Bowers v Bowers - [2020] NSWSC 109

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bowers v Bowers [2020] NSWSC 109
Hearing dates: 20 – 21 November 2019; 27 November 2019
Date of orders: 20 February 2020
Decision date: 20 February 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court directs the parties to provide to the Court, within 7 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.

Catchwords:
SUCCESSION – family provision – claim by adult child for provision from deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – the Defendant, is also an adult child of the deceased, the sole executor to whom Probate was granted, and one of a number of beneficiaries named in the Will of the deceased –provision made in Will for the Plaintiff as discretionary object of a testamentary trust – whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him – the Plaintiff suffering depressive illness – allegation that Plaintiff would dissipate any provision made for him – order for provision made in lieu of provision made for the deceased in the Will – whether the interposition of a trust for the Plaintiff should be maintained – condition imposed upon part of the provision made for the Plaintiff

EVIDENCE – course of evidence – re-opening case – late application by counsel – where nature of the application is unclear — whether leave should be granted to re-open or re-examine
PRACTICE & PROCEDURE – communication with the Court after hearing concluded and judgment reserved
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 39
Family Law Act 1975 (Cth), s 90C
Family Provision Act 1982 (NSW)
Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63
Practice Note SC Gen 18
Probate and Administration Act 1898 (NSW), ss 84A, 86
Succession Act 2006 (NSW), ss 3, 8, 57, 58, 59, 60, 61, 63, 65, 66, 84, 99, Ch 3
Uniform Civil Procedure Rules 2005 (NSW), rr 31.16A, 33.10
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023
Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416
Bkassini v Sarkis [2017] NSWSC 1487
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carroll v Cowburn [2003] NSWSC 248
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Dal v Chol [2018] NSWCA 219
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305
Gill v Permanent Trustee Company Ltd [1999] NSWSC 394
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Green v Perpetual Trustee Co Ltd (Supreme Court (NSW), 10 July 1985, unrep)
Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep)
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)
Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Ilott v The Blue Cross [2018] AC 545; [2017] UKSC 17
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mead v Kerney [2012] NSWCA 215
Nominal Defendant v Livaja [2011] NSWCA 121
Olsen v Olsen [2019] NSWCA 278
Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; [1999] UKHL 35
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater No 21) [2019] NSWSC 294
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Sammut v Kleemann [2012] NSWSC 1030
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Squire v Squire [2019] NSWCA 90
Steinmetz v Shannon (2019) 368 ALR 161; [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Taylor v Farrugia [2009] NSWSC 801
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Underwood v Gaudron [2014] NSWSC 1055
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Yee v Yee [2017] NSWCA 305
Texts Cited: Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5
Category: Principal judgment
Parties: James Richard Bowers (Plaintiff)
Sara Louise Bowers (Defendant)
Representation:
Counsel:
Ms M Bridgett (Plaintiff)
Mr J E Armfield (Defendant)
Solicitors:
Harris & Company Solicitors (Plaintiff)
Teece Hodgson & Ward (Defendant)

File Number(s): 2018/318495

Judgment

HIS HONOUR: The Plaintiff, James Richard Bowers, brings a claim under Chapter 3 of the Succession Act 2006 (NSW) (the Act) for a family provision order out of the estate of his mother, Bethia Jocelyn Bowers (the deceased).
The Defendant named in the proceedings is Sara Louise Bowers, another, now adult, child of the deceased, and one of the executors named in the Will dated 21 June 2017 of the deceased, to whom this Court granted Probate, on 21 June 2018. (Peter Joseph Bowers, another, now adult, child of the deceased, and the other executor named in her Will, renounced Probate.)
The case is a sad one as immediate family members are opposed in relation to the estate of the mother of some, and the grandmother, of the others. Regrettably, the apparent lack of any current relationship between the Plaintiff with a number of his siblings, and the Plaintiff with his own three children, has played a part in the proceedings. Counsel for the Plaintiff described the family as one “where there is entrenched conflict. I'm not sure whether that is going to change in the future”: Tcpt, 21 November 2019, p 160(10–12). That appeared to be an apt description of the family dynamics.
Mercifully, this is not a case in which there is an allegation of, what used to be called, “disentitling conduct”, by the Plaintiff towards the deceased. He appears to have enjoyed a reasonably good relationship with her.
Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

The Claim

James filed a Summons on 18 October 2018, in which he sought a family provision order and an order for his costs. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
Somewhat faintly, at the hearing, counsel for Sara, argued that the proceedings should be dismissed. However, during the course of oral submissions, it appears to have been accepted, in my view, correctly, that the provision made by the deceased, for James, in her Will, was not adequate for his proper maintenance or advancement in life: s 59(1)(c) of the Act; and that provision “ought” to be made for James, in lieu of the provision made for him in the deceased’s Will, out of the estate of the deceased: s 59(2) of the Act.
The real, and more difficult questions, related to the manner in which that provision should be made, namely whether the provision should be by way of payment of a lump sum of money, by periodic payments of money, by an absolute, or a limited, interest only, in property; and whether any conditions, restrictions, or limitations, should be imposed by the Court on the provision to be made for him: s 65(2) of the Act.
In broad summary, and as explained below, I have concluded that the deceased arranged her Will in such a way as to control the funds flowing to James by the interposition of a discretionary trust; in all the circumstances, adequate provision for his proper maintenance or advancement in life was not made by the Will for him; and that in lieu of the provision made for him in the Will, he should receive a lump sum of $750,000 out of the estate of the deceased.
I am also satisfied that a condition should be imposed on the use of part of the provision made for him out of the estate, as, to date, he appears to have been ill-equipped to provide a home for himself, a matter about which the deceased expressed some concern. I shall return to how the burden of the provision should be borne later in these reasons, and shall require the parties to provide a form of orders that reflect these reasons.
The matter was listed for three days, although it was completed in two days. Throughout the hearing, Ms M Bridgett of counsel appeared for James, and Mr J E Armfield of counsel appeared for Sara.

Procedural Issues

Before addressing the substance of the proceedings, there are several procedural matters that should be noted.
Shortly prior to the long adjournment on the second day of the hearing, I raised the fact that some of the medical evidence concerning James would be included in the reasons for judgment. I did so in the context of expressing a tentative, and exploratory, view as to a possible outcome of the proceedings and suggesting, bearing in mind the family relationship, that the parties may wish to discuss the resolution of the proceedings, during the long adjournment, and prior to the oral submissions being concluded.
Following the long adjournment, counsel for James sought, for the first time, “that the judgment should not be published and made public”: Tcpt, 21 November 2019, p 139(17–25).
I understood what was being sought by this oral application was an order that the name and identity of James should be suppressed, except as may be necessary for the proper conduct of the proceedings, and, in the alternative, an order that the reasons for judgment not be published, or if they were, to identify James by pseudonym. The precise form of the orders being sought was not stated by counsel.
It is important not to lose sight of the fact that this application was made on the second day of the hearing in Court, following completion of the cross-examination of all of the witnesses, and after the long adjournment. There was no explanation for the delay in making the application.
Counsel was unable to formulate the basis upon which orders could be made other than to say that it was “that the judgment has the potential to impact on Mr Bowers' future employment”. She then said that she required further time to consider the question and would provide submissions on the topic: Tcpt, 21 November 2019, p 139(36–44). No further reference was made during the remainder of the hearing to those submissions on the topic being provided to the Court.
For the reasons to which I shall refer, the matter came before the Court again on 27 November 2019 (after judgment was reserved). On this occasion, counsel for James indicated that she wished to provide written submissions on the topic. As the application previously made had not been formally dealt with, I directed that counsel for James provide a copy of any such submissions to counsel for Sara by noon on 29 November 2019, and if there was no objection by Sara, to those submissions being provided to the Court, a copy of those submissions could then be sent to the Court. I indicated that if objection were taken, it would be necessary for James to make any such application formally, and by notice of motion, as the hearing had concluded and judgment had been reserved.
In an email, apparently sent at 2:58 p.m. on 29 November 2019, to the Court, and to Sara’s legal representatives, counsel for James stated “… the Plaintiff will not be pursuing his application for a non-publication order”.
It is, therefore, unnecessary to deal with this application further. It is regrettable that the time of the Court, and of the parties, was spent in making an application that, ultimately, did not proceed.
Next, also, almost at the end of the hearing, and after her submissions had concluded, counsel for James sought leave to re-open his case. Counsel said at Tcpt, 21 November 2019, p 140(26–37):

“… I am seeking leave for Mr Bowers to clarify the issue about the questions that were put to him in cross examination regarding the provision of needs.
HIS HONOUR: What do you want to do?
BRIDGETT: My instructions are that he would like to give further evidence regarding the questions that were put to him about the preparation of his affidavit.
HIS HONOUR: I'm sorry, he gave sworn evidence. You had a chance to re-examine him, you didn't re-examine on any issues.”

