Boardman v King - [2018] NSWSC 230

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Boardman v King & Anor [2018] NSWSC 230
Hearing dates: 16, 17 & 18 October 2017
Date of orders: 01 March 2018
Decision date: 01 March 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Provision for the plaintiff in the form of a legacy of $1,300,000 ordered to be paid out of the deceased’s estate. Legacy to be borne: as to $1,000,000, in the amount of $250,000 equally by each of the four of the deceased’s grandchildren; and as to the remaining $300,000, equally by Ruth King and Max Boardman in the amount of $150,000 each.

Catchwords: SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three sons and a daughter – another daughter pre-deceases the deceased leaving four children – the deceased’s estate comprises a single farming property and other investment properties – the investment properties are given under the deceased’s will to his grandchildren, the children of his deceased daughter – the remaining property, the farming property, was split up between the surviving children – the plaintiff worked on the farming property for a lengthy period prior to the deceased’s death – the deceased’s will divided the farming property into two parts – the better land on which the principal farming buildings are erected on higher ground was given to the two surviving older children, the eldest son and a daughter – the lower and partially flood prone land with no farm buildings was given as tenants-in-common to the plaintiff and his twin brother – the plaintiff claims that his capacity to earn a living in farming from the land given to him under the will is severely impaired – whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision needs to be made for the plaintiff out of the estate of the deceased – if further provision needs to be made for the plaintiff, what is the nature and quantum of that provision.
Legislation Cited: Conveyancing Act 1919, s 66G
Practice Note Supreme Court Eq 7
Succession Act 2006, ss 57 and 59
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category: Principal judgment
Parties: Plaintiff: Rex Stephen Boardman
First Defendant: Ruth Christine King
Second Defendant: Maxwell Charles Boardman
Representation:
Counsel:

Plaintiff: G. McGrath
First & Second Defendants: D.M. Flaherty

Solicitors
Plaintiff: Vera Pantovic, Gordon Cavanagh Solicitors
First & Second Defendants: Lance Allan Watson, Caldwell Martin Cox

File Number(s): (2016/178295)
Publication restriction: No

Judgment

Rex Stephen Boardman, the plaintiff, claims provision out of the estate of his late father, Victor Maxwell Boardman (“the deceased”) under Succession Act 2006, Chapter 3. The defendants, Ruth Christine King and Maxwell Charles Boardman, two other children of the deceased and the deceased’s executors, resist his claim.
This judgment decides: (1) whether Rex Boardman has been left without adequate provision for his maintenance, education and advancement in life out of the estate of the deceased; and (2) if he has been left without adequate maintenance, education and advancement in life, what order should be made in his favour for provision out of the deceased’s estate so as to make adequate provision for him. These reasons conclude: on issue (1), that the plaintiff has been left without adequate provision; and on issue (2), an order for further provision should be made in Rex Boardman’s favour in the sum of $1,300,000.

The Deceased’s Family, His Estate and His Will

The deceased and his late wife, Joan Gladys Boardman, had six children. From oldest to youngest they were: Coral Lynette Jensen (who died in 2002); Vicki Boardman (who died at the age of two); the defendants, Ruth Christine King and Maxwell Charles Boardman; the plaintiff, Rex Stephen Boardman and the plaintiff’s twin brother, Kevin Elwyn Boardman. Coral Jensen left four surviving children, Melinda, Julieanne, Jeffrey and Mark.
The deceased died on 14 June 2015 aged 93. His will made on 12 December 2014 (the “will”) appointed Ruth King and Max Boardman as his executors.
On 21 January 2016, the Court granted probate of the will. The value of the deceased’s distributable estate before the deduction of costs and administration fees was estimated, just before hearing, at $16,101,213.05.
The will gave a gift of $250,000 to the deceased’s wife, Joan Boardman, and a conditional right of residence to her in the deceased’s principal residence at the time of his death (clauses 3 and 7). But Joan Boardman only survived the deceased a short period. She died on 12 September 2015, aged 87. The legacy to Joan would have been distributed by her will to her four living children and the children of her deceased child, Coral.
The balance of the deceased’s estate was distributed among his four surviving children, Ruth King, Max Boardman, Rex Boardman and Kevin Boardman, and four named grandchildren, being the children of his late daughter Coral Jensen.
The principal assets of the deceased’s estate were two groups of properties: the first, a single working farm property in Camden known as “Fairview”; and the other, a pair of investment properties at Narellan and Orangeville. Fairview has been in the Boardman family for four generations, since it was purchased from a member of the Macarthur family in 1888. Under his will, the deceased gave the investment properties at Narellan (three adjoining factory blocks) and Orangeville (vacant rural land) to his four grandchildren (clause 6). The deceased’s daughter Coral had long pre-deceased him, so his 2014 will named them, Melinda, Julieanne, Geoffrey and Mark as beneficiaries of these two investment properties in equal shares as tenants-in-common.
The deceased gave the farming property, Fairview, to his four surviving children, but after dividing it into two parts (clauses 4 & 5). The plaintiff, Rex Boardman, had worked on Fairview for over 10 years prior to the deceased’s death. The first part of Fairview was the better and higher land on which the principal farm buildings are erected, comprising three separate contiguous titles: being lots 19/1104103, 1/507466 and 162/819731 (referred to respectively in the proceedings and in these reasons as “Lot 19”, “Lot 1” and “Lot 162”). This land was given as tenants-in-common in equal shares to Ruth King and Max Boardman (clause 5).
The other part of Fairview, comprised of Lots 17 and 18 in deposited plan 1104103 (referred to in the proceedings and these reasons as “Lots 17 and 18”) is lower and partially flood-prone land, upon which no farm buildings are presently erected. Lots 17 and 18 were given to the deceased’s youngest twin sons, Rex Boardman and Kevin Boardman as tenants-in-common in equal shares (clause 4).
The deceased’s distributable estate was valued in an executor’s affidavit sworn on 19 September 2017 at $16,101,213.05. The substantial proportion of this value is in the real estate already identified. There was some contention in the proceedings about the value of these properties, which will be referred to in more detail below, but those differences were either resolved or were not material to the Court’s decision.
The deceased disposed of a number of other assets by the will. He left his interest in his partnership farming business with his wife (“VM and JG Boardman”), including the partnership’s cattle and farm equipment to his four children in equal shares as tenants-in-common (clause 8) and a museum collection of restored and unrestored cars, motorbikes, tractors, farm machinery, old and antique tools and horse-drawn vehicles to Max Boardman, who with the deceased, had a strong interest in the restoration of these antique and historical items (clause 9). The value of this collection was in issue in the proceedings.
Finally, after these various specific gifts the deceased left the residue of his estate to his four children and his four grandchildren in equal shares as tenants-in-common (clause 10). Each child and grandchild received a one-eighth share of the residue.

The Proceedings and the Parties’ Contentions

These proceedings were commenced by Summons filed on 10 June 2016 within 12 months of the deceased’s death, and therefore within the time prescribed under the Succession Act. The plaintiff is an eligible person under Succession Act, s 57(c), as a child of the deceased.
The plaintiff’s case may be shortly stated. It is not in contention he is the only one of the deceased’s surviving children who farmed Fairview and has the skills and experience to continue farming. But he contends: that the part of Fairview which he was given (as a tenant-in-common with Kevin Boardman, namely lots 17 and 18) is not a viable parcel for farming purposes; that his possession of it is inherently unstable as he holds it only as a tenant-in-common with Kevin; that further capital (which he does not have) would be required to prepare it for farming; and that as a man in his early 60s, he still has a continuing capacity to conduct farming operations; and that he does not have the education, training or experience to turn his hand to any occupation other than farming. He says, therefore, that he has been left without adequate provision for his maintenance, education and advancement in life.
The relief he seeks is framed in three alternative ways. He claims that the Court should award him provision out of the estate by: (1) gifting him the better land, being Lots 162, 19 and 1; (2) selling Fairview and distributing the proceeds in proportions that give him more than the current value of his interest in Lots 17 and 18; or (3) awarding a sum to supplement the present value of his interest in Lots 17 and 18 (the market value of which is estimated at $2.2 million), so he can acquire a farm elsewhere and farm independently of the family.
The executors resist any grant of relief to the plaintiff. They submit that the deceased has made adequate provision for him under the will by the gift of the half-share in lots 17 and 18.
After the deceased’s death, with the permission of the executors, Rex Boardman continued to farm Fairview, which is a mixed farm comprising cattle grazing, cropping, poultry production and a piggery. Fairview remained unsold at the time of proceedings. But the investment properties in Orangeville and Narellan have been sold, yielding approximately $4 million in net proceeds.
These proceedings were heard on 16, 17 and 18 October 2017. Mr G. McGrath of counsel appeared for Rex Boardman. Mr D. N. Flaherty of counsel appeared for the executors.
All of the witnesses in these proceedings came from the one family. They often referred to one another by their first names. From time to time the Court will do the same, without intending any disrespect to any family member.

