Bosschieter v Howitt

[2024] NSWSC 1676

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bosschieter v Howitt [2024] NSWSC 1676

Hearing dates:

1, 2,3 and 4 July 2024

Date of orders:

9 December 2024

Decision date:

23 December 2024

Jurisdiction:

Equity

Before:

Slattery J

Decision:

The defendant’s cross claim is successful and the gift of $200,000 and set aside on account of the plaintiff’s unconscionable conduct. The plaintiff’s claim for further provision out of the deceased’s estate is allowed but only to an amount equivalent to the estate’s chose in action to recover the gift of $200,000. Costs reserved and submissions invited.

Catchwords:

SUCCESSION — Family provision — Succession Act 2005, s 59 – in her will the deceased divides her estate into five equal parts, giving one part to each of her four children and one part to her granddaughter, the plaintiff – the plaintiff lived in the deceased’s household for part of her life – the plaintiff seeks further provision out of the deceased’s estate – whether the plaintiff is an “eligible person” under Succession Act – whether there are factors warranting the making of an order for provision to the plaintiff – whether an order for provision should be made and if so in what amount.

EQUITY — Unconscionable conduct — Special disability or disadvantage — Undue influence — Actual undue influence – the estate cross claims against the plaintiff to set aside a gift made by the deceased to the plaintiff/cross-defendant shortly before the deceased’s death – the plaintiff/cross claimant attended a bank with the deceased and caused the transfer of a term deposit to the value of approximately $200,000 from the name of the deceased into the name of the plaintiff/cross-defendant – whether the deceased was in a position of special disadvantage in relation to the plaintiff/ cross-defendant at the time of making the gift – whether the plaintiff/ cross-defendant exercised actual undue influence over the deceased at the time of making the gift.

Legislation Cited:

Succession Act 2006, ss 57(1)(e)&(f), 59(1)(b)&(c) (2), 60.

Cases Cited:

Allcard v Skinner (1887) 36 Ch D 145.

Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261

Blomley v Ryan (1956) 99 CLR 362; [1956 HCA 81

Commercial Bank of Australia Ltd v Amadio (1983)

151 CLR 447

Curtis v Curtis [2024] NSWCA 1376

Earl of Aylesford v Morris (1873) LR Ch App 484

Drury v Smith [2012] NSWSC 1067

Jenkyns v Public Curator (Queensland) (1953) 90 CLR 113; [1953] HCA 2

Johnson v Smith [2010] NSWCA 306

Karavaz v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Nature Resorts Ltd v First Citizen Bank Ltd [2022] 1 WLR 2788, [2022] UKPC 10

Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162

Singer v Berghouse (No. 2) (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653; [1994] HCA 40

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O’Donnell (2011) 15 BPR 29,699; [2011] NSWCA 389

Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199; [2015] FCAFC 50

Royal Bank of Scotland plc v Etridge(No. 2) [2002] 2 AC 773; [2001] UKHL 44

Wu v Ling [2016] NSWCA 322

Texts Cited:

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) at paragraph 15-105.

PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [5.440].

Category:

Principal judgment

Parties:

Plaintiff/Cross-Defendant: Justine Bosschieter

Defendant/ Cross-Claimant: David Howitt as executor of the estate of the late Margaret Norma Howitt

Representation:

Counsel:
Plaintiff/Cross-Defendant: D Reid
Defendant/ Cross-Claimant: W G Muddle SC, P W McDonald

Solicitors:
Plaintiff/Cross-Defendant: Premier Lawyers
Defendant/ Cross-Claimant: Clear Lawyers

File Number(s):

2023/00043848

Publication restriction:

No

JUDGMENT

1. Margaret Norma Howitt died from Covid 19 on 24 February 2022 aged 93. After making several specific gifts, in her will of 2 March 2021 the deceased divided the substantial remaining asset of her estate, her house in the Sydney suburb Forestville, equally five ways among her four children and one of her grandchildren, the plaintiff, Justine Bosschieter. She gave the plaintiff a first testamentary right to purchase the Forestville property, provided the plaintiff paid 80% of its market value to the four children, the other major beneficiaries.

2. The plaintiff did not exercise her testamentary right to purchase the Forestville property, which was sold for $2,850,000. The balance of the deceased’s estate is now held in cash. On 8 May 2023, this Court granted probate of the deceased’s estate to the defendant, David Howitt, one of Margaret Howitt’s children.

3. In these proceedings the plaintiff seeks an order under Succession Act2006, s 59 for further provision out of her grandmother’s estate. She claims she needs more than was provided to her under the deceased’s will to enable her to buy a house and to provide her with a cushion against the contingencies of life.

4. On behalf of the estate, the defendant resists the plaintiff’s claim and contends that no further provision should be made for her from the estate. The defendant puts in issue whether the plaintiff qualifies as an “eligible person” under the Succession Act, whether there are factors warranting the making of an order for further provision out of the deceased’s estate, and he contends that adequate provision for the plaintiff’s proper maintenance education and advancement in life has already been made under the deceased’s will.

5. The defendant also cross claims to set aside a gift the plaintiff contends that the deceased made to her approximately 3-months before her death. The deceased and the plaintiff had together attended a branch of a bank, the Commonwealth Bank of Australia (CBA), where the deceased closed a recently matured term deposit held in her name. This term deposit in the sum of $202,247.29 represented the deceased’s then lifesavings. The term deposit was transferred into the plaintiff’s name. Since then, the plaintiff has applied these funds to various objects.

6. The defendant/cross-claimant contends that the transfer of the deceased term deposit was not voluntary but was the product of the plaintiff’s undue influence or unconscionable conduct. The defendant/cross-claimant seeks to have the transfer set aside and consequential orders made that these funds should be repaid to the estate. If the plaintiff/cross-defendant is otherwise successful in her claim, the defendant/cross-claimant claims that the transfer should be designated as notional estate under the Succession Act Part 3.3 and treated as satisfying the plaintiff’s claim.

7. Ms D. Reid of counsel, instructed by Premier Lawyers, appeared for the plaintiff. W G Muddle SC and P W McDonald of counsel, instructed by Clear Lawyers appeared for the defendant.

8. All the family members who gave evidence in these proceedings referred to one another by their first names. Without intending any disrespect to any party or witness, this Court will generally adopt the same course in these reasons and will sometimes refer to the deceased as “Margaret” as the context requires.

9. The following is a narrative of findings relevant to the contested issues. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy this narrative does not always include reference to versions of the facts that have been rejected. The narrative does not include all the many details of the evidence given by the parties but has selected the material most relevant to the matters in issue. First though the Court will make some general observations about the credibility of the various witnesses who gave oral evidence in the proceedings.

Observations on the Credibility of the Witnesses

10. Most of the witnesses who swore affidavits were cross-examined. The affidavits of several other witnesses were read without cross examination.

11. Nathan Bosschieter. Justine’s son, Nathan Bosschieter, was an attentive witness who tried to answer questions directly and as accurately as he could. He was open in trying to assist the Court about most issues, except gifts from Justine to him, on which his evidence was both guarded and defensive. His evidence is mostly accepted.

12. Thayla Howitt. Married to Justine’s son Nathan, Thayla Howitt was a reasonably reliable witness about what she observed within the Howitt family. She was genuinely trying to give her best recollection. She was spontaneous, direct in her answers, and generally trying to assist the Court but the scope of her recollection was relatively limited.

13. Luke Howitt. The plaintiff’s son, Luke, gave limited evidence. His description of family relationships was at times difficult to accept, and his testimony was delivered in a closed and suspicious manner. His account of events did not always appear to be given with compelling conviction.

14. Jaimie-Lee Porto. Ms Porto was in a personal relationship with Luke Howitt for some years and was able to make observations about the relationship between the plaintiff and the deceased during that relationship. She gave reasonably convincing evidence of what the plaintiff did for the deceased especially during the Covid 19 pandemic.

15. Justine Bosschieter. The plaintiff, Justine, was a poor witness. It was difficult to rely upon much of what she said. She gave inconsistent and changing answers to similar questions, so it was hard to judge which version of her evidence was true, except by looking to testimony of other witnesses and the overall probabilities. Her memory was vague except for limited islands of recollection that suited the legal case she was now propounding. She had little capacity to add reliable detail to her account of events to show she was drawing upon genuine memory of the events about which she was speaking.

16. The plaintiff had no insight into the improvidence of what she claimed was the deceased’s gift to her of $202,247.29 held on the CBA term deposit. Nor did she have any understanding that the deceased’s best interests in retaining this money were different from hers and might need separate protection. Justine had no comprehension that in the deceased’s best interests, the deceased might need independent financial or legal advice before the CBA term deposit was transferred to her. The Court had little confidence in her evidence and treated it with caution. But in places her evidence is accepted.

17. Mana Ghadirian-Marnani. The solicitor, Ms Ghadirian-Marnani acted for the deceased in the preparation of her last will in March 2021. She was an excellent witness. She presented as a thoroughly organised professional with good attention to relevant detail. She kept detailed, balanced, and objective file notes of her conferences with the deceased. She also had a good independent recollection of all her dealings with the deceased. This clear recollection of the deceased was probably inspired by Ms Ghadirian-Marnani’s genuine admiration for the deceased. Ms Ghadirian-Marnani remembered the deceased as a special client. The Court accepts all Ms Ghadirian-Marnani’s evidence. Ms Ghadirian-Marnani regarded the deceased at the time she made her will as an independent and self-possessed woman who knew her own mind and was alert to her own financial affairs and could well judge the various claims upon her testamentary bounty. Ms Ghadirian-Marnani’s evidence is a particularly powerful basis in this case for giving due weight to the deceased’s testamentary intentions as expressed through her last will.

18. Sue Singe. Ms Sue Singe was a neighbour who lived near the Forestville property. She was a witness of truth with a good recollection of her various encounters with members of the Howitt family. She had a been a company secretary for decades and was aware of the need for precision in legal matters. She carefully only spoke about matters of which she was confident. Though her evidence was reliable, she was only able to make limited observations of the life of the Howitt family from a distance.

