Blendell v Byrne

[2019] NSWSC 583

Supreme Court

New South Wales

Medium Neutral Citation:

Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583

Hearing dates:

18-21 February 2019; 25 February 2019

Date of orders:

20 May 2019

Decision date:

20 May 2019

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See paragraphs [662]-[663]

Catchwords:

SUCCESSION – Wills, probate and administration –Validity of last Will of the deceased made in 2015 – No question of lack of testamentary capacity of the deceased – Lack of knowledge and approval of 2015 Will alleged – Suspicious circumstances rule – Whether the deceased knew and approved of the contents of the 2015 Will – Undue influence alleged – Whether the deceased was coerced by her husband into, and did not intend the disposition of the whole of her estate to him, in the 2015 Will – No dispute that if 2015 Will is not last valid Will of the deceased, an earlier Will made by her in 2007 is the last valid Will

 

UNDUE INFLUENCE – Consideration of operation and potential interaction and comparison of undue influence in probate and equity – Whether equity might apply, or extend, its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a Will to a constructive trust in favour of beneficiaries of earlier Will

 

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by each of four adult children of the deceased in the event that the 2015 Will is the last valid Will of the deceased – The Defendant, the executor named in the 2015 Will of the deceased, her husband of over 50 years and the father of each of the applicants for provision – Actual estate reasonably large – No notional estate – Whether adequate and proper provision not made in Will of the deceased for each of the children – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs – Two of the children settle her, and his, dispute, respectively, before, or during, the hearing, in the event that 2015 Will is the last valid Will of the deceased – What order, if any, for each applicant for a family provision order should be made

PRACTICE AND PROCEDURE – Agreement that all of the proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) rule 28.5 – some common questions and otherwise desirable to make an order under this rule

Legislation Cited:

Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Marriage Act 1961 (Cth)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Anasson v Phillips (Supreme Court (NSW), 4 March 1988, unrep)
Anderson v Hill [2017] NSWSC 1149
Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Ll.R. 1
Azar v Kathirgamalingan [2012] NSWCA 429
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Boyce v Bunce [2015] NSWSC 1924
Boyse v Rossborough (1857) 6 HL Cas 1, 51; [1854] EngR 252; 10 ER 1192
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Brown v Guss [2014] VSC 251
Brown v NSW Trustee and Guardian [2012] NSWCA 431
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Camden v McKenzie [2007] QCA 136
Campbell & Cade [2012] FMCAfam 508
Carey v Norton [1998] 1 NZLR 661
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82
Christie v Manera [2006] WASC 287
Clisbey & Viges [2011] FamCA 611
Collings v Vakas [2006] NSWSC 393
Craig v Lamoureux [1920] AC 349
Cringle v Cringle [2018] NSWSC 1558
Crossman v Riedel [2004] ACTSC 127
Daniel v Drew [2005] EWCA Civ 507
Day v Couch [2000] NSWSC 230
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Foye v Foye [2008] NSWSC 1305
Fulton v Andrew (1874 - 1875) LR 7 HL 448
Fulton v Fulton [2014] NSWSC 619
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Green v Green (2016) 4 NZTR 26021; [2016] NZCA 486
Grey v Harrison [1997] 2 VR 359
Grygiel v Baine [No 2] [2005] NSWCA 434
Hall v Hall (1868) LR 1 PD 481
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Hill v Buckley [2008] NSWSC 1374
Hoff v Atherton [2005] WTLR 99
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd 143 CLR 134
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Hunter v Hunter (1987) 8 NSWLR 573
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
In re Munn; Hopkins v Warren [1943] SA St Rp 44; [1943] SASR 304
In the marriage of Todd & Todd (No 2) (1976) FLC 92-008
Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394
Leona Johnson (Deceased) [2015] SASC 51
Longman v R (1989) 168 CLR 79; [1989] HCA 60
Lumb v McMillan [2007] NSWSC 386
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Maynard v Maynard [2018] NSWSC 1961
McCann v Ward & Burgess [2012] VSC 63
McCosker v McCosker (1957) CLR 566; 31 ALJR 779
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
McKinnon v Voigt [1998] 3 VR 543
Meres v Meres [2017] NSWSC 285
Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371
Oakes v Uzzell (1931) 100 LPJ 99
Onassis v Vergottis [1968] 2 Lloyd's Rep. 403
Oxley v Oxley [2018] NSWSC 91
Palin v Ponting [1930] P 185
Pavey & Pavey (1976) FLC 90-051; [1976] FamCA 36
Perrins v Holland [2009] EWHC 1945
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Plunkett v Bull (1915) 19 CLR 544
Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Price & Underwood (2008) 29 Fam LR 614
Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931
Re Martin; MacGregor v Ryan [1965] S.C.R. 757
RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270
Salmon v Osmond [2015] NSWCA 42
Sammut v Kleemann [2012] NSWSC 1030
Sangha v Baxter [2009] NSWCA 78
Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
State of NSW v Hunt (2014) NSWCA 47
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Steinmetz v Shannon [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Taylor v Farrugia [2009] NSWSC 801
Thompson v Bella-Lewis [1997] 1 Qd R 429; [1996] QCA 27
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22
Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136
Tyrrell v Painton [1894] P 151
Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573
Vaughan & Bele [2011] FamCA 436
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Verzar v Verzar [2012] NSWSC 1380
Vidler v Ivimey [2013] NSWSC 1605
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Winter v Crichton (1991) 23 NSWLR 116
Wintle v Nye [1959] 1 WLR 284
Woodley-Page v Symons (1987) 217 ALR 25
Yee v Yee [2017] NSWCA 305

Category:

Principal judgment

Parties:

2016/188756
Michael James Blendell (Plaintiff)
Denise Leanne Blendell (first Defendant/first Cross-Claimant)
Dominic James Blendell (second Defendant/third Cross-Claimant)
Julian Karl Blendell (third Defendant/second Cross-Claimant)
Nicholas Charles Blendell (fourth Defendant, submitting appearance)
Matthew Edward Byrne (fifth Defendant)

 

2016/302424
Matthew Edward Byrne (Plaintiff)
Michael James Blendell (Defendant)

 

2017/178792
Nicholas Charles Blendell (Plaintiff)
Michael James Blendell (Defendant)

 

2017/179996
Denise Leanne Blendell (Plaintiff)
Michael James Blendell (Defendant)

 

2017/182524
Julian Karl Blendell (Plaintiff)
Michael James Blendell (Defendant)

  2017/182545
Dominic James Blendell (Plaintiff)
Michael James Blendell (Defendant)

Representation:

Counsel:
2016/188756
Mr L Ellison SC and Mr D Liebhold (Plaintiff)
Mr M Young SC and Mr S O’Brien (Defendants)

 

2016/302424
Mr M Young SC and Mr S O’Brien (Plaintiffs)
Mr L Ellison SC and Mr D Liebhold (Defendant)

 

2017/178792
Self-represented (Plaintiff)
Mr L Ellison SC and Mr D Liebhold (Defendant)

 

2017/179996
Dr S Blount (with Ms E Yasumoto on 21 February 2019) (Plaintiff)
Mr L Ellison SC and Mr D Liebhold (Defendant)

 

2017/182524
Mr M Young SC and Mr S O’Brien (Plaintiff)
Mr L Ellison SC and Mr D Liebhold (Defendant)

 

2017/182545
Mr M Young SC and Mr S O’Brien (Plaintiff)
Mr L Ellison SC and Mr D Liebhold (Defendant)

   

Solicitors:
2016/188756
Prime Lawyers (Plaintiff)
Serenity Legal (1st, 2nd, 3rd and 5th Defendants)
Self-represented (4th Defendant)

 

2016/302424
Serenity Legal (Plaintiff)
Prime Lawyers (Defendant)

 

2017/178792
Self-represented (Plaintiff)
Prime Lawyers (Defendant)

 

2017/179996
Symons Lawyers (Plaintiff)
Prime Lawyers (Defendant)

 

2017/182524
Serenity Legal (Plaintiff)
Prime Lawyers (Defendant)

  2017/182545
Serenity Legal (Plaintiff)
Prime Lawyers (Defendant)

File Number(s):

2016/188756; 2016/302424; 2017/178792; 2017/179996; 2017/182545; 2017/182524

Judgment

Introduction

1. HIS HONOUR: For hearing, commencing on Monday, 18 February 2019, were six different actions, being, 2016/188756 and 2016/303424 (“the Probate proceedings”) and 2017/178792, 2017/179996, 2017/182524 and 2017/182545 (“the family provision proceedings”). All were contested proceedings in which, effectively, a father is pitted against his children in respect of the estate of his wife, who was their mother. There are obvious feelings of disappointment, antagonism, rage, and resentment, between at least three of the children, on the one side, and their father, on the other. The cases also demonstrate, once again, that contentious probate, and family provision, proceedings, reveal the drama of family rifts, which climax on public display, and which lay bare fault lines in the relationships. There can be little doubt that these proceedings have exacerbated family tensions and disharmony. Not for the first time, the Court has witnessed how a family can be irreparably divided on an issue such as inheritance.