Counsel then said, a little later, at Tcpt, 21 November 2019, p 141(17–22):

“… if I can make the application in terms of the reason why I'm seeking leave. Questions were put to Mr Bowers in cross examination that relate to his affidavit and the preparation of that affidavit. Mr Bowers is of the view that those answers as they stand, do not provide the full context for what he meant in terms of the preparation of the affidavit. I am seeking for that to be clarified.”

The application was opposed by counsel for Sara.
The basis for the application on behalf of James, as best as I could glean it, was a reference made by the Court, during counsel’s submissions, to the difficulty in accepting his written evidence on alleged “needs”, bearing in mind some of his oral evidence given in cross-examination.
In his affidavit of 21 October 2019, James had stated, at pars 28–37:

“28   My estimated health care costs on an annual basis are high. My preference would be to see a Psychiatrist each fortnight and at a cost of $365.00 per visit which amounts $9,490.00 per year. As I have a life expectancy of 83 years the lifetime cost of consultations will be $265,720.00.
29   The cost of my medication amounts to $227.00 per month. The lifetime cost of medications will be approximately $76,272.00.
30   There have been no significant changes in my glaucoma as set out in paragraph 36 of my second affidavit, however I have been prescribed new eye drops by Sydney Eye Hospital to see if this avoids my having further eye surgery. I am taking Simbrinza 1% and Ganfort 0.03/0.5 E/D. I have no private health insurance. The cost of the operation, if I was required to have it, is approximately $8,000.00. This would comprise approximately $4,000 for the surgeon’s fee, $800 for the anaesthetist fee and hospital accommodation charges of approximately $3,000.00. I would need my glaucoma checked every four months at a cost of $500.00 for the rest of my life. The lifetime cost of glaucoma treatment exclusive of surgery will be approximately $33,600.00 but if I have surgery the total likely lifetime cost will be $41,600.00.
31   I see my general practitioner about once every month and I am bulk billed for the consultation so it does not cost me anything. However if the general practitioner did not bulk bill I would estimate the annual cost of consultations at $480.00 and the lifetime cost would be $13,440.00.
32   My teeth are in very poor condition and they are decaying as I have not had the money to have any significant treatment carried out although earlier this year I spent $1,500.00 on urgent dental treatment. I have not been able to afford to see a dentist to obtain an estimate of my future dental costs but I would estimate that I would need to spend $1,500.00 per annum for the next five (5) years and $500.00 per annum thereafter. I estimate the lifetime cost of future dental treatment at approximately $19,000.00.
33   I do not have any private health insurance but in view of my medical conditions I would wish to take out private health insurance and the annual cost of health insurance with BUPA Ultimate Policy is $6,204.00 and so the estimated lifetime cost would be $173,712.00.
34   I continue to have a need to buy a property in Sydney in which to live. Although I am presently renting accommodation in Parramatta near my workplace I am not sure that my employment will continue and if I were to purchase a property I would wish to purchase a one bedroom apartment in Lane Cove. I would prefer to live in the Lane Cove area as I have always lived on the Lower North Shore and if I lived at Lane Cove I would be close to my brother David who lives at Northwood. I would estimate the cost of acquiring a one bedroom apartment at between $710,000.00 and $725,000.00…
35   I would also require funds to maintain any property that I purchased. The strata levies, water rates and council rates would amount to approximately $4,900.00 per annum and the lifetime cost of maintaining the property would be $137,648.00.
35 [sic]   I do not have any superannuation and will need an amount to support myself in the future as it is highly likely that my employment will remain unstable given my mental health issues. I estimate I will need approximately $600,000.00 as a lump sum for future contingencies.
36   I would like to purchase a motor vehicle as I currently rely on public transport to get around. A car will assist me in being independent as I will be able to shop for my groceries and travel on weekends without being dependent on public transport. I will need approximately $25,000.00 to purchase a car.
37   The total amount of provision I am seeking is in the amount of $1,650,000.00 to allow for the cost of my medical treatment; purchase of a one-bedroom unit, stamp duty, purchase costs, furniture, strata levies, water rates and council rates; and a lump sum for future contingencies.” (emphasis removed from original)

The oral evidence, given by James, so far as is relevant, at Tcpt, 20 November 2019, p 76(4–10); p 81(21–26), was as follows:

“HIS HONOUR: Mr Bowers, could you tell me one thing to save some time. In relation to the paragraphs that Mr Armfield is now taking you to, did you actually prepare the figures and work out the figures in that--
A. --no, I didn't.
Q. Or did you rely on some document that is not presently in evidence?
A. My solicitor made the calculations your Honour.
ARMFIELD
Q. You made no enquiries as to these figures; is that what you're saying?
A. I told you I spent $3,000 on an actuarial report and the solicitor said he didn't want it so the solicitor did the calculations.

…
Q. In paragraph 35 you seek an amount of $600,000 as a lump sum for contingencies. How have you calculated those?
A. That, that was my legal advice.
Q. That's not something that you independently applied your mind to?
A. No.”

James repeated the fact that his solicitor had prepared the figures in his affidavit several times in his oral evidence: Tcpt, 20 November 2019, p 79(34–35); p 83(47) – p 84(08). A copy of the actuarial report to which he referred was not tendered. No evidence was given by the solicitor as to how the evidence had been prepared, or otherwise, on the topic.
James also gave evidence that he had perused advertisements for home units on the Internet, including units situated in Parramatta: Tcpt, 20 November 2019, p 80(39–46). In support of the costs of accommodation, he annexed to his affidavit of 21 October 2019, a copy of two advertisements for one-bedroom apartments for sale in Lane Cove. He had stated, at par 34 of his affidavit, that “[a]s well as the purchase price of the unit I would also incur stamp duty costs of $27,460.00 on a purchase for $710,000.00”. However, he accepted, in cross-examination, that he had not physically inspected either of the one-bedroom apartments to which the advertisements related: Tcpt, 20 November 2019, p 80(42–43).
Following the conclusion of the cross-examination, the Court enquired of counsel whether there was “[a]nything arising” and was told that there was not: Tcpt, 20 November 2019, p 85(41–47).
The application, as made, was one to re-open the case for James. It may have really been an application for leave to re-examine James, although this was not entirely clear. Whether it was or not, no reference was made to s 39 of the Evidence Act 1995 (NSW), sub-section (a) of which, effectively, confers upon a party an entitlement to question a witness about matters “arising out of evidence given by the witness in cross-examination” and subsection (b) of which permits other questions to be put, but only with the leave of the Court.
Re-examination is permitted to remove ambiguity and uncertainty, to qualify or explain evidence of a witness in cross-examination, and “whenever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts related to credibility, which is capable of being construed unfavourably to the party calling the witness and which represent a distortion or incomplete account of the truth as the witness is able to present it”: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as SeqwaterNo 21) [2019] NSWSC 294 at [35] (Beech-Jones J), quoting Hadid v Australis Media Ltd (Supreme Court (NSW), 5 November 1996, unrep).
In Underwood v Gaudron [2014] NSWSC 1055, in relation to an application for leave to re-open, I wrote at [98]–[99]:

“The principle that guides the court in determining whether to grant an application for leave to re-open is whether the interests of justice, taken as a whole, are better served by allowing, or by dismissing, the application. In this regard, the court considers the ultimate effect on the interests of all parties. In doing so, the court considers a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the case earlier.
Usually, an application to re-open is based on the failure to call evidence caused by accident, mistake, including mistaken apprehension of the facts or law, want of foresight, recency of finding the evidence, or calculated decision. In this case, no explanation at all was provided for not calling the evidence during the course of the proceedings.”

