September 2002. The deceased insisted that Vincenza pay rent, at the then market rate, which she did, until her death in 2003.

69. When they first moved into No 57, it consisted of three apartments, with one apartment, on the ground floor, with two bedrooms, known as Unit 1 (which was otherwise leased), and two apartments, on the second floor, each with one bedroom, known as Units 2 and 3, respectively. Units 2 and 3, together, were equivalent, in size, to Unit 1.

70. Shortly after they moved to No 57, Benjamin moved in, and, at this time, the wall between Unit 2 and Unit 3 was knocked down, in order to accommodate him.

71. On 15 November 2002, Vincenza and Maree-Marcelle signed a residential tenancy agreement for Units 2 and 3 of No 57. In the tenancy agreement, the deceased and Maria were described as the landlords, and the rent to be paid was $300 per week, or $150 per tenant. Thus, notwithstanding the family relationship, the deceased and Maria, from the outset, were putting the occupation of No 57 on a formal footing. The formal, commercial, nature of the relationship was also demonstrated by the fact that the residential tenancy agreement was managed by a real estate agency.

72. There was no evidence of any subsequent leases entered into by the Plaintiffs, although there was evidence that Benjamin had received a notice to terminate tenancy agreement in January 2014, an issue to which I shall return. Despite the lack of evidence, there was no dispute that they, or whichever one, or other, of them occupied No 57, paid rent to the deceased and Maria, except for a short period to which I shall refer.

73. The deceased and Maria planned a trip to Italy, and then to the USA, in 2010. After a few months in Italy, they decided to abandon their trip to the USA, and they remained living in Italy. They purchased a property in Triscina, Sicily, in 2011. At her parents’ request, Carmelina lent them $40,000 towards the purchase of the Triscina property.

74. Carmelina travelled to Sicily in early 2012 to visit her parents. She had planned to stay for three months as she was turning 50, and the deceased had turned 80.

75. The deceased and Maria were invited to the wedding of Maree-Marcelle to, her now ex-husband, James, in England in February 2012. Carmelina, initially, was not invited, a matter that made the deceased extremely angry. He stated that he would not attend the wedding if she was not invited. That decision prompted Maree-Marcelle to invite Carmelina to the wedding, and, ultimately, the three of them attended.

76. Pursuant to the General Enduring Power of Attorney, Carmelina sold four of the deceased’s and Maria’s properties in February or May 2017. Three of these properties were located in Coolangatta, a coastal suburb on the Gold Coast, Queensland; two were situated at Coolangatta Road, Coolangatta (to which I shall refer to as No 5 and No 6), and one was a property situated at Tweed Street, Coolangatta (the Tweed Street property).

77. In May 2017, No 57 was sold for $2,200,000. There was some dispute about how the net proceeds of approximately $1,985,000 were applied, and whether any part thereof was used to purchase residential premises in Drummoyne and in Chiswick, which are owned, and occupied, by Carmelina and by Daniela, respectively. Other than the assertion itself, there was no evidence, from the Plaintiffs, to establish the assertion made by them.

78. In cross-examination, Carmelina, was asked, and she denied that the sale proceeds of No 57 were applied to the purchase of her property in Drummoyne: Tcpt, 2 June 2022, p 236(3-44). Daniela was not asked any questions about using the proceeds of sale to purchase her property.

The estate of the deceased at the date of death

79. It is next convenient to refer to the property of the deceased, at the time of his death, in order to better understand the terms of each of the deceased’s two Wills.

80. On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

1. the assets and liabilities of the estate at the date of death;

2. the assets and liabilities of the estate at the date of the schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and

5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.

81. I have taken what follows from the Agreed Schedule, dated 20 May 2022, which was marked, without objection, Ex JS1, and from discussions with senior counsel during the course of the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

82. The property owned by the deceased, at the date of death, included:

1. Real estate situated at Annandale Street, Annandale (the Annandale property). There was a dispute about its value (the Defendants asserting it had a value of $2,000,000 and the Plaintiffs asserting it had a value of $3,000,000).

2. Real estate situated at Regatta Road, Canada Bay (the Canada Bay property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased’s interest had a value of $870,000 and the Plaintiffs asserting it had a value of $1,250,000).

3. Real estate situated at Dudley Street, Punchbowl (the Punchbowl property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased’s interest had a value of $825,000 and the Plaintiffs asserting it had a value of $937,500).

4. Real estate situated at Beaufort Road, Terrigal (the Terrigal property). There was a dispute about its value (the Defendants asserting the deceased’s interest had a value of $750,000 and the Plaintiffs asserting it had a value of $975,000).

5. Real estate situated at Dover Street, Moree (the Moree property). There was no dispute about its value ($330,000).

6. Real estate in Poggioreale, (the Poggioreale property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased’s interest had a value of $9,000 and the Plaintiffs asserting it had a value of $20,000).

7. The Triscina property, in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased’s interest had a value of $45,000 and the Plaintiffs asserting it had a value of $100,000).

83. I shall return to the nature and value of the deceased’s estate at the date of the Schedule later in these reasons.

The 2012 Will

84. There was no dispute that the 2012 Will was made whilst the deceased and Maria were living in Italy.

85. Section 48(1) of the Act provides:

(1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place:

(a) where it is executed, or

(b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or

(c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death.

86. If the Court, at the conclusion of the hearing, were satisfied that the 2012 Will was executed by the deceased “in a foreign place”, since the deceased died in New South Wales, which, it is accepted, was his domicile after 2016, the 2012 Will is taken to have been properly executed if execution conforms to the internal law in force in New South Wales “either at the time Will was executed or at the time of the testator’s death”.

87. The 2012 Will was handwritten in capital letters. On the first page, the initials “OKK”, appear in the margin, along with what appear to be four other signatures. On each of the next five pages, only the initials “OKK” appear in the margin. These are the initials of Father Kariba and were written by him on the 2012 Will.

88. On the last page of the 2012 Will, the following appears:

“I, REV. FR. ONESIMUS KAMAU KARIBA, OF MARY IMMACULATE PARISH POGGIOREALE, DIOCESE OF MAZARA DEL VALLO (TP), HEREBY DECLARE THAT ROSARIO MAIORANA OF [CANADA BAY] HAS REQUESTED ME TO WRITE HIS INSTRUCTIONS AND ACT AS HIS WITNESS TO HIS LAST WILL AND TESTIMONY.

DATE: 19^TH DECEMBER 2012”

89. Then, there appears the name of the deceased adjacent to the words “signature of testor [sic]” and the signature, name and address of each of the two attesting witnesses.

90. There is no formal attestation clause in the 2012 Will.

91. (It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. In other words, “the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580”: Scarpuzza v Scarpuzza (2011) 4 ASTLR 244 at 254-256; [2011] WASC 65 at [32]-[37] (E M Heenan J). Although not conclusive, it constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].)

89. The 2012 Will then provided:

1. The deceased “being of sound mind and disposing memory and not acting under duress or undue influence, fully understanding the nature and extent of all my property and of this disposition there of [sic] I hereby appoint [Father Kariba] to record and write my instructions”.

2. The deceased revoked “all former wills and testamentary dispositions and codicils” that he had made and declared “this to be my last will and testament”.