2. As in all probate and family provision disputes, the personality, state of mind, desires, and prejudices of the central person, namely the deceased, her relationship with family members for whom she did, or did not, provide, and the reasons for the change in her testamentary dispositions, are all significant matters that the Court needs to examine, carefully, in order to come to a finding about the validity of the disputed Will. With the death of the deceased, most of these matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, per Poon J, at [51].

3. After introduction, I shall refer to the parties, who are family members who share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity. For the sake of economy of expression, I shall refer to the Will made by the deceased in 2015 in this way, whilst recognising that its status is in dispute.

The Nature of the Proceedings

4. The focus of the disputes that arise for determination in the Probate proceedings relates, principally, to whether a Will, duly executed on 22 July 2015 (“the 2015 Will”) is the last valid Will of Noeline Joan Blendell (“the deceased”). The deceased died on 20 June 2016, leaving property in New South Wales and in Kuala Lumpur, Malaysia. The original 2015 Will is Ex. A in the proceedings. It dealt with the disposition of the deceased’s property in Australia.

5. The Plaintiff in the first of the Probate proceedings is Michael James Blendell, the de jure spouse of the deceased at the time of her death. He commenced the proceedings by Statement of Claim filed on 13 September 2016. On 11 October 2016, the four children of the Plaintiff and the deceased, namely Denise Leanne Blendell, Julian Karl Blendell, Dominic James Blendell, and Nicholas Charles Blendell, filed a Defence disputing the validity of the 2015 Will.

6. At the date of the hearing, the principal protagonists/Defendants in the Probate proceedings were Julian, Dominic, and Denise. Nicholas filed a submitting appearance on 1 May 2018, in the Probate proceedings (although, at least initially, he was represented by the solicitors who represented, and who continue to represent, his three siblings in those proceedings).

7. Matthew Edward Byrne (“Mr Byrne”), as the sole executor named in an earlier Will, duly executed by the deceased on 13 June 2007 (“the 2007 Will”), also opposed Michael’s claim for Probate. He is described as the deceased’s financial adviser, and she is described, in the evidence, as his client. He was introduced to her by Nicholas. The original 2007 Will is Ex. 1 in the proceedings: Tcpt, 18 February 2019, p 3(30-40).

8. Mr Byrne did not attend the hearing at all, despite the fact that he is a party named in the Probate proceedings (and wrongly named, as the first Defendant, in the family provision proceedings by Denise). At the commencement of the hearing, Mr M W Young SC informed the Court from the Bar table that “[H]e is not here today. He is available by telephone and is intending to attend the proceedings later, but I appear for him”: Tcpt, 18 February 2019, p 4(21-22). Subsequently, senior counsel said “He didn't in fact set foot in court, are my instructions”: Tcpt, 25 February 2019, p 380(36-42). (I shall, hereafter, refer to Denise, Julian, Dominic and Mr Byrne, collectively, as “the Defendants”.)

9. In early August 2016, a general caveat was lodged, on behalf of all of the children, in the Probate Registry of this Court. The interest claimed in the caveat was as “the deceased’s children and we are the beneficiaries of a prior [W]ill of the deceased dated 13 June 2007”: Ex. 2/528.

10. On 13 September 2016, Mr Byrne commenced separate proceedings (2016/302424) seeking a grant of Probate in solemn form of the 2007 Will.

11. On 17 October 2016, the proceedings commenced by Michael came before Senior Deputy Registrar Brown in the Probate List. The Court made orders for the joinder of Mr Byrne as a Defendant; for service of an amended Statement of Claim naming Mr Byrne as a party/Defendant; directions for the filing and service of an amended Defence; and directions for the service of the evidence of each party.

12. On 24 October 2016, Michael filed an amended Statement of Claim, joining Mr Byrne as the fifth Defendant. On 31 October 2016, the Defendants filed their amended Defence. By the date of the hearing, the Defendants, who remained opposed to the grant of Probate of the 2015 Will, relied upon the fourth amended Defence to the amended Statement of Cross-Claim, which had been filed on 28 March 2018.

13. Michael filed his Defence to Mr Byrne’s Statement of Claim on 18 November 2016. In substance, he denied that the 2007 Will was the last Will of the deceased and asserted that it had been revoked by the 2015 Will.

14. It is accepted that if the 2015 Will is found to be the last valid Will of the deceased, then Probate of that Will, in solemn form, should be granted to Michael. It is also agreed that, in those circumstances, Mr Byrne’s proceedings must be dismissed. The issue of costs, in either case, is one left to be decided.

15. Then, for determination in Michael’s proceedings, will be the claim, made in an amended Cross-Claim, filed on 28 March 2018, pursuant to leave granted by Emmett AJA, on 23 March 2018, by Denise, Julian and Dominic, seeking a declaration that:

“[…the] executor is obliged to hold the property disposed to him as sole beneficiary…on constructive trust for the benefit of the …cross-claimants respectively and to dispose of it in accordance (and only to the extent of) the terms of Clauses 3(a) and 5 of the [2007 Will].”

16. The Cross-Claimants ask the Court to impose a constructive trust over all of the property of the deceased that Michael will receive pursuant to the 2015 Will on the basis that the gift of the property comprising the deceased’s estate to him was procured by undue influence in equity. I shall refer to the amended Cross-Claim as “the equity claim”. The Cross-Defendants named are Michael and Nicholas.

17. There is no dispute that the amended Cross-Claim proceeds to determination only if Probate in solemn form of the 2015 Will is granted, since, only then, would Michael be entitled to receive all of the property of the deceased. Then, the Cross-Claimants would have to prove that Michael had exercised undue influence, in the equitable sense, and that there is a basis for imposing a constructive trust. In this regard, the Cross-Claimants assert that there was actual, rather than presumed, undue influence: Tcpt, 18 February 2019, p 14(49) – p 15(3).

18. For determination, in the event that Probate in solemn form of the 2015 Will is granted to Michael, and the equity claim is unsuccessful, will be the separate claims for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”), brought by each of Denise, Julian, Dominic and Nicholas in the family provision proceedings. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.

19. Michael is the sole Defendant named in each of the family provision proceedings (other than the proceedings by Denise). He is the necessary, and proper, party, as he is the executor and sole beneficiary named in the 2015 Will. When the family provision proceedings are dealt with and determined, an order for administration will have been made in the Probate proceedings.

20. If the 2015 Will is not the last valid Will of the deceased, there is no dispute that the 2007 Will is her last valid Will, and that Probate, in solemn form, of that Will should be granted to Mr Byrne, the sole executor named therein. Then, the equity proceedings, and the family provision proceedings, by each of the children will also be dismissed, as none of the children seeks additional provision out of the estate of the deceased than the provision provided in the 2007 Will: Tcpt, 18 February 2019, p 4(50) – p 5(6). Michael has not made an application for a family provision order in that event.

21. At the hearing, Mr L J Ellison SC, with Mr D Liebhold, appeared for Michael in each of the matters in which Michael is a party. Mr M W Young SC, with Mr S O’Brien, appeared for Mr Byrne and each of the three children in the Probate proceedings, and for Julian and Dominic in his family provision proceedings respectively. Dr S Blount of counsel appeared for Denise in her family provision proceedings. Nicholas appeared, without legal representation, only on the third and fourth days of the hearing. He was a witness whose affidavit was read as part of Michael’s case, and he was cross-examined by the different counsel for his siblings.

16. The parties, well before the commencement of the hearing, had agreed that all of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. This was confirmed at the commencement of the hearing: Tcpt, 18 February 2019, p 5(8-33).

17. In my view, that was a sensible, and appropriate, course, as there are factual, and credit, issues, that are, or that may be, relevant to the different claims; there are some common questions that will arise, particularly in the family provision proceedings; the just, cheap and quick hearing of all of the matters in dispute will be facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, will be achieved: Uniform Civil Procedure Rules 2005 (NSW), r 28.5.

18. Shortly after the commencement of the hearing, with the consent of all parties, and in the exercise of the Court’s discretion, I made an order to that effect.

19. There is a wealth of contemporary documentary material relevant to one, or more, of the present proceedings. At the commencement of the hearing, in accordance with a direction made by the Court, there was tendered (Ex. 2) two folders of paginated documents, the contents of almost all of which were not the subject of objection by any party. There were additional documents tendered by one, or other, party, to which objection was not taken, added to the Exhibit during the course of the hearing. Documents, to which successful objection had been taken, were marked as “rejected” in Ex. 2. As well, during the course of the hearing, other documents were tendered and marked as separate exhibits. I shall refer to a number of these exhibits, also, in these reasons. (In all, over 700 pages of documents formed part of the evidence.)

20. (I have made extensive references to these documents in the hope that a detailed exploration of what the documents reveal about the deceased, over some years, will assist the members of this unhappy family either to lay to rest their grievances, or at least approach them from a more informed, and perhaps, balanced, perspective.)

21. Also, I have had the advantage of receiving outlines of submissions that were developed in oral submissions by counsel. I am grateful to the legal representatives for compiling the bundle of documents, as the documents contained therein have been extremely useful in the determination of the proceedings, as have the written submissions that were provided to the Court. I have taken the submissions into account.

