Brewer v Ney

[2023] NSWSC 526

Supreme Court

New South Wales

Medium Neutral Citation:

Brewer v Ney [2023] NSWSC 526

Hearing dates:

12-13 April 2023

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Having regard to all the facts known at the date of hearing the application, and not being satisfied that (i) there are factors warranting the making of the application; and, (ii) even if there were, that adequate provision for the Plaintiff’s proper maintenance and advancement in life has not been made by the deceased’s Will, declines to make any order for provision for the Plaintiff out of the deceased’s estate.

(2) Orders that the proceedings be dismissed.

(3) Makes no order for the Plaintiff’s costs.

(4) Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

Catchwords:

SUCCESSION – Family provision – claim by son-in-law of the deceased – Sole residuary beneficiaries are the daughter and her husband, another son-in law of the deceased – Reasonably large estate – Dispute as to nature of Plaintiff’s relationship with deceased – Plaintiff alleges membership of the household of which the deceased was a member and partial dependency – Whether rent free accommodation given because of relationship with deceased – Whether any factors warranting the making of the application – Not so satisfied - Summons dismissed – No costs order sought against Plaintiff who had conditional costs agreement with his own solicitors

Legislation Cited:

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Anderson v Teboneras [1990] VR 527

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

Bezjak v Wyatt [2018] NSWSC 199

Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154

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

Churton v Christian (1988) 13 NSWLR 241

Devereaux-Warnes v Hall (No 3) [2007] WASCA 235

Jodell v Woods [2017] NSWSC 143

Kingsland v McIndoe [1989] VR 273

Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958

Lodin v Lodin [2017] NSWCA 327

Matthews v Wear [2011] NSWSC 1145

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Nagatomi v Hudson (Supreme Court (NSW), Young J, 18 September 1997, unreported)

Oakes v Oakes [2014] NSWSC 1312

Page v Hull-Moody [2020] NSWSC 411

Page v Page [2017] NSWCA 141

Poletti v Jones (2015) 13 ASTLR 113

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Porthouse v Bridge [2007] NSWSC 686

Purnell v Tindale [2020] NSWSC 746

Re Fulop, Deceased (1987) 8 NSWLR 679

Russell v NSW Trustee and Guardian [2013] NSWSC 370

Sammut v Kleemann [2012] NSWSC 1030

Singer v Berghouse (1994) 181 CLR 201

Spata v Tumino (2018) 95 NSWLR 706

Sun v Chapman [2022] NSWCA 132

Tobin v Ezekiel (2012) 83 NSWLR 757

Verzar v Verzar [2012] NSWSC 1380

White v Barron (1980) 144 CLR 431

Wilcox v Wilcox [2012] NSWSC 1138

Category:

Principal judgment

Parties:

John Alexander Brewer (Plaintiff)
Tracey Lynne Ney (Defendant)

Representation:

Counsel:
A F Stevens (Plaintiff)
N Bilinsky (Defendant)

Solicitors:
Shine Lawyers (Plaintiff)
Peter Evans & Associates, Solicitors (Defendant)

File Number(s):

2022/145665

Publication restriction:

Nil

Judgment

Introduction

1. HIS HONOUR: These somewhat unusual proceedings concern the estate of Robyn Rosalie Eyb (the deceased) who died on 17 June 2021, leaving property in New South Wales, and the claim, by John Alexander Brewer, her son-in-law, for a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act).

2. 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. Relevantly, in this case, it is not suggested that the Plaintiff seeks provision for education.

3. The Defendant named in the Summons filed on 20 May 2022 is Tracey Lynne Ney, the deceased’s only surviving, now adult, child, who is the sole executrix named in the last Will dated 6 April 2021 of the deceased. On 24 March 2022, this Court granted Probate of the Will to the Defendant.

4. The only other child of the deceased was Debra Anne Brewer (called Debbie by the parties), who predeceased her, having died on 15 February 2017. Debbie and the Plaintiff were married to each other on 5 February 1983, and they remained married until her death.

5. There was no evidence given by the Plaintiff concerning whether Debbie left a Will, or died intestate, or the nature and value of any estate, or whether he inherited any part of her estate. The Court raised this aspect at the commencement of the proceedings, but no evidence was provided during the hearing.