Whether to permit a party to re-open the case has important evaluative, as well as discretionary, aspects. None of the matters to which reference was made in Underwood v Gaudron founded the application made on behalf of James in this case.
Of course, in determining the application made by James, I also considered s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose referred to, namely, to “facilitate the just, quick, and cheap resolution of the real issues in the proceedings”.
In refusing the application, I had regard to the time at which the application was made on behalf of James. His oral evidence was given on the first day of the hearing. Following that evidence, Sara gave some short evidence, she was cross-examined, and the Court adjourned, shortly before 4:00 p.m. (as the next witness was likely to be cross-examined for longer than the available time than was then available). When Court resumed on the second day of the hearing, counsel for James made no application to re-open the case to permit re-examination of James, or otherwise. Thereafter, two more of the Sara’s witnesses, were cross-examined, and counsel for James had commenced her oral submissions. After she had concluded her oral submissions, and in order to shorten the length of his oral submissions, discussions then took place between the Court and counsel for Sara, to narrow the issues and outline the type of provision that might be made for James.
Despite the time that had passed since the conclusion of the cross-examination of James, the Court was not informed of the nature of the evidence that he proposed to give if re-examination, or leave to re-open, were allowed. More than an adequate opportunity had been available to James to give instructions to his solicitor, and to counsel, about his evidence to enable the nature of the evidence to be disclosed. The proposed further evidence could have been presented in the form of an affidavit by James, but it was not.
Furthermore, the duration of the hearing would have been extended by allowing re-examination, or leave to re-open, at that time. I also took into account the strain that allowing further evidence to be given by James, at that stage of the proceedings, would involve, bearing in mind that Sara, Peter, and at least some of James’ children, had been in Court throughout the hearing.
The statement made regarding the difficulty accepting the written evidence was based upon James’ own evidence, repeated more than once to which reference has been made. There could have been no misapprehension about the questions put to him, or the answers that he had given.
Also, one should not lose sight of the fact that, at the commencement of her oral submissions, counsel for James had handed up, as an aide memoire, a revised statement of James’ “needs”. This document appeared to acknowledge that the so-called “needs” identified in James’ affidavit were no longer claimed to be his “needs”.
Nor did I consider that there were any ambiguities, or uncertainties, in the evidence given by James. It did not seem to me that his answers represented a distortion, or an incomplete account, of the truth as he was able to present it. To the contrary, it seemed that the application was being made because he had been cross-examined on his sworn written evidence, and which oral evidence, he may have thought, did not assist his case.
In all the circumstances, I concluded that the interests of justice did not favour the grant of leave to James to allow re-examination, or of leave to re-open his case. Accordingly, I refused the application.
I have referred to the evidence given by James on this topic in some detail because it reveals what occurs in so many cases that are now being heard, namely that there is not, although there ought to be, an “objective and balanced consideration … given by litigants and their legal representatives at an early stage (and throughout the proceedings) as to the merits of the proposed application(s), the size of the estate and the likely impact of costs on the distributable estate, when commencing (and continuing) family provision claims”: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [171] (Ward CJ in Eq). The value of the so-called “needs” of James, as originally prepared by his solicitor, would have almost exhausted the whole of the net distributable estate.
It also suggested that the expectation of the Court that a litigant should be impartially, and independently, advised, by his, or her, legal advisers, as officers of the court, and should not merely be the mouthpiece of that litigant, may not have been met. In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, Pembroke J, at [22], wrote, in the context of affidavit evidence.

“… [The duty of the legal representatives] to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense.”

Furthermore, these applications, which took some time to be determined, did not assist in the containment of the costs of the proceedings.

Applications made after the hearing and during the Court vacation

Regrettably, after the hearing of this matter had concluded and I had reserved the decision, the time of the Court continued to be occupied by the receipt and consideration of correspondence from James making a number of “applications”.
On Tuesday 26 November 2019, the Court received email correspondence from Mr Z Hiramanek, a solicitor, which was in the following terms:

“Dear Sirs,
Please find attached Application to access a Court file.
We note that we have been instructed by James Bowers to attend as an authorised photocopying firm to photocopy the requested Court file.
We are instructed that this matter was listed for hearing before Justice Hallen on 20 and 21 November 2019.
Should leave be granted to access the file, we are available to promptly attend to photocopy the file.”

The email did not disclose that it had been sent to Sara’s legal representatives or to the legal representatives who had acted for James during the proceedings.
At my request, my Associate responded as follows:

“Dear All,
His Honour has been shown the email from Mr Hiramanek and the attached application to access the Court file.
The hearing of this matter concluded on 21 November 2019, at which time his Honour reserved his decision.
His Honour notes that the application form states that the Plaintiff is ‘a litigant in person’ but at the hearing he was legally represented by solicitors and counsel. In addition, the Plaintiff had available a copy of the Court Book which contained copies of the affidavit evidence read in the proceedings.
The Court file is not available at this stage as his Honour is in the course of writing the judgment.
Please note that I have copied this correspondence to all legal representatives to the proceedings.”

There then followed the following email correspondence, beginning with an email from counsel who had appeared for James at the hearing:

“Dear Associate,
I confirm receipt of your email below. I am in the process of getting instructions and will revert to you once I get those instructions.”

Several hours later, my Associate received the following, apparently contradictory, email, directly from James:

“Dear Associate
I hope you are well.
I refer to your email to LawCopy earlier today.
I confirm I am acting for myself.
I repeat my application for access to the court file so I can prosecute my matter.
LawCopy is authourised [sic] by the Supreme Court of New South Wales to uplift and copy documents.
John Sidotti of LawCopy has kindly instructed today that LawCopy can uplift the file at 4.55pm on a convenient day and have it returned to you by 10am the next day so that it will not interfere with the judge’s judgment writing.
I will not have access to the original file at any time only to the copy. The file will at all times be in the sole custody, control and possession of LawCopy.
I hope this arrangement proves suitable.
I confirm I require access to the whole file but not to the subpoenaed material (Home Affairs and Commonwealth Bank of Australia).”

Again, at my request, my Associate replied to James and copied in all the relevant legal representatives including those who acted for James at the hearing:

“Dear Mr Bowers,
His Honour has been shown your email identified below.
His Honour does not propose to deal with this matter on the basis of email correspondence. If you wish to “prosecute” the matter you should take such steps as you are advised to bring the matter formally before the Court.
Naturally, you must serve any documents on the Defendant’s legal representatives, who should also be included in any correspondence addressed to the Court.”

As the above correspondence demonstrates, it was unclear whether the legal representatives acting for James at the hearing continued to act for him. JusticeLink records revealed that James’ solicitors had not filed any Notice of Intention of Ceasing to Act. As such, I instructed my Associate to send a further email to James and to the legal representatives:

“Dear All,
His Honour has received correspondence regarding the Plaintiff wishing to inspect, and copy, the Court file.
His Honour has administratively listed this matter at 11:30 a.m. tomorrow to deal with the Plaintiff’s application to inspect and copy the Court file.
His Honour confirms that no Notice of Intention of Ceasing to Act has been filed by the Plaintiff’s solicitors, so this correspondence has been sent to them, as well as to the Defendant’s legal representatives” (emphasis in original)

At about 8:35 a.m., on 27 November 2019, the Court received an email from Ms Bridgett stating that the application was not proceeding. I informed the parties that the matter remained listed.
At the hearing, Ms Bridgett again appeared for James and Mr Armfield appeared for Sara. James did not attend (although that was upon the advice of counsel). Ms Bridgett informed the Court that “[t]he plaintiff is not self-represented”: Tcpt, 27 November 2019, p 1(21–25). She was unable to explain why he had made that assertion in the email correspondence. She said: “… I got instructions this morning. As soon as I got the instructions that he was to withdraw the application which was on the advice of his solicitors, that I emailed his Honour’s associate to withdraw the application to prevent any further legal costs”: Tcpt, 27 November 2019, p 2(03–08).
It was at this hearing that counsel for James made an application for what I have described as a non-publication order. On this occasion, I noted that James had made an oral application again in regard to the application made on his behalf that the judgment not be published and made public: Tcpt, 27 November 2019, p 6(09–11).
Regrettably, that was not the end of the applications made by James. In the period between the re-listing of the matter on 27 November 2019 and the delivery of these reasons, James has sent three emails to my Chambers making various applications. These included attempts to make “[o]ne more submission”, a “further written submission” and a renewal of his application to inspect and copy the Court file.
It is worth observing that each of these was sent during the Court vacation and, therefore, required further consideration outside the Court’s sitting period. Each of these applications was misconceived, and on my instructions my Associate sent the following email in reply on 28 January 2020:

“Dear Mr Bowers,
His Honour has been shown all of your emails sent on Friday and Saturday last and has asked for the following response to be sent.
Any application should be made on notice to the other parties and as you want access to the Court file, one purpose of which is to copy the documents in the Court file, notice should also be given to your former legal representatives. In any event, the Court file will not be released to any party or anyone else to be copied outside the Court precinct.
His Honour did not grant leave to you to file further submissions so, again, his Honour does not propose to deal with your application in Chambers and will not have regard to your emails which are said to be “further written submissions” or “one more submission”. A notice of motion will be required unless the Court receives a consent order, signed by the legal representative of the Defendant, to those submissions being advanced and read by the Court.
Finally, his Honour has asked me to inform you that as you are now acting for yourself, any further application by you will not be dealt with in Chambers but in Court, with due notice being given to any interested party. In this regard, JusticeLink does not reflect any Notice of Ceasing to Act having been filed by your solicitors, so this email has also been copied to your legal representatives.”