19. David Howitt. The defendant, David Howitt, is a child of the deceased and the plaintiff’s uncle. He was a witness of truth. He gave careful and direct evidence based on sound recollections that he was able to articulate well. But he was quite ready to acknowledge the limitations of what he could remember. He was the deceased’s attorney during her lifetime and in that role had an alert, cautious and abiding concern for her welfare and best interests. In his role as executor, he has tried to maintain reasonable relationships with the beneficiaries of the deceased’s estate. His evidence is mostly accepted in these reasons.

20. Jennifer Rollo. Another child of the deceased, Jennifer Rollo was a careful witness who placed a high value on precision in her evidence, which the Court wholly accepts. She was a witness of truth who made astute observations of the capability of the deceased at various times, as she aged. She made appropriate admissions as to the limits of her capacity to observe events and did not exaggerate her account at any stage.

21. Denise Brauman. Another of the deceased’s children, Denise Brauman, is also the plaintiff’s mother. She was a careful witness with a detailed recollection of relevant events. She was a witness of truth who gave thoughtful answers to questions asked of her, often including concessions against her own interest. She had a good recollection of events, even those from a long time ago. She could spontaneously draw upon a detailed recollection of important matters and events, showing that she had a genuine recollection of them.

The Howitt Family of Forestville

The Early Years

22. The deceased was born on 28 June 1928. She married Allan, who served in World War II. They had four children, Denise born in 1950, Phillip born in 1952, Jennifer born in 1955 and David born in 1961. At the time of her death the deceased had eight grandchildren including the plaintiff, Justine.

23. The deceased and Allan purchased the land and built a home on the Forestville property in the 1950s under the War Service Home mortgage scheme, for which they qualified from Allan’s war service. The deceased and Allan raised their four children in the Forestville property and lived there all their lives.

24. By all accounts the deceased and Allan were engaged, caring and devoted parents and a couple who operated as a team. In the early years in the 1950s and 1960s everything seemed happy at home at the Forestville property. Denise, Philip, David, and Jennifer grew up at the Forestville property and spent most of their childhood there. Their individual paths away from the Forestville property are traced later in these reasons.

25. Margaret had exceptional carpentry skills. Jennifer’s testimony is that she “made things for everybody”. She later crafted toys, hobby items and gifts for the families of each of her children. Both Margaret and Allan would construct shelves and other carpentry installations around the houses of the children. These included an outdoor play gym, a dolls house, and a record player for Jennifer’s family. She made a dolls house for Justine too.

26. Allan was a handy builder. Margaret’s carpentry ability complemented his skills well, making them a formidable building team. In 1992, the deceased and Allan built a second level onto the Forestville property. Initially they let out the second level and later it was occupied by Justine’s family.

27. In 1971 Denise became pregnant and gave birth to Justine. Denise was 20 and unmarried. Her mother Margaret was of conservative disposition and disapproved of sexual relations outside of marriage and of Denise’s pregnancy. As was common in those days, Margaret arranged for Denise to be sent away for a short period to keep the pregnancy secret. Margaret wanted to Denise to give the baby up for adoption.

28. Justine was born in October 1971 at the Royal North Shore Hospital. Again, as was common at the time social workers and nurses initially took Justine away from Denise. The social workers pressured Denise to give Justine up for adoption. The deceased assisted Denise to find Justine in the hospital. Denise was insistent in wanting to keep Justine and refused to sign the adoption papers. The deceased supported Denise’s decision and ultimately agreed for Denise to take Justine home to the Forestville property, unlike many young women in similar circumstances in that era who were forced to give up their children for adoption. Denise gives detailed evidence about this painful period for her and the family.

29. Denise stayed with her parents for about 2 ½ years caring for Justine. Denise had support both financially and from her family. Denise took responsibility for feeding, bathing caring for Justine and putting her to sleep. Denise received what was then described as an unmarried mother’s pension.

30. About six months after Justine’s birth Denise obtained limited work as a casual waitress and as a babysitter. Denise has little memory of the circumstances of this employment. She recalls the babysitting was at least once a week. Out of her pension she paid board to her parents for her accommodation at the Forestville property. The amount of the board is uncertain, as is the amount of the pension and how much she had left over for herself.

31. But any realistic view of this period allows the Court to infer that both Denise and Justine were being financially supported by the deceased and Allan for many months after Justine’s birth. With her young baby Denise was initially not capable of any regular employment outside the home. She only had available to her the limited financial means of a pension. It is unlikely the pension was available immediately. Denise had to feed clothe and look after Justine and meet all her medical and financial needs. Even if one regards the board that Denise paid her mother as a market rate for her accommodation, the Court accepts that the deceased was the very generous, caring and family minded woman that she was described to be by all her children and grandchildren. The deceased was undoubtedly providing food, assisting with clothing, babysitting, and providing Denise and Justine with other incidentals necessary for their support well beyond the value of Denise’s board at home and well beyond any income that might have come from the pension. The Court can confidently infer this from the clear evidence of the deceased’s generous character and Denise’s situation.

32. In 1973, when Justine was about two and half years of age, and Denise was 23 they moved out of the Forestville property to live in the nearby beachside suburb of Collaroy.

33. Denise rented in other suburbs around Sydney including out in the western suburb of Windsor, whilst continuing to receive some financial assistance from Allan and Margaret. The fact that Allan and Margaret were giving Denise financial assistance when she was renting away from the Forestville property is some indication of the generous financial assistance, she is likely to have given them when they were both living in the household at the Forestville property.

34. The Court accepts Denise’s evidence that once she and Justine moved out of the Forestville property, they stayed away until Justine was about 18. Together with Denise, Justine took part in all the Howitt family celebrations and gatherings at Christmas and other times. For example, in 1981 Justine was a flower girl at Jennifer’s wedding.

35. Denise met her first husband, Neil Streatfield in 1982. They commenced living together with Justine in a Housing Commission apartment situated near Macquarie University. With financial assistance of $7,000 for a deposit from Allan and Margaret, Denise and Neil purchased a house and land package at South Windsor. Denise married Neil in 1984. While the house was being built there Denise found out that she was pregnant with her son Paul. The couple then moved into the South Windsor property. Paul was born in 1985 but Denise’s relationship with Neil ended. Denise stayed with her parents whilst the South Windsor property was marketed for sale. It was eventually sold in 1986.

22. Denise then went back to live with her parents at Forestville for about six months. In the meantime, Justine stayed with the family of a school friend in South Windsor.

23. Eventually Denise moved out of Forestville again with Paul and settled in Mount Druitt. Justine went to Mount Druitt High School. But Justine was becoming increasingly difficult for Denise to control. Justine was truanting from school. In what must have been about 1987, Margaret and Allan offered to take Justine overseas with them for a holiday to give Denise a little respite, but Justine was difficult for them to handle, and they cut short the trip and came home.

Denise Moves to Nambucca Heads and Justine Becomes Independent - 1989

38. Despite counselling and assistance from departmental authorities Justine never returned to school. Justine did not want to live with Denise, who tried to find her a place to live. Justine was not living with the deceased and Allan during this period. By the time of her 18^th birthday Justine had moved into a house with her then boyfriend, by the name of David.

39. In 1989, Denise decided to move to Nambucca Heads. But as Justine was living with her boyfriend, she did not want to join her mother there. Denise visited Sydney from Nambucca Heads and would see the deceased and Allan at the Forestville property about 3 to 4 times per year. She maintained a good relationship with them both. Justine disputes this but the Court prefers Denise’s evidence about Denise’s relationship with them.

40. Justine fell pregnant with her son Luke in 1989. He was born in July 1990. Denise was present at the birth. Justine and her boyfriend broke up about the time of the birth. Justine then came to live with Denise in in Nambucca Heads.

41. Justine returned to Sydney in 1990 with baby Luke. There is conflict in the testimony of Denise and Justine about the circumstances of Justine’s return to Sydney. Although it is not necessary for the Court to decide the details of this dispute, the Court prefers Denise’s account. Justine and Luke arrived at the Forestville property and stayed there for a while.

42. When in Sydney in 1990, Justine commenced a relationship with Mr Steve Bosschieter. She married him the same year. For the next 3 to 4 years Justine and Steve lived in different suburbs of Sydney, but not at the Forestville property until early 1993.

Justine Moves into the Forestville Property and then to Nambucca Heads – 1993.

43. Allan and the deceased completed building the upper story of the Forestville property in late 1992. In early 1993 Justine, Stephen and Luke moved into this upper storey.

44. Justine’s second child, Nathan, was born in late 1993 and was brought home to the Forestville property. The Court accepts that the deceased was uncomfortable with Justine and Steve’s parenting style and behaviour and began to express disquiet about them staying at the Forestville property beyond the end of 1993. Steve and Justine eventually moved out in October 1993, and they too moved up to Nambucca Heads and settled there. The deceased and Allan then let the upstairs area at the Forestville property to tenants.

45. In April 1997 after renting for a period, Steve and Justine purchased a house in Nambucca Heads close to Denise for $75,000. Justine gave birth to another son, Brad, in June of that year and to another son, Dylan in February 2001.

46. Steve and Justine continued to live in Nambucca Heads until March 2004, when they sold their property for $100,000 and moved back to Sydney. Jennifer assisted Justine with medical issues Brad encountered in his earliest years.

47. There is no doubt that Justine and Steve lived in Nambucca Heads between 1997 and 2004. At one point in her affidavit Justine says of her relationship with the deceased, “I don’t really think I ever completely moved out [from the Forestville property].”

Changes at the Forestville Property – 2002

48. As most of the family were living away from the Forestville property by 2002, the deceased and Allan decided to move up to the second story of the property and to let out the downstairs area to tenants. Although the deceased was uncomfortable having non-family members in the house and this arrangement only lasted about two years.

49. In May 2002 the deceased asked Jennifer to be the trustee for a savings bank account to set aside funds for Luke when he turned 18. Luke was then 11 years of age. The deceased explained to Jennifer that she did not trust Justine to be custodian of these funds. Jennifer performed at the role of trustee for this account until Luke turned 18 initially with HSBC, and then with the CBA.