3. Maria was to be the executrix and subject to the payment of debts, funeral, and testamentary expenses, and all probate, and other, duties payable in respect of the estate, in consequence of the deceased’s death, he left “everything that I own to my wife … for life…”

4. In the event that Maria did not survive the deceased, or if she died within 28 days of the deceased’s death, the Defendants were appointed as the executors and the following dispositions were then made.

1. The Annandale property was devised to Carmelina.

2. The Canada Bay property was devised to Daniela.

3. 60% of No 57 (which the deceased did not own at the date of his death) was left to Daniela, and the remaining 40% thereof was left to Carmelina.

4. 50% of the deceased’s share in the Terrigal property was left to Daniela, with the remaining 50% to be held on trust for Katia Grazia Cantale “to assist her in life for her disability.” (Katia is the daughter of Daniela. She was born 27 weeks premature and developed meningitis whilst in the intensive care unit at hospital. This later developed into cerebral palsy.)

5. The Punchbowl property was left to Carmelina and Daniela in equal shares.

6. 40% of No 5 (which, as will have been read, the deceased did not own at the date of his death) was left to Benjamin, the third Plaintiff; 20% was left to Claudia, the second Plaintiff; and the remaining 40% was left to Maree-Marcelle, the first Plaintiff.

7. No 6 (which, as will have been read, the deceased did not own at the date of his death) was left to Daniela.

8. The deceased’s property at Tweed Street, Coolangatta (which, as will have been read, the deceased did not own at the date of his death) was left to Carmelina.

9. The Moree property was left to Carmelina and Daniela in equal shares.

10. The deceased’s property situated at Thomson Street, Kiama (which the deceased did not own at the date of his death) was left to Carmelina and Daniela in equal shares.

11. One third of the Poggioreale property was left to Carmelina, one third was left to Daniela, and the remaining one third was left to the Plaintiffs, in equal shares.

12. The Triscina property was left to Carmelina and Daniela in equal shares.

5. The Will also contained the following provision:

“I APPOINT MY DAUGHTERS CARMELINA … AND DANIELA … AS TRUSTEES TO GO AND SEE ABOUT THE TRUST AND SEEK THE ADVICE OF QUALIFIED PROFESSIONALS IN REGARD TO THE TESTAMENTARY DISCRETIONARY TRUST AND MAKE DECISION [sic] ON THE SUITABILITY AND BENEFITS FOR THE ESTATE.”

93. The source of this Clause of the Will was explained by Father Kariba in his evidence. I shall refer to it later in these reasons.

The 2005 Will

94. On 7 February 2005, the deceased made a duly executed a Will, in Sydney, New South Wales. It appears from the front page of the Will, that it was prepared by a firm of solicitors in Parramatta. It is typewritten, and bears the signature of the deceased, an attestation clause, and the signature of two witnesses, being Allan Bolster and Keith Wagner, each of whom is described as “Solicitor”.

95. In that Will, the deceased appointed Maria, as the sole executor, and left the whole of his estate to her. In the event that Maria predeceased him, or failed to survive him for 28 days, the deceased appointed the Defendants as the substitute executors. The 2005 Will then provided:

1. No 57 (which the deceased did not own at the date of his death) was left to the Plaintiffs as joint tenants.

2. The Annandale property was left to Carmelina;

3. The Canada Bay property (described as being situated at Five Dock in the Will) was left to Daniela;

4. The Terrigal property was left, as to 25% to Carmelina, as to 50% to Daniela, and as to 25% to be held for the Plaintiffs “in trust … as joint tenants when they attain the age of eighteen (18) years”;

5. The Punchbowl property was left, as to 40%, to the Plaintiffs, as joint tenants, as to 20% to Carmelina and as to 40% to Daniela;

6. The rest and residue of the deceased’s estate, including the Punchbowl property (despite it having been gifted in the preceding paragraph), the Moree property, the Tweed Street property (which the deceased did not own at the date of his death), and the Kiama property (which the deceased did not own at the date of his death), was to be divided as to one third to Carmelina, one third to Daniela, and one third to the Plaintiffs as joint tenants.

96. As earlier stated, there is no dispute about the validity of the 2005 Will (other than its revocation by the 2012 Will).

97. The Court raised with the parties that there had not been filed an affidavit of one, or other, of the attesting witnesses to the deceased’s signature on the 2005 Will. Following the conclusion of the hearing, on 6 June 2022, the Defendants, without objection, filed an affidavit dated 3 June 2022 of Keith Wagner, an attesting witness to the deceased’s signature on the 2005 Will.

98. In view of the conclusions to which I have come concerning the validity of the 2012 Will, it is unnecessary to consider this aspect further.

The estate of the deceased at the date of the Schedule

99. The nature of the estate of the deceased at the date of death is outlined above. Using the estimates as a guide, the gross value of the deceased’s estate, at the date of death was, on the Plaintiffs’ estimates $6,612,500, and on the Defendants’ estimates $4,829,000.

100. There was no dispute that the deceased’s liabilities at the date of his death included two debts to the National Australia Bank ($248,045 and $175,805), land tax ($34,115), council rates ($31,232), water rates ($20,154), costs for maintenance and repairs due to SCBS Pty Ltd ($108,550), a debt repayable to Carmelina ($40,000) and a reimbursement to Carmelina (for maintenance and repairs) ($37,000). The total of the debts was $694,905.

101. The assets and liabilities of the deceased at the date of the Schedule were:

1. The Annandale property. There remained a dispute about its value (the Defendants asserting it had a value of $2,000,000 and the Plaintiffs asserting it had a value of $3,400,000).

2. The Canada Bay property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased’s interest had a value of $870,000 and the Plaintiffs asserting it had a value of $1,250,000).

3. The Punchbowl property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased’s interest had a value of $825,000 and the Plaintiffs asserting it had a value of $937,500).

4. The Terrigal property. There remained a dispute about its value (the Defendants asserting the deceased’s interest had a value of $750,000 and the Plaintiffs asserting it had a value of $1,030,000).

5. The Moree property. There was no dispute about its value ($330,000).

6. The Poggioreale property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased’s interest had a value of $9,000 and the Plaintiffs asserting it had a value of $20,000).

7. The Triscina property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased’s interest had a value of $45,000 and the Plaintiffs asserting it had a value of $100,000).

102. Using the above range of estimates as a guide, the gross value of the deceased’s estate, at the date of the Schedule, on the Plaintiffs’ estimates, was $7,067,500, and on the Defendants’ estimates, was $4,829,000.

103. The nature of the liabilities remained the same, although the total amount of the liabilities had increased to $720,638. (The parties did not provide any estimates for the costs of the sale of any of the properties.)

104. Using the above range of estimates as a guide, the value of the deceased’s estate, excluding the costs of the proceedings, based upon the Plaintiffs’ estimates, is $6,346,862 and based upon the Defendants’ estimates, is $4,108,363. On either value, it is a reasonably large estate.

105. Regrettably, the parties were unable to reach agreement on the value of the estate at the date of the hearing.

The costs of the proceedings

106. In relation to the probate and family provision proceedings, the Plaintiffs’ costs, calculated on the ordinary basis, were estimated to be $118,866. Their costs, calculated on the indemnity basis, were estimated to be $130,433. About $41,255 of these costs have been paid by the Plaintiffs. The Defendants’ costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $112,000.

107. (The estimates of costs are likely to have increased because of the work done in respect of the Statement of Claim and the Power of Attorney/Compensation Claim to which reference will be made. The costs estimates do not include costs of that claim.)