Credibility of Witnesses

The Court is required to make some assessment of the credibility of the principal witnesses to make findings about aspects of the Boardman’s family history set out in the narrative below. Before undertaking that narrative, the Court gives an overall account of its impressions of the witnesses.
Rex Boardman. The plaintiff was single-minded when it came to Fairview. He did not readily recognise the separate interests of his siblings. Their interests were of little importance to him, compared with his desire to manage Fairview in the Boardman family name into the indefinite future. He showed little interest in his siblings choosing to take their inheritances elsewhere. His vision for Fairview was for him to run it on some ill-defined trust for the benefit of the whole family. But when questioned about how this structure would operate, he could not clearly specify what else his siblings could do with their interests in Fairview for their own financial future.
But he was an honest witness. He was not driven to consciously distort matters based on self-interest. But he did over-simplify anything that conflicted with his personal vision for the future of Fairview. His vision about that hypothetical future tended to distort his judgment a little and made him an imperfect witness on perspectives that conflicted with that vision.
But Rex’s passion for Fairview made him an excellent witness in other respects. He has deep personal experience in farming and at Fairview in particular. He remains the best qualified of the deceased’s children to give evidence about suitable farming practices on Fairview and its general locality and the Court has generally accepted his testimony about such matters.
Kay Scarlett. The plaintiff is married to Ms Kay Scarlett. The Court found her to be an intuitive and articulate witness. She has excellent verbal skills, as might be expected from the senior publishing figure she is. She wrote copy for her husband’s websites. Ms Scarlett was a witness of truth. She was reliable on matters of detail and demonstrated realistic judgments. The Court accepts her evidence, which supported her husband’s account.
Ms Scarlett has an uncertain financial future in publishing. She is supportive of her husband’s farming career and has close insight into the personal fulfillment that farming gives him.
Maxwell Boardman. Max Boardman was a one-dimensional witness. He had little natural interest in farming. He could not explain what he would do with Lots 1, 19 and 162 on Fairview, if the will were to remain as it was. He tended to fall into the role of the didactic older brother. He took a surprisingly unsympathetic view of his younger brother’s needs for a property to farm for a living. He did not have any clear idea how Rex would operate Lots 17 and 18 as a farm but he seemed to think that he would manage somehow.
Max denied pressing his father to change his will adversely to Rex. The Court accepts that denial. The deceased seemed to keep his testamentary intentions private and away from all his children. It seems inherently unlikely that, in the circumstances, the deceased would have revealed enough information about his will to Max for Max to be able to pressure the deceased to Rex’s disadvantage.
But the Court finds below that Max suggested to Rex that he should make a “settlement” with his father, “like Kevin” had done. He suggested this, I infer, because he was well aware that Rex was not being paid by the deceased for his work on the farm and should have sought recompense during his lifetime.
Max was not a dishonest witness. But his evidence about his brother, Rex, must be treated cautiously. He was reluctant to make any concessions in Rex’s favour, even on matters where the facts were clear. He saw the plaintiff as fundamentally undeserving of any greater testamentary indulgence from the deceased or at the hand of the Court.
Ruth King. Ms King was a reasonable and reliable witness. She always attempted to tell the truth. She was genuinely surprised that she and her sister Coral’s family were so fully recognised under her father’s will. In an outlook that appeared to reflect generosity of spirit, she said that she thought that their father would give Fairview and the other properties all to his three sons. She had a reasonably objective view of the family members and was a good historian of Boardman family life.
Except where it only records the parties’ submissions, the narrative of facts below contains the balance of Court’s findings on uncontested and contested issues of fact. For reasons of practical economy, the narrative does not always set out evidence that the Court has not preferred.

The Boardman Family – 1948 to 2017

The Early Years

The deceased and his wife Joan Boardman married in 1947. They established a business partnership, VM & JG Boardman, through which they ran their farm, “Fairview”, in Camden.
Their eldest child Coral was born in 1948. In the years that followed, the Boardmans had five more children: Ruth (born 1950), Maxwell (born 1953), Vicki (born 1955), and the twins, the plaintiff and his brother Kevin (born 1956). Vicki died as a very young child in 1957. Coral died in 2002.
The plaintiff grew up on Fairview with his surviving siblings. Ruth left Fairview when she married at 18 years of age in 1968. Max remained at Fairview until he married in 1978.
Rex says, and I accept, that his contribution to Fairview began when he was a child by working on the dairy after school and on weekends. He would also work with the livestock and perform cropping duties during the school holidays. Rex says that his siblings “did not participate in the farm work on a regular basis”. But in my view the plaintiff has selective memory on this issue. His evidence tends to underplay the contribution of his siblings to the farm and to the welfare of his parents. This evidentiary tendency starts with his account of his early life.
In contrast Max says, and I accept, that he assisted on Fairview until the age of about 25 by feeding and milking the cows and performing general farm duties. Max then worked part-time in the Fairview dairy whilst he worked part-time as a carpenter, after completing a carpentry apprenticeship.
But Rex denies this. He says that his older brother never undertook dairy farming at Fairview. But I prefer Max’s account. Apart from my preference for Max’s recollection on this matter, it is inherently more probable. By all accounts the deceased, though indulgent to a degree, could at times demand high standards from his children. It is improbable that he would have allowed one child to escape a fair share of farm work.
The Court accepts Ruth’s account that she also assisted their parents with regular chores at Fairview while she was growing up. Her chores included: fence repairs, milking cows, chopping wood and cooking.
Kevin grew up with his siblings on Fairview. He confirms, and I accept, that all the Boardman children performed chores on Fairview either before or after school, at weekends and during school holidays; chores that included cooking and general farm duties.
Rex’s narrative of this early period weakened a little. He did at least concede that all of the Boardman children “provided different levels of assistance” at Fairview “at odd times” by performing chores in the household and on the farm.
After experiencing a carpentry apprenticeship that he did not wish to continue, Rex worked at Fairview for about 18 months in 1974-1975. Citing discontent with the deceased being prepared to “increase my involvement in the farm business” in the mid-1970s, he temporarily left Fairview and worked in rural Queensland. Whilst away he performed contract work including: mustering, fencing, crop cultivation and harvesting during that time. He returned to Fairview by 1979. He commenced living in a cottage at Fairview with Julie Webb, whom he married in 1981. Upon Rex’s return to Fairview, the deceased paid him what Rex says, and I accept, was a minimum wage for his farm work, in addition to accommodation at Fairview.
Rex and his wife Julie had two children by 1982. They separated in 1984 and divorced in 1990.
Rex had trouble supporting his young family on the wage the deceased was paying him. So he left the farm again in 1982 and worked in more highly paid work in graphic reproduction. He returned briefly in 1983-1985. But he found that the minimum wages his father was paying had not changed. And he and his father once again fell into conflict about farm management practices on Fairview. So he and his family again moved to Queensland, where he obtained rural work.

Kevin and Fairview

Kevin filled the gap at Fairview that Rex had left. Kevin lived on Fairview until he was 21. When he left high school at 17 he entered the car body building, spray painting and panel beating industries. He has depended on that industry as his primary source of income ever since. Kevin’s financial position is discussed in more detail later in these reasons.

Kevin married his wife, Kristina, when he was 22. They have three adult children. In about late 1992 or early 1993 when Rex was still in Queensland, Kevin reached an important arrangement with the deceased that was never replicated with Rex. I accept that at about that time the deceased approached Kevin and suggested that Kevin cease fulltime work as a panel beater/car repairer to come and work on Fairview to manage the dairy herd there. At that time Kevin (and indeed his twin brother Rex) was about 36 and the deceased 70.
Kevin was then living in Bargo, on the Southern Tablelands, in a house that he and Kristina owned. Kevin agreed with the deceased that he would come to work on Fairview as a dairy farmer and manage Fairview. But he was only prepared to do so, on the basis that the deceased transferred to Kristina and him a block of land adjacent to Fairview.
That is what happened. Kristina and Kevin commenced a new life as dairy farmers on Fairview. The deceased transformed a block of land (carved out of Lot 162 and facing onto The Old Oaks Road) to Kevin and Kristina. They built a house on the land. They still live there. Kevin and Kristina kept the regular business income from the dairy herd. But the arrangement between them was that the deceased was entitled to the proceeds from any cattle sold from the dairy herd. Kristina supplemented their family income with part time work elsewhere.
The milk industry in New South Wales was deregulated in about the year 2000. This made dairy farming on Fairview far less economic and changed the financial dynamic of the property. Faced with these pressures, Kevin ceased working there on a full-time basis.
The deceased was unhappy with this development. He resumed control of the dairying operation on Fairview from Kevin. Relations between the deceased and Kevin were strained for a while. They disagreed on the investment required to make Fairview a viable dairy operation. Their disagreement about modern farming practices to a degree resembles the tension which had developed over a decade earlier between Rex and the deceased that ultimately led to Rex migrating to Queensland. But eventually Kevin and the deceased’s relationship improved and they remained on good terms.