50. In about 2004 the deceased and Allan decided to terminate the arrangement with the downstairs tenants. After helping to clean up the downstairs area David, Lap San and their children moved in downstairs paying rent of $200 per week.

51. About the same time Luke arrived back in Sydney from Nambucca Heads on his own. He was then aged 15 and was not accompanied by Justine. The deceased and Allan took him in, and he lived with them in the upper storey of the Forestville property.

Justine Lives in Sydney but not with the Deceased – 2005

52. In 2004 Justine and Steve rented houses in Sydney, in Eleonora Heights and Brookvale. In December 2004, the year that they returned to Sydney, Justine gave birth to her youngest son, Shannon.

53. Justine and Steve’s move to Sydney came on the cusp of a sea change in the relationship between the deceased and Justine. For the next eight years, from 2005 to about 2013, the deceased and Justine barely spoke to one another. The Court accepts David’s description of their relationship, as “entirely estranged” for the whole period.

54. During this time Luke was living at the Forestville property and Justine and Steve were living elsewhere. Luke lived up in the second storey of the Forestville property with the deceased and Allan. Luke changed his surname to Howitt from Bosschieter. The Court infers this was to distance himself from his mother for reasons associated with the estrangement. David arranged for Luke to be enrolled at a local Forestville high school. David gives an account, which the Court accepts, that he and his wife Lap San helped Luke with his schoolwork, with Justine’s consent.

55. The Court does not need to make findings about the cause of the estrangement. It is sufficient to say that the deceased took the view that Justine had behaved badly as an example to her son Luke and her children. The deceased decided that she wanted to have little to do with Justine for these years. The deceased had her own reasons for this, and it has not been established in the proceedings that the deceased was lacking grounds for her views of Justine. The case Justine presents to the Court in these proceedings downplays this period.

Allan and the Deceased’s Mutual Wills - 2007

56. Allan and the deceased had long saved for their retirement by accumulating a growing bank will term deposit. In 2007, they executed mutual wills giving their whole estate to their four children equally. Justine was not included in their 2007 mutual wills. The deceased often said to Jennifer that the term deposit and the house were to be divided equally between the four children. In these early years the deceased did not say to Jennifer or any of the other children that her testamentary wishes included the term deposit being given to Justine.

57. The deceased’s 2007 will appointed the deceased’s sister as executrix and after several legacies and bequests gave the Forestville property to David on condition that he paid one quarter of its market value to each of the other children. This was logical as he was then living in the property and the will gave him the option to continue doing so. The residue of her estate was divided equally between the four children, which would have included their term deposit.

Justine’s Separation and Reconciliation with the Deceased – 2009 to 2013

58. In 2009, Justine separated from her husband, Steve. And in 2012, she commenced a relationship with her current partner, Adam.

59. In about 2013 Denise initiated a reconciliation between the deceased and Justine. Denise thought that the estrangement had gone on long enough and that, as she said, it was now “the right thing to do”. Denise suggested to the deceased that Justine should be invited to Allan’s forthcoming 90^th birthday. The deceased agreed and Justine was welcomed back into the family. By this time Luke was on better terms with his mother, Justine.

Accommodation Changes at the Forestville Property – 2014 to early 2015

60. Justine and her children and Adam returned to Sydney towards the end of 2014. At that time David, Lap San and their family were living in the downstairs part of the Forestville property. Luke was living upstairs with the deceased and Allan.

61. When they first landed in Sydney, Justine and her family moved into the upstairs heart of the Forestville property for a period. This implied a tightly compressed living space at the Forestville property, which could not remain that heavily populated for very long. There is evidence of real friction between David’s family and Luke before and during this period.

62. On 7 February 2015 David and his family moved out of the downstairs part of the Forestville property and into their house at Belrose. This allowed Justine, Adam and four of Justine’s children to move downstairs and relieve some of the confined living pressure on the deceased and Allan.

The Residential Tenancy Agreement – March 2015

63. Justine and Adam’s residence at the downstairs part of Forestville property was formalised by a residential tenancy agreement signed on 8 March 2015. This entitled them to live at the property with Luke, Dylan, and Shannon. The rent that she paid under this lease was substantially discounted from a market rent of $1100 per week for the whole property (and therefore about $550 for the half of the property they occupied). She only paid $200 per week.

64. But the lease contained obligations on Justine and Adam’s part to keep the premises reasonably clean, and to clean them regularly and to keep the grounds of garden tidy and free of rubbish.

65. Justine and Adam also agreed that in the event of death of both Allan and the deceased that they would vacate the premises within 30 days thereafter, would pay the agreed rent and utilities in the meantime and would leave the premises in good condition.

66. As will be seen later Justine and Adam did not comply with these conditions after the deceased’s death. The Court infers in part from his conduct after the deceased death that, consistently with the estate’s evidence, Justine and Adam did not comply with the lease conditions for keeping the Forestville property tidy and free rubbish whilst they were in occupation.

Family Support for the Deceased and Allan up to 2015

67. By no later than 2015, the deceased and Allan used the Meals on Wheels home meal service for at least some of their meals. Justine says that she cancelled the service when she moved back into the Forestville property because it did not provide nutritional meals and that she cooked for Allan and the deceased after that. The Court does not accept her evidence that this service was entirely cancelled.

68. Nor does the Court accept that Justine provided a full set of meals for the deceased and Allan after she moved back into the Forestville property. The Court does not accept that Justine is sufficiently reliable to have provided all meals for the deceased and Allan from this time. Moreover, some parts of Justine’s evidence are so exaggerated – such that she never really left the Forestville property – that it is difficult to accept her evidence about her constant support for the deceased and Allan, where that evidence is contradicted by David, Denise, and Jennifer.

69. Until about 2015 the deceased and Allan valued their independence and tried to maintain it as much as possible. As Denise says they were largely independent and were responsible for their own medications, meals, appointments, finances and maintaining their own living space. The Court accepts Denise’s evidence that throughout most of his life Allan made breakfast for them both as a daily ritual until they became ill.

70. Allan seems to have begun to decline in health in 2015. It can be accepted from then that Justine provided more assistance for both Allan and the deceased. But it was not as much as she says. She was heating up Meals on Wheels as well as making some meals herself. But the Court accepts Denise’s evidence that the deceased did not let Justine prepare medications for her until late in 2021, not long before she became ill with Covid.

71. Justine did take both Allan and the deceased to medical appointments. The deceased took the view that Justine was being paid a carer’s allowance and was appropriate that she undertake work such as this. The deceased appeared to regard Justine’s receipt of the carer’s allowance as fair compensation for carrying out these day-to-day tasks.

72. But Justine’s care for the deceased at the most basic level of providing regular meals for her after Allan’s death, was not sufficient to prevent her losing substantial amounts of weight. It can be accepted that it is difficult for elderly people with slowing metabolisms to maintain adequate weight. This But when the deceased was admitted to Northern Beaches Hospital after eating cornflakes with her dentures in an bruising her mouth she was found to be “very underweight” at 48 kg and had a “6% unintentional weight loss” over the previous three months. The Court infers from this material that Justine’s attention as a carer to all aspects of the deceased’s health was was suboptimal.

Allan’s Death and the Deceased’s Declining Health - 2017

73. Allan died on 3 March 2017. Soon after his death it became evident that the deceased was suffering from shortness of breath on exertion due to emphysema. She was given enriched oxygen to assist her breathing on a 24-hour seven day a week basis. This oxygen therapy was administered by nasal prongs connected to a portable oxygen tank. By this time the deceased was able to take advantage of a Department of Veterans Affairs (DVA) Gold card for home care assistance twice a week. DVA also provided her with a motorised scooter. Otherwise, she was able to mobilise with the assistance of a wheeled walker.

74. The deceased suffered from several medical conditions in the years prior to her death. These included hypertension, hypercholesterolaemia, gastro-oesophageal reflux, osteoporosis, emphysema. In the past she has suffered from breast cancer and a stroke. Both she and Allan had been smokers in their younger years.

75. The deceased rearranged her affairs shortly after Allan’s death. In July 2017, she appointed Jennifer and David as her joint Enduring Guardians. The deceased revised this appointment eight months later, having rethought its structure. In March 2018 she extended the Enduring Guardian appointment to all four of her children with them having the right to decide about her affairs by majority. But by then she was content with Justine continuing to take a caring role for her. The deceased correctly perceived tension between her four children acting by majority and the continuation of Justine’s role as her carer. She placed a limitation on the authority of enduring guardians, stating “I am to remain in my home and [Justine] is to remain my carer”.

76. The DVA services that the deceased received regularly included access to at home monthly dietician visits, showering services twice per week, visits from social workers twice per week and other assistance such as physiotherapy, occupational therapy, and home cleaning. The showering was limited to twice per week due to the deceased suffering from shortness of breath.

Overview of the Deceased’s Health and Cognition – 2020 to 2021

77. In October 2020 Justine took the deceased down to the CBA to request a new ATM card for the deceased’s account. The deceased was out of breath and in some physical distress due to her exertion and lack of oxygen by the time she got to the bank. The bank manager refused to issue card to Justine and the deceased as he was concerned about its potential misuse. Justine was not the deceased’s attorney. It appears that because of this Justine resolved to become the deceased’s attorney.

78. In November 2020, the deceased appointed Justine as her enduring Attorney and as her enduring Guardian, in place of the March 2018 appointment of her four children to these roles. Shortly, thereafter she executed her final will in March 2021, which gave Justine and her children one fifth each of the Forestville property and her residuary estate. During this period the deceased was generally isolated due to the pandemic and being cared for by Justine. Her general health was declining as this section of these reasons finds.

79. On 10 March 2021 the deceased obtained a medical certificate from her doctor regarding her inability to go to the bank. The doctor said that she suffered “from an end-stage medical condition” and that “she is housebound, frail, and susceptible to infections. She is not able to attend any community appointments including banks and shops.” This medical certificate raises real questions as to why Justine needed to take the deceased to the CBA in November that year.