108. On the first day of the hearing, it was noted that the estimates of costs did not differentiate between the costs of the claims made in the Summons (the family provision claims) and the costs of the claims made in the Cross-Claim (the Probate claim).

109. The legal representatives were requested to discuss the costs because the possibility existed that different costs orders might need to be made. On the second day of the hearing, very sensibly, if I may say, they agreed that one half of the costs should be attributed to the Probate part of the case, and the other half, to the claims for family provision relief: Tcpt, 1 June 2022, p 155(11-13).

110. Although not specifically referred to in the final affidavit of costs filed, and served, by the solicitor for the Plaintiffs, in written submissions, senior counsel wrote:

“The costs of the plaintiffs are not subject to any uplift factor. The costs agreement entered into by counsel and the solicitors for the plaintiffs does not require the payment of any professional costs if the plaintiffs are unsuccessful.”

111. (In Oxley v Oxley [2018] NSWSC 91 at [57]-[90] I referred to the need for disclosure, in each of the costs affidavits required by Practice Note SC Eq 7, for the deponent, to refer to any conditional costs agreement entered into, which could have an effect on the costs that a party to the proceedings would have to bear. I shall not refer to what was written, but the case raises an important matter of practice and procedure with which legal practitioners, by now, should be well acquainted.)

112. There is no suggestion that either the Civil Procedure Act2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) does not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about the principles at this time.

113. In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

114. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the 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 her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

115. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330; [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.”

116. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

“... To exclude from consideration the diminution in the estate and hence [the applicant’s] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court ‘is determining whether or not to make such an order’.”

117. It has been said, many times, in the context of a claim for a family provision order, that parties should not 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; Nicholls v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

118. Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the Probate and family provision proceedings should be borne. They submitted that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.

119. Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of between $3,877,362 and $6,115,862.

A matter raised shortly prior to the hearing

120. On 18 May 2022, at the time senior counsel for the Plaintiffs delivered written submissions to the Court, he also sent to the Court a copy of a proposed Statement of Claim, which he acknowledged had not been filed.

121. At that time, no notice of motion seeking leave to file, or serve, a Statement of Claim, or seeking an order that the Plaintiffs’ claims proceed by way of pleadings had been filed. Nor had the matter been raised at the pre-trial directions hearing on 3 May 2022, or otherwise prior thereto.

122. On 20 May 2022, the Plaintiffs filed a notice of motion in which they sought an order that leave be granted “to file and serve a statement of claim in the form of the statement of claim attached as a schedule to this notice of motion” and an order that the “relief sought in the statement of claim be heard at the hearing commencing on 31 May 2022”.

123. In support of the notice of motion, the Plaintiffs relied upon an affidavit sworn on 20 May 2022 of the Plaintiffs’ solicitor. In that affidavit, Mr Buchanan annexed some copy documents. He did not provide any reasons why the Plaintiffs had not sought the relief earlier.

124. (In the cross-examination of the first, and of the second, Plaintiffs, it is clear that each of them was aware of the sale of the properties to which reference was previously made, by Carmelina in 2017, although each may not have known how the proceeds of sale had been disbursed: Tcpt, 1 June 2022, p 148(27-49), 202(14-21).)

125. Administratively, and urgently, the Court listed the notice of motion on 23 May 2022, and senior counsel for the parties both appeared. Unsurprisingly, Mr Alexis SC, on behalf of the Defendants, objected to the filing of the proposed Statement of Claim in these proceedings. Counsel for the Defendants provided detailed written submissions setting out the reasons for their objection.

126. In these circumstances, somewhat surprisingly one might think, Mr Ellison SC said that he was not in a position to deal with the written submissions of the Defendants. The legal representatives agreed that the hearing dates should not be vacated.

127. Senior counsel for the Defendants then stated that if the Plaintiffs filed the proposed Statement of Claim in New South Wales, the Court would be asked to summarily dismiss the Statement of Claim upon the basis that this Court had no jurisdiction to determine the proceedings raised by that Statement of Claim.

128. Following argument, and in order to permit the legal representatives of the Plaintiffs to consider the merits of the written submissions made on behalf of the Defendants, I considered that the Plaintiffs should not be prevented from filing, and serving, the proposed Statement of Claim in separate proceedings, and that the Defendants should be permitted to file and serve any notice of motion to summarily dismiss those proceedings if they chose to do so. In this way, the hearing dates would not be lost.

129. The Court then made the following notations and directions:

“1.   Notes that the Plaintiff’s [sic] present intention is to file and serve a Statement of Claim in NSW seeking relief as set out in the first prayer in a proposed Statement of Claim attached to a notice of motion filed 20 May 2022.

2.   Directs the Plaintiff [sic] to inform the Defendant [sic] and the Court when that Statement of Claim has been filed.

3.   Notes that any Statement of Claim that is filed in NSW is to be filed and served no later than 10:00 a.m. on Wednesday, 25 May 2022.

4.   Directs that the Defendants file and serve any notice of motion to summarily dismiss the Statement of Claim by 10:00 a.m. on Thursday, 26 May 2022.

5.   Notes that the Court’s present intention is to deal only with the Cross-Claim filed by the Defendants on 7 November 2021 and any notice of motion to summarily dismiss the Statement of Claim at the hearing commencing on 31 May 2022.

6.   Reserves the question of costs of today’s appearance.”

130. I shall refer to the proceedings that were then commenced by the Plaintiffs, bearing file number 2022/150470, as “the separate proceedings”.

131. The Plaintiffs did not disclose whether they intended to adduce further evidence in support of the claims made in the separate proceedings. However, as submitted by counsel for the Defendants in their written submissions, “at the very least, there would have to be evidence of the property (or properties, depending on whether the 2012 Will or the 2005 Will was admitted to probate) at the time of death”.

132. As also submitted by their counsel, the Defendants “would certainly need time to marshal evidence concerning the sale of the property(s). Preliminary instructions indicate that the property(s) were jointly owned by the deceased and his wife at the time of sale and were heavily mortgaged…”.

133. There was no dispute, then, that the separate proceedings could not be heard during the 3 days allocated for the hearing of these proceedings. The suggestion was made that any notice of motion, filed by the Defendants, seeking summary dismissal, might be determined, first, at the hearing. If the application were successful, then the Cross-Claim and the family provision claim would be dealt with at the hearing. If it were unsuccessful, then there would need to be a bifurcated hearing, with the Cross-Claim being determined at the hearing, and the family provision claim and the separate proceedings being dealt with at a subsequent hearing, with the costs of the additional hearing being reserved.

130. Whilst somewhat dispirited about the course taken by the legal representatives of the Plaintiffs in making the claims raised in the separate proceedings so late, there was little choice, bearing in mind s 56 of the Civil Procedure Act, but to follow this course.

The separate proceedings

135. The Defendants, on 25 May 2022, filed the notice of motion seeking an order that the separate proceedings be dismissed pursuant to UCPR r 13.4, and s 61 of the Civil Procedure Act, and, in the alternative, that the whole of the Statement of Claim filed on 25 May 2022 be struck out pursuant to UCPR r 14.28. They also sought costs of, and incidental to, the separate proceedings, including the costs of the notice of motion, calculated on the indemnity basis.