6. At the hearing, Mr A F Stevens of counsel, instructed by Ms J Kveytel, solicitor, appeared for the Plaintiff. Mr N Bilinsky of counsel, instructed by Mr P Evans, solicitor, appeared for the Defendant. The hearing was listed for 2 days and was completed within that time.

Some formal matters

7. The proceedings were commenced 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.

8. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. The only category of eligibility upon which the Plaintiff relies is s 57(1)(e), namely, that he was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member. The language of the sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is also no age limit prescribed by the Act in the case of a claim by any eligible person.

9. At the date of the deceased’s death, the Plaintiff was, and had been, for many years, an adult. However, whilst the Defendant accepted that the Plaintiff may have been indirectly, partly, dependent, upon the deceased, she contended that he was not a member of the household of which the deceased was a member. It will be necessary to consider the Plaintiff’s eligibility later in these reasons.

10. In the case of an applicant who, relevantly, falls within s 57(1)(e) of the Act, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application. There was also a dispute about whether the Plaintiff had established such factors. I shall return to the meaning of the term later in these reasons.

11. It is only if the Court is satisfied that the person in whose favour the order is to be made is an eligible person, and that there are factors which warrant the making of the application, that the Court determines, at the time when the Court is considering the application, whether adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both: s 59 of the Act. As the deceased dealt with all of her estate in her Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

12. Other than the Defendant and her husband, David James Ney, who, as will be read, are the residuary beneficiaries named in the deceased’s Will, the only other beneficiaries named in the Will are “such of my grandchildren as shall survive me”. They receive an absolute devise of a parcel of real estate as tenants in common in equal shares. Commendably, the parties agreed that the real property, which is the subject of the absolute devise to them, should not bear the burden of the provision, if any, made for the Plaintiff.

13. In the circumstances, it is only necessary to consider the obligation owed by the deceased to the Defendant and to David. Neither made a claim for a family provision order. Nor did any beneficiary, other than the Plaintiff’s daughter, Tamara Tuttlebee, one of the deceased’s grandchildren, give evidence of her, or his, financial and material circumstances.

14. Accordingly, the Court may assume that each of the residuary beneficiaries does not wish her, or his, financial resources and financial needs, respectively, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ). The Court is also entitled to infer that, as a beneficiary, each, respectively, has adequate resources upon which to live and that she, and he, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

15. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I do not propose to disregard the interests of the Defendant, or her husband, as a chosen object of the deceased’s bounty.

16. None of the beneficiaries named in the deceased’s Will is required to prove an entitlement to the provision made for her, or him, or justify, otherwise, the provision made in the Will for her or him. Nor, in relation to the Will, does each have to explain the decision by the deceased to make the provision that she did for her, or him, respectively, in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). In this regard, his Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

17. 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 Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

18. The Defendant gave evidence that shares in public companies, with a total value of $3,601, had been distributed to her and David as the residuary beneficiaries. However, neither party sought to have the shares designated as notional estate. The legal representatives were obviously aware of ss 88 and 89 of the Act. It follows that it is only necessary, hereafter, to refer to the estate of the deceased.

19. The Defendant, as executor, does not seek, or intend to 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).

The deceased’s Will

20. So far as is known, the deceased left no document, other than her Will, that reflected her testamentary intentions. Relevantly, the Will:

1. Revoked all former wills and testamentary dispositions previously made (Clause 1).

2. Appointed the Defendant as her sole executor and trustee (Clause 5).

3. Stated that gifts to her trustee were not dependent on acting as executor and trustee and permitted the trustee to apply to the Court for commission (Clause 6).

4. Directed the trustee to sell, call in and convert into money any part of the estate and pay death, estate, or succession duties, debts funeral and testamentary expenses, and any other costs, fees, or expenses associated with the deceased’s death or the administration of her estate (Clause 8(a)).

5. Devised “to such of my grandchildren as shall survive me and if more than one, in equal shares as tenants in common”, a parcel of real estate (to which I shall refer as Lot 764 (Clause 8(b)).