Rex Returns to Fairview

Rex remained in Queensland until about 1998, when he moved back to the Bega district on the New South Wales South Coast, where he lived and farmed. Between 1998 and 2004, as he was within driving distance of Camden (albeit about 5 hours each way), he began to visit Fairview from time to time to help the deceased, who was becoming frail and less able to cope with the heavier farming tasks. During those visits he performed farming duties for his father as circumstances required.
But these regular visits from Bega were not enough. Rex says, and the Court accepts, that in 2004 the deceased requested that he return to Fairview to work on the farm. This request was prompted by his father’s recognition that his health was declining. He had been making statement to Rex for some time to the effect, “I’m useless. I’m getting too old to do this on my own. It’s too much for me.” Rex claims, and I accept, that his father repeatedly said to him “I don’t know what is going to happen to the farm. I can’t do it anymore and none of the others will help me” and that he eventually said in 2004 more directly, “I can’t manage on my own. You need to come back and help me.” The Court accepts the deceased probably said these things. After all Rex did come back.
Rex agreed to help, as he realized that his father was facing a very difficult period. Initially this required him to make a 10-hour trip from Bega up to Fairview in Camden every alternate week to perform unpaid work such as emergency repairs, weed-clearing, feeding the cattle on the farm and general maintenance work on the main Fairview residence to keep it safe. He restored fencing, cleared noxious weeds, prepared the property for planting and undertook the many tasks that were now too heavy for his father. And from that year he worked the farm regularly.
Rex also met Kay Scarlett in 2004. They married the following year and moved to the Camden district. In 2005 Rex also commenced work at Fairview on a full-time basis and without wages. He gave up his part-time job working as a milker and caretaker in Bemboka, near Bega. He says he returned to work at Fairview on the basis that he understood he would be compensated by his father. He did run some of his own cattle on Fairview. But the compensation Rex though his father had in mind was much wider.
Rex also claims the deceased said in the same context, “you’ll get it [Fairview] in the end”. This is contested. The defendant is not in a position to dispute directly what Rex says. I accept Rex’s evidence that the deceased may have said something of this general character. But exactly what the deceased was conveying by words of this kind is a matter that requires more subtle analysis in context. I do not accept that the deceased conveyed to Rex that Rex would receive the whole or a substantial part of Fairview to farm to the exclusion of his siblings or to have charge of Fairview’s agricultural operations in a way that meant Ruth, Max and Kevin were tied to Rex’s management of Fairview and were without proper structure to enjoy their inheritance from Fairview. There are many reasons to doubt that the deceased would have said any such thing.
First, to draw such an inference is simply not consistent with the fact that the deceased made not just one but two wills in the last years of his life, in which he made clear that he wanted Max and Ruth to enjoy the benefit of Lots 162, 1 and 19 and that Rex would have to share Lots 17 and 18 with Kevin.
Nor is Rex’s case that the deceased made these promises very consistent with the deceased’s own attitudes to his children as expressed through the notes that were made at the time that he gave instructions for his last two wills. These notes are considered in more detail below under the heading “The Deceased’s Instructions for His Wills”. The notes are instructive in showing the value (for different reasons) that the deceased placed on his relationships with Max and Ruth. They also show the deceased held a degree of anxiety that Rex had not been able to accumulate assets, as the deceased’s other children had. The overall picture of the deceased’s outlook that these documents give makes it quite unlikely that the deceased would have ever contemplated entrusting the whole agricultural enterprise at Fairview to Rex. In my view, the objective evidence tends to suggest that the deceased really doubted that Rex would have the capacity to manage such a large responsibility for the benefit of his siblings.
The Court is not confident that Rex’s evidence on the subject of these promises should be accepted. This is one area where Rex’s sense of historical destiny at Fairview has clouded his recollection and allowed him to interpret the deceased’s statements as benefiting him over his siblings. A statement such as “You’ll get it in the end” was, in my view, only to be taken as a general statement of the obvious: that after the death of the deceased that Rex was likely to share Fairview with his siblings. But I nevertheless accept that this statement, vague though it was, did induce Rex to come back and start working at Fairview on terms that were less than advantageous to himself.
Rex describes his duties from this time. I accept his evidence that his work involved “planning and executing all routine seasonal activities including: growing and harvesting of crops for livestock; making hay and silage; preparing paddocks; preparing seed saved from previous harvests; mulching, weed and pest management; fence rebuilding, repairs and maintenance; and animal husbandry, selective breeding and general herd management”.
I accept Rex’s evidence that since 2005 he has undertaken a wide variety of duties on behalf of the deceased at Fairview. He has: represented his father in local matters; completed all regulatory requirements for Fairview; tagged cattle; kept currency for farm chemicals; conducted burning off; established a climate change monitoring site on Fairview; secured land grants from Landcare; ensured veterinary care for livestock; dealt with local saleyards; conducted bi-annual fertilising; coordinated fencing contractors; wrote submissions (together with his wife Kay) to the Valuer-General in relation to land tax; and initiated low-impact pasture improvement. Rex also used his own funds to purchase bulls to improve the quality of the herd and to otherwise plan the development of livestock on Fairview.

The Deceased and Joan Boardman Become Ill

Ruth King says that in 2004 her care for the deceased and her mother increased sharply. She says, and I accept, that she became her parents’ primary carer. She says she would take them on regular shopping trips and would increasingly attend to their washing and other household and personal duties. I accept her close care for them continued until their deaths in 2015.
Rex Boardman strongly contests Ruth’s evidence as to this. He says that because Ruth was regularly rostered on night shifts in her retail job, she had limited availability to care for the deceased. Whilst I accept that Rex was involved in administering their parents’ medication, monitoring blood sugar levels and taking them to appointments, in my view Rex did not really notice the extent of his sister’s work for their parents, work which the deceased clearly recognized in his instructions for his will.
The deceased suffered from a stroke in 2006. Following surgery at Liverpool Hospital and rehabilitation, he returned to Fairview. But from this time on he required substantial personal assistance. Rex says he became his father’s official carer from this time. Rex did indeed receive a pension of approximately $100.00 per fortnight as a carer for his father between 2006 and 2013. But he did not receive payment to undertake his work on the farm during that time. His wife, Kay, supported him financially.
This health scare led to the deceased speaking to Kay Scarlett and confessing he had “left a bit of a mess”. Kay spoke to Ruth about this and Kay referred the deceased to Mr Ken Searle, a solicitor at Marsdens, about making a will. But by 2009 the deceased had not made a will to replace one he had made about 30 years earlier. Some of the deceased’s instructions to to Mr Searle had been over critical of Rex’s work ethic. Ms Scarlett ended up paying the deceased’s legal bill with Mr Searle.
Ruth contests that the plaintiff was the primary carer for the deceased and their mother. She concedes that Rex received a carer’s allowance. But she says his contributions extended to arranging appointments in around 2006. Her account is that she was the primary carer for their parents for approximately 15 years. In this contest, I mostly accept Ruth’s account for several reasons: Rex was good at outside work, Ruth was credible on this issue, and in evidence well across the detail of what her parents needed personally during this period.
Joan fell ill and had a stroke in 2008. The family, including Rex and Kay, Ruth and her daughter and son-in-law all helped to improve the home at Fairview before Joan was discharged from hospital. Rex described the home as being in a “total state of disrepair”. Over a period of about 10 days, he says he helped to perform repairs and prepared the home for tradespeople to install a septic tank.
This was a truly joint effort. Ruth says, and I accept, that she and her children attended to and paid for significant improvements to the home at that time, including remodeling the bathroom, installing a flushing toilet and laying new carpet.
This too is contested. Rex denies Ruth remodeled the bathroom. But he does concede her daughter and son-in-law tiled the bathroom, removed the kitchen ceiling and renovated their mother’s bedroom. Rex says, and this is probable, that the source of the funds for these renovations, being $15,000, was provided by the deceased. But he also says that Ruth did not contribute to the project financially. It is not in contest that the project team also organised for the purchase of new appliances and the installation of an air conditioner. This, in my view, is another example of Rex not fully noticing his sister Ruth’s contribution. He would not necessarily have seen all her expenditure on these renovations.
Joan returned home to Fairview in 2008. Ruth says, and I accept, that she arranged medical appointments for her mother and for the deceased and supervised their medication, and that she was solely responsible for the cooking and cleaning in the house. She says that she also assisted the deceased with his financial affairs. Some evidence of the correctness of this is that she was later appointed his Enduring Attorney and Guardian in May 2013.
At the deceased’s request, Rex became a member of the committee of the Camden Show Society in 2010. This was to maintain the family’s traditional involvement in the local farming community. Rex also won prizes at the Camden Show for the produce he had sown and harvested at Fairview.
In 2012 with the deceased’s consent, Rex built a piggery on Fairview. He used his wife, Kay’s, income to finance this. The piggery is located largely on Lot 1 and in part on Lot 19. In about 2013, Rex established a partnership, R.S. Boardman & L.M Dennett with Lisa Dennett, his niece and Kevin Boardman’s daughter, and her husband Todd Dennett to run the “Saulsbury Berkshires” pig farm and brand. The Saulsbury is a breed of pig which originates from England. The “Saulsbury” business name was the name previously used by Charles Boardman, grandfather of Rex and his siblings. The defendants’ case was critical of the amount of effort that had gone into building the piggery but in my view this criticism is misplaced. There was substantial fencing work done for the piggery.
Rex says that in 2013 the deceased ceased, without explanation, paying his diesel fuel bills. He says, and I accept, that he took on the quarterly payments of $1,300 himself from the profits he made from the piggery and from the sale of his own cattle. Rex says he also purchased at his own expense four bulls for the farm between 2007 and 2014. I accept they were acquired for a total cost of $7,925.
Rex alleges he and Max had certain conversations in about May 2013 about Rex making financial arrangements with the deceased. Max denies that these conversations occurred. Rex alleges Max said to him, “Has father talked to you about compensation for your years of unpaid work at the farm? ...I have to sign a document but Father needs to talk to you before I sign the legal papers for him”. Rex says he responded by saying, “Dad has not talked to me about the compensation to be paid to me”. He further says Max pressed the matter on another occasion, and Rex again responded by saying, “Dad hasn’t spoken to me at all”.
Max says he has no recollection of discussing compensation with Rex. But in my view he has forgotten these conversations. I accept Rex’s evidence about these conversations for several reasons. There are indications in the notes of instructions for his will that he wanted to talk about some issues with his children before making his will. Max’s denial of these conversations was not persuasive. Max concedes an Appointment of Enduring Guardian was signed about that time these conversations are alleged to have taken place. It is probable that such discussions took place in connection with such an appointment.

Fairview – Layout and Valuation

The Plaintiff’s Farming Ambitions at Fairview. The plaintiff’s submissions and his evidence were burdened to a degree by the dynastic history of Fairview. In 1888 Fairview had been purchased from a John MacArthur, a descendant of John MacArthur, the early 19th century pioneer pastoralist and rival to Governor Lachlan Macquarie for colonial influence in New South Wales. After the purchase of Fairview, the Boardman family had farmed the property for four generations. The plaintiff was immensely proud of this tradition. Rex’s pride is no doubt partly inspired by the deceased’s own stories of the Boardman family history, stories to which many other family members attest.
The core of the plaintiff’s principal case for relief was centred on the idea that “emotionally, he would love to continue the dynasty” and it is something that “he has wanted to do all his life”. Rex’s idea, based in part on what his father had said to him of his controlling of the farm operations, was very diffuse. Rex described the farm being run on “some type of trust” so he could build Fairview and its reputation to what it was like “in my grandfather’s days”. Although he mentioned Max and Kevin’s involvement in implementing this idea he clearly envisaged he would be the one to run the operation. He explained: “but because I was the one that had maintained my father’s property for all these years, that I would be the one that would be continuing to do that and make decisions for the benefit of the farm”.
Rex’s interest in the farm was not expressed selfishly. He thought that Fairview would be shared among the deceased’s male children: “I expected to get an equal amount of the three boys involved in the farm”. Presumably this meant that Coral’s children and Ruth would be left to share the Orangeville and the relevant properties on this scenario.
But as the defendants submitted and as the Court pointed out to his counsel, the law in this area requires the application of tests in which his emotional attachment to a particular property is not necessarily of central importance.
Another way the plaintiff drew upon family history to put his case was to emphasise how important the Boardman family tradition at Fairview could be both in the selling of produce from the Berkshire Saulsbury piggery and in the marketing of Langshan chickens, a special breed developed at Fairview by the Boardmans early in the 20th century.
In opening submissions the Court indicated its willingness to hear closing submissions to deal separately with any intellectual property associated with Fairview in any relief that may be granted. But as these reasons show, the form of the relief granted gives Rex Boardman the option to sever any physical association with farming at Fairview. In the end, attempts to deal with a “Fairview” brand for his benefit did not feature in his final submissions.
The Layout of Fairview and Lots 1, 19 and 162. Fairview consists of five blocks of land. These blocks a very rough rectangle in which the long axis runs approximately east-west and the short axis runs approximately north-south. Fairview’s only frontage to The Old Oaks Road is along one side of Lot 162 at its western end. Access from The Old Oaks Road to both Lot 1 and Lot 19 is gained through Lot 162 as is access to Lot 17. Access to Lot 18 is only possible either through Lot 17 or Lot 19.
The sizes of the lots are as follows: Lot 162 is 138,951m2, Lot 1 is 149,314 m2 and Lot 19 is 115,619m2. In contrast to Lots 162, 1 and 19, Lots 17 and 18 are considerably larger in size. Lot 17 is by far the largest lot at 404,035m2 and Lot 18 is 181,679m2.
The physical relationship between these different sized lots is best understood by reference to Figure 1, an aerial diagram of Fairview taken from Exhibit “A”. And the North-South line can be found on Exhibit “A” as running approximately parallel to the boundary between Lots 18 and 19.