136. (Presumably, the reason for seeking the costs calculated on the indemnity basis, was that the Defendants had provided written submissions to the Court, on 23 May 2022 setting out the bases for the Court’s lack of jurisdiction.)

137. In support of their notice of motion, the Defendants relied upon an affidavit of Mr Di Girolamo, filed in the Probate and family provision proceedings, in which he set out a summary of the events that had occurred commencing 19 August 2020, the date on which the Defendants had caused to be filed a Notice of Intended Application for Probate of the 2012 Will.

138. In the Statement of Claim, in broad terms, the Plaintiffs sought an order to extend the time prescribed by s 41(8) of the Succession Act 1981 (Qld), and orders under s 107 of the Powers of Attorney Act 1998 (Qld), that compensation be paid to the Plaintiffs in respect of the sale of three properties, located in Queensland, in 2017, by Carmelina, as the Attorney for the deceased and Maria.

139. The properties referred to were two properties situated at Coolangatta Road, Coolangatta (to which I have earlier referred as No 5 and No 6) and the Tweed Street property.

140. As stated, Carmelina sold each of these properties using the registered general enduring Power of Attorney, executed by each of the deceased and Maria, pursuant to s 163B of the Conveyancing Act 1919 (NSW). In relation to No 5, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $401,000. In relation to No 6, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $442,000. In relation to the Tweed Street property, the evidence revealed that it had been purchased by the deceased and Maria in August 2000 and was sold for $330,000.

141. The Plaintiffs claimed that the sale of each of the Queensland properties resulted in the ademption of the devise of any interest therein to them, respectively, under either the 2012 Will or the 2005 Will.

142. In the event that the 2012 Will were admitted to Probate, the Plaintiffs’ claim for compensation was limited to the sale of No 5, which property they were to receive under that Will. In the event that the 2005 Will were admitted to Probate, the Plaintiffs’ claim for compensation was in relation to the sale of all three properties, to one-third of the proceeds of sale of which the Plaintiffs were entitled under the 2005 Will.

143. Initially, in support of the Defendants’ notice of motion for summary dismissal, counsel for the Defendants challenged the jurisdiction of this court. They submitted, amongst other things, that the application for compensation is one that should have been brought in the Supreme Court of Queensland (Powers of Attorney Act s 107(2)).

144. At the commencement of the hearing, senior counsel for the Defendants accepted that this Court had jurisdiction to hear the matter and stated that bearing in mind the costs and expenses of requiring the Plaintiffs to commence fresh proceedings in Queensland, it would be more expeditious, in time, and cost, to deal with the claims made in the separate proceedings as part of these proceedings.

145. It was submitted that whilst the Defendants resisted a bifurcated hearing, being one where the Court would determine the Cross-Claim, and go so far as it could, in relation to the Plaintiffs’ Summons, to enable the separate proceedings to be properly prepared, it would be necessary to adjourn part heard, to allow each of the parties to serve any further evidence upon which it was intended to rely, and then continue with the hearing and deal with the separate proceedings.

146. Naturally, as there would be costs and expenses incurred, the Court asked senior counsel for the Plaintiffs whether they were prepared to pay the costs thrown away by adopting this course. Ultimately, senior counsel for the Plaintiffs responded that the costs should be reserved.

147. Following the conclusion of the evidence, including documents tendered at the commencement of the hearing (Ex D2 and Ex D3), senior counsel for the Plaintiffs accepted that, in the event that the 2012 Will was the last valid Will of the deceased, there would be no compensation payable, as the whole of the proceeds of sale of No 5 had been used to repay a loan secured on that property, with the result that there was no loss for which the Plaintiffs should be compensated: Tcpt, 2 June 2022, p 253(18-44).

Another matter raised late by the Plaintiffs

148. Shortly before the matter was adjourned on 2 June 2022, in submissions in reply, senior counsel for the Plaintiffs informed the Court that the statement that had previously been made that in the event that the 2005 Will was found to be the last valid Will, the Plaintiffs would not seek a family provision order, was sought to be withdrawn.

149. Apparently, whilst notice of the application to withdraw the admission had been given to the Defendants’ solicitors by letter dated 18 May 2022, it was not raised with the Court at any time previously during the hearing. No explanation was provided for the failure, by the legal representatives of the Plaintiffs, to do so.

150. Apparently, the application came as a surprise to counsel for the Defendants as senior counsel stated that he would “need to consider and get instructions on whether or not the case would have been conducted in anyway differently had the concession not been made”: Tcpt, 2 June 2022, p 294(45-49).

151. Having reserved the decision, and in order to see if the application could be resolved between the parties, I adjourned the matter until 2:00 p.m. on 3 June 2022. Shortly before the matter was called, the parties sent to my Chambers a form of Short Minutes of Order in the following terms:

“1   The plaintiffs’ [sic] consent to the dismissal of the associated proceedings between the same parties, being proceedings 2022/00150470, in the event probate of the will of the deceased made on 19 December 2012 is granted, with costs reserved.

2 The defendants’ [sic] consent to the withdrawal of the statement made to the Court on behalf of the plaintiffs on 3 May 2022 that the plaintiffs will not pursue their claims under chapter 3 of the Succession Act 2006 (NSW) in the event that probate of the will of the deceased made on 7 February 2005 is granted, but subject to the defendants having leave to make further submissions in that event with respect to the plaintiffs [sic] family provision claims.

The Court orders

3 The plaintiffs have leave to make further submissions in relation to their claims under chapter 3 of the Succession Act 2006 (NSW) in the event probate of the will of the deceased made on 7 February 2005 is granted, such leave being limited to submissions as to the quantum of provision that the plaintiffs say should be made in that event in respect to their family provision claims.”

152. It appeared, then, that if the 2005 Will was found to be the last valid Will of the deceased, the approach of the legal representatives of the Plaintiffs would add to the length of the bifurcated hearing caused by the separate proceedings.

153. In the circumstances, having heard the submissions of counsel, the Court made the following orders:

“   …

2.   Notes that the Defendants consent to the admission made by the Plaintiffs on 3 May 2022 that in the event that probate of the Will made on 7 February 2005 is granted, they would not pursue the claim for family provision relief as sought in the Summons being withdrawn.

3.   Grants leave to the Plaintiffs to withdraw the admission made upon condition that any further costs that are incurred as a result of the withdrawal of the admissions will be paid either by the Plaintiffs or by their legal representatives, as may be determined by the Court.”

154. Nothing more needs to be done, as I have concluded that the 2012 Will is the last valid Will of the deceased. An order dismissing the separate proceedings will be made.

The Witnesses

155. Each of the parties, as well as a number of other witnesses, were cross-examined. I shall deal firstly with the witnesses who had no interest in the result of the proceedings, I shall then turn to my impressions of each of the parties.

156. The Defendants relied upon the evidence of Father Kariba, to whom I have already referred, who was closely, but ineffectively, cross-examined. I found him to be a careful, truthful, forthright, witness, who had a clear, and precise, recollection of the events that had occurred on 19 December 2012, the date of the execution of the 2012 Will.

157. Senior counsel for the Plaintiffs did not submit that Father Kariba was not telling the truth. Even without that concession, I have no hesitation in accepting his evidence, some of which I set out below.

158. Father Kariba made one affidavit sworn on 2 March 2021. It was 17 paragraphs, spanning three pages. I have taken what follows from the affidavit evidence and from his oral evidence.