22. All of the matters were listed, together, for 6 days and were completed on the afternoon of the fifth day. This was, at least, in part, because, during the course of the hearing, the family provision matter by each of Nicholas and by Denise was resolved. (It was not possible to make orders then as the orders will only be made after the determination of the Probate proceedings and the equity proceedings.)

23. The issues in the cases are many, and in part, reasonably complex, but, ultimately, are factual. However, it is impossible to rehearse all of the facts and all of the arguments advanced in these reasons.

The Wills made by the deceased

30. There were three Wills, executed by the deceased, in evidence. (There was reference by Michael to a Will made by her at, or about, the time of their marriage, but the original, or a copy, thereof was not produced.)

31. The first Will in time was the 2007 Will. This Will was professionally drawn, having been prepared by a firm of solicitors, Lodhia Lawyers, in Sydney. It was duly executed by the deceased. The attesting witnesses were Akash Lodhia, a solicitor, and Jackie Quan, an accountant.

32. Mr Lodhia affirmed an affidavit on 6 December 2016, which affidavit was read, in Mr Byrne’s case, confirming that the 2007 Will had been signed by the deceased, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased’s presence and in the presence of each other. Mr Lodhia was not cross-examined.

33. A copy of the Will Instruction Form to Lodhia Lawyers, which is undated, is in evidence: Ex. 2/42-44. In this document, there are no instructions explaining the reasons for making the limited provision for Michael in the 2007 Will. The only reference to a spouse is contained in the question “If married, would you like a mirrored Will for your spouse?” with the box “No” ticked.

34. In that Will, relevantly, the deceased:

1. Revoked all former Wills and testamentary dispositions: Clause 1;

2. Appointed Mr Byrne (in the Will, called Matthew Byrne) as the sole executor and trustee: Clause 2;

3. Gave a number of specific legacies, to Denise, to a granddaughter, Erika Chloe Blendell, who is the daughter of Julian, to her daughter-in-law, Joanne Blendell, the second wife of Julian, and to her friend, Suzanne Bethridge Pollock: Clauses 3(a) to (d);

4. Left a specific bequest of “[a]ll my furniture, clothes and personal effects not otherwise disposed of to my husband…”: Clause 3(e);

5. Left a pecuniary legacy of $25,000 to Erika, and one of $5,000, to each of four different charities: Clause 4;

6. Left the residue of her estate, both real and personal, wheresoever and whatsoever, upon trust, after payment of all of her just debts, funeral and testamentary expenses and all duties payable in any place in respect of her estate, or in consequence of her death, to Denise, Julian, Dominic and Nicholas, as survived her, as tenants in common in equal shares: Clause 5; and

7. Declared that any executor or trustee be given the sum of $10,000 “for his role as an executor”: Clause 8.

35. The remaining terms of the 2007 Will are immaterial.

36. There was no evidence of notice of Mr Byrne’s intended application for Probate of the 2007 Will having been published. At the commencement of the hearing, the Court was informed, without objection, that notice of the application had not been published: Tcpt, 18 February 2019, p 5(37-47).

37. The next Will in time made by the deceased was the 2015 Will. There is no dispute that Michael prepared this Will (although he asserted that he did so at the request of, and upon instructions from, the deceased). There is also no dispute that the deceased did not seek, or obtain, any professional, or other, advice, regarding the terms of the 2015 Will.

38. The 2015 Will had several effects. First, by revoking “all Wills and other documents of testimonial intent”, it undid the gifts made to the specific legatees and the gift of the deceased’s residuary estate to her four children equally, so that none of them receive any provision out of the estate of the deceased. Second, it removed Mr Byrne as the executor. Third, it effected the appointment of Michael as the sole executor and made a testamentary gift of the whole of the estate, real and personal, to him. Fourth, it provided that “[E]ach of our four children … and our granddaughter, Erika…may amicably select specific items from said collector’s items, ornaments, jewellery and heirlooms for his or her exclusive enjoyment…” subject to Michael’s right “to select and keep for his own enjoyment…any of said ornaments, collector’s items, or heirlooms”. Fifth, the deceased wished her remains to be cremated.

39. The 2015 Will comprised one page only. The attesting witnesses to the deceased’s signature on that Will were Mark Ashley Gallagher and Annabelle Louise Gallagher, both of whom were close friends of the deceased and Michael. Each swore an affidavit on 15 September 2016, which affidavit was read, confirming that the 2015 Will had been signed by the deceased, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased’s presence and in the presence of each other. Each was cross-examined and it will be necessary to return to his, and her, evidence, respectively, later in these reasons.

40. Each of the children, other than Nicholas, who gave evidence, and was cross-examined, stated that she, and he, respectively, was not aware of the terms of the 2015 Will until after the death of the deceased. It will be necessary to return to this topic later in these reasons.

41. Notice of Michael’s intended application for Probate of the 2015 Will was published on the New South Wales Online Registry website on 21 June 2016.

42. The last Will in time is one that is wrongly dated 12 June 2016 (“the 2016 Will”), it having been executed, in fact, by the deceased, on 17 June 2016. It is one made “for the purposes of disposing of all my movables and immovable situated in Malaysia”. Michael is the sole executor and sole beneficiary named in this Will.

43. The deceased did not sign the 2016 Will but placed a cross on the parts of the 2016 Will to evidence her signature. The attesting witnesses to the deceased doing so were Barry Deane Bulfin and Julie Meryl Bulfin, both of whom were neighbours of the deceased. Each swore an affidavit on 24 February 2017, which affidavit was read, confirming that the 2016 Will had been signed by the deceased by placing a cross on the parts of the Will to evidence her signature, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased’s presence and in the presence of each other. Neither of the attesting witnesses to the 2016 Will was cross-examined.

44. On 7 May 2018, the High Court of Malaya, at Shah Alam, granted Probate of the 2016 Will to Michael: Ex. 2/642-643.

45. In the List of Assets attached to the Probate document relating to the 2016 Will, certain real estate in Kuala Lumpur (“the Malaysian property”), to which I shall refer, and monies in banks in Malaysia (RM 5,982) and in the United Kingdom (£32,550), were identified as the property of the deceased.

46. The original of the 2016 Will was not in evidence, but a copy thereof is: Ex. 2/644-647.

47. The Act, in s 6, prescribes no particular mode by which a will-maker must sign a Will. As will be read, one purpose of the signature, or other subscription to a will, is to authenticate, or attest, its execution by the will-maker. On the face of the 2016 Will, by placing the cross, as her signature, at different appropriate places designated for her to place her signature, the deceased seemed to have intended to authenticate, and give effect to, the writing on the document as her Will.

48. Senior counsel for the Defendants confirmed that no proceedings had been brought to challenge the validity of the 2016 Will: Tcpt, 18 February 2019, p 58(16-19). On the third day of the hearing, the Court was informed that his statement did not mean that the three children might not, in the future, seek to challenge the validity of the 2016 Will.

49. Because I considered it was necessary, principally because Michael needed to know whether he was to be faced with other litigation, in another country, with the consequence that further costs would be incurred, I requested the Defendants to indicate whether they would be making any such application, in the future: Tcpt, 20 February 2019, p 196(20-28).

50. Following a short adjournment, during which senior counsel sought instructions, the Court was informed (Tcpt, 20 February 2019, p 196(44-45)):

“YOUNG: I'm instructed my clients are prepared to eschew any challenge to the [2016] will and to remove the caveat.”

51. In the final orders, there should be a notation to this effect. The agreement of the children to remove the caveat referred to (which caveat, apparently, is lodged on the title to the Malaysian property), should also be noted.

52. The deceased did not marry after any of the three Wills was made. At all times, she remained married to Michael.

The Witnesses

53. It is convenient, next, to identify the witnesses who gave evidence. The Court read, and heard, evidence from a number of the witnesses. There were affidavits read from each of the parties, as well as other persons, to whom the deceased had spoken, or with whom she had communicated, by email, and otherwise, particularly in the last 18 months or so of her life.

54. Michael was cross-examined for several hours over two days. It was squarely put to him that some of his evidence was intentionally false.

55. Nicholas affirmed an affidavit on 5 February 2019 that was read in Michael’s case. With leave, he gave some additional oral evidence in chief. He was cross-examined by senior counsel for the Defendants.

56. Mr Byrne swore a formal executor’s affidavit but otherwise gave no evidence. Surprisingly, in my view, he did not disclose, in that affidavit, anything about his professional relationship with the deceased either before, or after, 2007, or of any conversations that he may have had with her in, or after, 2014. There were a few copy emails, in Ex. 2, passing between the deceased and him. He was not cross-examined.

57. Each of Denise, Julian, and Dominic was cross-examined, albeit relatively briefly.

58. Michael’s witnesses were:

1. Mr Gallagher, who, as stated, was one of the attesting witnesses to the deceased’s signature on the 2015 Will, and who communicated by email with the deceased after that Will was signed, was cross-examined.

2. Ms Gallagher, the sister of Mr Gallagher, who, as stated, was the other attesting witness to the deceased’s signature on the 2015 Will, was also cross-examined.