Whilst the gift of the larger properties, Lots 17 and 18, to Rex and Kevin might at first be thought to allow greater flexibility in farming practices, as will be seen below, the evidence of the carrying capacity of these two lots indicates otherwise.
The principal home block on which the deceased’s house, a somewhat tired-looking timber colonial building, is located is Lot 19. A shed and some other farm buildings, the museum and a piggery are also located on Lots 1 and 19. The watercourse of Matahil Creek as is described in more detail below runs through Lots 17 and 18. It also runs through the corner at the western end of Lot 19, at its most distant part of the lot from The Old Oaks Road.

Lots 17 and 18. The estate took a somewhat standoffish approach to Lots 17 and 18. Counsel for the defendant simply said that it was “a jointly owned property, and what they [the plaintiff and his brother Rex] do with it is a matter for them. One could buy the other out, or alternatively they could sell it or develop it.”
If Lots 17 and 18 were to go into separate ownership they would need their own independent access. The deceased saw this and initiated steps towards a solution during his lifetime. But this was only finally resolved in mid-2017. In May 2017 the estate took steps to create an easement burdening Lot 162 and benefitting Lot 17 to provide physical access to The Old Oaks Road for Lot 17, and in turn Lot 18. The registered easement, in the form of a right of carriageway of variable width, is shown in Figure 2 below:

Both Lot 17 and 18 are substantially flood affected. Some 30 per cent of the total available land on these two lots is affected by salinity and exhibits poor quality soil for farming. A creek, Matahil Creek, runs generally north-south through these two lots. It consists of brackish salt water, which cannot be used to grow pasture.
Neither lot presently has a dam. Limited water is available on the lots from run off. Landcare has given notice that Matahil Creek should be protected with fencing to prevent stock accessing the creek and further polluting it. No current access exists across Matahil Creek to the far, or eastern, end of Lots 17 and 18, away from the Old Oak’s Road.
No farming infrastructure is presently constructed on either Lot 17 or Lot 18. The potential for development of the lots with farming infrastructure is uncertain due to the high level of flood affectation. There is no electricity available on the land. The cost of connecting electricity is uncertain.
The Court accepts Rex’s judgment based on his high experience in farming this area that due to the limited supply of water on Lots 17 and 18, its saline soil and its proximity to Matahil Creek and the Nepean river that the Lots are not obviously suitable for more extensive and sustainable agricultural uses.
Counsel for the defendants put to Rex the defendants’ principal case that Rex could develop Lots 17 and 18 as a piggery. But Rex effectively answered this in a number of ways. The area currently occupied by Fairview’s piggery on Lot 1 is less than 3 acres and the readily accessible non-flood prone area on Lots 17 and 18 is about 30 acres. But whether approval would be obtained to conduct a piggery on Lots 17 and 18 is an open question.
Most of the available sites for a future piggery on Lots 17 and 18 are closer to the watercourse on those lots than the piggery on Lot 1 is to the watercourse to which it drains. Not unreasonably in my view, Rex anticipates a struggle with local government and health authorities to establish a piggery on Lots 17 and 18. The Court agrees with Rex’s contention that whether approval for establishment of a piggery on Lots 17 and 18 could be obtained is speculative.
The defendants’ case focused on how little capital might be required to establish a piggery on Lots 17 and 18. The Court accepts it may perhaps be possible to establish a piggery within the plaintiff’s capital resources derived from a combination of the proceeds of his mother’s estate (approximately $120,000) and the residue of the deceased’s estate (approximately $54,000). But the defendants’ case fails to grapple with the more important question of whether a piggery could be established on Lots 17 and 18 at all.
But other uncertainties exist about establishing a piggery on Lots 17 and 18. It would also need to be differentiated from, and compete with, the existing piggery already being run on Lot 1. Both would be on Fairview. Perhaps they could be run co-operatively. If not, they would compete in the same market potentially to each other’s disadvantage.
The suitability of Lots 17 and 18 for other farming, given the salinity in much of their soil, was not made clear. General cropping was suggested as one option. But the defendants never really answered the plaintiff’s case that all types of farming on these lots were likely to face viability issues.
It was at least theoretically open to the defendants to offer a long term lease over other parts of Fairview to enhance the capacity of Lots 17 or 18 as a platform for the plaintiff’s farming operations. But the defendants did not make such an offer or put forward such a case. Nor did the defendants seek any assurances from Kevin that he would not sell his interest in the lots.
The Value of Fairview. At the opening of proceedings there was a contest between the parties about the value of various parts of Fairview. Competing appraisals had been obtained from Inglis Real Estate, United Real Estate and Ray White Real Estate. None of these were formal valuations but the use of appraisals is well established in this jurisdiction: Supreme Court Practice Note Eq 7. By the time the proceedings concluded, the parties had at least agreed upon ranges for properties represented by these three valuations (set out in Exhibit 7) as follows:

Inglis

United

Ray White

Lots 162, 1 and 19

$6.5 million

$9.3 – $10.7 million

$7.3 – $8.2 million

Lots 17 and 18

$4.4 million

$3.5 – $3.7 million

$5.9 – $6.6 million

Total

$10.9 million

$12.8 – $14.4 million

$13.2 – $14.8 million

Both parties conceded the difficulty in trying to value Fairview with any accuracy. The main difficulty was that encroaching suburbia meant that Fairview may possibly be rezoned for subdivision at some time in the future. But if and when that might occur is at best speculative at present.
For the purposes of this judgment, the Court is prepared to use the Inglis valuation of Lots 17 and 18. It represents the mid-range of the three valuations of those two lots. A conservative approach is appropriate for Lots 17 and 18 in particular. This is so for several reasons. First, there are uncertainties surrounding the agricultural usage of much of Lots 17 and 18 due to salinity and due to their being flood prone. And even if the market value of Fairview were to benefit from subdivision potential, Lots 17 and 18 are the lots least likely to enjoy that benefit. They are the lowest lying land and are substantially flood prone and the least likely to be subdivided.

The Deceased’s Instructions for His Wills

The July 2013 Will. The deceased made a will not long prior to his last will on 12 December 2014. The deceased gave instructions to call Caldwell Martin Cox solicitors for an earlier will, which was made on 9 July 2013. That will had essentially the same structure as the December 2014 will. The July 2013 will appointed Ruth and Max as executors; left Lots 17 and 18 to Rex and Kevin; left Lots 19, 1 and 162 to Ruth and Max; left the Narellan and Orangeville properties to Coral’s children; and gave his museum of restored and unrestored cars to Max. One difference between the July 2013 will and the December 2014 will is that in the July 2013 will the deceased’s gave the whole of his interest in the farming partnership VM and JG Boardman including cattle and farm equipment to Rex. The partnership business has not proven to be of much value relative to the other assets in the estate; being valued at a little over $27,000 for probate purposes. The December 2014 will split the partnership VM and JG Boardman business up among the four surviving children.
The common structure between the wills tends to indicate that the deceased was thinking about the structure of his testamentary intentions for some time and had reasonably well-formed views about how he would benefit those with claims on his testamentary bounty.
But the extant handwritten notes of the instructions the deceased gave for the 2013 will, which instructions seem to have commenced in mid-2012, throw some light upon the deceased’s outlook in relation to the plaintiff. At one stage in the course of giving instructions for the 2013 will, the deceased explains the structure of that will, with Rex inheriting the partnership business: “want Rex and Kevin to operate the farm. Ultimately the farm to Max”. But this may have been thought to be unworkable.
The deceased’s first meeting with Caldwell Martin Cox solicitors was on 18 May 2012. The deceased gave some background on that occasion that he had previously had some advice from Mr Ken Searle from Marsdens, solicitors, about his testamentary intentions in 2008. Another meeting took place on 28 May 2012 where the possibility of a testamentary trust was raised with the deceased. Yet another meeting took place on 7 June 2012 in which the deceased gave detailed instructions about family members and family relationships and about his assets and liabilities.
Another meeting took place on 14 June 2012 in which the deceased received the following advice: “advise[d] client that his plan to give the farm to Max and have the twins operate the farm will not work. The asset will not be divided equally and he runs the risk of a FPA [a family provision application]”. The advice given to the deceased on 14 June 2012 was both different to the deceased’s initial wishes and different to what ultimately happened and was to the following effect: “Suggested that he give the farm to Max, Rex and Kevin in equal shares and the balance to be divided between Ruth and Coral’s children”. Other advice was given on this occasion about providing for Joan Boardman, which has ceased to be relevant.
The solicitor’s notes of conference were written up and were summarised in typescript on the file as follows:

“9.   At "Fairview" in one property reside Mr Boardman and his wife. In the second property resides Mr Boardman's granddaughter Lisa and her husband Todd. They are tenants and pay rent to Mr Boardman.
10.   Mr Boardman's son Rex works the farm with Mr Boardman. The son Kevin helps out occasionally. Mr Boardman's daughter Ruth is the book keeper for the business and also renders significant personal daily assistance to both Mr Boardman and his wife.
11.   It is Rex and Kevin who Mr Boardman wish to continue to operate the farm for a period of time following his death. The farm is ultimately then to be transferred to the son Max. Mr Boardman is aware that Ruth renders to him and his wife considerable" assistance and has done so for a substantial period of time.
12.   Mr Boardman is conscious of the fact that the Will will have to provide in some proper way for Ruth.
13.   Mr Boardman believes that he has a very short scribbly piece of paper which is a Will made in 1964. He can't locate that document nor can he recall what was in that document.”