Following this, James sent another email, apparently, again, renewing his application to copy the Court the file. At that stage, I instructed my Associate to respond referring to my previous email and indicating that the Court would not respond to any further email correspondence concerning the matter.
The delay that has been occasioned from considering, and addressing, each of James’ emails, and applications, has put an unnecessary strain on Court resources. The applications for the inspection of the Court file, should never have been made especially in circumstances where his counsel acknowledged, at Tcpt, 27 November 2019, p 2(50) – p 3(11), that:

“… he was told that he didn’t need the court file, that we had the documents. And I understand that the documents that he probably hasn’t got are the tendered documents because they were given to me during the hearing, and he may well not have had those documents.
… Mr Bowers also wanted the closing submissions, and as your Honour is aware I emailed those to your Honour’s associate on Monday. And Mr Bowers may not have been aware that those closing submissions were emailed across. He was quite anxious about making sure that those closing submissions were given to the court, and they were my instructions during the hearing on Thursday.”

James repeated insistence on contacting my Chambers, and the disregard of the correspondence sent to him from the Court, does him no credit. The fact that none of his correspondence appears to have been addressed to the legal representatives of Sara and/or his former legal representatives makes it even worse. This is particularly so when one remembers that James is a legal practitioner, notwithstanding that he is not acting in that capacity in the present matter.
I should mention that the conduct of James, following the conclusion of the hearing, has not impacted, in any way, on the conclusions reached in respect of his substantive application.

Some formal matters

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It was not in dispute that, as a child of the deceased, James is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant, at the time of the deceased’s death, in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”).
However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which, and the basis on which the deceased person did so”. This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.

It was not in dispute that James commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act: Tcpt, 20 November 2019, p 6(13–16).
As the deceased left a Will that dealt with all of her property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, there was no property that is sought to be designated as notional estate of the deceased.
Unsurprisingly, Sara does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background Facts

It is next convenient to set out some background facts that are not the subject of any dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.
The deceased was born in March 1930 and died on 12 January 2018.
The deceased was the daughter of Mary Scott Fyfe. Mary had left a Will, dated 7 March 1956, in which she had provided to her three sons, the right to reside “rent free for so long as he, or they, shall live and shall desire to live therein”, in a property that she owned in Randwick, a suburb of Sydney, on certain terms and conditions and thereafter Mary was to receive a share of her mother’s estate.
The precise date of Mary’s death is not known, but by letter dated 22 August 1969, addressed to the executors of her Will, one of her sons gave notice of his intention to reside in the Randwick property. Indeed, the Randwick property was not sold until about May 1976.
Peter gave evidence, about which he was not cross-examined, that it was not until the sale of the Randwick property, that the deceased received her share of Mary’s estate. With that share, and having also received a share of the estate of one of her brothers, and using the savings that she had, the deceased, in 1977, purchased a property at Willoughby, which was her most valuable asset at the date of death.
In September 1952, the deceased married Norman John Bowers. The marriage ended by divorce order in February 1981. There is some evidence that the deceased and Norman may have separated in about 1973. Norman died in June 2013.
There were seven children of the deceased’s marriage, being Rosemary, who was born in June 1953; Peter, who was born in January 1955; Stephen, who was born in August 1956; Sara, who was born in October 1957; John who was born in December 1958; David who was born in October 1960; and James, who was born in March 1963.
In the mid-1970’s, as a mature age student, the deceased attained a Bachelor of Economics.
James married Debra Edwards Frances in about 1989. There were three children of the marriage, namely Emma Ann Bowers, who was born in February 1992; Jeremy Thomas Bowers, who was born in December 1996 and Tamara Jane Bowers, who was born in November 1998. (Regrettably, James does not have contact with any of the children. I shall return to several aspects of his conduct, with regard to his children, later in these reasons.)
James’ marriage to Debra ended by divorce order made in 2007. They had separated in January 2006: Ex 3. James and Debra entered into a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) in August 2007. They reached an agreement on matters involving their children and also on financial matters.
At the time of separation, James and Debra owned a property at Lindfield. It was the major matrimonial asset. It was sold after they separated, and the net proceeds of sale were shared, equally, between them.
Although James averred in his second affidavit to having received $250,000, (which he orally admitted was wrong (Tcpt, 20 November 2019, p 33(25–33)), and in his affidavit in reply, to having received “around $550,000” (which he stated was “my recollection at the time” (Tcpt, 20 November 2019, p 34(40–45)), I am satisfied, from Debra’s evidence, which I accept, that the amount that he and she each received from the proceeds of sale of the Lindfield property, was $680,000 or $690,000: Tcpt, 21 November 2019, p 114(48) – p 115(11).
A further reason for not accepting James’ written evidence, is that Ex 2, being a copy of a report dated 5 September 2012 from NHS Ealing Mental Health and Wellbeing Service, relied upon by him, records that James had told the author of the report that “as part of his divorce settlement he was awarded £400,000 …” He orally accepted that, at the time he made the statement, that amount would have equated to about AUD717,000: Tcpt, 20 November 2019, p 37(31–37).
When the children were young, Debra would take them to visit the deceased “quite frequently and she was a regular guest at our home. The children and I were invited to all family events, which we attended”: Affidavit, Debra Edwards Frances, 1 May 2019 at par 16. Debra’s close relationship with the deceased continued after the dissolution of her marriage to James.
Debra is currently employed as a management consultant. Two of the three children of the marriage live with her, in the home at Paddington, a suburb of Sydney, which she owns, and she provides for them, financially, to the extent that they are not able to provide for themselves.
In 2013, James married Ausra Gintalaite. She has a daughter, Gabrielle, who is 19 years old. They all lived together from about 2009. James and Ausra separated in about June 2018. There may have been a short reconciliation later in 2018, but in an email dated 19 December 2018, addressed to his brother, John, James stated “I broke up with Ausra again”.
James repeated the assertion of his final separation in a Review and Submit Details Request, dated 18 December 2018, addressed to Centrelink: Ex 5.
There was no evidence of the deceased having met either Ausra or Gabrielle.
Following the separation, James returned from the United Kingdom, to Australia. He has continued to live in Sydney.
James stated that he believes that “my wife may make a claim for property settlement, but no such claim has presently been made”: Affidavit, James Richard Bowers, 6 March 2019 at par 19. James gave no evidence about the potential value of any claim for property adjustment that might be made by Ausra and how any such claim might impact his financial circumstances.
(I have considered the potential claim by Ausra, but any claim would be based, at least in part, upon her financial and non-financial contributions to their pool of assets. In any event, there is no suggestion of any financial, or other, contribution, by either James, or Ausra, to the estate of the deceased. There was no evidence about Ausra’s financial circumstances or her resources.)
James is a qualified solicitor holding Bachelor of Economics and Bachelor of Laws degrees. He also has a Bachelor of Civil Law with Honours from the University of Oxford. I shall return to his financial circumstances, resources, and asserted “needs”, as finally advanced, later in these reasons.
There is no suggestion that James made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the deceased’s estate, or to the welfare of the deceased, or to the welfare of members of the deceased’s family, before, or after, the deceased’s death. However, as a child of the deceased, and in the absence of any evidence of a poor relationship between son and mother, I am prepared to infer that he made some contribution to her welfare.
I shall refer to the provision made for James later in these reasons. There is no evidence that the deceased made any contribution to him after he became an adult. It is clear that he was not wholly, or partly, dependent upon her, financially, for many years before her death. In other words, he was not being maintained, either wholly or partly, by the deceased before her death.
Very little is known about the other children of the deceased. Rosemary is employed as a managing director and her husband, John, is a lecturer. They have three children, Patrick, Emily and James. Peter is a retired medical researcher. He is divorced and lives in Miami, Florida, in the United States of America. His children are Samuel Francis Bowers and Harriet Louise Bowers. Stephen is a retired solicitor. He is married to Sue, who is also a retired solicitor. Sara is a retired Crown Prosecutor. David is a doctor. John is a Crown Prosecutor.
The deceased’s two grandchildren, who are named as beneficiaries in Clause 3(b) of her Will, are Samuel, who was born in April 1987 and Harriet, who was born in November 1988. Nothing is known about the financial resources (including earning capacity) and financial needs, both present and future, of either of them.
None of the siblings, other than Sara and Peter, gave evidence. Sara’s affidavits were essentially formal affidavits that dealt with the nature and value of the deceased’s estate at the date of death and at the date of hearing. Peter’s first affidavit was one in reply. His second affidavit provided evidence regarding Mary’s Will and Estate. Neither Sara nor Peter gave evidence about her, or his, financial resources (including earning capacity) and financial needs, both present and future. Each of them was cross-examined.
James gave evidence that he did not know the financial circumstances of his siblings but believed that each was “very comfortable financially”: Affidavit, James Richard Bowers, 6 March 2019 at par 13.
Each of Emma, Jeremy, and Tamara, who are named as remainder beneficiaries in Clause 3(f) of the deceased’s Will, gave evidence of her, and his, financial resources and needs, respectively. None of them was cross-examined.
Each of the remaining beneficiaries is entitled to elect to remain silent about her, or his, financial resources and needs, respectively, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to that beneficiary, respectively, as a beneficiary, regardless of her, or his, financial resources or needs. The Act specifically provides that her, or his, interests, as a beneficiary, cannot be disregarded, even though she, or he, has not made a claim: s 61. Each is entitled to rely upon the terms of the Will and her, or his, competing claim as a chosen object of the deceased’s testamentary bounty.
In Sammut v Kleemann [2012] NSWSC 1030 at [137]–[140], I set out the principles in a case where a beneficiary does not disclose her, or his, financial resources. I shall not repeat what I wrote there.
The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