80. Until June 2021, the deceased enjoyed doing puzzles and playing a modified version of the board game “Scrabble” with her daughter, Jennifer. Rather than compete, the pair would generally help each other find words and use the game to try and keep their brains active. The Court accepts Jennifer’s evidence that by participating in these games with the deceased, Jennifer could judge the deceased’s cognition quite well. Jennifer is a reliable narrator, and she regarded the deceased as reasonably lucid until the last six months when her cognition declined. It was in these last six months that the deceased was likely to become more heavily dependent upon Justine for preparing medications and the like.

81. But even in 2020 and early 2021 the deceased was showing periods of confusion. For example, Jennifer visited her on one occasion in January 2021 and the deceased mistook her for the deceased’s sister. And in May 2021 the deceased uncharacteristically forgot Jennifer’s birthday

82. But the deceased was losing weight and strength steadily during this period as the findings elsewhere in these reasons show. Moreover, this seems to have been a regrettable ambivalence within the household at the Forestville property about vaccinating the deceased against Covid – 19. She remained unvaccinated.

83. Social worker visits to the Forestville property ceased around January – February 2022, prior to the deceased’s admission to hospital. The hospital notes made shortly after the deceased’s admission include an interview with a social worker who had been in touch with the care worker who had been visiting the deceased at the Forestville property. The hospital notes make clear that the care worker felt unsafe in visiting the deceased because of the “many visitors…into the home during lockdown”. The Court regards these notes as reliable and indicating that infection controls within the Forestville property were probably less than optimal for the deceased.

84. This is also a reminder that until early 2022 access to the deceased during the pandemic was restricted and she was to a degree socially isolated and under the control of Justine.

New Legal Advice, Attorney and Will – 2020 to 2021

85. Justine arranged for the deceased to meet a new solicitor in October 2020, Ms Ghadirian-Marnani. As it turned out Ms Ghadirian-Marnani gave the deceased excellent advice as far as she was able. But the sequence of events shows that Justine arranged for the $200,000 transfer to take place whilst the deceased did not have the benefit of that advice. The deceased had no practical way of leaving the Forestville property and getting to see Ms Ghadirian-Marnani without Justine’s help. The $200,000 transfer took place without the deceased having an opportunity to confer with Ms Ghadirian-Marnani beforehand, notwithstanding that Justine was conscious that Ms Ghadirian-Marnani could readily have been consulted about it in advance and the deceased plainly had confidence in her new solicitor.

85. The deceased was introduced to Ms Ghadirian-Marnani on 27 October 2020. Ms Ghadirian-Marnani’s file notes of her attendances on the deceased provides a reliable account of what was discussed on each occasion they met. On 27 October 2020 the deceased wanted to appoint Justine as her enduring attorney and enduring guardian, and she wanted to provide for Justine in her will. The file note is as follows:

“… [the deceased] was fully in possession of her faculties, I asked her about her family tree and she answered them all.

She wanted help with her [Power of Attorney], and she wanted to change it as David (her youngest son, who is the current attorney) was being too controlling and was interrogating her on her expenses because he has now access to her bank account. [the deceased] was not happy about that all.

.… [the deceased] wanted to provide for her grandkid Justine after her death because currently the will provides that her house to be distributed to her 4 kids equally and ideally she does not want to mention Justine in the will because other grandchildren will be then upset. We discussed the life tenancy option but then again it is under the will and she did [not] want to tie up her biggest asset to Justine’s life. After all she can live somewhere else.

She has about $200K in saving[s] in a term deposit with CBA that she can transfer to Justine during her lifetime so that there would be no mention of Justine in the will. I advised her of the notional estate rules and the fact that she might ultimately need to mention Justine in the will…”

87. The reference to David “interrogating” the deceased on her expenses was merely David being concerned that the deceased might be being financially exploited by Justine. Justine was not open with the deceased’s children as to the financial arrangements in the Forestville property and Justine seemed to have the last word with the deceased, so this attitude on the deceased’s part is not surprising. The file note makes clear that the transfer of the $200,000 was so that it would not be necessary to mention Justine in any revised will the deceased would make.

88. On 4 November, Ms Ghadirian-Marnani attended the deceased at the Forestville property for the second time to obtain her execution of the change in Power of Attorney and Enduring Guardianship appointments. In her file note from the appointment, she added some supplementary notes to her 27 October consultation with the deceased. She noted that the deceased sought to change her Power of Attorney because “David is nosy” and she didn’t want to be cross-examined on her expenses. Ms Ghadirian-Marnani recorded that she had been shown some transactions and the deceased stated that “none is spent on Justine”.

89. On 13 November, Ms Ghadirian-Marnani again attended the Forestville property for a third time to obtain Justine’s acceptance of the Power of Attorney and Enduring Guardianship appointments. During this consultation, Ms Ghadirian-Marnani noted in her file note that:

“[the deceased] asked how she can make sure that Justine is not kicked out [of the Forestville property] I said you can give her a life interest but she did not want to tie up the asset she suggested that she gives 1/5 of the house , I said but she still has to share with 4 other people she is sure that if anything goes to Justine, it will be challenged by her children I said well you can give her the term deposit which is $200K and that is maybe enough to get a loan or to buy a house in a cheaper suburb such as Western Sydney- but Justine does not want to live in West.”(*Exhibit pg 26)

90. In a later file note written on 19 November, Ms Ghadirian-Marnani added that on 13 November:

“… [the deceased] was upset that her kids, David in particular and then grandchildren talk to her about her inheritance all the time as if she is already dead and can’t make decisions for herself. [The deceased] told me that she has been asked to do a capacity test by her doctor, requested by her son David, which has passed by the way, but that was very upsetting for her… [The deceased] was not happy at all about the way the kids and grandchildren talked [sic] about money and the fact that her children will kick Justine out the day she dies.… when [the deceased] was asking about the POA she asked me about being the attorney to which I said in that case you need to get another lawyer to prepare [the] POA and then I need to charge for my time handling your money which will be financially unwise. She did not want to get another lawyer. So, this option was out. I advised her that she can have a professional attorney… but again they charge dearly and she needs to think about practicalities. She did not like the idea… She then wanted Justine as her attorney and I asked her if she trusts Justine to which she said yes.”

91. On 19 November, David called Ms Ghadirian-Marnani and made enquiries about whether he was still the Power of Attorney and Enduring Guardian and if the deceased’s will had been changed. Ms Ghadirian-Marnani advised him of the revocation of his Power of Attorney and Enduring Guardian appointments but advised that the contents of the will was confidential.

92. On 20 February 2021, Ms Ghadirian-Marnani attended on the deceased at the Forestville property again and received instructions to draft a will which included Justine and divided her assets equally between her four children and Justine with a grant of right of first refusal to Justine should she have enough money. The gift Justine was because “Justine has looked after her for such a long time”. This undoubtedly reflected the deceased’s gratitude for the care that Justine had given her.

93. On 24 February 2021, Ms Ghadirian-Marnani attended on the deceased at the Forestville property for the execution of her will. The deceased changed her instructions to clarify that she wanted “Justine [to] inherit 1/5 of her house as well as her other assets (being the $200K in CBA mostly)”. Ms Ghadirian-Marnani attempted to make the amendments during this appointment, but her portable printer was having issues and instead she annotated the amendments to the will by hand and organised to “amend the will come back in a week or two”. This file note makes clear that the March 2021 will was structured upon the assumption that Justine would inherit 1/5 of the $200,000 in the CBA, which was expected to be part of the deceased’s estate.

94. In March 2021, the deceased made her final will, the 2021 will, which left Justine as one of the named beneficiaries and granted her the right of first refusal to acquire the Forestville property. There had been discussion about transferring this sum to Justine during the deceased’s lifetime but only upon the basis that it would not be necessary to mention Justine in the will. What the deceased ultimately did for Justine through her will was more generous than merely giving her the CBA $200,000.

95. The deceased’s mental acuity began to decline noticeably after the making of her final will. Jennifer’s evidence, some of which was mentioned earlier, was that in May 2021, the deceased forgot her birthday and that from around June 2021, they stopped playing scrabble together after the deceased’s ability to find words deteriorated to the point which she could not play beyond two rounds. Also in June 2021, the deceased forgot her own birthday.

The $200,00 Transfer – 17 November 2021

96. On 17 November 2021, during Covid-19 restrictions, Justine and Luke drove the deceased with her oxygen tank, to the CBA branch at Frenchs Forest. Whilst at the CBA, the deceased and Justine attended on Mr Nickson Adamson a bank manager with the CBA.

97. Mr Adamson was not called to give evidence. During their attendance on Mr Adamson, the deceased caused the sum of $202,247.29 from a matured term deposit account in her name to be transferred into her personal account. Then shortly afterwards the deceased caused the funds to be transferred from her personal account into a term deposit account in Justine’s name.

98. No prior notice was given to Ms Ghadirian-Marnani that this transfer was going to take place. The deceased was still living at the Forestville property and so far as was then foreseeable she may have needed these funds to meet expenses on the Forestville property, if not her own medical expenses.

99. But curiously in December 2021, Justine called Ms Ghadirian-Marnani and put the deceased on the telephone. But Ms Ghadirian-Marnani could not understand the deceased due to her frailty at this time which cause her voice to be unclear. Justine took over the call and informed Ms Ghadirian-Marnani that the deceased had transferred the term deposit funds to her and enquired whether they “needed to do anything else”. This was the first Ms Ghadirian-Marnani had heard of this transfer. He’ file note of this call records that Justine “wanted to make sure if she needs to update her will” to which Ms Ghadirian-Marnani said “no, u [sic] have transferred this asset to Justine as a living person, so its no longer your asset and u [sic] can’t decide about it in your will.”

100. Denise and Jennifer said that in their conversations with the deceased, she had always expressed an intention for the term deposit funds to be left to her children equally. The Court accepts this evidence. It is also consistent with the instructions given to Ms Ghadirian-Marnani on 24 February 2021. Denise and Jennifer also said the deceased was private in her financial affairs and did not disclose to any of her children the exact balance of the term deposit. David’s evidence corroborates this account but with the subtle difference being on his recollection that the deceased had intended for the term deposit to be divided among the beneficiaries equally. The evidence of these 3 siblings was that they never heard the deceased say that she wanted Justine to have the term deposit money. This evidence is accepted.