159. Father Kariba stated that he was ordained, in Kenya, as a priest in the Roman Catholic Church in July 2003. He went to Italy in 2004 for his doctoral and post-doctoral studies, the research for which he undertook in Italian. He went to Sicily in 2004 and then to Poggioreale in 2006, where he lived until 2013.

160. He said that he was fluent in Italian and was reasonably familiar with the Sicilian dialect, having lived in Sicily for six years at that point in time and, whilst there, having conducted religious services in Italian and Sicilian.

161. He could also speak English as, being a researcher, it was a language that he had used in his studies. It was the language that he had used for primary school, for secondary school, and for his eight years senior training. When he studied for a philosophy degree, and a biology degree, he did so in English as he did when he continued with his research, most of his consultations were done in English. (There was no doubt about his command of language, as he gave his evidence in the English language, without the aid of an interpreter.)

162. He became well acquainted with the deceased and Maria as they were regular attendees, at Sunday Mass, at the parish at Poggioreale, where he was the Priest. They had also been regular visitors to his home, and he had visited the deceased and Maria at their home “many times”. They would have coffee together at a local cafe. He said that “it was interesting to hear their stories, how they have lived outside Sicily and, and how they have toiled in their lives”: Tcpt, 31 May 2022, p 67(44)-68(9).

163. He said that when conversing with the deceased, little was said in the English language, their conversations being in Italian and Sicilian. He said that Maria was fluent in English. He was able to understand each of the deceased and Maria well: Tcpt, 31 May 2022, p 68(11-31).

164. He stated that, a few days before 19 December 2012, the deceased had attended the parish office and had asked him to set a date to attend the deceased’s home, in Poggioreale, to sign a Will of the deceased. He said that the deceased had said to him:

“I know how to save money, but not how to write well. I need my priest to assist me, I just want to leave my family in peace when I die”.

165. Father Kariba stated that this was the first time he had ever been asked to do this by a parishioner. However, he did not refuse the request, and, on 19 December 2012, he attended the home in which the deceased and Maria lived. He arrived at about 9:00 a.m. and remained there until after lunch, about noon or 1:00 p.m.: Tcpt, 31 May 2022, p 64(3-11); 70(21-33). (The writing of the 2012 Will was completed by about noon and then they had lunch.)

166. The only persons present, during the whole of the time that Father Kariba was there, were the deceased, Maria, and a neighbour, Professor Gaetano Zummo (a local teacher and poetry writer).

167. He stated that the deceased dictated “the content of what he wanted” in the 2012 Will and had “called his priest and his professor to help draft the will”.

168. With the leave of the Court, and without opposition from senior counsel for the Plaintiffs, Father Kariba supplemented his affidavit evidence with some oral evidence in chief. He described, in more detail, how the deceased had dictated his wishes and intentions in Italian, and Sicilian dialect, and how the instructions had been written down in English. He added that the deceased had prepared for the meeting as he had the various pieces of paper on which the details of the different properties to be devised were written in English. He did not know who had written the details on the paper, but he maintained that it was only the deceased who had identified the beneficiary, or beneficiaries, who was, or who were, to receive the relevant property.

169. In cross-examination, Father Kariba maintained that it was the deceased who had dictated the dispositions that he wished to make in his Will, although he added that, occasionally, Maria would assist, by providing a house number.

170. He stated that he had written down what the deceased had dictated to him (which included the percentages of the properties and the names of the beneficiaries), on paper, in English, and that he had then copied the addresses of each of the different properties identified in the 2012 Will from “pieces of paper” which were provided to him by the deceased. He gave evidence that “almost every property had its paper, piece of paper”. He had not retained these pieces of paper. The names of the family members were not written on the piece of paper but were dictated by the deceased.

171. He stated that the deceased had made himself understood with ease; that the deceased made sense, that the deceased told humorous stories of how he came to acquire each property, and other stories involving Maria, when he was listing the various properties that he wished to devise. On occasions, Maria would confirm the spelling of names.

172. Father Kariba explained that certain phrases, or sentences, that appeared in the 2012 Will, had been provided by Professor Zummo, who, recently, had finished drafting his own Will. His evidence was that Professor Zummo would assist him with the drafting when he needed “an introductory or a conclusive remark”. It had been Professor Zummo who had dictated parts of the introduction, and the part of the Will that referred to the testamentary discretionary trust: Tcpt, 31 May 2022, p 72(11-44). He had done so from memory, using the Italian language.

173. In his oral evidence, Father Kariba stated that he, Professor Zummo and the deceased would discuss, in the Sicilian dialect, what the deceased wanted to include in his Will. Father Kariba would then write this down on another piece of paper and, once satisfied with the wording, Father Kariba then wrote it out again on the document which was the original 2012 Will: Tcpt, 31 May 2022, p 71(29-32). He explained the process (Tcpt, 31 May 2022, p 71(25-27)):

“I had to… I construct the, the sentence. Then I put it on the page, the will page.”

174. Father Kariba explained that he adopted this process because (Tcpt, 31 May 2022, p 71(19-20)):

“I knew it was a will. So, so I had to get it correct… on another piece of paper before putting it here.”

175. Father Kariba stated that the deceased appeared to understand him when he repeated in the Italian language and in the Sicilian dialect, what he had written down in English in the Will. He said that he had repeated exactly what he had written, “and as it was, it was not done in a hurry, as I was reading each part of, of the will he could give his comments how he obtained this property, how much he suffered before having it, and then we could continue, so I read everything that I had written as his will”: Tcpt, 31 May 2022, p 65(12-18).

176. He said that he explained the contents of the 2012 Will to the deceased, including that his children could obtain legal advice, stating “I explained the will and where it was necessary for us to understand what we are saying Professor Zummo could chip in”: Tcpt, 31 May 2022, p 79(50)-80(1).

177. He admitted that he did not read the 2012 Will out to the deceased in the English language, although when he was reading the names of the properties, he had to read them in English. He said that it took “a lot of time” to read the 2012 Will to the deceased in Italian: Tcpt, 31 May 2022, p 75(4).

178. The deceased had not asked what a testamentary trust was, and that term was not the subject of discussion with Professor Zummo.

179. When Father Kariba left the deceased and Maria that day, he left the original Will, and the pieces of paper to which reference had been made with them: Tcpt, 31 May 2022, p 71(34)-72(5).

180. Father Kariba confirmed, in answers to questions from the Bench, that the 2012 Will was signed by the deceased in his presence and in the presence of Professor Zummo, who then each signed the Will in the deceased’s presence. After this, the deceased said he was happy he had now made his final Will and that he was ‘satisfied’ and ‘ready to go’, and saying ‘bring it on’: Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at pars 12-13; Tcpt, 31 May 2022, p 77(1-23).

181. Father Kariba was asked questions about the deceased’s capacity. He stated that the deceased did not require assistance from him, or from Maria, to remind him of what he wanted in his Will: Tcpt, 31 May 2022, p 76(39-50). When asked whether the deceased had said, or done, anything to demonstrate that he understood what was in the Will, Father Kariba stated the deceased said to him “now I have put my things in order” and “then he invited me to bring it on … to sign” in Sicilian: Tcpt, 31 May 2022, p 65(25-27); p 77(1-23).