6. Left the rest and residue of the estate to the Defendant and her husband, David jointly (Clause 8(c)).   

7. Gave discretionary powers to the trustee (Clause 9).

21. The Plaintiff was not referred to in the deceased’s Will.

The nature and value of the deceased’s estate

22. On 9 March 2023, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

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

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

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

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

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

23. I have taken what follows from the Agreed Schedule, delivered to the Court on 4 April 2023, which, at the commencement of the hearing, was marked, without objection, Ex. JS1, and from discussions with counsel during the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

24. The deceased’s estate, at the date of death, comprised various parcels of real property located at Hilldale, New South Wales, (which, I understand to be, a small rural town within the local government area of Dungog, located approximately 157 kms from Sydney). I shall refer to these parcels of real estate separately, as No. 94 (comprising Lots 5, 1211 and 1212) ($2,050,000); Lot 764 ($250,000); Lot 765 ($100,000); and Lot 82 ($200,000); monies in the bank ($29,454 and $24,241) and shares ($1,377 and $2,364). The gross estimated value of the deceased’s estate, then, was $2,657,437.

25. Amounts that have been expended in the administration of the deceased’s estate have totalled $13,770.

26. The deceased’s estate, at the date of the Joint Schedule, comprised the various parcels of real estate, the value of each of which had not changed; cash ($24,241); and the shares ($1,449 and $2,151). There were also “the balance of gathered funds” ($12,445 and $26,216). The parties agreed that the gross value of the estate was $2,640,287.

27. The parties also agreed that the estimated known, or anticipated, liabilities of the estate, included an amount that is to be reimbursed to the Defendant and David for property related expenses ($10,575), funeral costs ($7,380), further administration costs ($2,200) and insurance ($6,500). The total of these liabilities was $26,655.

28. In addition, they agreed that it would not be necessary to sell all the real estate but only Lot 764, Lot 765, and Lot 82. Pursuant to the terms of the Will, Lot 764 would be sold, and the net proceeds of sale would be divided, equally, between the 5 grandchildren of the deceased. It was accepted that the proceeds of sale of Lot 765 and Lot 82 would be more than enough to satisfy any order for provision made for the Plaintiff and his costs, if orders in his favour were made. The costs and expenses of the sale of the three Lots were estimated to be $23,000.

29. It follows that the amount of the liabilities and anticipated costs and expenses of sale were estimated to be $49,655.

Costs of the Proceedings

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

31. 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, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

32. The Plaintiff’s solicitor disclosed that the Plaintiff had entered into a conditional cost agreement with her firm. This type of agreement is referred to in Part 4.3, s 181 of the Legal Profession Uniform Law Application Act 2014 (NSW), as being “a costs agreement (a conditional costs agreement) may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate” and may, so far as I know, contain an “uplift fee”, which also was not referred to. A “costs agreement” simply means an agreement about the payment of legal costs.

33. In this case, the conditional costs agreement contains an uplift fee of 25 per cent “on the total amount of the professional costs calculated on indemnity basis in the event of a successful outcome…”. The amount of that uplift fee was estimated to be $22,000.

34. The Plaintiff’s solicitor then estimated the total of the Plaintiff’s costs and disbursements, calculated on the ordinary basis, not including the uplift fee, to be $93,000 plus GST (or $102,300 inclusive of GST) based upon a hearing of two days. Very sensibly if I may say, the parties agreed that a gross sum cost order of $100,000 could be made if the Plaintiff was successful in obtaining a family provision order: see s 98(4) of the Civil Procedure Act 2005 (NSW).

35. The Defendant’s costs and disbursements, calculated on the indemnity basis, of the proceedings were estimated to be $74,495 (inclusive of GST and based upon a hearing of two days).

36. Using the costs estimates as a guide, and assuming an order for costs were made, to be paid out of the estate, the total amount of the costs of the proceedings would be $174,495.

37. In determining the distributable estate out of which an order for provision could be made, after taking into account the costs of the proceedings, and as already stated that the grandchildren would not bear the burden of any distribution, the amount available for a provision order in the estate should be reduced by a further $250,000.

38. It follows that the net distributable estate out of which an order for provision could be made is estimated to be $2,166,137. It is an estate of reasonable value.