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

Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).
Even if the Court may infer that each of the beneficiaries, other than Emma, Tamara and Jeremy, has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than James, the beneficiary’s silence does not mean that her, or his, competing claim should not be evaluated. As will be read, what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.
In reaching the conclusion in regard to the family provision order sought by James, the Court will not disregard the competing interest of any beneficiary as a claimant upon the bounty of the deceased and a chosen object of the deceased’s bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ, McTiernan J agreeing); [1962] HCA 19.

The deceased’s Will

By her Will dated 21 June 2017, the deceased:

appointed Sara and Peter as executors and trustees: Clause 2;

left her estate in six equal shares, one share to Rosemary, one share to be divided between Samuel and Harriet, one share to Stephen, one share to Sara, and one share to John: Clauses 3(a) to 3(e);

in relation to the remaining sixth equal share, Clause 3(f) of the Will provided for it to be left to John and Sara, to be held on trust, by them as follows:

John and Sara were directed to pay James the sum of $20,000 and to invest the remainder of the share bequeathed, and to apply, as they saw fit, so much of the income earned on such investment and so much of the capital of such share for, or for the benefit of, James (the Trust);

upon the death of James, any balance of the Trust fund then remaining, was to be given to such of Emma, Jeremy, and Tamara, who were then alive, and if more than one, in equal shares;

the executors were given power “[t]o apply for the maintenance, education, advancement or benefit of any beneficiary … the whole or any part of the income and up to one-half of the capital of that part of my estate to which that beneficiary is entitled …”: Clause 5(a); and

no provision was made for David as “I have provided him with significant financial assistance during my lifetime”: Clause 6.

There was no dispute that by Clause 3(f) of her Will, the deceased had created a testamentary discretionary trust in which the principal discretionary object was James.

Eligible Persons

The only eligible persons are the seven children of the deceased. Of the deceased’s children (other than James), only Sara, as the Defendant/executrix, and Peter, gave evidence.
There was no dispute that each of Emma, Jeremy, and Tamara is not an eligible person: Tcpt, 20 November 2019, p 6(05–07).
Only James has made a claim for a family provision order. However, Emma, Tamara and Jeremy, is each a witness, called in Sara’s case, who has raised her, and his, financial circumstances, respectively, as a competing financial beneficiary. I shall return to the financial circumstances of each later in these reasons.

The nature and value of the deceased’s estate

In accordance with a direction made by the Court on 28 October 2019, the parties, provided an Agreed Schedule, but on the second day of the hearing, provided an amended Agreed Schedule that contained:

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

the assets and liabilities of the estate at the date of hearing;

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

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

I have taken what follows from the amended Agreed Schedule, a copy of which was marked as Ex AS1, the following information (omitting a reference to cents, which may explain any apparent arithmetical error). This evidence is not the subject of dispute.
As at the date of death, and according to the Inventory of Property attached to the Probate document, the deceased's estate consisted of:

Xxx High Street, North Willoughby

(Note: the property subsequently sold for $1,950,000.00)

$2,300,000

Shares – Telstra (1,000 shares)

$3,740

Shares – NIB Holdings (2,100 shares)

$13,545

Monies held in NAB Account XXX4857

$39,968

Monies held in CUA Account XXX2386

$10,373

Monies held in CUA Account XXX1688

$20,006

Monies held in IOOF

$19,955

Total value of Estate

$2,407,589

Pursuant to Sara’s affidavit sworn 21 October 2019, the deceased's estate, at that time, consisted of:

Shares – Telstra (1,000 shares)

E$3,560

Shares – NIB Holdings (2,100 shares)

E$14,490

Monies held in Trust Account of Cameron Legal

$92,361

Monies held in CMA Account of Cameron Legal

$1,801,442

Commonwealth Bank account

$1,280

Total distributable estate, omitting costs

E$1,913,135

In order to finalise the estate, the shares with Telstra and NIB Holdings will need to be sold. The parties agreed that the estimated costs involved, and the potential CGT on the sale would be relatively modest, and that the estimated costs and expenses, and CGT, if any, was not included in the Agreed Schedule.
The gross value of the deceased’s estate, at the date of hearing, was $1,913,135. Each one-sixth share, at this time, with no deduction for the costs of the proceedings, would have equated to $318,855.

Costs and Disbursements of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
On the second day of the hearing, the Court granted leave to file an affidavit of Mr A Ng, the solicitor with the conduct of the case on behalf of James. He disclosed that the estimated costs and disbursements for James, calculated on the indemnity basis, were $137,500; and that the estimated costs and disbursements, calculated on the ordinary basis, were $96,250 (inclusive of GST). At the time of the making of Mr Ng’s affidavit, James had not paid any of these costs and disbursements.
Mr Ng’s also stated that the costs and disbursements are not payable on a conditional basis and that there is no uplift factor in respect of those costs and disbursements. The affidavit further disclosed, however, that there is a conditional fees agreement with counsel, and that her fees are to be paid on a conditional basis. There is no uplift fee in respect of those fees.
Also, on the second day of the hearing, the Court granted leave to Sara to file an affidavit of Ms K J Fulcher, the solicitor with the conduct of the case on behalf of Sara. She disclosed that the estimated costs and disbursements for Sara, calculated on the indemnity basis, were $134,485; and, as set out in the Agreed Schedule at par D, Sara’s estimated costs and disbursements, calculated on the ordinary basis, were $94,139 (inclusive of GST).

Ms Fulcher also disclosed that Sara has paid, out of the estate of the deceased, amounts totalling $44,585. It follows that the balance of Sara’s costs and disbursements, calculated on the indemnity basis, is $89,900.
In the course of the discussion during the opening of the case, counsel for the parties agreed that in the event that James was successful in obtaining an order for provision, the usual order for costs should be made. In the event that James was unsuccessful, counsel for James stated that she would wish to make submissions that his costs should come out of the deceased’s estate: Tcpt, 20 November 2019, p 11(15–40).
Later, counsel for Sara stated that Sara would not seek costs from James in the event that the Summons was dismissed: Tcpt, 21 November 2019, p 134(11–13). Because of the result of the proceedings, this is no longer a relevant matter.
Shortly before the conclusion of the hearing, the Court was informed that in the event that James were successful, a gross sum costs order for $96,250 could be made for his costs and disbursements calculated on the ordinary basis, and that a gross sum costs order for $90,000 could be made, being the balance of Sara’s costs and disbursements, calculated on the indemnity basis. (The parties and their legal representatives are to be commended for reaching agreement on the quantum of costs, as it was clearly in their interests, and in the interests of the beneficiaries, to do so. The duration of the administration of the estate will now be shortened as costs will not have to be formally assessed.)
The total of the costs and disbursements that will be ordered to be paid out of the deceased’s estate, taking into account the amount already paid on account of Sara’s costs, will be $186,250.
It follows that the value of the available net distributable estate out of which an order for provision could be made was $1,726,885. It also follows that, each one-sixth share of the deceased’s estate, will now equate to about $287,814.