182. Father Kariba was asked whether the deceased had any difficulty signing the 2012 Will to which he responded (Tcpt, 31 May 2022, p 75(25-28):

“All that I know that he was not used in writing, so not because he was frail, but it's because he, he was not a writer, he was not used to writing. Let us say illiterate from, from that point of view.”

183. It was not suggested to Father Kariba that the deceased had not signed the 2012 Will freely and voluntarily. He believed that the deceased could understand what he was doing: Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at par 14.

184. In cross-examination, he stated that the deceased did not need help from Maria “in remembering things” and that “he didn't need that assistance unless we, we wanted to intervene and talk with what he was doing”: Tcpt, 31 May 2022, p 76(43-46). He said it was unnecessary to explain what he had written “because it was his will and I was repeating what he had told me to write down”: Tcpt, 31 May 2022, p 77(31-34). There was no doubt in his mind that the deceased knew what he was doing. He had demonstrated to Father Kariba that he had the capacity to formulate his thoughts, to express them in coherent order, and to understand the effect of what he was doing.

185. When Father Kariba saw the deceased again, by which time he was at another parish, it was in 2014 or 2015. It was the deceased’s and Maria’s wedding anniversary. He described the deceased as having changed. He said that “I could see that he was transformed, that he was sickening … He was, he was not holding the discussions the way he used to hold the discussions with me. He had - he didn't have that sense of humour that he had before, so about that time Maria told me that his [sic] husband has started having problem with remembering things, forgetting things, and - but we could remember, but we could chat, but I could see he's not the same old Rosario”: Tcpt, 31 May 2022, p 76(19-29).

As a matter of fact, on any version given by her, Ivy cannot be said to have been wholly or partly dependent upon the deceased. Furthermore, that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of Ivy, does not, in itself, make Ivy wholly, or partially, dependent on the deceased. Furthermore, that the deceased went to Brisbane in order to assist Ivy’s father whilst he was unwell, it is hardly the case that he abrogated his parental responsibility to the deceased.

To qualify a grandchild as a dependant, the gifts or benefits provided by the will-maker, must be of such regularity and significance that one can say that the will-maker had clearly assumed a continuing responsibility for the grandchild’s maintenance education, or advancement in life: see Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223. Also see, Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593.

On the basis of the evidence, I am not satisfied that Ivy is an eligible person within the meaning of s 57(1)(e) of the Act. In my view, Ivy’s needs to be fed, cared for, and accommodated, were all provided by her father, and not by the deceased.”

With respect, the primary judge’s observations at J [329] conflate the question of whether a grandchild is an eligible applicant because he or she was, at any particular time, wholly or partly dependent on the deceased, with the questions as to whether there are factors which warrant a grandchild making the application for a family provision order (s 59(1)(b)), and whether the grandparent owed a moral obligation to make provision for the grandchild for his or her proper maintenance, education or advancement in life (s 59(1)(c)). On the question of whether the grandchild is an eligible applicant under s 57(1)(e)(i) the question is not whether the grandparent assumed a continuing responsibility for the grandchild’s maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent. The Victorian cases cited (Leahey v Trescowthick [1999] VSC 409, and MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318) concern the interpretation of s 91(1) of the Administration and Probate Act 1958 (Vic), as it then stood, which did not specify any particular class or classes of applicants, but authorised the making of provision out of the deceased’s estate for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.”

381. His Honour’s words seem to echo what was written by Sackville AJA, in Spata v Tumino (2018) 95 NSWLR 706 at 732; [2018] NSWCA 17 at [139], that:

“A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.”

382. In Chisak v Presot, White JA went on at [57]:

“I respectfully doubt that it is legitimate to read into s 59(1)(e) [sic] a requirement that partial dependency be “significant” rather than “more than minimal”. Section 57(1)(e) is 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)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge’s reasons on this issue at J [329] quoted above.”

383. Whilst, of course, the decisions of the Court of Appeal, where not distinguished, are binding upon this Court, it is necessary to note that none of the members of the Court of Appeal specifically referred to s 60(1)(a) of the Act, which sub-section provides that the Court may have regard to the matters set out 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”.

384. White JA had acknowledged the sub-section in Sun v Chapman, at [28], although he did not refer, specifically, in that case, to any of the sub-sections in s 60 to which regard might be had in relation to eligibility.

385. In this regard, it is also important to recognise that in most cases, eligibility is not the subject of dispute because many claims that are brought are by a spouse, a child, or a former spouse, of the deceased person. Eligibility in these cases is established by dint of the relationship. In such cases, it is not necessary for the Court to have regard to s 60(1)(a) of the Act for determining eligibility. As I wrote, in Jones v Jones [2014] NSWSC 960 at [94]:

“For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.”

386. A similar view was expressed by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] by Basten JA, when he wrote that “[m]ost of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57.”

387. In Lodin v Lodin, Sackville AJA wrote, at [69], that “[I]t is not clear that any of the matters identified in s 60(2) of the Succession Act are relevant to determining whether a particular applicant satisfies the definition of “eligible person” in s 57(1)”.

388. However, as was recently written in Sun v Chapman, by Leeming JA at [3]:

“The question whether there was at the time of the deceased’s death a de facto relationship is one that may be more contestable than some of the other categories of eligible persons defined in s 57(1) of the Succession Act 2006 (NSW). However, contestable factual questions may in principle arise even if an applicant claims to be, say, a child or a former spouse. A person may be a child without a birth certificate and there may be competing evidence (including expert evidence) as well as testimonial evidence on this issue. A former spouse may claim to have been married in an informal ceremony in another country which is recognised under Australian law. In short, the factual conclusion that a person is a child or a former spouse may be contestable in the same way as the questions posed under s 57(1)(b), (e) and (f). But all the criteria for eligibility are binary, in the sense that they admit of only one correct answer.”

389. Thus, where eligibility is in issue, s 60(1)(a) enables the Court to have regard to the matters in s 60(2) for the purpose of resolving that disputed issue of fact. It has been repeated that the factual question regarding dependency can be complex and involve consideration of many elements. It is, therefore, necessary, in the assessment of the nature of the relationship between an applicant and the deceased to consider it, not on theoretical considerations, but rather in the context of the totality of the circumstances. Accordingly, if it is disputed, the concept of eligibility in s 57(1)(e)(i) may be considered by having regard to matters that would, otherwise, only be considered once the applicant establishes that she, or he, is entitled to apply for a family provision order.

390. In Chisak v Presot, the matters to which reference were made, and identified, by White JA in the passage quoted above, in the reasons for judgment at first instance, were matters that are referred to in s 60(2) including (a) (nature and duration of the relationship), (e) (cohabitation with another person), (g) (the age of the applicant), (k) (whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased’s death and the extent to which, and the basis on which, the deceased did so), (l) (whether any other person is liable to support the applicant) and (m) (the conduct of the applicant), and all were matters to which the Court may have had regard for the purpose of determining whether the applicant is an eligible person.

391. Before leaving this topic, a number of the cases to which reference has been made refer to the Act being remedial legislation. For example, in Spata v Tumino, Payne JA at [71] (with whom Macfarlan JA and Sackville AJA both agreed) referred to the judgment in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [44] (per Gummow and Hayne JJ) and [124] (per Kirby J), observing at [71] that their Honours:

“...held that the correct approach to construction of a provision such as s 57(1)(e) of the Succession Act is that the court should be astute not to place a restricted construction upon the terms of such a law.”