39. Whilst the Court was not provided with a copy of the conditional costs agreement, it may be inferred that the Plaintiff would not be liable for his own costs and disbursements in the event that his claim was dismissed. The Defendant stated that, in the event the Plaintiff is not successful, she does not seek an order that he should bear any part of her costs, as executor, of the proceedings. Had the concession not been made, unless there were reasons advanced for not making an order for costs, what might be regarded as the usual order for costs might have been made. This was a generous concession made by her.

Background Facts

40. The deceased was born in October 1937 and died on 17 June 2021, aged 83 years.

41. She, and her husband, Trevor Frederick Eyb, resided in the family home, which formed part of a farming property known as “Morrowville” (being the land identified in the Inventory of Property as the properties at No. 94 Hilldale Road). He died on 16 September 2020.

42. Under Trevor’s Will, the Plaintiff was given a pecuniary legacy of $15,000. (There was no evidence of the reasons why Trevor had made provision for the Plaintiff: Tcpt, 13 April 2023, p 138(29-36).)

43. The Plaintiff was born on 18 December 1960 and is currently aged 62 years.

44. The Plaintiff met Debbie in 1980, but he gave evidence, which was not the subject of dispute, that his family had been close to the deceased’s family even prior to his marriage to Debbie.

45. The Plaintiff and Debbie had three children together, being Phillip John Brewer, who was born in February 1989, and who died in December 2015; Matthew Bryce Brewer, who was born in March 1990; and Tamara Anne Tuttlebee, who was born in February 1994. Only Tamara gave evidence, read in the Plaintiff’s case. Matthew did not play any part in the proceedings.

46. Subject to three periods of time when it was claimed the Plaintiff moved in to the household of the deceased, two of which periods were in dispute, he did not otherwise reside at the property in which the deceased lived. Ultimately, the Defendant accepted that the Plaintiff, with Debbie and their children, had lived with the deceased for the slightly more than three-month period of 27 June to 6 October 1997. The claimed, but disputed, periods of the Plaintiff being a member of the household, were 14 May to 30 June 2000, and the period of one month in 2017.

47. As stated, Debbie predeceased the deceased, having died in January 2017.

48. The Defendant was born in March 1976 and is currently aged 47 years. She has lived at “Morrowville” for her entire life, except for a period of 10 months, in 1994, when she left to attend TAFE to study office administration.

49. The Defendant married David, in 1996, following which they renovated, and then moved into, her grandparents’ house, which was located about 100 metres away from the house in which her parents lived.

50. The Defendant and David had three children, being Jacob James Ney, Amelia Lynne Ney, and Lincoln James Ney. None of the children played any part in the proceedings. The Defendant and her family, other than Jacob, continue to reside in the home which they renovated.

51. In 2013, the deceased and Trevor entered a lease agreement with the Defendant and David to enable them to operate part of the land and earn an income: Affidavit, Tracey Lynne Ney, 12 August 2022 at Annexure A. Since then, the Defendant and David have taken over farming the property, including breeding cattle for her business, Morrowville Beef.

The Witnesses

52. In addition to each of the parties, there was only Tamara, called in the Plaintiff’s case, and Ms Kathleen Bentley, a friend of the deceased, called in the Defendant’s case, who were cross-examined. Other deponents, whose affidavits were read, were not cross-examined. I shall deal with the evidence of these witnesses and my impression of those who were cross-examined.

The Plaintiff

53. The Plaintiff swore 4 affidavits in the proceedings: the first, sworn 20 June 2022, comprising 118 paragraphs, spanning 25 pages; the second, sworn 1 August 2022, comprising 28 paragraphs, spanning 7 pages; the third, sworn 15 September 2022, comprising 36 paragraphs, spanning 7 pages; and the fourth, sworn 3 March 2023, comprising 9 paragraphs, spanning 4 pages.

54. Overall, I formed the impression that the Plaintiff was giving evidence to the best of his ability, although it was clear that his memory was impaired. He acknowledged an impairment and said that it was caused by medical conditions from which he suffered and the treatment that he had received.

55. At least in part, the Plaintiff based some of his evidence of the events about which he gave evidence, on what appeared in diary entries made by Debbie. A number of those diary entries were tendered: Ex. D1, Ex. P2, Ex. P3. (The Defendant’s legal representatives had been given the opportunity to inspect all the available diaries and did not object to the tender.)