3. Dianne Mary Gray, who was a friend of the deceased, having met her in 1972, gave evidence by affidavit and was cross-examined. They had kept in contact, reasonably regularly, until the deceased moved houses and Ms Gray moved to Tamworth in about 1980. Thereafter, they remained in infrequent contact until late 2014, when the deceased sent a Christmas card telling Ms Gray that she had been diagnosed with stage 4 lung cancer and tumours in her brain. They spoke regularly, almost weekly, throughout 2015 and 2016, unless the deceased was travelling.

4. Barry Deane Bulfin, a neighbour, who lived in a residence situated directly behind the Cremorne property, gave evidence by affidavit. He was not cross-examined. They met when the deceased moved into the Cremorne property. He knew from what the deceased had told him, that she was married to Michael and that he lived overseas. He kept an eye on the deceased and attended to any chores, or handyman tasks, with which she needed help. He was one of the attesting witnesses to the deceased making her mark on the 2016 Will.

5. Julie Meryl Bulfin, who is the wife of Barry Deane Bulfin, gave evidence by affidavit. She was not cross-examined. She was the other attesting witness to the deceased making her mark on the 2016 Will.

6. Margaret Holmes met the deceased in about 2007. They became friends and after the deceased became ill in November 2014, they continued to remain in regular contact by email, telephone, and in person. A number of the emails passing between them are in evidence.

Although the attendance of Ms Holmes was required, for cross-examination, senior counsel for Michael informed counsel for the Defendants, and the Court, on the afternoon of the third day of the hearing, that she was not available. Somewhat faintly, if I may say, senior counsel for the Defendants, submitted that her affidavit should not be used, but acknowledged that, if it was, the Defendants would not be prejudiced, particularly if two minor passages in the affidavit were not read. The two minor passages were not read by Michael, and in those circumstances, the Court “otherwise ordered”, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3), that the affidavit could be used.

7. Peter Murphy, Michael’s solicitor, gave evidence about the service of notice to adversely affected persons and of Michael’s costs of the different proceedings. He was not cross-examined.

59. For the Defendants, the additional witnesses, whose affidavits were read were:

1. Akash Lodhia, a solicitor, who was one of the attesting witnesses to the deceased’s signature on the 2007 Will. He was not cross-examined.

2. Joanne Cheri Blendell, who is Julian’s wife. She knew the deceased and Michael from about 2003. She is a conveyancing paralegal at a firm of solicitors carrying on practice at St Leonards. It is this firm of solicitors which, from October 2015, retained, and apparently, still retains, custody of the Certificate of Title for a property that the deceased purchased in Malaysia (to which reference will be made).

(Julian provided some evidence about Joanne’s financial resources in his affidavits. No objection was taken by Michael to that evidence even though it is hearsay evidence: Tcpt, 18 February 2019, p 60(18-19).) She was not cross-examined.

3. Ms M Cena, the solicitor acting for Julian and for Dominic, gave evidence about the costs and disbursements of each. She was not cross-examined.

4. Mr B Symons, the solicitor acting for Denise, gave evidence about her costs and disbursements. He was not cross-examined.

Background Facts

60. In claims such as these, factual context is necessary. It is convenient next to refer to some of the formal, and some of the background, facts, since these provide the context in which the issues in the Probate proceedings and the family provision proceedings arise. All of these facts are taken from the affidavits read in the proceedings, from the documents tendered in Ex. 2, or from the oral, or other, evidence, given during the hearing, most of which are uncontroversial. In relation to any facts that are in dispute, to which I refer, these background facts should be regarded as the findings of the Court.

61. (Some factual issues were raised by the three children, going, particularly, to Michael’s conduct during his marriage to the deceased, which became a focal point for his cross-examination. It is not necessary to resolve the collateral issues unless they are essential for a proper resolution of the main disputes. However, the evidence will be referred to later in these reasons.)

62. Michael was born in London, England, in November 1944. He is, currently, 74 years of age.

63. The deceased was born in Palmerston North, New Zealand, in May 1943. She was aged 73 years at the date of her death.

64. Michael and the deceased met in London in April 1963. They were married in March 1966. They remained married at the time of the deceased’s death, over 50 years later. (There is a dispute about the nature of their relationship after their marriage, particularly from about 1992, when the deceased left Hong Kong, where she and Michael had been residing, and returned to live in Australia. It will be necessary to return to this topic later in these reasons.)

65. At the time of their marriage, neither the deceased, nor Michael, had much by way of assets. Prior to 1966, the deceased had been employed as a private secretary, to an accountant, in London. From about 1966, until her death, she never engaged in paid employment. Michael was the principal breadwinner. (This is not to suggest that the deceased did not, otherwise, make a significant contribution, financial and non-financial, to the matrimonial relationship and no such suggestion had been made by Michael.)

66. Following their marriage, the deceased and Michael moved to New Zealand to live. Denise was born in Auckland in April 1968, and is now 51 years old. Julian was also born in Auckland, in January 1970, and is now 49 years old.

67. Following Julian’s birth, the deceased and Michael returned to Australia to live. Dominic was born in Sydney, in June 1976, and is now almost 43 years old. Nicholas was born in Sydney, in June 1978, and is now almost 41 years old.

68. At the end of 1982, Michael moved to Hong Kong to take up an employment opportunity as the financial editor of the South China Morning Post. The deceased followed, with their three sons, in early 1983, and, a year or so later, Denise followed (as she had been attending high school in Sydney).

69. In November 1985, Denise left Hong Kong, where the rest of the family remained living, to live in Australia. The other members of the family remained living together in Hong Kong until about 1992, when the deceased, Julian and Nicholas returned to Australia, when Nicholas was enrolled at Scots College, in Sydney. Michael and Dominic remained living in Hong Kong, where Dominic finished his secondary schooling.

60. On 29 October 1998, Michael granted a General Power of Attorney to the deceased, which Power of Attorney was registered on 6 November 1998.

61. Julian was married to Kimiko on a date not disclosed in the evidence. They divorced in about 2003. Julian then married Joanne in September 2006. However, she had met the deceased and Michael some years before the marriage. There are no children of their marriage, although each has a child, or children, from a former marriage. Julian’s daughter, Erika, who was born in September 2000, lives with her mother. Joanne has two children, each of whom is an adult, and neither of whom lives with Joanne and Julian.

62. On 13 June 2007, the deceased executed a General Power of Attorney, in favour of Julian, which he accepted on the same date. The evidence does not reveal that the Power of Attorney was revoked prior to the deceased’s death.

63. In an email dated 21 October 2015, the deceased wrote to Dominic stating “…Your father went today and I have Jo and Julian looking after me for ten days”: Ex. 2/391. (This was a few months after the deceased signed the 2015 Will). Julian, apparently, stayed overnight, with the deceased, in the deceased’s home in Cremorne, for a period of some days, then, and again, in December 2015, whilst Michael was overseas. These are matters that are said to demonstrate the close and loving relationship that existed between the deceased and Julian. They also demonstrate, in my view, at least two, different, opportunities that the deceased had, when Michael was not present in Sydney, to make any complaint about having executed the 2015 Will, or to otherwise to complain about Michael’s conduct in relation to the creation, or execution, of that Will.

64. Dominic lived in Hong Kong until he moved to Malaysia in 2002. He married Swe Zin Aung, in April 2013, but they separated in about January 2016. There are no children of their marriage.

65. On 3 December 2013, the deceased granted a Power of Attorney to Dominic in Malaysia: Ex. 2/70-73.

66. Dominic did not return to Sydney between February 2015 and November 2015, although, during this period, there was regular email correspondence between him and the deceased. When in Sydney, he was attentive to the needs of the deceased and saw her regularly.

67. On 19 March 2015, the deceased wrote an email to Dominic confirming that she had appreciated all the work he had done in relation to the purchase of the Malaysian property and acknowledged that it had not been an easy purchase: Ex. 2/232. In an email dated 26 March 2015, she wrote that she had put $1,000 into his “Care Super Account” as a “contribution in appreciation of the work you have done on the flat”: Ex. 2/239.

68. These matters are said to demonstrate the close and loving relationship that existed between the deceased and Dominic. Similarly, in my view, they also demonstrate the opportunities that the deceased had, when Michael was not present, to make any complaint that she had about the 2015 Will, or otherwise complain about Michael’s conduct in relation to the creation, or execution, of that Will.

69. Nicholas, so far as is known, is unmarried. He had been in a relationship with Kirri, but shortly before Christmas, 2015, he told the deceased and Michael, that they were “splitting up”. So far as is known that occurred.

70. Each of the children asserts, and Michael agrees, that she and he, respectively, had a very good relationship with the deceased. Michael, specifically, states that “Noeline’s relationship with Denise was fundamentally close and loving” and that “Dominic was a devoted and caring son of Noeline before she died”.

Property Transactions during the deceased’s lifetime

81. The deceased and Michael purchased their first home in Allambie Heights, a suburb of northern Sydney, in December 1973, for $38,400. (This property was sold, in about February 1997, for $301,000. Any debts, secured by mortgage registered on title, had been repaid many years before its sale.) (On 25 November 1996, Michael granted a General Power of Attorney to the deceased, which was registered on 12 December 1996, to be used solely “to execute such documents as are necessary and/or incidental to the sale of [the Allambie Heights property]”: Ex. 2/5.)