101. The Court does not accept Justine’s evidence that the deceased spontaneously wanted her to have the $200,000. Justine has not provided any written evidence supporting her contention that the deceased intended for her to have the term deposit funds. The deceased did not act on the independent advice of Ms Ghadirian-Marnani when she transferred the term deposit funds to Justine. From the evidence available, it is apparent that the deceased had considered gifting Justine the term deposit but not including her in the will, but ultimately decided against that course.

102. However, it is now Justine’s case that the deceased’s intention was for to receive the term deposit and her entitlement under the will. The Court does not accept the deceased freely intended that course.

103. Moreover, it was clear that at the time the term deposit funds were transferred to Justine from the deceased in November 2021, that there was a strong relationship of trust and confidence between Justine and the deceased. Justine was not only the deceased’s carer, but the deceased had appointed her as her enduring guardian and attorney. Appointment to these positions is only explicable based on the deceased reposing a high degree of trust, confidence and dependence upon Justine to act in her best interests.

Disbursing the $200,000 and its Implications

104. The money Justine received from this term deposit was withdrawn rapidly. On 11 February 2022 she made an early term deposit withdrawal of $50,000. On she made further early term deposit withdrawals of $50,000 on 14 April 2022, of $40,000 on 10 June 2022, and of $53,000 23 on July 2022 making a total of $193,000. Almost the whole original term deposit transferred from the deceased had been fully distributed within about four months of the deceased’s death.

105. Justine’s explanation for this was that these withdrawals were mostly given to her children. And that can be accepted although there was other personal discretionary expenditure undertaken with the funds, some of it at licensed venues. Reviewing what had happened Justine said of her spending patterns with these funds:

“Looking back at it now and how everything has panned out, I probably would have done things differently, but at that time I was more thinking about helping my children…”

106. Justine says that she did not know that she would be given one fifth of her grandmother’s estate and she says that she did not know she would have the opportunity to stay in the Forestville house. Accepting that Justine was only thinking about helping her children with things that they needed, she nevertheless gave no priority to using the $200,000 as a platform for building up funds for a deposit to purchase a house.

107. The Court is not confident that any sum, no matter how large or small, that might be awarded to the plaintiff would not be given away to her children rather than used as a basis for her to purchase a house. She is susceptible to pressure from her children to give them money when she has money available to her. Her past management of the $200,000 proves that she is vulnerable to this pressure, which can overwhelm her. And she is driven by a powerful need to have her children’s approval as a generous and all-providing mother. This is demonstrated in part by many of the transfers of funds to her children, which are accompanied by the message, “My mums the BEST”.

108. Looking realistically at the situation, this does not augur well for how she could manage any future award of a lump sum in her favour, were one to be made. She is sui juris and legally able to manage her own affairs. Creating a testamentary trust to protect her from this pressure is impractical. The probable ineffectiveness of any additional order for provision that might be made to the plaintiff is another reason for not making such an order.

The Deceased Contracts Covid – February 2022

109. The deceased contracted Covid-19 at home in January 2022. Someone brought the infection into the house, and it may be inferred that there was insufficient infection control within the house to protect her. The evidence shows family recriminations about this situation, which has been exacerbated by Luke’s contemporaneous expression of anti-vaccination opinions. The Court is in no position to decide what caused the deceased’s death and has not been asked to do so. The findings made in this paragraph are all that can be said on the subject for present purposes.

110. The deceased was admitted to Northern Beaches Hospital with Covid-19 on 6 February 2022. She was taken by ambulance to the hospital suffering from delirium and abdominal issues in the context of her Covid-19 infection. Within the first few days she seemed to be recovering but her health later deteriorated again, and she died on 24 February from Covid-19 related pneumonitis.

111. Shortly after the deceased’s admission and before her death, Justine first broke the term deposit that had been transferred to her by the deceased and withdrew $48,000 on 11 February 2022. Justine had not used this sum whilst the deceased was still at home but the deceased’s departure into hospital to an uncertain future suffering from a Covid-19 infection seem to release any constraint on Justine from using the money transferred to her.

112. From the sum Justine transferred to herself on 11 February, $15,000 was transferred on to her son Nathan. The transfer was tagged with the message “My Mums the Best”. Between February and October 2022, Justine ultimately broke the term deposit 6 times. The funds were applied to a range of objects, including personal indulgences, cash withdrawals including many of them occurring at licensed premises, and the transfers of large sums to her children and to other individuals.

Short Chronology of These Proceedings from February 2023

113. Justine commenced these proceedings on 9 February 2023. Her supporting affidavit foreshadowed the case made on her behalf. Justine seeks further provision from the deceased’s estate so she could buy her own home, by a good quality second-hand car top up her savings account with the contingency for future unplanned expenses of $250,000 and top up her superannuation in the sum of $150,000 and provide a fund for future medical expenses of $100,000.

114. Probate of the deceased’s will was granted to David on 8 May 2023. Between June and August 2023, he made attempts were made to ascertain from Justine whether she would seek to exercise her right of first refusal to purchase the property. The estate’s solicitors took steps to realise the Forestville property. Justine resisted these steps adding unnecessarily to the cost of administering the estate the administration of the estate. Justine did not reply to letters from the estate of 13 April 2022, 24 October 2022, 24 November 2022 and 19 April 2023. No reasonable excuse was offered by Justine for ignoring the estate’s correspondence inquiring when she would be vacating the Forestville property.

115. On 26 May 2023, the estate filed its Cross Claim seeking repayment of the November 2021 $200,000 transfer to Justine on the basis that Justine procured the transfer by undue influence and/or unconscionable conduct. Alternatively, should the transfer be found to be a valid act of the deceased, the estate seeks that the transfer ought to satisfy any entitlements to further provision from the estate which Justine is found to have.

116. On 4 July 2023 the estate served notice of termination of the lease requiring Justine to vacate the premises. In October 2023, the estate and finally commenced possession proceedings in the NCAT and orders for possession were made but stayed until 10 November 2023. On 10 November 2023, over 20 months after the deceased’s death, Justine and her family finally vacated the Forestville property.

117. The photographic evidence shows it was left in a grossly dilapidated state. No serious attempt to be made by anyone to make it presentable. Despite the tenants’ obligations under the Residential Tenancy Agreement, the Forestville property was left in uninhabitable condition with obvious signs of property damage and rubbish strewn both in and outside the dwelling on the property. The proper inference to be drawn from the photographs of the detritus left behind by Justine and her family was that they expressed their resentment at being forced to vacate the property by leaving it in a state from which their contempt would be obvious and which would maximise the cleanup costs to the estate. And those costs were substantial. David incurred a debt of $55,000 on behalf of the estate sourced from Philip ($40,000), Jennifer ($500) and himself (approximately $5000) and the balance from the estate.

118. Once it was clear to Justine that she was not going to exercise a right of first refusal, the proper thing for her to do was to vacate the property cooperatively to save the estate legal expenses. Her conduct in leaving the Forestville property in the state that she did is thoroughly discreditable. After it was cleaned up, the property was sold in February 2024, for $2,850,000.

Justine’s Financial Position

119. At the time of the hearing Justine was residing at a women’s refuge. She is currently employed on a casual basis as a National Disability Insurance Scheme (NDIS) disability care worker by a NDIS service provider. Prior to that, she had been “couch surfing” for several months. From her care worker role, she earns between $300 and $900 per week, depending on the number of shifts she undertakes, and on which days, she works. Her earning capacity is largely determined by the number of shifts on offer and her willingness to work those shifts. She agreed that she was willing to “take a full-time normal load” of work for the NDIS.

120. Between February 2015 and 3 June 2022, Justine received a direct credit to her personal bank account, by way of a regular carer’s pension from Centrelink. This pension was for caring for the deceased and Allan. The pension was reduced by approximately half following Allan’s death in 2017 and finally ceased a few months after the deceased’s death. At the time of the deceased’s death the pension was about $850 per fortnight; some fortnights it was more. Justine now has no dependent children as her youngest, Shannon, turned 18 in December 2022.

119. Justine was injured in a fall in Coles in 2017. She brought proceedings against Coles. In 2018, she received money from a settlement with Coles. The amount of the settlement is unclear, but its receipt did not provide the foundation for any program of savings by Justine. She has no assets of significant value to her name. This is largely a product of her incapacity to save. Throughout her life money that has come into hands has usually been quickly dissipated.

120. Justine does have working capacity as a NDIS worker for some years to come. She was born in 1971 and is now 53 and probably has at least seven years working capacity. She claimed to be in significant pain as result of the accident she had with Coles but whatever was her short-term disability due to that injury, it does not presently interfere with her capacity to work for the NDIS. Justine can also look to her five sons for some financial support. She has been very generous to them over the years as is evident from the distributions she made to them from the $200,000 term deposit transferred to her by the deceased.

The Present Needs of the Other Beneficiaries

123. This section sets out a short profile of each of the other residuary beneficiaries under the will and gives an account of their present personal and financial circumstances.

124. Denise Brauman. Denise’s second child, Paul, was diagnosed with Asperger’s syndrome soon after birth and has special needs. Paul is the son of Denise and Neil to whom Denise was married between 1984 and 1994. The burden of caring for Paul was such that Denise ceased paid employment in 1996 just before Paul entered his teenage years. Presently, she cares for Paul two days per week. Care providers look after him the other days. Denise is now 74 and her present living circumstances have reduced her ability to care for Paul on a full-time basis.

125. Denise married Maxwell Brauman in June 1994. They were married until 2021 when he passed away. Denise has been caring for Paul on her own since 2021.

126. When she moved to in Nambucca Heads in 1989, Denise purchased a property for $60,000. She has resided there since. She is presently dependent solely on her carer’s pension (for looking after Paul) to meet her living expenses. Her home is presently unencumbered, and the land has been valued at $228,000. She also owns her motor vehicle outright and has savings of approximately $21,000.