The meetings in 2012 did not fully resolve the will issues. The deceased’s second last will was only finally executed on 9 July 2013. The will of that date came to be executed apparently in the context of the deceased giving instructions for enduring power of attorney and an enduring guardianship documents.
The December 2014 Will. The record of the preliminary instructions with Caldwell Martin Cox for the December 2014 will shows that in the course of those meetings the deceased gave initial authorisation for the grant of an easement in favour of Lot 17, to be accessed through Lot 162. The site the deceased indicated for this easement was the site that was ultimately selected for the easement.
On 1 October 2014 the deceased gave further instructions to his solicitors about changes to his will, the changes to clause 8 that resulted in the form of the final will of December 2014. In substance he wanted to change clause 8 to give his interest in the VM and JG Boardman farming partnership, including cattle and farming equipment, to Rex, Kevin, Ruth and Max “in equal shares as tenants in common”. He was asked by the solicitor taking instructions to explain why he was proposing to make this change and the resultant file noting his instructions says the following: “Said Rex has had a lot of help in his life and isn’t good with money – Vic [the deceased] has had to help him out a lot and Rex has taken items of Vic’s when he was younger – wants to change clause 8 as Rex couldn’t run the cattle business on his own and [it] shouldn’t be left just to him”.
The file note gives insight into the deceased’s outlook in relation to providing for Rex. The deceased’s comments about Rex were partly accurate: it can indeed be objectively inferred he is not “good with money” from the little capital that he has been able to accumulate by his early 60s in comparison with his siblings. And the deceased giving Rex “help in life” may perhaps have been accurate about smaller offers of financial assistance. But it is not at all an accurate account of the bigger picture, in which: (1) Kevin had achieved a financial settlement with his father for returning to Fairview but Rex had not; and (2) Rex had worked for only nominal remuneration on Fairview for about 11 years. This tends to show that at the time of formally expressing his testamentary intentions, the deceased seemed focused on the smaller things, some of which no doubt caused him chagrin and frustration, at the expense of a more accurate, bigger picture about Rex.
The parties contested whether Rex had indeed “taken items” of the deceased when he was younger. Rex denies this. Standing back and looking at this for a moment: it is a somewhat odd small thing for the deceased to remember. But its truth or otherwise cannot now be resolved and does not need to be for present purposes. So it can be left to one side.
Rather, it is the other judgments recorded in these file notes about Rex that tend to indicate why the deceased’s will was structured the way it was and why it is unlikely that the deceased made the kinds of promises to Rex about inheriting Fairview that Rex claims he did.
There is no reason to doubt the deceased was well advised and cognisant of his estate, the claims on his testamentary bounty and the needs of his children and grandchildren. The solicitor’s file note as to the execution of the December will is a model of how finalising the will of an elderly person should be approached.

Events Since the Deceased’s Death and Some Estate Assets

Recent Events. The plaintiff currently conducts some continuing business operations on all the lots of Fairview with the consent of the defendants. He runs a small number of the deceased’s cattle on the property, conducts his own piggery, and undertakes some cropping for animal feed. Under the deceased’s last will, the business of Fairview was given to the four surviving children as tenants-in-common in equal shares. But the business has only modest value and because of the plaintiff’s expertise in farming, the parties have acquiesced in him conducting this business.
The estate put the Narellan properties up for auction in June 2017. Although the family always referred to the three lots of land at Narellan as one property, they actually had different street addresses and were sold separately at auction. The three properties each netted between $900,000 and $1,000,000. This auction result was considerably in excess of the values of about $350,000 which the deceased had tentatively put on the properties at the time of giving instructions for his final will.
At about the same time, in June 2017, the Orangeville property was put to auction. It comprised of some 10.2 hectares of rural vacant land. It sold for $1,085,000, a figure which is reasonably close to the deceased’s estimate according to the notes of his instructions for his last will in December 2014.
The Deceased’s Estate. According to Max’s affidavits the estate is valued at $16.101 million. This is comprised of the real estate at Fairview (Lots 162, 1, 19, 17 and 18) based on the Inglis valuation at $10.9 million, a half-share in the farming partnership VM and JG Boardman of $27,277.45, the deceased’s car collection at $420,000 and cash (after the sale of the Narellan and Orangeville properties, together with other cash) of $4,753,935.60.
This estate cash has been calculated to be distributed as follows: (1) to the estate of the late Joan Gladys Boardman the sum of $244,205.50; (2) to Ruth, Max, Kevin and Rex on account of the half-share in the partnership VM and JG Boardman the sum of $30,580.55; (3), to Coral’s children, Julianne, Melinda, Geoffrey and Mark the sum of $3,839,973.66 by way of the capital proceeds of sale of the Narellan and Orangeville properties; and (4) to Coral’s children the sum of $56,439.65, being rental income earned from one of the Narellan properties, less expenses for the sale of the Narellan and Orangeville properties.
That leaves a residue of $582,736.24. After the deduction of the estate’s administration costs, the defendants and the plaintiffs’ costs of the proceedings, the net residue to be divided to between the eight beneficiaries leaves $54,250.65 each. The solicitors for the parties have helpfully calculated all of these figures based on Exhibit 9 which was tendered in the course of final submissions.
The Vintage Car Collection. The deceased enjoyed collecting vintage motor cars. He spent a number of years collecting and maintaining his vehicles, which he stored in a shed on Fairview. He shared this hobby with Max. They both had a keen interest in motor vehicles. The deceased and Max regularly worked together to repair and restore the vehicles at Fairview. The deceased would attend shows and vintage motor vehicle rallies from time to time with Max.
The deceased’s will gives his vintage car collection to Max. There was a dispute about the extent of this collection and its value. As to its extent, Max claimed that quite a number of the vintage cars were not the deceased’s. Max also said that the collection was worth far less than was claimed in Rex’s case.
The range of dispute about the value of the vintage cars was extensive. At the low end of the range of values, the estate contended that the collection contains some 20 operating original vintage or veteran cars with a total value of $420,000. At the high-end of the range of values, Rex contended that the collection contains some 35 operating vintage and veteran vehicles with a total value of $1.5 million.
But as it turned out, the figure of $1.5 million came from an estimate that the deceased appears to have given in the course of instructing his solicitors about his last will. The deceased had an interest in veteran vintage cars but had no special valuation qualifications. The Court cannot give much weight to his estimate.
Although the difference between the two sides about the value of the deceased’s vintage car collection was of the order of $1 million, ultimately, the size of the estate meant that the Court did not have to resolve this issue. Determining the precise market value of the collection within the range of market values that were contested would have made little difference to the precise form of any relief granted to the plaintiff in this case. The contest about the value of the collection only represents a dispute about a little over 5% of the gross value of the estate. Accordingly, the Court decided that it was not necessary to resolve it.

Applicable Legal Principles

“Eligible Person” and “Factors Warranting” Succession Act 2006, ss 57 and 59

The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an “eligible person” within Succession Act, s 57. The plaintiff is an “eligible person” as a child of the deceased: Succession Act, s 57(1)(c).

Adequate Provision

The next issue is whether an order for provision should be made in the plaintiff’s favour. The test of whether an order for provision should be made out of an estate in any case is set out in Succession Act, s 59(1)(c):

“(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
…
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

There are many judicial statements summarising the operation of this legislation which is often said to include a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

Whether the two-step test operates with the same full vigour in the current legislation has been discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for the plaintiff once he has been shown to be an eligible person.
Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:

“[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

[154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

[155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

…
[158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

…
[160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."”

The application of these principles involves examination of a number of specific issues. Preliminary to those issues, the Court briefly examines the financial and personal position of the plaintiff and his wife, Ms Scarlett, and then examines the financial position of other family members who benefit under the will.

The Beneficiaries’ Financial Positions

The parties’ and the principal beneficiaries’ asset and income positions were helpfully summarised in an agreed summary financial position in the form of a table tendered on 6 November 2017 (Exhibit 7). This table, which is set out below, is calculated on the basis that the children, Ruth, Max, Ken and Rex are assumed to have received their entitlements to a distribution from their mother’s estate ($121,046.79 each) but exclusive of any distributions from the deceased’s estate:

Name

Net Worth

(including

partner)

Income

Relationship to Deceased

Maxwell Charles Boardman

$5,220,195

$57,107 (gross)

$14,127 (wife's income)

Child

Ruth Christine King

$3,889,735

$62,000 gross (employment)

-$24,974 (farming)

$11,955 (net rental)

Child

Kevin Elwyn Boardman

$1,362,338

$46,000 gross (employment)

$63,000 gross (wife's employment)

Child

Rex Stephen Boardman

$1,448,177

$117,012 net (wife's employment)

$23,920 gross (rental wife's property)

Child

Julieanne Hickey

$212,046

$32,422 (employment)

Grandchild

Melinda Louise Galea

$2,597,000

$31,200 net (employment)

$5,880 (child support)

$29,120 (net rental)

Grandchild

Geoffrey Ross Jensen

$422,815

$45,353 gross (employment)

$47,428 net (partner's employment)

Grandchild

Mark Steven Jensen

$397,143

$74,470 net (employment

$41,444 net (wife's employment)