82. In September 1992, a home unit, at Manly, a beachside suburb of northern Sydney, was purchased by the deceased as to a 65 per cent share and by Michael as to a 35 per cent share, for $202,500. The purchase was funded, in part, by their savings and in part by moneys borrowed from Hongkong Bank of Australia. The debts secured by the mortgage were repaid by about 1995. This property was sold for $400,000 in about February 1999: Ex. 2/12. Apparently, the deceased retained all of the proceeds of sale.

83. In July 1997, the deceased and Michael purchased, as joint tenants, a town house at Cranbrook Avenue, Cremorne, in northern Sydney, for $440,000. The purchase price was provided, partly of savings, and partly from the proceeds of sale of the Allambie Heights property.

84. In June 1999, Michael transferred his interest jointly held with the deceased in the Cranbrook Avenue property, to her for nil consideration. He stated that he did so as part of their “arrangements to separate our personal affairs by removing me from any Australian owned assets and the deceased from our international assets, which included my closing her offshore bank accounts”. This property was sold by the deceased in about October 2007 for $840,000. Apparently, the deceased retained all of the net proceeds of sale.

85. In May 1999, the deceased purchased, in her sole name, a property situated at Yeo Street, Neutral Bay, a suburb of northern Sydney, for $562,000. The purchase price was paid, at least in part, from joint funds, the sale of other assets, and the retained income (by way of rent and interest) that had been received by the deceased. Following its purchase, the deceased moved into this property.

86. Michael states that when he visited Australia, he and the deceased, together, would entertain guests at the Yeo Street property. The deceased sold this property in April 2007, for $885,000. Apparently, the deceased retained all of the net proceeds of sale.

87. At the hearing, Michael gave evidence that in March 2002, he purchased in his sole name, a property in Southfields, London. When asked, he could not remember the purchase price. It was the deceased who chose this property. The deceased would stay in this property if she was in London.

88. The Southfields property was sold, in late April 2017, for £450,000, despite the prompting by the deceased in emails sent at various times in 2014 to Michael, suggesting the property should be sold. He received, and retained, all of the net proceeds of sale.

89. In December 2002, the deceased purchased, in her sole name, an investment property at Ben Boyd Road, Neutral Bay, for $362,000. The purchase price was paid from borrowings secured by mortgage registered on the title to this property. This property was sold, by the deceased, in March 2013 for $495,000. Apparently, after discharging amounts due under the mortgage, the deceased retained the balance of the net proceeds of sale.

90. In March 2007, the deceased completed a Nomination of Beneficiaries Form in respect of her Navigator Personal Retirement Plan. She nominated her four children as the equal beneficiaries. Mr Byrne was a second witness to the deceased’s signature on this document: Ex. 2/37-40.

91. In 2010, the deceased purchased, in her sole name, a property situated at Waters Road, Cremorne (“the Cremorne property”), for $1,350,000, in which she lived for the remainder of her life.

92. Michael acknowledged that the deceased did not consult him on the purchase of the Cremorne property. Denise gave evidence that, at a birthday dinner, Michael had said that he should have been consulted but that the deceased had said she did not have to consult him, as “it was a surprise”.

93. There is evidence that Michael paid some of the expenses incurred on the Cremorne property following its purchase.

94. The above transactions demonstrate, in my view, the continuing financial inter-relationship of the deceased and Michael, before, and after, 1992, the year in which the Defendants assert that they separated.

The nature and value of the estate of the deceased

95. In the Inventory of Property attached to Michael’s affidavit of executor sworn 13 September 2016, the property owned solely by the deceased, at the date of her death, in New South Wales, included the Cremorne property (estimated in the Inventory of Property to be $1,750,000), cash in bank ($1,475,200) shares in public companies (estimated in the Inventory of Property to be $116,520), and personal effects and household furniture ($20,000). The estimated value of the estate was disclosed as being $3,361,520. (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any apparent mathematical errors.)

96. (In an affidavit of executor sworn on 3 October 2016, Mr Byrne estimated the deceased’s estate, in New South Wales, to have a value of $3,619,720. The principal differences in value (compared with Michael’s affidavit) appear to relate to the Cremorne property, the value of which Mr Byrne estimated to be $2,000,000, and the household items, clothing and personal effects, the value of which he estimated to be $28,000.)

97. In addition to the property of the deceased in New South Wales, Michael referred to the real estate in Kuala Lumpur, Malaysia (estimated in the Inventory of Property to be $250,000) (“the Malaysian property”). The deceased entered into a contract to purchase this property, in her sole name, in late December 2013. However, the purchase took 18 months to complete.

98. As stated earlier, the deceased appointed Dominic to be her Attorney to assist her in the completion of the purchase. He assisted her to obtain foreign consent to purchase the Malaysian property and managed the funds that she provided to enable the completion of the purchase. He also assisted in the management of the Malaysian property after it was purchased.

99. The total gross value of the deceased’s estate at the date of her death, in New South Wales, and overseas, was estimated to be $3,611,720.

100. The liabilities of the deceased, at the date of her death, totalled $1,011 and were for unpaid utilities and unpaid Council rates.

101. Michael affirmed an affidavit on 29 January 2019 in which he set out the then current nature and value of the deceased’s estate. At the hearing, the parties agreed that the deceased’s estate comprised the Cremorne property ($1,700,000), cash in different bank accounts ($1,583,887), shares in different public companies ($51,920, $13,100, and $31,700), and personal effects and household furniture ($20,000). In addition, there is the Malaysian property ($300,000). Thus, the gross value of the deceased’s estate, at the date of hearing, was agreed to be $3,700,607.

102. In the affidavit, Michael also stated that between 21 June 2016 and 26 June 2016, he had accessed one of the deceased’s bank accounts and had transferred to an account in his name, the amount of $90,000, which he had retained. He also revealed that between 23 June 2016 and 30 August 2016, he had accessed another of the deceased’s bank accounts and had withdrawn three amounts, totalling $1,300.

103. Michael disclosed that he had paid to each of Denise, Dominic and Nicholas the amount of $10,000, and to Julian, the amount of $15,000, out of the estate of the deceased. (The amount was transferred from the deceased’s account into Michael’s account and then paid to each of them.) Although each of the sums were deducted, initially, from the deceased’s estate, Michael does not seek to recover any of the amounts from the recipient and each will be an amount that the child of the deceased has received out of her estate, respectively, following the death of the deceased.

104. On the second day of the hearing, senior counsel for Michael confirmed that the amounts paid to the children (in total, $45,000) had been paid out of the moneys that Michael had withdrawn from the deceased’s bank account. Senior counsel also stated that at least some of the balance ($46,300) had been used on account of his costs of the proceedings.

105. On the final day of the hearing, the Court was asked to treat the whole of the $46,300 as having been paid on account of Michael’s costs of the proceedings even though a part of it may have been used to pay funeral expenses: Tcpt, 25 February 2019, p 414(15-28).

106. The parties agreed that the estimated costs and expenses of the sale of the Cremorne property will be about $50,000: Tcpt, 19 February 2019, p 102 (45-49).

107. It follows that for the purposes of the proceedings, the value of the estate of the deceased, excluding any of the costs of the proceedings (other than the amount of $46,300 referred to above), will be $3,650,607.

The Family Provision Proceedings

108. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, each of Julian, Denise, Nicholas and Dominic, is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”).

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

110. As the deceased has dealt with all of her estate, both in New South Wales and elsewhere, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

111. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). There is no property that is sought to be designated as notional estate. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

112. There was no suggestion that there are any eligible persons, other than Michael and the four adult children of the deceased. Only each of the children of the deceased has made a claim for a family provision order. However, Michael is a beneficiary named in the 2015 Will who has given evidence of the bases of his claim on the bounty of the deceased. As the Defendant named in each Summons, I am satisfied that he is well aware of the family provision proceedings, and of the Court's power to disregard his interests.

113. Michael is entitled to, and did, elect to remain silent about his financial resources and needs, respectively. He simply looks to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to him, as a beneficiary, regardless of his financial resources or needs: see Meres v Meres [2017] NSWSC 285, at [85].

114. The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim: s 61. He is entitled to rely upon the terms of the 2015 Will and his competing claim as a chosen object of the deceased’s testamentary bounty.

115. In Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles that apply in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

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

116. Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].

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

118. As stated above, the consequences of not disclosing the beneficiary’s financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by each child, the Court will not disregard the competing interest of Michael as a beneficiary who has a claim upon the bounty of the deceased and as a chosen object of the deceased’s bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.

Costs of the Proceedings

119. I shall next refer to the estimated costs of the proceedings. Bearing in mind the contests are essentially between a father and his children, the estimated costs and disbursements of the parties are eye watering.

120. Michael’s costs and disbursements, calculated on the indemnity basis, in the Probate proceedings, are estimated to be $370,000. His costs and disbursements, again calculated on the indemnity basis, of all of the family provision proceedings are estimated to be $90,000.

121. As stated earlier, the amount of $46,300, from the funds of the deceased, has been used on account of his costs and disbursements in the proceedings. It follows that the balance of Michael’s costs and disbursements, of all proceedings, are estimated to be $413,700.