56. The Plaintiff stated that he and Debbie had always lived reasonably close to the deceased and Trevor (a drive that took about 10 to 15 minutes). He described the deceased as “like a mother to [him]” and Trevor as his “father figure”. He claimed, also, that the deceased had treated him like a son, rather than as a son-in-law, and had provided him with financial, and emotional, support during his marriage to Debbie, as well as after her death.

57. He said that the four of them had gone on holidays to visit the Plaintiff’s family for three consecutive years, with the deceased and Trevor paying for food and the Plaintiff and Debbie paying for accommodation.

58. Whilst the Plaintiff may have felt that way about the deceased and Trevor, there was no evidence to corroborate the assertion, so far as either of the deceased, or Trevor, was concerned. (I have not forgotten the pecuniary legacy left to the Plaintiff in Trevor’s Will.) So far as the deceased was concerned, there was evidence to the contrary.

59. Indeed, bearing in mind the Defendant’s and Ms Bentley’s evidence, it is difficult to accept that the deceased felt the same way about the Plaintiff. However, it is not suggested that the deceased had expressed what might have been her real feelings towards him. Including as a residuary beneficiary, David, her only other son-in-law, with the Defendant, in her Will, and not making a bequest of even a modest legacy to the Plaintiff, suggests that she did not regard the Plaintiff in the way he had asserted.

60. The Plaintiff gave evidence that, from 1983 to 1989, he and Debbie spent most of their free time on the farm owned by the deceased and Trevor, where he did tractor work, fixed their fences, milked and fed cows, gardened, constructed a greenhouse and a new deck on the verandah, and painted the interior of the farmhouse. He conceded that he had no independent supporting evidence of this: Tcpt, 12 April 2023, p 51(25-37).

61. He stated that after they had children, he and Debbie continued to visit the deceased and Trevor on weekends and during the week or would speak to them on the telephone if unable to visit. They would often camp on the farm and attend family gatherings on special occasions like Christmas and birthdays. He claimed the deceased often gave money to both of them during their visits, and that Debbie brought cash of about $50 back from her own visits to the deceased on around six occasions a year.

62. He denied that this money was given for Debbie’s benefit only, deposing that it was intended for their entire family: Affidavit, John Alexander Brewer, 1 August 2022 at par 17. In cross-examination, however, he agreed that, while Debbie was alive, any cash gifts were handed to her, by the deceased and Trevor, even if the Plaintiff was also present when this was done. He also agreed that there was no occasion on which the deceased, personally, gave him any money: Tcpt, 12 April 2023, p 45(30-50). In any event, the cash amounts were generally less than $100: Tcpt, 12 April 2023, p 57(26-38).

63. He also remembered that the deceased would “not infrequently” drop off groceries, after speaking to Debbie, on the telephone. The deceased would also come with meat and pre-cooked casseroles about four times a year: Affidavit, John Alexander Brewer, 1 August 2022 at pars 11-13. When there was insufficient money, he stated he would go without meals or only eat instant noodles so the rest of his family could eat.

64. On 27 June 1997, the Plaintiff and Debbie moved in with the deceased and Trevor as they could not afford the mortgage repayments and because they had almost no savings. He deposed that there was no time limit imposed by the deceased, or Trevor, on how long they could remain. They occupied Debbie’s old bedroom, with their children sleeping in the sunroom. The deceased provided them with bed linen and crockery, and, with some help from Debbie, prepared food for everyone.

65. The Plaintiff and Debbie did not pay rent, or contribute to food costs, rates, or utilities. They moved out on 6 October 1997: Affidavit, John Alexander Brewer, 15 September 2022 at pars 4-13.

66. At this time, the Plaintiff also started a worm farm business at “Morrowville” with Debbie called “Lots of Worms”, which business ceased operating in 1998. The deceased and Trevor allowed them to use part of their land and farm equipment for that business.

67. The Plaintiff gave evidence that on 14 May 2000, he and Debbie moved back in with the deceased and Trevor, as they again could not find accommodation. He stated that they were not asked to leave. They moved out on 30 June 2000, having rented a house nearby for 12 months.