The deceased’s testamentary intentions

Whilst the Act refers to “testamentary intentions of the deceased” (see, for example, s 8 and s 60(2)(j)), there is no definition of that term in the Act.
James stated, more than once, during his evidence, that the deceased did not discuss her testamentary intentions with him. He did, however, rely upon various documents said to support the submission that her intention was for him to receive the whole of her estate. As late as in his counsel’s written closing submissions, it was submitted that:

“5. The deceased’s love for Mr Bowers is shown by her testamentary intention in 2016 whereby she had intended to leave her whole estate to Mr Bowers …”

The documents which I have read, and to which I shall refer, and the evidence of various conversations that I accept were had with the deceased, do not support this submission. In my view, the documents relied upon are merely part of the instructions to a solicitor for the preparation of her Will and, as will be read, only part of her deliberations for the ultimate distribution of her estate on her death.
There was no evidence of any formal, duly executed, Will, other than the last Will of the deceased.
There is some evidence that, in August 2016, prior to making her final Will, the deceased had attended upon solicitors, with Peter, and had given instructions for the preparation of a Will. There is a diary note, dated 19 August 2016, of instructions, which refers to the fact that the deceased had 7 children; that James had a “mental disability” and that he “lives in London”. There is a reference to a “trust” of the whole estate, with James as the “principal beneficiary”. The “income [was] not to effect [sic] Centrelink entitlements”. On James’ death, the estate was to be divided between the deceased’s remaining children, other than David, and with one share passing to Emma, Tamara and Jeremy. Later, in the diary note, there is a reference to “1/6 to each child” with “James’ share to be held by John and Sara on protective trust”, with the residue to Emma, Tamara and Jeremy.
I am satisfied that the deceased, at the time the diary note was created, had not finally determined how her property was to pass, or be disposed of, after her death, and that she was, then, still contemplating, and seeking advice on, the different ways of distributing her estate. This conclusion is confirmed when one considers the evidence of what followed the initial instructions from the deceased.
By letter dated 13 October 2016, Mr Cameron of Cameron Legal, sent to the deceased a draft Will, an Enduring Power of Attorney and an Appointment of Enduring Guardian. The draft Will provided, in the event that James survived the deceased, for the executors to settle the residue of the estate on a testamentary trust, “The James Richard Bowers Testamentary Trust”, with the “Income Beneficiary” being James, the “Default Beneficiaries” being Rosemary, Samuel, Harriet, Stephen, Sara, John, Emma, Tamara and Jeremy and the “Vesting Day” being the date of death of James.
Clause 8.2 of this draft Will provided:

“8.2 IN THE EVENT that the income of the Trust fund paid to JAMES will result in the reduction or loss of a benefit of any type to which he would otherwise be entitled I DIRECT that my Trustee may pay, distribute or allocate any part of the income of the trust fund to the default beneficiaries in such shares or amounts as my Trustee in their absolute discretion see fit.” (emphasis in original)

Clause 11.4 of this draft Will provided that the Trustee had the power to:

“Apply for the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary the whole or any part of the capital and income of that part of the trusts created in clauses 6 and 7 to which that beneficiary is entitled or may in future be entitled and make a payment or payments to a minor beneficiary’s parent or guardian or a person with whom the minor beneficiary resides and accept the receipt of that payee as an absolute discharge …”

Further instructions must have been received from the deceased because there are, then, other draft Wills, subsequently prepared, and sent to the deceased for her consideration. For example, under cover of a letter dated 6 December 2016, from Cameron Legal, a draft Will was sent to the deceased.
On 13 March 2017, there is a reference to Peter having “phoned to book an appointment for his mother Beth Bowers for 18 April 1:00 pm to finalise her Will”.
A further draft Will was then sent under cover of a letter dated 3 May 2017, from Mr Cameron to the deceased. There is another draft Will, with handwriting on it, which appears to be the draft of Clause 3(f) of the final Will of the deceased.
The deceased gave further written instructions for changes to her Will by email dated 7 May 2017, addressed to Mr Cameron. These instructions included that James was to receive $20,000 “when the will is executed” out of the one-sixth share that was to be held in trust for him and “David … [was] to accept the money I gave to him during the 1990’s as his share of my estate”. (There is no suggestion that anyone other than the deceased sent this email.)
The draft of her final Will was sent to the deceased under cover of a letter dated 2 June 2017. The deceased signed the Will on 21 June 2017.
Having read the documents annexed to James’ affidavit, I am satisfied that the deceased did not have any fixed, and final, testamentary intention until she signed the Will, Probate of which has been granted. This is not to say that she did not contemplate different provision to be made for James. However, none of the considerations included leaving her whole estate to him absolutely.
Peter gave oral evidence that he had suggested a form of trust to the deceased in relation to the one-sixth share to be held for James: Tcpt, 21 November 2019, p 118(09–11). I accept that he did so, but it was the deceased who executed the Will in which his suggestion was taken up.
Peter also gave the following evidence:

“19.   I did not go into the appointment with Mum initially. However, I was well versed in Mum’s medical issues, and knew she suffered from a severe hearing loss … I recall Robert Cameron asking me to join in the conference so that I could assist Mum with her hearing.
20.   I am aware during this appointment Mum discussed selling the house, depositing the entire proceeds into a family trust with a portion of the investment returns distributed to help support James, additional to any pension entitlements he was receiving with Robert Cameron. At that appointment Mum asked Mr Cameron to draft a Will to that effect. However, after reviewing the draft Mr Cameron prepared and upon further careful consideration Mum decided that it did not reflect her wishes for her estate and would not be an effective way to draft her Will. I recall having the following conversation with Mum afterwards with words to the effect:
Mum:    “I don’t think it’s fair that my other children have to wait for their money if I place all the money in trust. I know what it was like when my own mother died and I couldn’t get my inheritance for a number of years because your uncle was living in your grandmother’s house. I think I will instruct my solicitor that my estate should be distributed without delay so as to avoid the possibility of the types of issues and problems that arose with my own mother’s estate. Also, I don’t want a delay in the distribution of my estate to be a cause of disharmony between my children.”

21. Mum then asked Mr Cameron to redraft the will in the current form.”

(There appears to be an error in the transcript of proceedings which refers to an objection taken by counsel for James to the second sentence of par 19 of Peter’s affidavit. Following that objection, counsel for Sara declined to press the sentence and as a consequence I did not read it: Tcpt, 20 November 2019, p 16(06–13). In fact, the notation made on the affidavit in the Court file depicts that objection was taken to the third, not the second, sentence of par 19, and it is that sentence which is omitted from the quote above and which I have not read.)
In cross-examination, Peter gave the following evidence:

“Q. It was also your idea, wasn't it, that the beneficiaries should not wait until James' death before they receive their legacy, that was your idea as well?
A. No, it was not.
Q. I put it to you that it was your idea and when you went on that day to Mr Cameron's office that you discussed with him about making sure that the beneficiaries received their legacy before James' death?
A. I did not.”

Bearing in mind that James gave evidence that the deceased did not ever discuss her testamentary intentions with him, and as James was not present at the conference referred to, it is difficult to understand how the questions could have been asked in the form that they were. Be that as it may, having read the evidence advanced on this topic, and having seen Peter give his evidence, I have no hesitation in accepting that he did not make any suggestion that “the beneficiaries should receive their legacy before James’ death”. Rather, I consider that the genesis of the deceased’s decision was her own experience with Mary’s estate, to which reference has been made.
Peter also gave evidence, about which he was not cross-examined, that the deceased knew that James had been suffering from a mental illness; that James’ work history was irregular; and at times, he had worked for several months and at other times, he was unemployed but seeking employment.
James acknowledged in a handwritten note addressed to Centrelink (Ex 12), that the deceased “left my 1/6th share on trust with my brother and sister owing to my mental illness”. He acknowledged, in his oral evidence, that this may have been the reason for creating the trust in the Will, although he maintained his denial that she had discussed her concerns with him: Tcpt, 20 November 2019, p 69(45) – p 70(18).
His oral evidence on this topic was:

“Q. Do you remember that you provided a document to Centrelink in which you gave an explanation as to why your mother had created the trust in the Will?
A. I don't recall that.
Q. (Document shown). Do you recognise that is a handwritten note that you prepared for Centrelink?
A. Yes.
Q. You see there that you talk about your mother creating the trust because of your mental illness?
A. Yes.
Q. By that I suggest what you meant was that your mother was aware that you had a problem managing money?
A. I think I've told you before that my mother has never-never did raise with me my spending habits.
Q. You provide a copy of the Will to Centrelink?
A. I can't recall.
Q. Look at the first two lines “Attached is my mother's Will. She died recently”?
A. Yes.
Q. You agree that you provided a copy of the Will?
A. Yes, looks like it.
Q. You then go on to say “She left my one sixth share on trust with my brother and sister owing to my mental illness”?
A. Yes.
Q. When you sent that to Centrelink you realised that she had a reason for creating the trust in the Will?
A. That may have been her reason, yes.
Q. You knew it was her reason; didn't you?
A. No, I didn't. My mother never discussed that with me.
Q. You knew that the reason she created the trust was that she realised that if she left you money outside the trust it would be squandered?
A. No, I didn't know that. I don't know it.”

Peter also gave evidence, which I accept, that:

“25. I recall at the time of the property settlement Mum repeatedly asked James to purchase a property for himself to live in, or as an investment, in Sydney, however, I am aware that he ignored her advice, as Mum had the following conversation with me … with words to the effect:
Mum said: “I told James that he should buy himself a unit with the money he received from his property settlement. But James tells me he is going to move to the UK to live and he is ignoring my advice.””