122. The Defendants’ costs and disbursements, calculated on the ordinary basis, in the Probate proceedings, are estimated to be $220,000, inclusive of GST. On the third day of the hearing, senior counsel, without objection, sought, and was granted leave to file in Court, an affidavit sworn on 20 February 2019 by Ms Mena, in which the costs and disbursements of Denise, Julian, Dominic and Mr Byrne, of the Probate proceedings and the equity claim were estimated. Their costs, calculated on the indemnity basis, were estimated to be $270,000.

123. Ms Mena also disclosed in the affidavit that $161,695 had been paid on account of the costs and disbursements in the Probate proceedings, of which $25,368 had been paid by Nicholas, with the balance being paid equally ($45,442 each) by Denise, Julian and Dominic. However, in relation to Denise, she is said to owe Julian $42,339, whilst Dominic is said to owe Julian $9,266. (In addition, Julian is said to owe $33,440 to Joanne.)

124. It follows that subject to costs orders being made, Julian is owed about $51,565 by his two siblings on account of their costs in the Probate proceedings which he has paid on their behalf, but he owes Joanne, $33,440 for advances that she has made to him on account of the costs of the proceedings.

125. Denise's costs and disbursements, calculated on the ordinary basis, of the family provision proceedings, in an affidavit sworn on 19 December 2018, by Mr B F Symons, her solicitor, are estimated to be approximately $78,000 plus GST. The estimate of $85,800 has been used as the total amount of those costs and disbursements, inclusive of GST.

119. (At the commencement of the hearing, for the first time, the Court was informed, without objection, that Denise had entered into a conditional costs agreement with her solicitors: Tcpt, 18 February 2019, p 11(49) – p 12(15). This had not been disclosed in her solicitor’s affidavit as to costs, as it should have been: Anderson v Hill [2017] NSWSC 1149 at [35]-[38], and at [40]-[41]; Oxley v Oxley [2018] NSWSC 91.)

120. Julian’s costs and disbursements, calculated on the indemnity basis, in the family provision proceedings, are estimated by Ms C Mena, to be $40,000 plus GST. At the hearing, senior counsel informed the Court, without objection, that Julian’s costs and disbursements, calculated on the ordinary basis, were estimated to be $33,000, inclusive of GST.

121. Dominic’s costs and disbursements, calculated on the indemnity basis, in the family provision proceedings, are estimated by Ms Mena, his solicitor, to be $40,000 plus GST. At the hearing, senior counsel informed the Court, without objection, that Dominic’s costs and disbursements, calculated on the ordinary basis, were estimated to be $33,000, inclusive of GST.

122. Nicholas' costs and disbursements, calculated on the ordinary basis, of the family provision proceedings, are estimated to be $24,000. (However, as stated, he has paid $25,368 on account of the costs and disbursements in the Probate proceedings.)

123. From the above, the costs and disbursements, if the estimates prove accurate, total $855,800, of which $46,300 has been paid out of the deceased’s estate on account of Michael’s costs.

124. It should be distressing to the parties that such amounts have been incurred in what is, ultimately, a dispute between family members. This is not to criticise the lawyers involved, as the parties, themselves, appear to have chosen to conduct the proceedings in an extremely adversarial manner.

125. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, 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.

126. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that 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.

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

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

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

136. If all of the costs of the Probate proceedings and of the family provision proceedings were ordered to be paid out of the estate of the deceased, as well as the lump sum payable to Nicholas ($300,000), and the lump sum payable to Denise ($420,000), since they have resolved his, and her, proceedings, respectively, the parties agreed that the value of the balance of the deceased’s estate would be approximately $2.17 million. It follows that the value of the estate is reasonably large.

137. All counsel requested that the Court not deal with the question of the costs of the Probate proceedings and the costs of Julian’s and Dominic’s family provision proceedings, until after the reasons for judgment have been delivered and considered, as there are, or there may be, documents tendered by one, or more, of the parties, going to how the burden of costs ought to be borne.

138. Even though Uniform Civil Procedure Rules, r 29.4 provides that unless the Court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising from every claim for relief in the proceedings, in the circumstances stated, I shall abide the request even though there will be additional costs incurred in the further argument if the issue of costs cannot be resolved between them. See Grygiel v Baine [No 2] [2005] NSWCA 434, at [12], per Basten JA (Mason P and Bryson JA agreeing).

139. Following this judgment, it would be beneficial to the parties if they attempt to agree on the amount of costs to be paid, and by whom, in relation to all of the matters to avoid further time being spent, and costs being incurred.

Notice to adversely affected persons of the Probate proceedings

140. An affidavit affirmed on 25 January 2019, by Mr Murphy, solicitor, satisfies me that notice of the Probate proceedings has been given to each of the beneficiaries of the 2007 Will who would be adversely affected if the 2015 Will is found to be the last valid Will of the deceased, other than Suzanne Pollock. None of the pecuniary legatees named in the 2007 Will has filed an Appearance, or otherwise sought to be joined in the Probate proceedings.

141. In relation to Mrs Pollock, I am satisfied, from the evidence of Mr Murphy, that the chattels she was to receive under the 2007 Will either no longer exist, that they were provided to her during the lifetime of the deceased, or that they have been politely declined by her after Michael’s request for her to accept same after the deceased’s death.

142. All of the persons interested in the making of a grant of administration of one, or other, of the 2007 Will and the 2015 Will, have been given a fair opportunity to be heard.

The 2015 Will and the parties’ assertions in respect thereof

143. Michael’s case is that the 2015 Will is a simple document and that its dispositions are rational. He submits that the evidence overall, including the evidence of Nicholas (to which reference will be made), demonstrates that the deceased knew, understood and approved, the terms of the 2015 Will. He also relied upon the “involvement of the two attesting witnesses to the 2015 document and the status the deceased gives to the document when she invited those two people to participate in the process of witnessing her signature”: Tcpt, 18 February 2019, p 16(5-13). He also relies upon other matters that were the subject of dispute to which reference will later be made.

144. It is next worth noting that there is no suggestion that the deceased lacked testamentary capacity at the time she made the 2015 Will. However, it was accepted that this does not imply, necessarily, that she knew and approved the contents of the 2015 Will.

145. Also, it was really not in dispute that there are circumstances, or features, in the present case which mean that knowledge and approval of the 2015 Will cannot be presumed merely upon proof of due execution and of the testamentary capacity of the deceased (both of which matters are not in dispute), with the result that the Court ought to be “vigilant and jealous” in examining the evidence when considering the issue of knowledge and approval.

146. I shall next summarise the defences and the foundations of the assertion that the 2015 Will is not the last valid Will of the deceased. None of the Defendants has any personal knowledge of the circumstances under which the 2015 Will came into being.

147. In broad summary, the submission is made that “…there are circumstances that, collectively, give rise to a well-grounded suspicion that the 2015 Will does not express the mind of the testator”. The circumstances relied upon are:

1. The 2007 Will made no provision at all for Michael, dividing almost all of the estate between the deceased’s children;

2. Michael was involved in both the preparation, and the execution, of the 2015 Will;

3. Michael is the sole beneficiary under the 2015 Will;

4. There was no lawyer, or other professional adviser, involved in the preparation or execution of the 2015 Will; and

5. The 2015 Will was prepared, and executed, whilst the deceased was suffering from terminal brain cancer, which weakened her in both mind and body.

148. The Defendants then submit that the doubt raised by the suspicious circumstances has not been removed, as:

1. No solicitor, whether independent or otherwise, was involved at any stage of the drafting, or execution, process, in relation to the 2015 Will;

2. The only evidence of any attempt to communicate to the deceased the contents or effect of the 2015 Will comes from Michael and involves conversations between the deceased and Michael;

3. No attempt was made to have any person, other than Michael, explain the draft 2015 Will to the deceased or to ensure she understood its nature or effect; and

4. The witnesses to the 2015 Will did not observe the deceased read the 2015 Will; did not witness the 2015 Will being read, or explained, to the deceased; and did not hear any statement indicating that she knew of, or agreed with, the contents of the 2015 Will.

149. Thus, in broad terms, the alleged suspicious circumstances relied upon are that there was a radical departure from a previous testamentary instrument (the 2007 Will); that the sole beneficiary was the controlling force in the preparation and execution of the 2015 Will; and that any reading over of the 2015 Will, if the deceased did, in fact, read it, is insufficient to enable the Court to conclude that she knew and approved of the terms of the 2015 Will.