Grandchild

More detailed examination of the position and prospects of the parties and the other beneficiaries is now required, starting with the plaintiff and Ms Scarlett.
Rex Boardman. The plaintiff was 61 at the time of the hearing. He has no liabilities and owns assets worth $83,843. He has accumulated negligible superannuation: his current accumulated balance was recently only approximately $18,000. But he withdrew the entirety of this amount in October 2016 in order to replace a fence at the Camden home, where he lives with his wife, Ms Scarlett. He derives income from farming of approximately $583 per month and is dependent on his wife financially.
Ms Scarlett works in publishing. She meets daunting geographical challenges to pursue that vocation. She commutes to Melbourne on a weekly basis to perform her role. She owns the property at Camden where she and Rex live. She is unsure how long she will be able to continue in the active publishing work that presently brings in the bulk of their family income.
The plaintiff’s and Ms Scarlett’s overall financial position is summarised in the table above. If their assets are taken together they consist of real estate, some liquid funds and superannuation. But Ms Scarlett’s assets keep the couple comfortable.
Kevin Boardman. Kevin Boardman continues to work as a coach builder/panel builder/motor repairer on a gross yearly income of $46,000 p.a. His wife Kristine is a full time librarian on $63,000 gross p.a. They each hold a half interest in their property on The Old Oaks Road, Grasmere worth $495,000 (each). Their assets include some accumulated superannuation and other liquid funds. Their overall financial position is summarised in the table above. They have three adult children, who may in turn need support in the future. One of their future options to free up capital to support their own retirement and to assist their three children may be to sell Kevin’s interest in Lots 17 and 18.
Maxwell Boardman. At the time of the hearing Max Boardman was 64. He has lived very close to Fairview since 1978, in Dowels Lane, Bickley Vale. This is about five minutes travelling time from Fairview. So close to Fairview indeed does he live, that at night he could see his parents’ kitchen light from his verandah. Looking at Max’s and his wife’s assets together, they own their home at Bickley Vale, another property in Camden, a delicatessen business, a property in Cawdor, superannuation, vehicles, and other liquid funds. They have minimal liabilities. Their overall financial position including their joint income is summarised in the table above.
Ruth King. At the time of the hearing Ruth King was aged 67. She owns the property where she lives in Mount Hunter, together with another property in the same area and another one in Camden. Like all the other children of the deceased, she has an interest in her mother’s estate. She has a small mortgage. Her overall financial position is also summarised in the table above.
The deceased had many grandchildren. But only four of them, Coral’s children, were named in his December 2014 will. Coral’s four children, Melinda, Julieanne, Geoffrey and Mark provided affidavit evidence but were not cross examined. Their evidence was not contested and is accepted. Both their relationships with the deceased and their financial position are relevant to the Court’s exercise of discretion. This section of these reasons now deals with each of them briefly in turn.
Melinda Galea. Melinda Galea (née Jensen) is the eldest of Coral Jensen’s children. Melinda Galea was 44 at the time of the hearing. She has very strong memories of the involvement of her grandparents in her early life and fond memories of being at the farm at Fairview and seeing the dairy in operation and of her visits from the deceased on birthdays, Christmas and special family events. She also caught up with him at the Camden Show, Australia Day parades and vintage car runs. As with her younger siblings, her relationship with the deceased became even closer after her mother died in 2002.
Melinda was much affected by the love of farming and animals and old things that her grandfather communicated to her. She savoured his stories about the past. She was very moved by his struggle against his loss of independence in the last years of his life.
Melinda was married in 1992 and has two children from that marriage. She was divorced in 1997 and remarried in 2000. She has three children from her second marriage. Between 2011 and 2016 she was a foster carer for many other children. But in July 2015 she and her second husband separated and are currently going through family law proceedings. Those proceedings make assessment of her joint assets with her husband difficult, as full disclosure of his assets has not yet occurred. But the summary in the table above sufficiently indicates her assets for the purposes of these proceedings. She currently has four of her five children living with her on a full time basis. One of her children spends his time partly with his father.
Melinda has limited assets. She has some liquid savings, a car but negligible superannuation.
Julieanne Hickey. The second eldest of the deceased’s grandchildren, Julieanne Hickey (née Jensen), was 42 at the time of the hearing. Like the other Jensen children she became close to the deceased and her grandmother after the death of her mother in 2002.
At the time of her mother’s death she and her family were living in Camden, where they would receive weekly visits from the deceased. In about 2008 they moved to Glenmore where the deceased’s visits continued at the rate of two to three times a month. The deceased has always been a presence in her life. In the final stages of the deceased’s illness, Julieanne visited the deceased regularly when he was an inpatient at Camden Hospital.
Julianne left school at the end of Year 10. She married at the age of 20 in 1995. She and her husband have two children. She divorced in 2008. She and her two children, who are now teenagers, now live with her new partner in Glenmore.
Julieanne is a director of the family business, Jensen’s Garden Centre, near Camden. Her partner conducts his own separate business. Looking at their property together, Julieanne and her partner own three parcels of real estate, they have shares, motor vehicles and superannuation and some liquid assets. But they have combined liabilities of over $1,000,000. Their financial position is set out at the summary table above. Apart from the property in which they live, they receive rental income from investment properties.
Geoffrey Jensen. Geoffrey Jensen was born in 1977 and was 40 at the time of the hearing. Like his siblings, he has very clear memories of visiting the deceased at Fairview and hearing many stories about the history of Fairview from the deceased. After his mother died Geoffrey, like his siblings, became even closer to his grandparents. The deceased was very interested in all Geoffrey’s projects. Geoffrey particularly enjoyed vintage car runs with the deceased, the Australia Day parade, the Camden Show Drover’s Camp and the yearly Mulgoa Car Club run. Geoffrey worked in the family nursery business until his mother died in 2002. He opened his own business in 2003. He is a casual labourer and his partner is an administration officer. In addition to labouring he conducts a car restoration and repair business, although that business has become unprofitable in recent years.
Geoffrey and his partner do not have children. They assist his partner’s mother financially with her regular outgoings, groceries and medications. Their joint assets and liabilities have been sufficiently summarised in the table above.
Mark Jensen. At the time of the hearing Mark Jensen was 38. Like his older siblings Mark had an excellent relationship with the deceased and would see him two or three times a week. So close did he judge his grandfather to be that in evidence he called him his “best mate”. Evidence of this closeness is that he chose his grandfather to be his best man at his wedding.
Mark Jensen was particularly closely attuned to his grandfather’s interests in vintage cars. He enjoyed helping his grandfather prepare and clean the cars before they were used at weddings. He also accompanied his grandfather to the Camden Show and the Drover’s Camp. In more recent years he helped his grandfather pursue a particular hobby interest in restoring, and then driving, an old VW beetle motor vehicle.

Mark Jensen is a truck driver. His grandfather would often accompany him in his truck on trips to Newcastle in the north and Marulan in the south and to drop off chicken feed to local farms. This gave the deceased an additional interest when, due to restrictions on his licence in his later years, he could not drive very far from Fairview. Mark also assisted his grandfather with renewing the registration on his vintage motor vehicle collection and in gathering all his unrestored vehicles from around the farm into a single collection in his shed. This was accomplished over many weekends and afternoons.
Mark and his wife Amanda have two children. They were married in 2005. Mark’s truck driving work is complemented by his wife’s employment as a visual merchandising co-ordinator.
Their joint assets include the property in which they live at Mattai, some funds in financial institutions, their superannuation and a number of current and vintage motor vehicles. But they also have substantial liabilities. Their overall financial position is adequately summarised in the table above.

Consideration of the Plaintiff’s Case

Has Adequate Provision Been Made for the Plaintiff?

The plaintiff’s case that adequate provision has not been made for him is compelling. His and his wife’s current financial position has been analysed above.
The executors do not provide any long-term guarantee that the plaintiff would be able to farm Lots 1, 19 and 162 on Fairview, in addition to Lots 17 and 18. So the adequacy of the provision for him under the will must be gauged on the basis of assumption of his wife’s continuing but diminishing financial support and on the basis of his negligible assets and his limited capacity to turn Lots 17 and 18 to account either by selling or farming them.
For the plaintiff to try and turn these properties to valuable account in the near term runs up against several immediate obstacles.
The first obstacle is stability. If the idea is that the plaintiff should farm Lots 17 and 18, the fundamental working assumption of the scenario is unstable. Rex holds those two lots as tenants-in-common with his brother, Kevin. And Kevin may want to use the capital vested in the lots for his own purposes and not for farming. He is free by law to do so. Any commitment he might make now could always be subject to changing circumstances and his inclination, or otherwise, to exercise his legal rights under Conveyancing Act 1919, s 66G. Kevin has not committed to holding the two lots in the long term.
Were Kevin to decide to sell the property, the plaintiff would be left with about $2.2 million. The evidence analysed elsewhere in these reasons shows, that this amount is probably inadequate for him to purchase another farming property in that district.
The second obstacle is land quality. Even if it were to be assumed that Kevin was content to permit Rex to farm the whole of Lots 17 and 18 for their joint benefit in the long term, there are practical obstacles to this outcome. More than half the land is flood-prone. Running a piggery on land as close to a water course as Lots 17 and 18 are located is more problematic than on Lots 1, 19 and 162. These two lots have not been cropped or grazed much, so their carrying capacity is uncertain. Matahil Creek runs through Lot 17. It contains brackish salt water and is not suitable for growing pasture.
The third obstacle to the plaintiff using Lots 17 and 18 for farming is the un-costed need for capital improvements to gain farming access the whole of Lots 17 and 18 on the other side of the water course on those lots, in various weather conditions. And access for these lots to the main road would have to be opened up through Lot 162.
None of this augurs well for the plaintiff being able to farm on these two lots. And such farming requires the continued consent and co-operation of the co-owner Kevin, even if Kevin does not want to sell the property.
In short, Rex has not been provided under the will with sufficient assets to pursue the only career that he knows and to which he is fitted by experience and inclination. In my view, adequate provision for Rex Boardman involves him being able to continue the only satisfying income earning vocation for which he is fitted by experience and which, during the deceased’s lifetime, he committed for the deceased’s benefit.
But the defendants put a strong case to the contrary.The defendants’ response to Rex’s case was very forcefully put by Mr Flaherty in final submissions. He submitted that Rex has been left with a one half share of a property worth millions of dollars, which should enable him quite adequately to continue with his farming activities. This is especially so, it is said, because those farming activities are rather modest comprising only 23 pigs and 25 cattle. The defendants’ case is partly right. Both Rex’s own evidence and the photographs of the piggery show that it is quite a reasonably modest operation.
But the first mistake in the defendants’ argument is then to infer that this current operation is all that the plaintiff will ever need. Rex can only continue the current piggery on Lots, 162, 1 and 19 with Ruth and Max’s agreement, which the tense ambience of these proceedings makes quite unlikely. So it can be assumed Rex will have to re-establish his piggery elsewhere anyway and will need capital for that, of which he has little.
And the defendants’ argument fails to recognise that Rex is about to encounter a very important financial crunch point. He and Ms Scarlett have modest assets, the demands of her career in publishing are unlikely to allow it to continue in the long term, and having a viable income producing farming operation to support him will be more important in the immediate future than it has been in the recent past.
The judgments that the Court has been asked to make about Lots 17 and 18 do not just depend upon the plaintiff’s credibility. The flood prone nature of Lots 17 and 18, their salinity levels, the difficulties of access across Matahil Creek and the need to gain approval for the operation of a piggery so close to a creek are all objective facts.
The defendants point out that the plaintiff and his business partner may indeed presently be operating the piggery on Fairview without council permission. The plaintiff himself has accepted that he does not even know that he would be allowed by council to continue the piggery in its present location because a piggery is classified as intensive farming which is not allowed anywhere near flood plains or areas subject to flooding. But this does not really assist the defendants. Uncertainty associated with the piggery operation is only likely to be magnified on Lots 17 and 18 because of the greater proximity on those lots of the piggery to Matahil Creek.
The defendants suggested that the plaintiff could more readily run his piggery operations because his business partner was moving to Boorowa, as was the fact.
In summary, adequate provision has not been made under the deceased’s will for Rex Boardman. The Court must now turn to the question of what would adequate provision be for him.