392. That is also undoubtedly true, but the purpose of Chapter 3 of the Act should not be forgotten. Its “evident purpose” is to place the assets of the deceased at the “disposal of the court” to provide for “the nominated dependants of the deceased”: Easterbrook v Young (1977) 136 CLR 308 at 315; [1977] HCA 16. The legislation has also been described as having been “enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded”: Barns v Barns at [2] (Gleeson CJ).

393. In describing eligibility as “the gateway”, White JA recognised that its purpose was as a prerequisite to obtaining an order for provision, and, thereby, was limiting, or restricting, the persons who have the right to access the remedy created in the Act. (In relation to certain categories of eligibility, including applicants who fall within s 57(1)(e), there is the further limiting matter of factors warranting the making of the application.)

394. As was written in Re Burt [1988] 1 Qd R 23 at 32:

“The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply.”

395. Then, assuming eligibility, in the case of applicants who fall within s 57(1)(d), (e) or (f) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

396. As stated in Spata v Tumino, by Payne JA, at [72]:

“A finding of being ‘wholly or partly dependent’ does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step.”

397. In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

“…Within the first category (s 57(1)(a) – (c)) are persons generally ‘regarded as natural objects of testamentary recognition’, such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.

Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are ‘potentially appropriate objects of testamentary recognition, depending upon their circumstances’. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.” (Footnotes omitted)

398. The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

399. I turn next to the principles relating to the issue of the provision made for each of the Plaintiffs in the 2012 Will. I have set out the relevant general principles on this aspect most recently in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [416]-[456]. I do not propose to repeat the principles. However, I shall repeat some principles regarding a claim by a grandchild.

400. I wrote in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:

"In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(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."

401. I made clear that the general principles cannot be elevated to inflexible rules and are subject always to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant’s conduct and the applicant’s relationship with the deceased.

402. My reasons in Bowditch v NSW Trustee and Guardian, attracted the approval of the Court of Appeal in Chapple v Wilcox at [21] (Basten JA); see also at [65]-[67] (Barrett JA) and in other cases.

The Submissions – the Family Provision Claim

403. Counsel for the Plaintiffs submitted that the Plaintiffs’ eligibility arises under s 57(1)(e) of the Act. It was submitted that they were dependent on the deceased for accommodation, as they had paid less than market rent to occupy No 57. It was submitted that, had they been required to rent premises on the open market, they would have been required to pay a greater rent.

404. I do not accept this submission as there was really no evidence to substantiate this submission for almost all of the period during which one, or other, of the Plaintiffs lived there. The evidence established, contrary to the evidence given by them, that, for all but a short period of about two months following the death of their mother, the Plaintiffs had been required to pay market rent for occupation of No. 57 which was at least comparable to the rent being paid for the unit below.

405. In closing submissions, senior counsel submitted that, for two months after their mother died, and for five weeks thereafter, the Plaintiffs did not pay rent for No 57. He submitted that (Tcpt, 2 June 2022, p 266(19-22)):

“Giving free accommodation for five weeks they were dependent on him for free accommodation it’s not an overnight stay, it’s not a weekend stay, it’s a matter where there is a legal obligation to pay rent and for all sorts of reasons, the lessor has waived it, so they were dependent on him for free accommodation for that five weeks.”

406. Interestingly, he had earlier described this as “an indulgence”.

407. In addition, senior counsel submitted that the Plaintiffs were financially dependent on the deceased because the rental bond was dispensed with in the original lease, which indicates that the deceased was able to give the Plaintiffs accommodation that they would not have been able to acquire on the open market.

408. Senior counsel relied upon the evidence given by the Plaintiffs of conversations with Maria and the Defendants that the money the Plaintiffs had been paying in rent would be used to pay down the mortgage on No 57, and that, in time, that property would belong to the Plaintiffs. He also pointed to the clause in the 2005 Will which gifted No 57 to the Plaintiffs. I have earlier concluded that I do not accept the evidence of any of the Plaintiffs on this topic but rather prefer the evidence of each of the Defendants.

409. It was also submitted that factors warranting the making of the Plaintiffs’ applications were made out as the deceased himself identified the Plaintiffs as objects of his testamentary bounty by including them as beneficiaries in his Will.

410. Counsel for the Plaintiffs submitted that the first Plaintiff is a single parent with two dependent children below the age of 10. She has a car, no savings, and superannuation of approximately $45,000. She estimates her net monthly income in the immediate future to be approximately $4,855 and her monthly expenditure to be approximately $5,960. Her eldest son is on medication for ADHD and sees a child psychologist and paediatric specialist. She is on medication for anxiety and depression.

411. The second Plaintiff has two dependent children aged 3 years. It was submitted that her net income is $6,500 per month (occasionally she receives commission of $1,000 per month). She lives with her partner in a house owned by her partner’s family. Her partner’s monthly income is $6,800 and together they have a monthly expenditure of approximately $6,000. It was submitted that the second Plaintiff suffers from depression and anxiety and has physical ailments affecting her nervous system.

406. It was submitted that the third Plaintiff has nominal savings and superannuation of approximately $15,000. His earnings fluctuate, but are in the vicinity of $900 net per week. His weekly expenditure is in the vicinity of $777.

407. Senior counsel for the Plaintiffs submitted that each of them should receive a legacy charged on the deceased’s realty in New South Wales. It was submitted that this should be in lieu of their modest entitlement to an interest in the deceased’s land in Sicily.

408. Counsel for the Defendants submitted that the Plaintiffs are not eligible persons pursuant to s 57(1)(e) of the Act as each was not “dependent” on the deceased. It was submitted that the Plaintiffs’ examples of support given by the deceased depict the ordinary grandfather/grandchild relationship and that they did not make each or any of the Plaintiffs dependent on the deceased.

409. It was also submitted that the generosity of a grandparent to a grandchild does not convert the grandparental relationship into one of dependency. Nor does it create an obligation or responsibility to provide for the grandchild upon the death of the grandparent.

410. Further, with respect to the second and third Plaintiffs’ bankruptcy status, counsel for the Defendants submitted that her, and his, choice, respectively, to file for bankruptcy, without first seeking assistance from the deceased, is fundamentally inconsistent with the conclusion that there was dependency between either of them and the deceased.

411. It was submitted it is also relevant that, when the second Plaintiff told Maria she was in debt due to expenses she had incurred renovating the property at No 57, Maria did not offer financial help.

412. It was submitted that dependency had not been established by the Plaintiffs and, accordingly, that the claim of each must fail.

413. In written submissions, counsel for the Defendants submitted that there were no factors warranting the making of the Plaintiffs’ application for family provision. However, in oral submissions, senior counsel stated that, if the Court was satisfied that the Plaintiffs had demonstrated dependency on the deceased, it was accepted that there are factors warranting the making of provision: Tcpt, 2 June 2022, p 289(22-29).

414. Counsel for the Defendants submitted that, if the Court finds dependency is established, the Defendants accept that adequate provision was not made for the Plaintiffs.

415. As I have stated above, counsel for the Defendants provided further written submissions on the reasons of the Court of Appeal in Chisak v Presot. Relevantly, counsel submitted the following:

1. The Defendants’ citation of the primary decision in their closing written submissions dated 2 June 2022 was not relevantly undermined by the reasons of the Court of Appeal. Specifically, the closing submissions did not rely on [329] of the primary decision, or the citations referred to in that paragraph.