127. Denise’s Nambucca Heads house property is presently in a very poor state of repair. She wants to continue living there as it well suits her and Paul. She says, and the Court accepts, that the Nambucca Heads house will need to be knocked down and re-built to better meet her and Paul’s needs as she ages. The house is presently uninsurable and is virtually uninhabitable. Denise wants to rebuild the house to assist Paul in transitioning to independence as she knows that she will not be able to look after him indefinitely. Denise has obtained a quotation for that building work at $450,000. She leads a frugal existence and has a small balance in her bank account. She essentially lives day-to-day within her means. She needs the money she will receive from the deceased’s estate under the will.

128. Philip Howitt. Philip was born in May 1952 and is the second oldest child of the deceased. He swore a single affidavit and was not called to give oral evidence.

129. Philip was born in May 1952 and is presently 72 years of age. He is retired and relies on his part-pension and savings of $300,000 (having fully drawn down his superannuation) to fund his ongoing living expenses which he estimates amount to approximately $3,052 per month. He owns a property in Dunbogan, a small beachside township south of Port Macquarie, which he purchased with his late wife in 1999. He estimates the value of this property at $800,000.

130. Philip wishes the intentions of the deceased to be honoured and for him to receive the benefits given to him under the will. He has a need of this benefit. He suffers from bowel disease, lung disease and other age-related medical conditions. As he ages over the next few years Philip is likely to have increasing financial needs for personal care and medical needs. To access more intensive care as he ages, he may have to move from Dunbogan to a larger township.

131. Jennifer Rollo. Jennifer was born in 1955. She is the third child of the deceased and Allan. She was raised with her siblings at the Forestville property until she left in about 1974 at about the age of 19. After leaving school Jennifer trained as a laboratory technician. She married in 1981 and gave birth to first son, David Rollo, in 1983.

132. Jennifer supports Denise’s evidence that is inconsistent with Justine’s claim that she did not ever “completely move out” of the Forestville property. Jennifer was often back at the Forestville property, and she saw that Justine had completely moved out with Denise when she was about three.

133. Jennifer’s son, David Rollo was diagnosed with an intellectual disability known as Cornelia de Lange Syndrome when he was 3 months old. Jennifer had two other children, Jemma, and Stuart, who were born in 1984 and 1987, respectively.

134. During the period between 1983 and 2002, Jennifer was an active member of the Cornelia de Lange Syndrome Association of Australia. Between caring for David Rollo, she organised conferences, provided counselling to new families and authored a periodic newsletter bringing together a community of families affected by the syndrome. For her significant contribution to the community through the Cornelia de Lange Syndrome Association of Australia, in 2002, she was awarded the Medal of the Order of Australia.

135. From 2004 to 2016, Jennifer was heavily involved in establishing the Ryde Area Supported Accommodation for the Intellectually Disabled (RASAID) an organisation that lobbied for more disability housing options in NSW which would benefit a wide range of people with disabilities including David Rollo.

136. Jennifer divorced her husband, Tony, in 2011. Tony’s mother had died shortly before their divorce. In the property settlement with Tony after their divorce Jennifer did not ask for a share of Tony’s mother’s inheritance on the basis that she expected to receive an inheritance later from Margaret and Alan.

137. In 2013, Jennifer ceased paid employment and became David Rollo’s full-time carer. This enabled her to devote more of her time to the objectives of RASAID and to David Rollo. This arrangement continued until the RASAID’s objectives were completed in 2016. Shortly thereafter, David Rollo moved into his house. Jennifer’s carer’s pension ended, and she resumed paid employment on a part time basis as a project manager at Genetic Alliance Australia.

138. Jennifer had an excellent relationship with the deceased. She visited the deceased weekly except for the period during Covid-19 restrictions. Prior to Alan’s death, Jennifer would take him to his hearing appointments until 2015. From then, at the direction of the deceased, Justine took over responsibility for taking him to those appointments. The deceased explained this arrangement to Jennifer on the basis that Justine was being paid as a carer “so she can do things like this”. Jennifer would also assist the deceased by taking her to appointments with respiratory doctors until September 2018. From then on, because of a similar direction from the deceased, for similar reasons, Justine took over responsibility for taking the deceased to these appointments.

139. Jennifer’s financial situation puts her in need of the bequest in her mother’s will. Jennifer retired in 2021. The time of the hearing she was 69 and for practical purposes she has no further earning capacity. She depends upon her pension to meet her current living expenses. She has an old motor vehicle which she has only recently replaced with a second-hand vehicle due to lack of ready funds to purchase a new one.

140. As part of the divorce settlement from her former husband, Tony, Jennifer received their marital home in Belrose, NSW, an old car, some shares in publicly listed companies, which were valued at the time of the hearing in about $25,000 and approximately $35,000 in superannuation.

141. The Belrose property was last valued on 1 July 2022 at $3.41million but much of this is land value and the house itself needs substantial repair in part due to termite damage. Jennifer wants to continue living in a house with which she and David Rollo are familiar. Other than using her expected inheritance, Jennifer claims, and the Court accepts, that she has no means to pay for the works required to make her home liveable.

142. Jennifer faces several medical issues which are financial risks for her in the near term. She has spinal pain from several damaged spinal discs. And she has suffered a pulmonary embolism. She takes remedial measures for her spinal pain, including pilates classes, physiotherapy, and massages. She had to discontinue the remedial massages to help with her spinal pain from her disc damage. She ceased the remedial massages as she could not afford them, although she found them beneficial.

143. David Howitt. David was born in January 1961 and is the youngest child of the deceased and Alan. He lived at the Forestville property until 1980. Between 1980 and 1994, David lived at the Forestville property between periods of travel. In 1994 and 1995, David attended college in Tasmania and lived on campus in student accommodation.

144. While studying, David met his wife, Lap San, who was a Hong Kong national. The couple wed in Hong Kong in 1997 following the conclusion of their studies. Later in 1997, they returned to Australia and lived in the Forestville property for a few months before they found a rental property in Hornsby. From the time of his return to Australia, David’s parents saw much of Lap San, as he was keen for them to get to know her.

145. In 1998, David and Lap San purchased a property in Mount Kuring-gai in which they lived for a brief period until 2005. They then moved back into the Forestville property, whilst they tenanted the Mount Kuring-gai property. David and Lap San adopted their two children in 2005 and 2008. The children were each born the year prior to their adoption.

146. During the first four years of their time living in the Forestville property, David and his wife paid a nominal $200 rent per week to his parents after which, by agreement, they ceased paying rent but assisted with updating the kitchen, appliances and contributing to the upkeep of the house and the household. David says that Justine was not living at the Forestville property between 1995 and 2004 and that the deceased and Alan had rented out the property for much of that time. The Court accepts David’s account, Jennifer’s account, and Denise’s account of the general occupation of the property during this period in preference to Justine’s account that she was living there.

147. In 2014, David and Lap San sold the Mount Kuring-gai property and purchased a property in Belrose. They decided to rent out their Belrose property and they moved back to the Forestville property. This did not go well, and they moved out in February 2015 and back into the Belrose property. Luke was behaving badly and making racist remarks about Lap San and their family. The Court accepts that there was constant aggression in the household, much of it based around Luke.

148. From October 2020, David and the deceased had a falling out over David’s alleged over-involvement in the deceased’s finances. Jennifer’s perspective on this is the most accurate. She explains that David was trying to look after the deceased in the pressures of the pandemic. But the deceased became defensive and displayed the increase in suspicions commonly seen in the elderly. She did not appreciate David’s inquisition into withdrawals that she had made from her personal bank account which were worrying David. But shortly after their falling out they reconciled and the deceased instructed David, in his capacity as her attorney, to reinvest her matured term deposit and to assist her in organising her finances.

149. By the time deceased made her will in March 2021 she was content for David to be appointed substitute executor if the primary executor, the deceased’s sister, renounced the appointment, which she did.

150. David and Lap San purchased their Frenchs Forest property for $800,000 in 2014. David believes it to be worth approximately $1,500,000. The present loan amount outstanding on their mortgage over the property is $200,000. David is a teacher, and his wife is a nursing teacher, both work full time. They have not disclosed their current wages, but they estimate their total monthly outgoings to be $3,450. The Court infers from the fact they still have a mortgage liability of $200,000 that any earnings surplus they have over expenses, is not sufficient to pay down their mortgage rapidly.

151. David and Lap San wish to carry out renovation works on their Belrose property including updating the decking, the kitchen and one of the bathrooms, which they have not yet been able to do. David and Lap San still have two dependent children, an adult child aged 20 and a teenager aged 16. Both children have medical conditions that require David and Lap San’s ongoing financial support.

Analysis of the Claim and the Cross Claim

152. In assessing the plaintiff’s claim against the estate, it is important to know first whether she has a liability to the estate to repay the $200,000 November 2021 transfer.

The Estate’s Cross Claim – Applicable Legal Principles

153. The Cross Claim contends that the transfer was procured by presumed or actual undue influence that Justine had over the deceased and/or Justine’s alleged unconscionable conduct. The presumed undue influence is alleged to have arisen out of the circumstances of the relationship between Justine and the deceased and the ascendancy and dominance Justine had over the deceased.

154. Unconscionable Conduct. The applicable legal principles in relation to the estate’s claim of unconscionable conduct may be shortly stated. The elements required for a court to conclude that unconscionable conduct has occurred were extracted in summary form from Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461-462 and other cases decided in the High Court and restated in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49, at [38] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) as follows (omitting case references):

“A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests". The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring "victimisation", "unconscientious conduct", or "exploitation". Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”

155. More recently the necessary elements of unconscionable conduct were summarised in Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 at [147] (per Ward P, with whom Bell CJ and White JA agreed):

“What is clear is that, once the requisite elements of a special disadvantage, knowledge of that special disadvantage and improvidence of the transaction are established, there is at least an evidentiary onus on the stronger party to show that the transaction was fair, just and reasonable or it may more readily be concluded that the improvident transaction was procured by the unconscientious taking of advantage of that special disadvantage.”