What is Adequate Provision for the Plaintiff?

What is adequate provision for the plaintiff? Rex ultimately put his case for relief three alternative ways. The Court first considers the two principal ways the plaintiff puts his case. The Court concludes that these two principal contentions of the plaintiff go beyond the proper exercise of the Court’s jurisdiction under Succession Act, Chapter 3.
The Plaintiff’s First Two Contentions. First, the plaintiff contended that Lots 17 and 18 should be swapped for Lots 1, 19 and 162. The proposal involves Rex receiving the whole of Lots 1, 19 and 162 without any co-interest held by Ruth King or Max or Kevin Boardman. The financial displacement involved in this first proposal is substantial. Rex currently receives a half-share of Lots 17 and 18, which on current valuations is about $2.2 million, being 50 per cent of a conservative valuation of $4.4 million.
But on this first scenario, Rex would receive three lots, Lots 1, 19 and 162, worth in total, at the high end of valuations, about $8.2 million. The discussion at the completion of evidence was reasonably clear that this proposal involved Ruth King and Max Boardman then sharing lots 17 and 18. But no allowance was made in this proposal for Kevin to take any share in Lots 1, 19, and 162. So, it can be inferred that he would also be sharing Lots 17 and 18 with Ruth and Max. On that basis, they would each end up with property worth about $1.3 million. The plaintiff would improve his position by about $6 million, from $2.2 million to $8.2 million. It was suggested that the severe impact of this proposal on Ruth, Max and Kevin could be alleviated by reducing the existing shares received by the grandchildren under the will.
The executors contend with considerable force that in relation to this first option, an increase in provision to the plaintiff of the order of $5 to $6 million is excessive and goes beyond any reasonable assessment of what is adequate provision to him.
The plaintiff’s case is compelling that he needs greater provision from the estate, so that he could operate a farm and utilise the only skills that he has at this stage in his life. But that does not mean that provision must be made to him by means of this particular farm, Fairview. While he may have an emotional attachment to this property, if adequate provision could be made for him to serve the objective of giving him a viable farming property in the Camden district for less than an additional $6 million, then reason and proportion do not justify an award measured by Rex’s first contention. That first contention would give him more than what is adequate and places an unreasonable burden on the other beneficiaries, in making relief for him.
The basis for this being proper provision, according to Rex’s case, is the deceased’s various promises to him that “You’ll get it in the end”. The Court can take such promises into account in considering the case of a claimant for family provision relief: Alexander v Jansson [2010] NSWCA 176 at [18]. The Plaintiff submits that the swap proposed is in accord with community standards. The Court accepts the Plaintiff worked for 11 years for the deceased without more than nominal pay to meet his expenses and takes this into account in considering his case. But the Court has not found persuasive Rex’s evidence that the deceased made promises that would favour Rex over his other siblings.
The objections to Rex’s first contention could be alleviated by ordering him to compensate his siblings, as the price of swapping Lots 1, 19 and 162 for Lots 17 and 18. But the compensation that would be required for his siblings would probably involve an order requiring Rex to pay to Ruth and Max (leaving aside Kevin) several million dollars.
Effectively extinguishing the interests of the grandchildren is one way, the plaintiff suggests, option one could be given effect. But for the reasons already stated, this should not occur and even after reducing the grandchildren’s interests substantial compensatory payments may have to be ordered in Ruth and Max’s favour.
Such an order is not realistic. Fairview is unlikely to be viable, given its requirements for working capital for active farming, when burdened with a liability of several million dollars to other family members. As Mr McGrath correctly said, “paying several million [dollars] would to some extent destroy the point of that first option”. It seemed inevitable that making such an order would lead to the sale of Fairview in the medium term.
But Rex seeks to justify this option. He does so on the basis that the deceased made promises to him, and he did labour for 11 years on Fairview, improving the asset and keeping it going for the deceased.
Such promises are relevant matters to be taken into account. But this was not pleaded as a promissory estoppel case. Making good on such promises, were they found to be made, is not part of the family provision jurisdiction.
Mr McGrath suggested on behalf of Rex that the impact on Ruth and Max of losing Lots 1, 19 and 162 would be reduced. He pointed out that they have a share of residue. At the time of trial the residue was said to be worth about $700,000. But both sides relied on the availability of residue in their submissions. It is an easy sum to help balance a financial equation. Every side seemed ready to wish to give the residue of the estate to the others: perhaps because it is a fund declining in size due to the costs of the proceedings.
The other possible variant on option 1 is to divide up Lots 1, 19 and 162. The evidence suggests that one of those lots could then be given to Ruth or Max, as well as their taking up a share in Lots 17 and 18.
But this variant does not seem feasible. Lots 1, 19 and 162 of Fairview comprise 80 acres of good land. Lots 1 and 19 are land-locked and accessible from the main road only through Lot 162. But no evidence was adduced to the Court as to what could be done with Lots 1 and 19 separately from being farmed together with Lot 162. The Court is cautious about ordering the sub-division of a property such as this in the absence of compelling evidence that something could realistically be done by the owners of its sub-divided sections.
Rex’s second option was for the Court to direct the executors to sell the entirety of Fairview. This option recognizes the real possibility that Fairview may have to be sold. This option is based on the assumption that there may well be a premium in all the lots of Fairview being sold together, rather than piecemeal. Once the sale takes place the proceeds would be distributed. Rex contends that on distribution he should receive no less than the valuation of Lots 17 and 18 in accordance with the higher Ray White valuation lodged with the Court on 18 October 2017, which values them at $6.6 million, thereby giving the plaintiff $3.3 million.
But the forced sale of Fairview effects an unreasonable interference in the testator’s provision for his family in the will, without creating any greater benefit for the plaintiff than could readily be derived on his third option, which involves a money supplement to his existing provision of a half-share in Lots 17 and 18.
Mr McGrath did not satisfactorily explain why Fairview had to be sold to give effect to Rex’s desire to own and operate a farm. Fairview contains a ready-made museum and established farming operations in which other family members are actively involved. Uprooting all of this and turning it into money at the Court’s timing by compulsory orders, and dislocating a number of people forcibly from their current occupations and interests, does not seem reasonable when it will achieve little more than what the plaintiff could derive from by farming independently under his third option, to which the Court will now turn.
The Plaintiff’s Third Contention. Rex’s third option accepts that there should be only necessary interference with Ruth King and Max Boardman’s existing entitlements under the will to Lots 1, 19 and 162 in order to make adequate provision for Rex. But the third option contends for supplementation of the plaintiff’s interest in Lots 17 and 18 to enable him to sell his half interest in those lots, and use the combined funds to acquire another property somewhere else in the Camden district.
Underpinning the logic of this third option is Rex’s evidence, which the Court accepts, that to sustain a “viable mixed farm” in the Camden area of “land of average quality” one would need “around 200 acres at the minimum”. Rex submits that it may be inferred from examination of the value of some comparable properties that farming land of average quality in the Camden district has a market value of about $16,000 per acre. Therefore to acquire 200 acres of such land would require a capital investment of $3.2 million. He could sell his half share in Lots 17 and 18 and secure net proceeds of approximately $2.2 million, a nominal difference of $1 million. But there would be transaction costs including legal fees and stamp duty and he would still need some working capital to restart solo farming operations. The substantial part of his and Ms Scarlett’s capital is presently tied up in the family home in her name. He submits that to fund the change to a new farm he would need a legacy of $1.3 million, giving him an expected total outcome of $3.5 million.
Rex put the calculation a number of different ways depending on the valuation to be adopted for Fairview. He also assumed a half interest under the will in Lots 17 and 18 as being $2,375,000 (calculated from the average of the midpoints of the three appraisals for those lots). He also stated in submissions the cost to acquire 200 acres of average farmland in the local (Camden/Macarthur) area as about $16,400 per acre, which for 200 acres would require a total consideration for acquisition of the land of $3,280,000 plus transaction costs including stamp duty. But the Court has used more conservative figures here for both the proceeds of sale of Fairview and for the acquisition of a mixed farm, as an appropriate way to proceed.
For the reasons that follow, the Court accepts the financial logic of Rex’s third option and concludes that it is an appropriate measure of adequate provision for Rex.
Although the evidence of the cost of other properties that Rex might purchase was contentious, it is sufficiently reliable for the Court’s purposes in the family provision jurisdiction: Supreme Court Practice Note SC Eq 7. The Court can infer that there is a reasonable probability that Rex would be able to acquire a small 200 acre farming property in the Camden district for about $3.2 - $3.3 million.
The disputed evidence may be briefly surveyed. Rex identified three properties which he submitted the Court could use as some guide in determining what additional amounts would be required to permit him to pursue farming in the local area. What was advanced was not evidence amounting to a precise valuation of these properties. It was only the current asking price for the properties. But this is sufficient to satisfy the practice note applicable to the adducing of such evidence these proceedings: cf Practice Note Supreme Court Eq 7 at [21] (c).
The first property was a 326 acre property in New Jerusalem Road, Oakdale, an area within ready drive to Campbelltown and Camden. If the property was sold for its asking price it would represent a price of $15,337 per acre. This first property was about the size of the property that the plaintiff envisaged that he would need to start his own farming operation.
The second property was a 3.8 acre property in River Road, Tahmoor for which the asking price was between $2 million and $2,170,000. This property was not large enough to sustain a working farm and more represented a gentleman’s country residence. It was zoned for residential purposes. If sold in the price range asked it was it would attain a market value of $552,631 per acre. This property could be quickly eliminated as not even generally comparable to what the plaintiff would require to commence farming.
The third property was towards the other end of the scale. It was a 500 acre property on Old Razorback Road, Cawdor for which the asking price was $8.8 million. This was advertised as a working farm. If sold in the price range asked it was it would attain a market value of $17,600 per acre. In my view, based on this evidence, a working price per acre of $16,000 for a mixed farm in this general district of $16,000 per acre is reasonable and perhaps slightly conservative.
The third option would involve a supplementary cash payment to Rex by way of a legacy of approximately $1.3 million on top of the current value of his existing interest in Lots 17 and 18 (worth $2.2 million) to give him sufficient funds to purchase a new farming property in the Camden area for $3.2 - $3.3 million and cover transaction and startup costs.