Although it was denied by James, I find it likely that the deceased did tell James that he should buy a unit with the proceeds from the property settlement: Tcpt, 20 November 2019, p 44(38–47).
Debra gave evidence that, following her separation from James, their three children remained living with her: Tcpt, 21 November 2019, p 105(03–05). She also gave evidence that her income was sufficient to enable her to support the children: Tcpt, 21 November 2019, p 106(03–05). She also gave written evidence, about which she was not cross-examined, of having had a number of conversations with the deceased. She wrote:

“17. I recall speaking to the deceased about the plaintiff. The deceased was aware of the plaintiff’s pattern of behaviour when it came to spending money on himself, his failure to contribute to child rearing, or to provide financial support to his children from 2006 until the death of the deceased. The deceased would say to me, with words to the effect:
The deceased: “I am disappointed in him (meaning the plaintiff).”
And: “He should not be given large sums of money.”
And: “He is wasting money on himself and not providing support to his children.””

Whilst James did not deny that he had not provided financial support to his children, Debra denied the proposition, advanced on behalf of James, that he had not paid child support because he could not afford to do so. She gave evidence that “after the financial settlement occurred and the money went into our respective bank accounts, James went on an extended overseas holiday for more than six months”: Tcpt, 21 November 2019, p 114(35–41).
There is also in evidence a copy of a letter, dated 8 February 2007, from Adrian Twigg & Co, James’ then lawyers, to Debra (Ex 3), in which it was stated that James had:

“recently contacted the Child Support Agency and was advised that the child support payable by him for all three children, calculated based on his current income, is $629 per month. Our client wishes to pay this amount to you each month by direct deposit into an account nominated by you.”

There is no suggestion, made in this letter, that James was financially incapable of doing so at this time.
In relation to these matters, I accept the evidence of Peter and Debra where it conflicts with the evidence of James.
Counsel for James maintained throughout her submissions that the deceased intended to provide for James but that she had mistakenly believed that he had a “mental disability” and that the deceased “did not properly appreciate all the circumstances surrounding [his] mental health needs”. If this submission was intended to mean that the deceased did not have any medical evidence which suggested a causal connection between the medical conditions from which James suffered and his then spending habits, that submission should be accepted. More recent medical evidence, which was read in the proceedings, does not support such a current connection either.
However, bearing in mind all of the evidence, I am satisfied that the deceased did know that James had not used any part of the proceeds of his property settlement with Debra to purchase accommodation for himself, or to pay child support for any of his three children. I also accept that the deceased had suggested to James that he purchase such accommodation and that, generally, she was aware of his pattern of behaviour when it came to spending money on himself.
The deceased was entitled to, and did, take into account her obligation to make provision for each of her other children and if appropriate, her grandchildren. She carefully considered, over a prolonged period of time, that obligation, and she determined to make provision for each, other than David, for whom she believed provision had been made during her lifetime. (As stated, David has made no claim for provision.) Peter also did not receive anything under the Will, but his “share” appears to have been gifted to his children. These seem to be the reasons why the deceased made her final Will in the way that she did.

James’ medical condition

There was no dispute that James has been suffering from some forms of mental illness for many years. The deceased appears to have recognised this.
A summary of the medical records in evidence (Ex A) reveals:

Commencing in about 1992, James was suffering from depression. The condition presented in earnest in 1994: Ex A/1.

He had a severe depressive episode in 2004. He had 15 sessions of outpatient treatment with Professor Tennant, a psychiatrist. He was prescribed anti-depressant, and antipsychotic, medication: Affidavit, James Richard Bowers, 15 October 2018, annex B.

In 2011, his mental state was stable and he was “in remission from his recurrent depressive disorder”. He was then taking a number of medications: Ex A/5; Ex A/9.

In January 2012, he had been unemployed for about 8 months. However, he was “in remission from his mood disorder [which has been] kept under control by the combination of Lithium and Escitalopram and has been fit and capable for work …”: Ex A/13–14.

In July 2015, he was reported as “feeling depressed and anxious due to a range of current problems, including being bullied at work by colleagues, having a health problem with glucoma [sic], financial worries due to not having a good job and a relationship problem with his wife”: Ex A/27.

In December 2015, he reported that his main problem was depression, which condition he related to being out of work: Ex A/37.

In June 2016, James made a claim for permanent disability under his superannuation policy. After commencing litigation, which was settled, he received, after tax was withheld and a few minor expenses paid, about $319,000. After the payment of his costs and disbursements of those proceedings, he received $270,584, and it was this amount that was deposited into his nominated bank account in the United Kingdom by Overseas Telegraphic Transfer on 13 November 2017: Ex 4.

Applicant an Object of a Discretionary Trust

As stated earlier, under the terms of the deceased’s Will, James is an object of a discretionary trust. As such, he has no enforceable rights to either the capital (other than $20,000), or income, of the trust, and is reliant, for any future benefit, upon the exercise of discretion of the trustees in his favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary object’s interest is merely an expectation or hope.
In Belfield v Belfield (2012) 83 NSWLR 189 at 206–207 [71]; [2012] NSWSCA 416, Campbell JA (Sackville AJA agreeing) wrote, at [71]:

“... when the FPA was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation.”

In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was written, at 10–12:

“Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq (1959) noted 33 ALJ 240, Norris, AJ said at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218.
Dickey on Family Provision after Death (LBC Sydney 1992) says at p 121,
'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case.’

...
I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of the discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended.
...
It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it.”

I referred to the authorities in Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023, where I added, at [335]–[338]:

“The point raised by these decisions was more recently, and succinctly put, in Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215, in which Buss P wrote, at [188]:
“In my opinion, a provision under a testator's will may not make adequate provision from his or her estate for the proper maintenance, etc, of a person mentioned in s 7 of the Act if, in all the circumstances, the form of the provision is not adequate or proper. That is, the evaluation by the court of the adequacy or propriety of a provision in a will is not confined to whether, in all the circumstances, the actual or potential quantum of the provision is adequate and proper.”

Mead v Lemon (as Executor of the estate of the late Michael John Maynard Wright) and Leonie Angela Maynard Baldock and Alexandra Odette Burt and VOC Group Ltd [2018] HCATrans 152, was the subject of a special leave application, which was refused upon the basis that there were insufficient prospects that the appeal would succeed.
More recently, in Bkassini v Sarkis [2017] NSWSC 1487, Robb J, before quoting what I had written in Hedman v Frazer, wrote, at [304] that a discretionary object’s “fate in the present case is an exemplar of the proposition that discretionary testamentary trusts will usually provide an inappropriate mechanism for ensuring that a beneficiary under a will receives adequate provision”.
An earlier example of such a view is Shepherd v Shepherd [2010] NSWSC 167, at [53]-[55], in which McDougall J concluded that a will had made inadequate provision for an adult beneficiary, a son of the deceased, who had no vested entitlement to income and who was entirely dependent upon the trustees (his brother and sister) exercising their discretion in his favour from time to time.”

In Taylor v Farrugia, Brereton J wrote, at [62]:

“Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).”

Qualifications on “Principles”

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

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

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act permits it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Every case is different and must be decided on its own facts and it is in the detail that the answer to the proper application of the Act is to be discovered: Golosky v Golosky [1993] NSWCA 111 at 16 (Kirby P, Cripps JA agreeing).
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]–[20], and by Barrett JA, at [66]–[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and very recently, by White JA, in Steinmetz v Shannon, at [37]. The qualifications must be remembered.