156. Other general statements of legal principle should be noted. Unconscionability is a concept that is applied with considerable restraint, going beyond what is 'fair' or 'just' to circumstances which are highly unethical: Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261, at [120] – [121] per Spigelman CJ.

157. There are many statements to similar effect. One such comprehensive statement is that of Allsop P (with whom Bathurst CJ and Campbell JA agreed) in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O’Donnell (2011) 15 BPR 29,699; [2011] NSWCA 389 at [291], which also discusses how the concept of unfairness and unconscionability under the CRA may be differentiated from unconscionability at general law:

“Aspects of the content of the word "unconscionable" include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at 583 [121]; the conduct must be irreconcilable with what is right or reasonable: Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 at 140 [30]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62; 117 FCR 301 at 316-317 [44]; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262; factors similar to those that are relevant to the [Contracts Review Act] are relevant: Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [124]; the concept of unconscionable in this context is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and equity: National Exchange at 140 [30]; the statutory provisions focus on the conduct of the person said to have acted unconscionably: National Exchange at 143 [44]. It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure, and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery, or misleading conduct. A finding requires an examination of all the circumstances.”

158. Other authorities also speak to the great variety of circumstances in which equitable intervention to relieve against unconscionable conduct is available and the need for close scrutiny of the exact relationships established between the parties: Jenkyns v Public Curator (Queensland) (1953) 90 CLR 113; [1953] HCA 2 at 118-119 and Karavaz v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [18] and Wu v Ling [2016] NSWCA 322 at [8] per Leeming JA. In Wu v Ling Leeming JA explained (at [7]) that one should not expect to find a bright line separating circumstances which place an impugned transaction inside or outside the reach of equitable principle. Leeming JA cited Lord Selborne’s rejection of the notion that there is an “indispensable condition of equitable relief”: Earl of Aylesford v Morris (1873) LR Ch App 484, at 491 and referring to Fullagar J’s statement in Blomley v Ryan (1956) 99 CLR 362, at 405, that the circumstances in which equitable relief will be granted “are a great variety and can hardly be satisfactorily classified”.

159. But this also means, as Leeming JA further explained in Wu v Ling (at [8]) that the absence of proof of immoral or dishonest motives is not sufficient to preclude equitable intervention: cf Johnson v Smith [2010] NSWCA 306 at [5] and [98] – [102]; and Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199; [2015] FCAFC 50 at [305].

160. Undue Influence. The principles to be applied in evaluating a claim for alleged undue influence may also be shortly summarised. A claimant may seek to set aside a transaction by showing that another party had, in fact, come to occupy or assume a position of practical ascendency, power or dominion over the claimant who had taken a co-relative position of dependence or subjugation: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) at paragraph 15-105. Making out a relationship of actual undue influence involves establishing a relationship involving ascendancy or influence on the part of one person over another and that other is in a position of dependence, reliance, trust, or confidence on the stronger party: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [5.440]. Much of the Australian and English law on this subject finds its origins in the classic statements of relevant legal principle in Allcard v Skinner (1887) 36 Ch D 145.

158. The applicable law in relation to undue influence in Australia was comprehensively stated and applied by the High Court in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [34] (“Thorne”) as follows (omitting citations):

“There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a "substantial benefit" to another, which cannot be explained by "ordinary motives", or "is not readily explicable by the relationship of the parties". Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will.

162. Thorne discussed (at [36]) whether the relationship of fiancé and fiancée should be recognised as one to which the presumption of undue influence attaches. The relationship between a granddaughter such as Justine and her grandmother, the deceased, is not one of the traditionally identified presumptive relationships of influence and is not treated as such a presumptive relationship in these reasons. Here, the method chosen to determine whether the relationship between Justine and the deceased was one of actual undue influence is to look to the direct evidence of the transaction and the relationship between the parties from the narrative of findings above.

163. In Amadio, Mason J also drew a distinction (at 461) between a transaction that is sought to be set aside on the grounds of unconscionable conduct, and one that is sought to be set aside on the grounds of undue influence:

“Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

There is no reason for thinking that the two remedies are mutually exclusive in the sense that only one of them is available in a particular situation to the exclusion of the other. Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.”

164. Deane J also explained in Amadio (at 474) that undue influence “looks to the quality of the consent or assent of the weaker party” whereas “unconscionability looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, dealing with the person under a special disability in circumstances where it is not consistent with equity and good conscience that he should do so”.

165. Recent United Kingdom legal authority has tended to simplify the remedy for undue influence. That authority states that there are two principal requirements to make out a case to establish a rebuttable presumption of undue influence – first there must be a relationship of influence, and second, the transaction must not be readily explicable on ordinary motives, such that the nature and contents of the transaction must in the context of the relationship of influence, absent evidence to the contrary, make one conclude that undue influence has been exercised: Nature Resorts Ltd v First Citizen Bank Ltd [2022] 1 WLR 2788, [2022] UKPC 10[11] – [13] and Royal Bank of Scotland plc v Etridge (No. 2) [2002] 2 AC 773; [2001] UKHL 44. The relationship of influence may be established on the facts that the gift was a result of influence expressly used by the done. But in respect of some relationships what is commonly referred to as a rebuttable legal presumption of a relationship of influence arises.

Estate’s Cross Claim – Analysis.

166. The Court doubts Justine’s version that her grandmother requested her to take the $200,000 as a gift. When the Court asked her “did it occur to you to ring the solicitor about that before you did the transfer with her grandmother” Justine gave an inconclusive answer relating to the later telephone call from the solicitor.

167. Justine had ample opportunity to take her grandmother to get legal advice before her grandmother transferred the $200,000 to her. Justine’s oral evidence was that for about 10 months prior to November 2021 the deceased had been asking Justine to organise the transfer of the $200,000 to Justine. The Court accepts that there had been discussion for some time about the subject of this transfer but that this discussion was at least encouraged by Justine. Whoever was the source of the conversation, the proposed transfer had been the subject of mutual attention for some time. Throughout that whole period Justine could readily have consulted Margaret’s solicitor.

168. Justine also had prompts from Ms Ghadirian-Marnani to get further legal advice before such a transfer took place. In Ms Ghadirian-Marnani’s email to Justine in November 2020, some 12 months before, Ms Ghadirian-Marnani communicated to Justine that the deceased had raised the idea of transferring some money to Justine. Ms Ghadirian-Marnani then advised that the family may need to get accounting advice. But importantly Ms Ghadirian-Marnani also said to Justine “If you want any more assistance… just ring me and arrange a home visit”. Ms Ghadirian-Marnani was ready to accommodate the deceased’s lack of mobility and to visit her at home.

169. It would have been simple for Justine to telephone Ms Ghadirian-Marnani and arrange a home visit. She was cross-examined extensively about why she did not do so when it would have been easy to do, especially when the deceased was making a momentous decision to transfer her whole life savings away. Justine never satisfactorily answered these questions.

170. She gave various answers to Mr Muddle SC on the subject. She denied acting in her own self-interest. She denied doing anything which might discourage her grandmother from transferring the $200,000 to her. She insisted she was always acting in her grandmother’s best interests. When it was put to her that having Ms Ghadirian-Marnani come around to the Forestville property to advise the deceased could “easily” have been done, Justine said, “I could have made that choice” but did not explain why she did not. Justine accepted that she had no difficulty in telephoning Ms Ghadirian-Marnani with her grandmother in December 2021, as she did. What is missing from all her answers on this subject is any convincing account that she weighed the possibility of insisting that her grandmother get legal advice before the transfer and that course being discussed, considered, and rejected for some good reason.

171. The only explanation Justine attempted to provide was that she thought that her grandmother had already spoken to Ms Ghadirian-Marnani about making the gift to her. But this is difficult to accept. The deceased was only likely to be able to consult Ms Ghadirian-Marnani either by Justine arranging a home visit or arranging a telephone call to Ms Ghadirian-Marnani. But Justine did not give any account of any such arrangement being made. The other possibility is that the deceased had telephoned Ms Ghadirian-Marnani without first consulting Justine. That is theoretically possible because the deceased had a telephone line of her own on the second floor of the Forestville property. But even if that had happened, Justine could not transfer the funds on the basis that such advice had been given, without verifying that with the deceased. Justine did not say that she had verified this with the deceased. Justine could not have believed the deceased had legal advice about making the gift. And the deceased did not in fact have legal or financial advice about the gift.

172. Justine did not prompt her grandmother to get legal or financial advice before the transfer, although she was aware from Ms Ghadirian-Marnani’s November 2020 email that such advice was only a phone call and one home visit away.

173. The improvidence of this gift of the deceased’s life savings would have been obvious to any reasonable person in Justine’s position and must have been obvious to Justine in November 2021. The deceased’s age was not a reason to infer that she did not need her life savings. The $200,000 was a fund available, for example, to give the deceased medical treatment options in dealing with her declining health and the burden of her immobility and disability. This was important, notwithstanding that the deceased had a Department of Veterans Affairs Gold Card, which entitled her to a broad range of free medical services. The $200,000 could have been used to provide readily available funds to give the deceased the option of going into a quality nursing home at short notice should her home care options have become limited. The $200,000 may have provided a fund to give her options to undertake further home alterations to accommodate her increasing lack of mobility and to provide other additional comforts in life if she needed them.

174. The deceased’s weakness and dependence upon Justine must also have obvious to Justine as must have been her lack of independent legal advice.

175. Measured against the deceased’s potential need for these funds, the plaintiff had no pressing competing personal needs for them. This is evident from how she subsequently spent the funds. Much of it went to her children rather than to herself, and what she did spend on herself could not be described as fulfilling an urgent need: much of it was discretionary spending.

176. In the Court’s view Justine took advantage of the deceased’s position of special disadvantage in this transfer should be set aside because of Justine’s unconscionable conduct in procuring it.