150. On the issue of undue influence in the Probate proceedings, the Defendants submitted that:

1. The 2015 Will was prepared in such a way that very strongly favoured Michael, to the extent of him obtaining the entire estate when previously he received virtually nothing under the 2007 Will. No person in his circumstances could act in a disinterested fashion in relation to the preparation of the new Will;

2. There was no involvement at all of any solicitor, and no attempt to arrange for any person other than Michael to talk over with the deceased, the proposed distribution scheme of the 2015 Will or to provide any advice, however incomplete or inadequate;

3. Michael is a man who was, or had been, involved in the management of major corporations both in Australia and overseas and who possessed an assertive personality, a person who was successful and who was used to exercising authority. He took it upon himself to turn such conversations as he is found to have had with the deceased about her testamentary intentions into the document that is now propounded as the 2015 Will, at a time when the deceased was suffering from declining health and had a condition that would lead to her death;

4. The idea that all of the deceased’s property should be bequeathed to Michael, apparently, came from Michael himself. His evidence at paragraph [21] of his September 2016 affidavit is to the effect that one day in “early 2015”, the deceased said she wanted to change her will and that Michael said “I’ll draft one for you once you make up your mind exactly how you want to divide your assets, as I have hitherto”. The conversation referred to in the first affidavit contains no instructions from the deceased as to who the beneficiaries were to be, yet, at paragraph [22] of the affidavit, Michael stated that “[A] short time after this discussion above, I typed a draft of a will and presented it to the deceased.” Thus, on his own evidence, Michael drafted a will without any prior instruction to do so, which provided for the entire estate to pass to only him. He then saw to it that the will he had drafted was executed by the deceased;

5. In an affidavit affirmed on 22 February 2017, at paragraphs [46]-[48], Michael seeks to adhere to his previous evidence, but also states that it was the deceased who suggested to him “[i]n or around July 2015” that she wanted to leave her entire estate to him because “[t]hat is the simplest way to avoid a challenge”. He does not explain the chain of events leading to the first draft of the 2015 Will being prepared;

6. Michael suggests in his evidence that the deceased proceeded to make the 2015 Will because she held one, or both, of the following views:

1. It was less risky than making direct gifts to her children out of her estate to provide for them directly, thereby relying upon Michael to distribute that estate fairly and appropriately amongst those children; or

2. There was less risk of a challenge to her will if she made a new will without the involvement of a solicitor, completely disinheriting her children and leaving everything to Michael than if she simply left in place her existing will prepared in 2007 with the assistance of a solicitor.

7. It is difficult to imagine that “any reasonably intelligent person would hold these false (and verging on the ridiculous) view without encouragement by another, seeming more knowledgeable, person”. If the deceased ever, in fact, held these views, it is inherently likely that she only held them due to Michael encouraging her to do so and keeping her from any adviser (such as a solicitor) who would disabuse her of those views;

8. Whilst it may be that Michael did what he did for financial gain, there is no need for such a finding in order to determine that there was probate undue influence; and

9. The balance of probabilities favours the notion that probate undue influence was employed by Michael in relation to the 2015 Will, and thus probate of that Will should not be granted to him.

151. (Although fraud in Probate had been alleged in an earlier amended Defence, the allegations of fraud were excised from the fourth amended Defence and the defence of fraud, in Probate, as a ground for invalidating the 2015 Will, does not need to be considered further.)

The Equity Claim

152. In relation to undue influence in equity, the Defendants submitted:

“40.   The primary submission of the Defendants is that it is unnecessary to import the doctrine of equitable undue influence into a testamentary context as the doctrine of probate undue influence is broad enough to cover the situations in which the doctrine of equitable undue influence could potentially be applied in relation to the making of a will. The Defendants only raise the doctrine of equitable undue influence in case the Court takes a narrow view of the scope of probate undue influence such that the probate doctrine is insufficient to protect the interests of persons in the position of the Defendants.”

153. Yet, the submissions continue (with appropriate amendments):

“44.   The Defendants’ cause of action is one of actual undue influence, and does not seek to rely upon any presumption. The Defendants contend that the notion of probate undue influence is at least co-extensive with actual undue influence in equity (if not more extensive), and if that submission is accepted then there is no occasion to import the equitable doctrine into a testamentary situation. If the Court were, however, instead to find that probate undue influence is less extensive than actual equitable undue influence, it would be necessary to do justice to persons in the Defendants’ position that the doctrine of actual equitable undue influence be applied in the manner Lindsay J suggests in Boyce v Bunce such that a constructive trust be imposed over Michael’s share of the estate.

45.   The present case is not one in which a single gift in a will is affected by undue influence (so that the appropriate remedy would involve a trust for the benefit of the residuary beneficiary at whose expense the gift was made) but is rather a case in which the entire 2015 Will was brought into existence via undue influence. Thus if a remedy is granted for equitable undue influence, the appropriate remedial constructive trust to be imposed is a trust whereby Michael’s share of the estate is held beneficially for the beneficiaries of the 2007 Will in the same proportions as those beneficiaries would have taken under that will. By that means equity would bring into being the same situation as if the 2015 Will had never been made.”

154. The substance of the equity claim is that from about December 2014 until her death, Michael “assumed a position of ascendancy or domination over the deceased who was vulnerable to his influence”, as a result of which “the deceased was unable to exercise her free and independent judgment [sic] in executing [the 2015 Will] disposing of her estate to [Michael] as sole beneficiary contrary to the intention expressed in the [2007 Will] disposing of her property in favour of her children”.

155. Michael, of course, denies the allegations made against him.

Settlement of the family provision claim by Denise and by Nicholas

156. In relation to the claim for a family provision order by Nicholas, the following passages appeared in Michael’s written submissions dated 12 February 2019, provided to the Court:

“5.   On 18 October 2017 Nicholas accepted an offer by the defendant to conclude Nicholas’ family provision proceedings on the basis Nicholas receive provision out of the estate of the deceased in the amount of $300,000 plus costs on the ordinary basis.

6.   The settlement is conditional upon the 2015 will being admitted to probate and is ‘without prejudice’ to Nicholas’ rights to pursue probate of the 2007 will, although Nicholas has since filed a submitting appearance in those proceedings.

7.   Nicholas has been unrepresented since 20 June 2018.

8.   The settlement between Nicholas and the defendant is not consented to by the remaining family provision plaintiffs.

9.   It is asserted by those plaintiffs there is a real risk the estate assets will be insufficient to meet the claims of the plaintiffs if the settlement with Nicholas be approved.”

157. During the course of the first day of the hearing, senior counsel for Dominic and Julian, and counsel for Denise, stated that instructions had been received that, in the event that the 2015 Will is found to be the last valid Will of the deceased, and in the event that the equity proceedings are unsuccessful, no objection would be taken to an order being made that Nicholas receive, by way of provision, out of the estate of the deceased, the lump sum of $300,000 as well an order that his costs, calculated on the ordinary basis, out of the estate of the deceased be paid: Tcpt, 18 February 2019, p 58(39-44); Tcpt, 18 February 2019, p 59(46) – p 60(1).

158. On the last day of the hearing, senior counsel for Michael handed up Short Minutes of Order that had been agreed. As none of the affidavits by Nicholas had been read, the Court required the parties to identify the affidavits, or parts of the affidavits, that were to be relied upon, to enable the family provision orders to be made in his case. This was done, without objection, following the conclusion of the hearing.

159. (The affidavits filed in the family provision proceedings, commenced by Nicholas, were not read, as he did not appear when the cases were called on for hearing. Presumably, since he had filed a submitting Appearance in the Probate proceedings, and had reached agreement in respect of his family provision proceedings, he did not consider it necessary to appear. I have read the affidavits, filed in his family provision proceedings, in order to consider whether the orders in his favour should be made.)

160. Late on Friday, 22 February 2019, the Court was informed in an email from junior counsel for Michael, that Denise and Michael had also reached a settlement of Denise’s family provision proceedings, which settlement was intended to be binding only in the event that the 2015 Will was found to be the last valid Will of the deceased. A copy of the proposed orders to be made was also provided.

625. In Vigolo v Bostin, at [51], it was noted that “in the case of large estates, provision can be made for the well-to-do”.

626. In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], wrote:

“… where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, [the court may] order further provision beyond the immediate and likely future needs of the applicant… providing a ‘nest egg’ to guard against unforeseen events.” (Footnotes omitted)

627. Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]:

“The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff.”

628. The size of the estate is but one factor, among many, which the Act requires the Court to take into account, in the evaluation suggested by s 60(2) of the Act, wherever it is relevant.

629. In relation to the claims, each being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109].

3. Generally, also, “the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia, at [58].

4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker (1957) CLR 566; 31 ALJR 779; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58].

5. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].

6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, at 149.

630. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox [2014] NSWCA 392, at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].

631. The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

632. In Foley v Ellis [2008] NSWCA 288, at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

633. Michael, who is the sole beneficiary, is not an applicant for provision. He does not have to prove an entitlement to the provision made in the deceased’s Will for him, or otherwise justify such provision. Nor does he have to explain the decision by the deceased to make the provision that she did for him in her Will.

634. But, as previously stated, Michael has not advanced his claim on the basis of financial considerations. He has given no evidence of his financial resources or needs.

Qualifications on “Principles”

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

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

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

637. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]:

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

638. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon, at [37]. They must be remembered.

Determination of the Family Provision claims

639. Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of each of Denise, Nicholas, Julian and Dominic, has not been made by the 2015 Will of the deceased.

640. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.

641. There was no provision in the deceased's Will made for each of the deceased’s children. However, this does not, automatically, mean that she, or he, will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being “left without adequate provision” even though no, or little, provision is made for her in the deceased’s Will.