2. The Defendants’ written submissions, at [36] and following, had properly separated the questions of fact as to eligibility of each Plaintiff, from the questions whether there are factors which warranted a grandchild making the application and whether the grandparent owed a moral obligation to make provision for the grandchild, consistent with the observations of White JA.

3. The evidence did not establish that any of the Plaintiffs stayed with the deceased, even for relatively short periods as children (apart from sleepovers), or as adults, after the death of Vincenza, and so the type of inference drawn in the decision, at [55], about assuming parental responsibility was not available in this case. It followed that the reasons and decision on eligibility were clearly distinguishable on the facts.

Determination – Family Provision Claim

422. I turn now to the determination of the family provision claim made by each Plaintiff.

423. Drawing all of the facts together, I am satisfied that the following facts have been established:

1. The deceased never stood in loco parentis to any of the Plaintiffs. Until their parents separated, they had lived as part of their parents’ household. After the separation of their parents, they lived in the household constituted by their mother and siblings. (In saying this, I make clear that I am not implying that the Plaintiffs could not have been partially dependent on the deceased unless their parents, or subsequently, Vincenza, had abrogated their, or her, parental responsibility to the deceased. I am simply rejecting the Plaintiffs’ assertion that the deceased had adopted the role as her, or his, parent.)

2. None of the Plaintiffs ever lived, or even stayed, with, the deceased (or Maria). Unlike many other cases in which a grandchild is found to be wholly or partly dependent, there were no periods of time in which she, or he, lived, or stayed, with the deceased, in this case.

3. None of the Plaintiffs ever came into the custody, or care, of the deceased (or Maria). They were never invited to stay at the home of their maternal grandparents. Even immediately after the death of Vincenza, they stayed with Daniela and her family, and not with their grandparents. Then, even if, on occasions, food was purchased for their household, by the deceased and Maria, this, on its own, does not give rise to any dependency between each of the Plaintiffs and the deceased. It was not sought by any of them and was merely a matter of generosity by the deceased and Maria.

4. Even after the death of Vincenza, by which time, each of the Plaintiffs was an adult, and was self-supporting, the deceased did not act in a parent-like capacity. He appears to have made his role in the life of his own children, and also his grandchildren, as adults, perfectly clear to members of the family, particularly the Defendants. That role was extremely limited.

5. During the period following their mother’s death, there is no evidence that each of the Plaintiffs was financially, or materially, dependent on the deceased. Throughout her, and his, life, respectively, each maintained the capacity, and willingness, to provide for herself, or himself, completely independently of the deceased.

6. There was no evidence that any of the Plaintiffs was physically, or emotionally, incapable of living on her, or his, own, or providing for herself, or himself. Indeed, after a short period of time, each of them lived in No 57, at different times, the rent being paid by those in occupation. Each appears to have remained self-supporting and, after a period of time, each returned to work. Each did not seek, or require, any financial, or other, assistance from the deceased and none was offered or provided. Certainly, the deceased had no legal obligation, or responsibility, to provide for each of them.

7. None of the Plaintiffs gave any evidence of her, or his, financial circumstances at the time of the death of Vincenza, their mother. None of them suggested that she, or he, was supported by the deceased, or that she, or he, was receiving any more than small tokens of benevolence, on some occasions, towards her or his support, from the deceased and Maria. None was to any extent relying upon the deceased for her, or his, maintenance or advancement in life.

8. There was no suggestion of any financial support, or other than minimal occasional gifts of small amounts of money, provided to any of the Plaintiffs by the deceased, at any other time. Indeed, in the time of her, and his, financial crisis and need, neither the second, nor the third Plaintiff, sought financial assistance from the deceased. This suggests that even then, the deceased was not a person who, at least these two Plaintiffs, would naturally rely upon, or look to, rather than to others, for anything necessary, or desirable, for her, or his, maintenance or advancement of life.

9. The Court’s attention was not drawn to any evidence that explained the circumstances in which the Plaintiffs were permitted to live rent free in No 57. In any event, it was for an extremely short period following the death of Vincenza, who was, after all, the deceased’s daughter. It may be inferred that members of the whole family, during this period, were mourning the death of Vincenza. I take account of the fact that it was a time of great emotional stress for all family members. An act of benevolence from their grandparents, following the death of Vincenza, should not be converted to, or treated as, partial dependency. As was obvious from the events that followed, permitting the Plaintiffs to remain rent free in No 57 for that short period of time was casual, was not intended to persist, and was not continued in the future.

10. Allowing the Plaintiffs to derive a small benefit by permitting each to remain in occupation of No 57 without paying rent, following the death of Vincenza, was casual, and it was discontinued very quickly. Past events, and future probabilities, suggest that the Plaintiffs were not partly dependent upon the deceased at any time.

11. Apart from the short period, the whole of the occupation of No 57 by the Plaintiffs’ parents, then by their mother, and then by them, involved a commercial arrangement which was strict, was adhered to, and continued to be maintained. After that short period, the deceased expected the payment of rent to occupy No 57 to be made, and it was made, even if sometimes late, by the Plaintiffs, or those of them who remained in occupation of No 57.

12. Thereafter, in respect of accommodation, the deceased made it perfectly clear that market rent was payable by those of the Plaintiffs who occupied that property. Later, when it was not paid by the third Plaintiff, the deceased served a notice to quit. Thereafter, Benjamin vacated No 57 and had no further contact with the deceased.

13. The relationship of each of the Plaintiffs and the deceased, otherwise, was not particularly close suggesting any other form of partial dependency. Nor did it involve the bestowing of any special care, or affection, on either side. There was no evidence of any emotional dependency upon the deceased by any of the Plaintiffs.

14. It is difficult to find evidence concerning the interaction between the Plaintiffs and the deceased to elevate the relationship beyond that which might be expected between an adult grandchild and a grandparent. After about 2010, it might even be said that the deceased only had a peripheral involvement in the lives of each of them. Apart from the attendance at the first Plaintiff’s wedding, in 2012, there does not seem to have been very much contact between them.

424. Accepting what White JA, with whom other members of the Court of Appeal agreed, had written in Chisak v Presot, that it is not legitimate to read into s 57(1)(e) a requirement that partial dependency be “significant”, rather than “more than minimal”, and that s 57(1)(e) is merely a gateway for the court to consider whether there are factors warranting the making of the application, before turning to the question of provision, each of the Plaintiffs has failed to persuade me that there was whole, or partial, dependency upon the deceased, by her, or him, respectively, at any particular time. Even, if there were some dependency, I am satisfied that it was no more than minimal.

425. In the circumstances, as none of the Plaintiffs has established that she, or he, respectively, is an eligible person, it is not necessary to reach a conclusion with respect to any other aspect of their claim for a family provision order.

426. Since the 2012 Will is to be admitted to probate, the associated proceedings are to be dismissed.

427. I shall allow the legal representatives of the parties 7 days to provide short minutes of order, in each of the two matters, that reflect these reasons. I shall also allow them an opportunity to discuss the question of costs (in both proceedings). If agreement is unable to be reached on the question of costs, I shall list the matters so that a date for the costs argument, and any other argument, may be dealt with.

428. I adjourn the proceedings to 2:00 p.m. Wednesday, 14 September 2022 or such other date as is agreed at the date of these reasons being delivered.

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Decision last updated: 08 September 2022