68. He gave evidence that Trevor provided them with $60 a week to help them meet the weekly rent expense of $400. When they moved into the rental property, the deceased purchased a bedroom furniture for them at a cost of $2,500: Affidavit, John Alexander Brewer, 1 August 2022 at pars 18-19.

69. The Plaintiff denied that during this period he was sleeping at the Maitland Christian School, where he was working, as he claimed he was then living in the deceased’s and Trevor’s home. However, in cross-examination, he accepted that he had no real recollection of the events, stating that he had relied upon Debbie’s diaries to remember the dates of these periods: Tcpt, 12 April 2023, p 34(33-47), p 35(46-49). He was taken to diary entries of 9 May 2000 in Debbie’s diary, which stated “Started sleeping at school, Garry’s office”, and of 14 May 2000, which stated “Me & the kids up here living, John down at school”: Ex. D1. He then stated that he could not remember staying at the school. (He was not asked why he did not accept the truth of the diary entries which suggested that he had done so in that period.)

70. The Plaintiff stated that he had helped out on the farm on weekends and had celebrated his 50^th birthday on the farm.

71. In 2009, the deceased and Trevor gifted Debbie $50,000 from the proceeds of the sale of some land. He stated that the amount was for the use of Debbie’s family, including the Plaintiff.

72. In 2014, the deceased and Trevor paid for the funeral costs for the Plaintiff and Debbie’s son, Phillip. In 2017, they paid for Debbie’s funeral.

73. After Debbie’s death, the Plaintiff continued to attend family gatherings at the deceased’s and Trevor’s property. He also claimed that the deceased gave him $6,000 for his medical and living expenses. He stated that the amount of $6,000 was separate from the same amount that Trevor had paid for Debbie’s funeral, which was said to have been paid directly to the funeral home: Tcpt, 12 April 2023, p 53(23-41).

74. He maintained that the deceased had invited him to live on the farm with Tamara and her children. He deposed that the deceased had told him to “[come] and live with us for as long as you need”. He said that they had lived there for a month after the Plaintiff’s surgeries, on what he described as the same basis as the 1997 and 2000 instances of cohabitation: Affidavit, John Alexander Brewer, 1 August 2022 at par 21. The deceased provided farm produce for their main meals, which they ate together as a family.

75. He agreed that he could not specify the precise dates that he stated that he lived there, as he no longer had the benefit of Debbie’s diary entries. In cross-examination, he acknowledged that he had no independent basis for his belief that he had lived with the deceased in 2017: Tcpt, 12 April 2023, p 43(15-24).

76. For reasons to which I shall come, I do not accept the Plaintiff’s, or Tamara’s, evidence on this topic. I prefer the evidence of the Defendant.

77. The Plaintiff claimed that he had provided the deceased with emotional support, and occasional care, through her lifetime, describing their relationship as “close and loving”. He denied observing anything that would have suggested the deceased felt annoyed, or burdened, by his presence. For example, he deposed that the deceased had offered to make him a co-signatory to her bank account and to pay for his burial plot. He also stated that she had expressed gratitude towards him for caring for Debbie through her illness, and that he observed no suspicion, or lack of trust, towards him: Affidavit, John Alexander Brewer, 1 August 2022 at par 23. He acknowledged that he had no independent evidence of the deceased’s attitude towards him.

78. During the deceased’s illness, the Plaintiff visited her, at least weekly, and often did chores in her garden: Affidavit, John Alexander Brewer, 20 June 2022 at pars 63-66. During cross-examination, he insisted that he had done gardening work and chores despite his medical conditions limiting the use of his hands but could not remember if this occurred in the period of 2020-2021: Tcpt, 12 April 2023, p 50(1-15). It is difficult to accept his evidence on this topic bearing in mind his disclosed medical condition.

79. When the deceased was admitted to Dungog Hospital in 2021, the Plaintiff visited her every day and then spent about three hours with her. He was present with the deceased when she died: Affidavit, John Alexander Brewer, 20 June 2022 at par 112. There is support for the regularity of the Plaintiff’s visits, although that evidence also suggests that the visits annoyed the deceased.