177. It is therefore strictly unnecessary for the Court to decide the alternative claim in undue influence. But in the Court’s view if it were required to be determined, there probably was a relationship of actual undue influence here. The deceased was physically and emotionally dependent upon Justine who was her gatekeeper to the outside world. She had deep confidence in her as is evidenced by the deceased appointment of as her attorney and guardian. Nothing in Justine’s case shows that the deceased brought an independent mind to bear in transferring the $200,000 which the Court infers was result of Justine’s undue influence.

178. In conclusion therefore the Court will order Justine to repay to the estate the $202,247.29 transferred by the deceased to her in November 2021 plus interest.

The Plaintiff’s Claim – Applicable Legal Principles.

179. The Court must now consider whether an order for provision should be made in Justine’s favour. Her primary task is to establish that she is an “eligible person” to make such a claim. As a granddaughter of the deceased, she may be an “eligible person” within Succession Act, s 57(1)(e) if she was “at any particular time, wholly or partly dependent on the deceased”.

180. Alternatively, Justine may be an eligible person under Succession Act, s 57(1)(f) which provides that “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death” is eligible to apply for family provision from the estate of the deceased person.

181. The Court of Appeal recently restated the law in relation to claims for provision brought by grandchildren, including the questions of dependency and whether “factors warranting” had been established. In Curtis v Curtis [2024] NSWCA 1376 (Leeming JA with Mitchelmore JA and Basten AJA agreeing) (“Curtis”) at [11], [13]-[16]:

11. “The total or partial dependency of a child upon a grandparent may be established notwithstanding the child remaining dependent upon either or both parents. More than a minimal period of time is required; leaving a child in the care of grandparents overnight is not sufficient: Alexander v Jansson [2010] NSWCA 176 at [13]; Chisak v Presot [2022] NSWCA 100 at [47], [56]. A claimant either does or does not satisfy the requirement of dependency, such that appellate review is on the correctness standard, as opposed to the review of discretionary decisions: Spata v Tumino [2018] NSWCA 17 at [53]-[54]; Sun v Chapman [2022] NSWCA 132 at [8]-[11] and [189].

13. Eligible persons divide into two classes: the lawful and de facto spouses and children mentioned in s 57(1)(a), (b) and (c), who are generally “regarded as natural objects of testamentary recognition”, and those in s 57(1)(d), (e) or (f), who, without more, are not generally so regarded. This Court observed in Yee v Yee [2017] NSWCA 305 at [112] of this latter class that:

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

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

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

15. Helpful guidelines for claims made by grandchildren were formulated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:

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

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

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

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

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

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

16. The foregoing are not rules of law, but provide useful assistance in applying the statute. They have been approved by this Court, as a “useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind”: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [67], see also at [21] and [150].

182. A person who becomes an eligible person by reason of Succession Act, s 57(1)(e) or (f) must also establish “having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application”: Succession Act, s 59(1)(b). The test for whether provision should be made from an estate in favour of an applicant in any case is provided for in Succession Act, s 59(1)(c) which requires an applicant to establish that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made”. And the power to make orders for provision is set out in Succession Act, s 59(2).

183. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653; [1994] HCA 40 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 Co. 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 Leeder, 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.”

184. Some other authorities have explained in more 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."”

185. Conveniently, the drafters of the Succession Act, have formulated a single set of factors for determining whether to make a family provision order. In determining either question, the Court is to consider the matters set out in Succession Act, s 60. That provision and those factors are not set out in full in these reasons, as not all those factors are relevant considerations in this case.

Analysis of Justine’s Family Provision Claim

186. Justine qualifies as an “eligible person” to make a claim for provision out of the deceased’s estate under Succession Act, s 57(1)(e). She was partially dependent upon the deceased in the first two years of her life, notwithstanding she was dependent upon her mother, Denise as well. This was more than trivial overnight dependence as the deceased was providing Justine and her mother with the necessaries of life and satisfies the test in Curtis. It is not necessary to consider the later periods of alleged dependency which were more controversial.

187. Here there are factors warranting within Succession Act, s 59(1)(b). Quite apart from Justine’s care and support for the deceased from 2015, the deceased has already recognised Justine was a suitable object of testamentary intentions by her a first right of refusal over the Forestville property and one fifth of her residuary estate. The real issue in this case is whether Justine has established within Succession Act, s 59(1)(c) that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made”.

188. In the Court’s view she has established this to a limited degree. The estate’s success on the cross-claim means that she will have to repay the $200,000 to the estate together with interest and costs in relation to the estate’s successful cross-claim. This will substantially neutralise the benefit the deceased intended her to have under her will and to that extent what the deceased provided for her in Court’s view has turned out to be inadequate. But the wider claims mentioned earlier in these reasons, that she lacks funds to buy a house, to buy a motor vehicle, to supplement superannuation or to provide a contingency fund do not evidence inadequate provision for her for several reasons.

189. First, improvident though the transfer of the $200,000 was, it was nevertheless a substantial benefit from the deceased’s estate which Justine enjoyed very close to the deceased’s death, which none of the deceased other children was able to enjoy.

190. Secondly, the deceased put considerable thought into her will and decided to treat Justine equally with her children. She had sound and careful legal advice in drawing the will and equality with her children was all that she concluded was appropriate for Justine. Proper regard should be given to the deceased’s judgment about the relative testamentary claims upon her of her children and of Justine. No substantial reason as shown to depart the deceased’s judgement of overall equality among the five.

191. Thirdly, most of the deceased’s children have real need for the funds which they will inherit from the deceased’s estate. Not all have demonstrable need but the survey above shows that some have very pressing need for the funds and community standards do not require the Court to deny them part of those funds to benefit the plaintiff. The Court is especially concerned about the impact of a further award in Justine’s favour upon Jennifer and Denise. Both Jennifer and Denise require the funds to undertake building works on their properties. These building works include urgent works to rectify their dwellings and to provide adequate housing for their children who are living with special needs.

192. Fourthly, together with her present earning capacity, the assistance of her children (to whom she has been so generous in the past) and the money that she will receive from the estate, Justine has real resources to draw upon to advance herself at this stage in life, if she is so minded. Proper regard must be had to Justine’s situation in a women’s shelter. But she will be receiving something from the estate to give her a fresh start. Her past medical issues are not preventing her from working in gainful employment.

193. Fifthly, the Court has no confidence that any additional money sum the Court might Justine would be applied prudently by her for her own benefit.

194. Sixthly, Justine’s behaviour after the death of the deceased adding to the costs of the estate is another reason further monetary transfers should not be made to her by way of further provision out of the estate.

195. Seventhly, even though Justine was the deceased’s carer, she was also obtaining considerable benefits from the relationship in the form of a carer’s pension and significantly reduced rent, which was not always paid in the later years. Moreover, there were undoubted efficiencies in the provision of her services to the deceased. The deceased’s evening meal was often a serving of whatever Justine had made for her own family downstairs at the Forestville property.

196. But if Justine is not absolved from the consequences of her own haste to obtain the $200,000 transfer from the deceased, and to have to repay it to the estate with interest and costs, she is likely to be left with very little with which she can make her way in life. This would contrast with the deceased’s intention for her to be treated as having an equal testamentary claim upon the deceased’s estate. Moreover, had the $200,000 not been transferred she would have been entitled to $40,000 of it anyway.

197. Some argument was addressed to issues of potential notional estate. But it is not necessary to consider that. The estate has what the deceased had at the time of her death: property in a chose in action for recovery of the $200,000 from Justine. If she must restore that property to the estate, what she will receive from the estate is in the Court’s view not “adequate provision for the proper maintenance, education or advancement in life”.

198. The appropriate course here is to make an award from the estate of a sum equivalent to the value of that chose in action and that is the relief which the Court will give in this case. This is reflected in the orders below. The parties have asked for an opportunity to address the Court in relation to costs consequent upon these reasons and orders. That opportunity will be afforded to the parties, and supplementary cost orders will then be made.

Conclusion and Orders

199. For these reasons Court makes the following orders and directions:

1. NOTES that for the purposes of these orders the following expressions have the following meanings:

1. "the deceased" means Margaret Norma Howitt who died on 24 February 2022,

2. "the estate" means the estate of the deceased,

3. "the CBA transfer" means the sum of $202,247.29 inclusive of interest held on deposit by the deceased at the Commonwealth Bank of Australia and transferred by the deceased to the plaintiff/cross-defendant on or about 17 November 2021, and

4. "the Cross Summons chose in action" means the legal and equitable obligations created by reason of the Court making DECLARATION (5) and ORDER (6) below on the defendant/cross claimant's Cross Summons;

2. DECLARES on the plaintiff's Summons that:

1. the plaintiff is an "eligible person" within Succession Act s 57(e) able to bring her claim under Succession Act s 59, and

2. there are "factors warranting" the bringing of the plaintiff's claim within Succession Act s 59(1)(b).

3. ORDERS on the plaintiff's Summons pursuant to Succession Act ss 59 and 65(2)((f) that further provision is to be made out of the estate to the plaintiff in an amount equivalent to the value of the Cross Summons chose in action;

4. RESERVES for further consideration whether the award of further provision made in ORDER (3) should include the costs of the Cross Summons and all other questions of costs;

5. DECLARES on the defendant/cross-claimant's Cross Summons that the CBA transfer was procured on or about 17 November 2021 by the undue influence and the unconscionable conduct of the plaintiff/cross-defendant;

6. ORDERS on the defendant/cross-claimant's Cross Summons that the plaintiff/cross-defendant repay the CBA transfer to the estate together with interest from 17 November 2021 up to today calculated under Civil Procedure Act s 100.

7. DIRECTS the parties to arrange with the Associate to Slattery J a suitable date in the next two weeks to hear oral argument in relation to costs and consequential orders for no more than one hour.

8. NOTES that the parties are on notice that pursuant to Uniform Civil Procedure Rules 2005 r 42.4 that the Court is likely to make a maximum costs order limiting the expenditure of further costs after today by any party on submissions and appearances in relation to issues of costs in these proceedings at no more than $6,000; and

9. GRANTS liberty to apply.

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Amendments

07 January 2025 - [199] correction

Decision last updated: 07 January 2025