642. Yet, judged by quantum, and looked at through the prism of Denise’s and Nicholas’ financial circumstances and needs, as stated, I am satisfied that adequate provision for her, and his, proper maintenance or advancement in life has not been made by the 2015 Will of the deceased. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

643. The Court is required to make an assessment of the financial position of each applicant, the size and nature of the deceased’s estate, the relationship between each and the deceased, the competing claim of the others, and of Michael, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].

644. Some estates are simply not large enough to make an order for provision. However, in this estate, there is enough to do so. Nevertheless, in Smith v Johnson, the Court of Appeal held that it was a miscarriage of the judge’s discretion to order provision which exceeded the plaintiff’s needs.

645. Having considered the matters I am required to consider, I am satisfied that an order giving effect to the settlement reached in relation to each of Denise, and of Nicholas, should be made.

646. I am also persuaded that inadequate provision has been made by the 2015 Will of the deceased for the proper maintenance and advancement in life of Julian. In reaching this conclusion, as I have already stated that the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.

647. I have made an assessment of Julian’s financial position, the nature of the deceased's estate, the relationship between him and the deceased, the competing claims, particularly of the deceased’s other children and of Michael, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them. In this case, the value of the estate is reasonably large, and is sufficient to make provision for the persons to whom the deceased owed some form of testamentary duty.

648. The more difficult question then arises, namely what provision “ought to be made for his maintenance, education or advancement in life”, having regard to the facts known to the Court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

649. Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgement that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that Julian should receive a capital sum for exigencies of life.

650. In coming to the conclusion on the quantum of the provision to be made for him, the deceased’s entitlement to testamentary freedom is, of course, important and has been given significant weight in reaching my conclusions.

651. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child’s life and into retirement. Furthermore, the amount of provision that I consider adequate and proper will not impact upon the other pecuniary beneficiaries, but will reduce the residue of the estate passing to Michael, who has not given evidence of his financial resources and needs. However, I have weighed the very substantial contribution, as the spouse of the deceased of a very long marriage and his claim upon the bounty of the deceased in reaching my conclusion on the quantum of provision.

652. In coming to the conclusion on the quantum of provision to be made for Julian, I have also taken into account, amongst other things, the value of the estate; the competing claim of all of the family members; his close and loving relationship with the deceased; his direct contribution to the welfare of the deceased; the fact that Julian, at the date of hearing, has an earning capacity that cannot be regarded as entirely secure, and that whilst he does have an apartment, which provides him with an income to supplement his other income, it is mortgaged.

653. The provision for the proper maintenance and advancement in life of Julian that ought to be made, in my view, is by way of a lump sum of $240,000. This will enable him to reduce, almost completely, his mortgage debt with the consequence that he will have significantly greater available monthly income. Alternatively, it will provide him with a capital sum for exigencies of life. The lump sum also takes into account the respective financial circumstances of each of Denise and Nicholas, the value of the deceased’s estate, and Michael’s claim, as the chosen object of the deceased’s bounty.

654. I have found the most difficult aspect of this case to be the claim for a family provision order by Dominic, who, in my view, chose, for reasons known only to himself, to not disclose, completely, the current value of his shareholding. He was made aware of the potential consequences of not doing so in the correspondence to which I have referred.

655. Against that, I have borne in mind that he did, at least, disclose the existence of his shares in the company, and his financial position otherwise; his close and loving relationship with the deceased; the reasonably significant, direct, non-financial contribution made by him in assisting the deceased in relation to the purchase, and retention of the Malaysian property, which contribution was acknowledged by her; his direct contribution to the welfare of the deceased; and the competing claim of all of the other family members.

656. On balance, although the case is a borderline one, I have concluded that the provision made for Dominic is neither adequate, nor proper, in all the circumstances.

657. The calculation of the lump sum that I propose to order takes into account, amongst other things, the value of the estate, the respective financial circumstances of each of the other claimants on the bounty of the deceased, that Nicholas did not disclose, fully, his financial circumstances at the date of hearing, and that Michael did not disclose, completely, all of his financial circumstances.

658. Weighing all in the balance, considering wisdom, justice and current community values, the provision for the proper maintenance and advancement in life of Dominic that ought to be made, in my view, is by way of a lump sum of $140,000. This amount will enable him to reduce his mortgage debt, if he chooses to, with the consequence that he could have additional available monthly income. Alternatively, it will provide him with a lump sum for exigencies of life.

659. I do not accept that the deceased owed to him, in all the circumstances of this case, the type of provision upon which submissions were made by his counsel.

660. I propose to order that each lump sum payable to Julian and Dominic should be paid at the same time as the amounts that are payable to Denise and to Nicholas.

661. In view of the fact that the costs of the Probate proceedings and Julian’s and Dominic’s family provision proceedings need to be the subject of further argument, I am unable to deal with the costs of any of the proceedings.

662. I shall, in the meantime, identify, for the consideration of the parties, a provisional form of orders, in each matter, that I would be prepared to make. I have used the form of orders provided by the lawyers for Nicholas and Denise. The lawyers should discuss any proposed amendments and provide any agreed amendments to my Associate within 7 days. If possible, terms as to paying the lump sum, and otherwise, in each case, should be the same or at least similar. In the event of dispute, argument on the orders can be heard at the same time as the costs argument.

Proceedings 2016/188756

1. Orders that Probate in solemn form of the Will dated 22 July 2015 of Noeline Joan Blendell, be granted to Michael James Blendell, the executor named therein.

2. Remits the matter to the senior Deputy Registrar in Probate to complete the grant.

3. Orders that the amended Statement of Cross-Claim, filed on 28 March 2018, be dismissed.

4. Orders that the Exhibits, other than Ex. 1 and Ex. A, which should be retained in the Court file, should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

5. Notes the agreement of the parties that the Defendants will not make any claim to revoke the grant of Probate of the 2016 Will of the deceased in Malaysia.

6. Orders that the Defendants remove, or cause to be removed, the caveat that has been lodged on the title to the Malaysian property within 14 days of the date of the making of these orders.

7. Orders that the determination of the costs of these proceedings be reserved for further argument.

Proceedings 2016/302424

1. Orders that the Statement of Claim filed on 11 October 2016 be dismissed.

2. Orders that the determination of the costs of these proceedings be reserved for further argument.

Proceedings 2017/178792 - Nicholas’ claim

1. Orders, having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, that he receive, by way of provision, out of the estate of the deceased, a lump sum of $300,000.

2. Orders that the Plaintiff’s costs, calculated on the ordinary basis, of the proceedings be paid out of the estate of the deceased.

3. Orders that the costs of the Defendant, calculated on the indemnity basis, of these proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

Proceedings 2017/179996 – Denise’s claim

1. Orders that Matthew Edward Byrne be removed as the first Defendant in the proceedings.

2. Orders, having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, that she receive, by way of provision, out of the estate of the deceased, a lump sum of $420,000.

1. Orders an amount equal to any costs for which the Plaintiff may be liable to her own lawyers (such amount not to exceed one-third of the total solicitor-client costs as may be agreed or assessed) in associated proceedings 2016/188756 and 2016/302424, be paid out of the estate of the deceased.

2. Makes no order as to the Plaintiff’s costs to the intent she pays her own costs of the proceedings.

3. Orders the Defendant’s costs, calculated on the indemnity basis, of these proceedings, be paid, or retained, as the case may be, out of the estate.

4. Orders no interest is to accrue on the lump sum at (b) above if paid by the earlier of (i) three months from the making of the grant of probate of the 2015 Will; or (ii) sufficient funds being called into the estate to enable payment.

5. Orders no interest is to accrue on the amount payable at (c) above if paid within 14 days following assessment of the Plaintiff’s costs in the associated proceedings.

6. Notes the agreement between the Plaintiff and the Defendant in the following terms:

1. In the event that the Plaintiff, Julian Karl Blendell, Dominic James Blendell, Nicholas Charles Blendell and/or Matthew Edward Byrne are ordered to pay any of the Defendant’s costs in proceedings 2016/188756 and 2016/302424, the Defendant:

a.   Will not enforce any costs order as against the Plaintiff; and

b.    Will, in the event the Plaintiff is a co-debtor arising out of an order for costs against her in respect of proceedings 2016/188756 and/or 2016/302424, indemnify the Plaintiff against any claim by Julian Karl Blendell, Dominic James Blendell, Nicholas Charles Blendell and/or Matthew Edward Byrne for contribution to the payment of the costs order.

2. The intent of these orders and notations is that the Plaintiff will receive an amount of $300,000, net of any costs that she is, or becomes, liable to pay, arising out of proceedings 2016/188756, 2016/302424 and 2017/179996, or becomes otherwise liable to pay.

Proceedings 2017/182524 – Julian’s claim

1. Orders, having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, that he receive, by way of provision, out of the estate of the deceased, a lump sum of $240,000.

2. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

3. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

4. Orders that the determination of the costs of these proceedings be reserved for further argument.

Proceedings 2017/182545 – Dominic’s claim

1. Orders, having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, that he receive a lump sum of $140,000 out of the estate of the deceased.

2. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

3. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

4. Orders that the determination of the costs of these proceedings be reserved for further argument.

663. The argument on the costs of the proceedings, and any argument on the form of the provisional orders, will be listed for hearing at a date convenient to the parties and the Court at the time of these reasons being published.

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Decision last updated: 21 May 2019