He will certainly face transaction costs on top of the additional $1.1 million. And some additional capital will undoubtedly be required for him to get started in farming once he purchases another property. In my view, an allowance of about $200,000 - $300,000 for both of these purposes would be adequate.
The Court proposed to award the plaintiff a legacy of $1.3 million. But in formulating this award I see no reason to deprive him of his existing entitlements under the deceased’s will. So the award will be made in addition to his present entitlements. And the sum awarded in this relief will supplement the plaintiff’s other existing resources, which include the $121,046.79 from his mother’s estate, that has already been taken into account. He will still need that bequest, as he has no superannuation. And his 1/8 share of the residue of the deceased’s estate, said at the conclusion of the hearing on 6 November 2017 (see Exhibit 8) to be worth $54,250, can either be used supplement his working capital or to meet his need for superannuation.
The $1.3 million legacy will serve the plaintiff’s future requirements for his maintenance, education and advancement in life. As the Court’s analysis has indicated above, the plaintiff does need somewhere other than Lots 17 and 18 to conduct the farming operations for which he is qualified to earn an income.
The Court will therefore order a legacy in the plaintiff’s favour in the amount of $1.3 million. This is in addition to his other entitlements under the deceased’s will. This legacy is granted because of the plaintiff’s financial needs. But as will be seen below, after the overall distribution to various beneficiaries is considered after calculation of the burden of the legacy, it is also not disproportionate in the circumstances.

The Burden of the Legacy to the Plaintiff

But how is this legacy to be borne? It was suggested on both sides that the grandchildrens’ existing benefits under the deceased’s will may be reduced to satisfy any additional legacy to the plaintiff. But in my view, the grandchildren should not entirely bear this burden for several reasons.
First, several of the grandchildren are in substantial need of capital at their stage of life. And too great a reduction in the capital to them would strongly impact upon those grandchildren. Secondly, Ruth King and Max Boardman otherwise take substantial benefits under the will. They are in a position to bear some of the reduction. Thirdly, the only person who should be exempted from bearing any of these burdens is Kevin Boardman, who receives the same amount as Rex and substantially less than Ruth King or Max Boardman. Given his position as a child of the deceased, and given that he receives the least under the will along with the plaintiff, he should not bear any greater burden as a result of the Court’s orders.
Taking all those factors into account, in my view the grandchildren should bear $250,000 of the burden each from their shares, and Ruth King and Max Boardman, should bear $150,000 each, aggregating to the total amount of the plaintiff’s legacy of $1.3 million.
Once the calculus of the burden of the legacy to Rex is taken into account, the legacy now awarded can be seen as a not disproportionate additional award in all the circumstances. Leaving aside residue, from which all four children benefit equally, the following can be said. First, a total award of $3.5 million to Rex now gives Rex more than Kevin’s entitlements under the will. But Rex’s identified future needs relate to farming for which capital is required. It is not suggested that Kevin and his wife do not have secure employment. And Kevin’s entitlements have not been reduced by this judgment.
Secondly, the overall distribution to Rex including the legacy is more than the resulting amount of $2.8 million that will now pass to Coral’s children: that being their original total entitlements of approximately $3.8 million (ignoring rentals), less the Court’s downwards adjustment of their interests of $1 million, by $250,000 each for the 4 of them. But that is an appropriate outcome, given that these grandchildren are not eligible persons under Succession Act Chapter 3.
Thirdly, the overall distribution to Rex, including the legacy the Court is awarding, is only slightly more than the award to each of Maxwell and Ruth from their share of Fairview, even after the relatively modest reduction of $150,000 in each of their shares. Accepting the more conservative Inglis valuation under which Kevin and Rex would receive $2.2 million each from Fairview, Ruth and Max would receive $6.9 million or $3.45 million each, or $3.3 million after the deduction of the $150,000 portion of the legacy’s burden. And Max is additionally entitled to the deceased’s valuable car collection.

Conclusions and Orders

For the reasons given, the Court makes the following orders and directions:

Order that the plaintiff receive out of the estate of the late Victor Maxwell Boardman an additional legacy in the sum of $1.3 million;

Order that the legacy in order 1 be borne by the other beneficiaries of the estate in the following amounts: each of the deceased’s grandchildren named in the will, Melinda, Julieanne, Geoffrey and Mark, as to $250,000 each, Ruth King as to $150,000, and Max Boardman as to $150,000.

Interest is payable on the legacy if it is not paid within 28 days of the date of these orders;

Order the costs of the executors be paid out of the estate on the indemnity basis;

Order the costs of the plaintiff be paid out of the estate on the ordinary basis; and

Grant liberty to apply in relation to the implementation of these orders.

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Amendments

14 March 2018 - image added

14 March 2018 - image inserted.

Decision last updated: 14 March 2018

Medium Neutral Citation:	Boardman v King & Anor [2018] NSWSC 230
Hearing dates:	16, 17 & 18 October 2017
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Provision for the plaintiff in the form of a legacy of $1,300,000 ordered to be paid out of the deceased’s estate. Legacy to be borne: as to $1,000,000, in the amount of $250,000 equally by each of the four of the deceased’s grandchildren; and as to the remaining $300,000, equally by Ruth King and Max Boardman in the amount of $150,000 each.
Catchwords:	SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three sons and a daughter – another daughter pre-deceases the deceased leaving four children – the deceased’s estate comprises a single farming property and other investment properties – the investment properties are given under the deceased’s will to his grandchildren, the children of his deceased daughter – the remaining property, the farming property, was split up between the surviving children – the plaintiff worked on the farming property for a lengthy period prior to the deceased’s death – the deceased’s will divided the farming property into two parts – the better land on which the principal farming buildings are erected on higher ground was given to the two surviving older children, the eldest son and a daughter – the lower and partially flood prone land with no farm buildings was given as tenants-in-common to the plaintiff and his twin brother – the plaintiff claims that his capacity to earn a living in farming from the land given to him under the will is severely impaired – whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision needs to be made for the plaintiff out of the estate of the deceased – if further provision needs to be made for the plaintiff, what is the nature and quantum of that provision.
Legislation Cited:	Conveyancing Act 1919, s 66G Practice Note Supreme Court Eq 7 Succession Act 2006, ss 57 and 59
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category:	Principal judgment
Parties:	Plaintiff: Rex Stephen Boardman First Defendant: Ruth Christine King Second Defendant: Maxwell Charles Boardman
Representation:	Counsel: Plaintiff: G. McGrath First & Second Defendants: D.M. Flaherty Solicitors Plaintiff: Vera Pantovic, Gordon Cavanagh Solicitors First & Second Defendants: Lance Allan Watson, Caldwell Martin Cox
File Number(s):	(2016/178295)
Publication restriction:	No

Inglis	United	Ray White
Lots 162, 1 and 19	$6.5 million	$9.3 – $10.7 million	$7.3 – $8.2 million
Lots 17 and 18	$4.4 million	$3.5 – $3.7 million	$5.9 – $6.6 million
Total	$10.9 million	$12.8 – $14.4 million	$13.2 – $14.8 million

Name	Net Worth (including partner)	Income	Relationship to Deceased
Maxwell Charles Boardman	$5,220,195	$57,107 (gross) $14,127 (wife's income)	Child
Ruth Christine King	$3,889,735	$62,000 gross (employment) -$24,974 (farming) $11,955 (net rental)	Child
Kevin Elwyn Boardman	$1,362,338	$46,000 gross (employment) $63,000 gross (wife's employment)	Child
Rex Stephen Boardman	$1,448,177	$117,012 net (wife's employment) $23,920 gross (rental wife's property)	Child
Julieanne Hickey	$212,046	$32,422 (employment)	Grandchild
Melinda Louise Galea	$2,597,000	$31,200 net (employment) $5,880 (child support) $29,120 (net rental)	Grandchild
Geoffrey Ross Jensen	$422,815	$45,353 gross (employment) $47,428 net (partner's employment)	Grandchild
Mark Steven Jensen	$397,143	$74,470 net (employment $41,444 net (wife's employment)	Grandchild