Determination

As stated, there is no dispute that James is an eligible person. He commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of each has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, the material situation of James.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
Bearing in mind the terms of the deceased’s Will, there is a prospect that James might receive nothing by way of income, or capital, out of the deceased’s estate. Whether he does will depend entirely upon the exercise of discretion, in his favour, by Sara and John. To date, he has not received any distribution from the Trust, but I do not regard this as indicative of what might occur in the future.
However, this does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being “left without adequate provision” even though no, or little, provision is made for them in the deceased’s Will. Yet, for some time, James has been unable to work consistently, and, now is in very modest circumstances, with little to fall back on as he ages or in periods of unemployment, although while he is employed, his income exceeds his expenditure.
The Court is required to make, and I have made, an assessment of the financial position of James, the size and nature of the deceased’s estate, the relationship between him and the deceased and the competing moral, but not financial, claims, of the other beneficiaries who have not disclosed their financial resources or needs, and the circumstances and needs of James: see, for example, McCosker v McCosker at 571–572 (Dixon CJ and Williams J); Singer v Berghouse at 209–210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also considered the nature of the disposition to James under the deceased’s Will, arising from the discretionary nature of the testamentary trust, the medical conditions from which James suffers, and the possibility of an intermittent working life that may bedevil him.
As earlier stated, a court cannot describe, in terms of universal application, what adequate provision for the proper maintenance or advancement in life will entail for a parent in respect of an adult child. In many cases, as has earlier been said, adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his, or her, life. But as stated, every case will depend on its own facts.
Having considered the matters I am required to consider, James has satisfied me that he has been left without adequate provision for his proper maintenance or advancement in life. I am also satisfied that an order for provision for him should be made. He is not in a strong financial position, he does have a need for a fund to protect against the ordinary exigencies of life, and he does require secure accommodation. As counsel submitted, “due to his resilience and intelligence, [he] continues to find employment”, but the employment does not always last. It was clear, however, that at the present time, his income exceeds his expenditure by about $1,100 per month, at least some of which could be used, if necessary, to satisfy some of his other expenditure: Tcpt, 21 November 2019, p 129(06–40).
However, I do not think that the provision should be an amount in excess of $1.2 million, as submitted by counsel for James, or $300,000, as was submitted by counsel for Sara.
The more difficult question is what provision “ought to be made for … his, maintenance … or advancement in life”, having regard to the facts known to the Court at the date of hearing. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or an exact exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made. However, similar considerations as are set out above often arise.
I do not accept that the deceased had an obligation to provide an unencumbered home with a value of $710,000 for James. He was financially independent of the deceased for many years before her death. The fact that he does not, now, own his own home, was not brought about by the deceased. She did not have an obligation, or responsibility, to provide an unencumbered home for him out of her estate simply because he was her son and because he does not have a home of his own.
Having considered all of the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that a capital sum should be provided. I am of the view that James should receive, in lieu of the provision made for him in the Will of the deceased, a lump sum of $750,000.
Whilst it may be that the nature, and level, of expenditure, particularly at times when he was unemployed, and in the period following the separation from Debra, and the years that immediately followed, was greater than it might have been, and the fact that he has made no contribution to child support for his three children, at any time, after separation, particularly when he had a capital fund ($680,000 or $690,000) to make such a contribution, I am unable to conclude that he is a person who requires a third party to manage the provision that is made for him. I have not been persuaded that there should be the interposition of a trustee to manage, or control, the provision that the Court finds ought to be made for him.
Furthermore, whilst the possibility of an applicant spending the provision for purposes, other than the purposes for which it has been made, is a legitimate matter to take into account in deciding whether he, or she, has been left without adequate provision for his, or her, proper maintenance, education and advancement in life, the Court can impose conditions, restrictions or limitations upon the amount and nature of the provision that is made for him out of the estate of the deceased: s 65 of the Act.
This is a case, in my view, where the Court should impose a condition in respect of part of the lump sum, namely $550,000. No less than that amount should be used by him to purchase accommodation, and to pay any stamp duty and legal costs payable on the contract for, or in respect of, the property that is purchased. Of course, he may spend more than that amount for accommodation if he wishes to, but this will be a matter entirely for him.
In coming to the view that the condition should be imposed, I have considered the concern the deceased expressed regarding the fact that James did not use any part of the capital sum he received from the sale of the Lindfield property to purchase accommodation for himself. I have also taken into account the deceased’s other concern, that he should not dissipate the provision made for him out of her estate. Finally, I have considered that James, himself, has advanced the need to purchase accommodation, with the consequence that the condition proposed should not be an onerous one.
In addition, purchasing accommodation that he will own, in my view, will give James stability and security of accommodation in the event that other aspects of his life, such as maintaining employment as a solicitor, do not provide him with those things. His available income, whilst in employment, will be increased, at least partly, by him not having to pay rent (although there will, of course, be some expenses in owning real estate).
Moreover, it is common experience in the current economic and financial climate that income returns from investment in bank accounts and term deposits held with financial institutions are low, and would not appear to be as beneficial as the capital accumulation on real property. I have taken this matter, too, into account when considering the imposition of the condition.
The use of $550,000 for the purchase of accommodation will still leave James with a capital fund, which he can then use as he sees fit. The remaining lump sum will be the basis upon which he can provide for himself. It is a substantial enough amount to make a real difference to his life. However, if he spends the lump sum quickly, and without consideration of his future needs, including medical expenses, then so be it.
Naturally, in coming to the conclusion as to quantum, I have considered the lack of any competing financial claim on the part of the other beneficiaries named in the Will (other than James’ three children). However, whilst it would be much more pleasant to be open-handed and generous with the deceased’s estate, I must confine myself to the jurisdiction under the Act. The beneficiaries are, after all, the chosen objects of the deceased’s bounty.
The amount of about $976,000 will be left to be shared between the four children of the deceased, namely Rosemary, Stephen, Sara, and John; there will be one additional share to be divided equally between Samuel and Harriett, and, as agreed to by Sara, and pursuant to s 66(2) of the Act, one additional share should be divided, equally, between Emily, Jeremy and Tamara. This will result in each equal one-sixth share equating to about $160,000. That amount is significantly less than the provision that James will receive pursuant to these orders.

Directs the parties to provide to the Court, within 7 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.

**********

Amendments

05 March 2020 - Paragraphs [160] and [161] amended

Decision last updated: 05 March 2020

Medium Neutral Citation:	Bowers v Bowers [2020] NSWSC 109
Hearing dates:	20 – 21 November 2019; 27 November 2019
Date of orders:	20 February 2020
Decision date:	20 February 2020
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The Court directs the parties to provide to the Court, within 7 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.
Catchwords:	SUCCESSION – family provision – claim by adult child for provision from deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – the Defendant, is also an adult child of the deceased, the sole executor to whom Probate was granted, and one of a number of beneficiaries named in the Will of the deceased –provision made in Will for the Plaintiff as discretionary object of a testamentary trust – whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him – the Plaintiff suffering depressive illness – allegation that Plaintiff would dissipate any provision made for him – order for provision made in lieu of provision made for the deceased in the Will – whether the interposition of a trust for the Plaintiff should be maintained – condition imposed upon part of the provision made for the Plaintiff EVIDENCE – course of evidence – re-opening case – late application by counsel – where nature of the application is unclear — whether leave should be granted to re-open or re-examine PRACTICE & PROCEDURE – communication with the Court after hearing concluded and judgment reserved
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), s 39 Family Law Act 1975 (Cth), s 90C Family Provision Act 1982 (NSW) Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63 Practice Note SC Gen 18 Probate and Administration Act 1898 (NSW), ss 84A, 86 Succession Act 2006 (NSW), ss 3, 8, 57, 58, 59, 60, 61, 63, 65, 66, 84, 99, Ch 3 Uniform Civil Procedure Rules 2005 (NSW), rr 31.16A, 33.10
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023 Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416 Bkassini v Sarkis [2017] NSWSC 1487 Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Carroll v Cowburn [2003] NSWSC 248 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 Dal v Chol [2018] NSWCA 219 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 Gill v Permanent Trustee Company Ltd [1999] NSWSC 394 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Green v Perpetual Trustee Co Ltd (Supreme Court (NSW), 10 July 1985, unrep) Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2018] AC 545; [2017] UKSC 17 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Leary v NSW Trustee and Guardian [2017] NSWSC 1113 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mead v Kerney [2012] NSWCA 215 Nominal Defendant v Livaja [2011] NSWCA 121 Olsen v Olsen [2019] NSWCA 278 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; [1999] UKHL 35 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater No 21) [2019] NSWSC 294 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon (2019) 368 ALR 161; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Underwood v Gaudron [2014] NSWSC 1055 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Yee v Yee [2017] NSWCA 305
Texts Cited:	Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History 5
Category:	Principal judgment
Parties:	James Richard Bowers (Plaintiff) Sara Louise Bowers (Defendant)
Representation:	Counsel: Ms M Bridgett (Plaintiff) Mr J E Armfield (Defendant) Solicitors: Harris & Company Solicitors (Plaintiff) Teece Hodgson & Ward (Defendant)
File Number(s):	2018/318495

Xxx High Street, North Willoughby (Note: the property subsequently sold for $1,950,000.00)	$2,300,000
Shares – Telstra (1,000 shares)	$3,740
Shares – NIB Holdings (2,100 shares)	$13,545
Monies held in NAB Account XXX4857	$39,968
Monies held in CUA Account XXX2386	$10,373
Monies held in CUA Account XXX1688	$20,006
Monies held in IOOF	$19,955
Total value of Estate	$2,407,589

Shares – Telstra (1,000 shares)	E$3,560
Shares – NIB Holdings (2,100 shares)	E$14,490
Monies held in Trust Account of Cameron Legal	$92,361
Monies held in CMA Account of Cameron Legal	$1,801,442
Commonwealth Bank account	$1,280
Total distributable estate, omitting costs	E$1,913,135