80. The Plaintiff claimed that, on a date he could not recall, Trevor had told him that he intended for his estate to be split equally between Debbie and the Defendant, if the deceased did not survive him. There is no evidence of any Will in which Debbie and the Defendant are equal residuary beneficiaries. He did not discuss this with the deceased after Trevor’s death, as he believed it was inappropriate due to her illness: Affidavit, John Alexander Brewer, 20 June 2022 at pars 90, 92.(However, there is some evidence of the topic of wills, a matter which seemed to have caused the deceased some concern.)

81. The Plaintiff described his relationship with the Defendant prior to the deceased’s death as “distant”: Affidavit, John Alexander Brewer, 20 June 2022 at par 113. He recalled that the Defendant was only present at the hospital for an hour on the day that Trevor died, and that the Defendant left the hospital without speaking to him or the deceased on the day that the deceased died.

82. He denied asking the Defendant about the deceased’s Will at the deceased’s funeral, though admitted to asking about the Will at a later time, but not in an insensitive manner: Affidavit, John Alexander Brewer, 1 August 2022 at par 25. He also noted that the Defendant had refused to allow Tamara to collect her children’s toys from the farm, following the deceased’s death.

83. The Plaintiff denied the Defendant’s allegations that he had a gambling problem, stating that he only occasionally placed a small bet of about $6 on a trifecta for Melbourne Cup once a year. His evidence was that his financial difficulties stemmed from being a low-income earner, while Debbie did not work or engaged in low-paid casual work: Affidavit, John Alexander Brewer, 1 August 2022 at pars 3-4. Otherwise, he did odd casual jobs, such as lawnmowing, to earn extra money, or was unable to find work. He stated that he had never had bad debts or been bankrupt.

84. Though he felt ashamed of his inability to support his family on his own, the Plaintiff believed that the deceased and Trevor treated him as a son, and willingly supported him and his family by providing them with food, money, and accommodation: Affidavit, John Alexander Brewer, 1 August 2022 at par 7.

85. In his affidavit of 3 March 2023, the Plaintiff gave evidence of his financial circumstances. He set out his assets and liabilities as follows, noting that he had no jointly held assets or liabilities:

ASSETS
Personal effects	$ 300
Mazda Sedan 2002	$ 1,700
Retirement Plus account	$ 416
TOTAL	$ 2,416
LIABILITIES
Personal loan – Macquarie Leasing	$ 19,000
Personal loan – CashXpress	$ 2,000
TOTAL	$ 21,000

86. His sole source of income is a Centrelink disability pension of $27,300 per year. He set out his annual expenses as follows:

EXPENSES
Rent	$ 10,660
Loan repayments	$ 3,640
Water	$ 600
Electricity	$ 2,500
Telephone	$ 520
Internet	$ 828
Funeral plan premiums	$ 204
Food	$ 5,200
Clothing	$ 200
Entertainment	$ 1,000
Personal grooming	$ 200
Pharmaceutical	$ 2,200
Medical treatment	$ 2,500
TOTAL	$ 30,252

87. The Plaintiff stated that he was able to meet the shortfall for his living expenses with the personal loans that were recorded as liabilities above. He noted that he lived week to week, and that he could not afford items such as gifts, a landline connection, a new mobile phone, or new clothes.

88. He gave evidence that he had used the legacy received from Trevor’s estate to purchase a car, but he required funds for registration, insurance, and service, as it was an old model. He also wished to purchase a new vehicle in the future, annexing a printout of a suitable model costing $32,890: Affidavit, John Alexander Brewer, 3 March 2023 at Annexure C.

89. He had not purchased, or sold, any real estate, or shares in public companies, had not made any gifts of amounts over $1,000, or sold any property over $1,000, in the three years before the hearing. He held no interest in any company or trust.

90. The Plaintiff has been unable to work since 2015, due to caring for Debbie during her terminal illness as well as his own ill health. Previously, he had been employed as a caretaker at Maitland Christian School for about 20 years.

91. In 2017, he was diagnosed with bowel and liver cancer. Following surgery and chemotherapy, he is now in complete remission, with a good prognosis. Annexed were medical reports in support of this: Affidavit, John Alexander Brewer, 20 June 2022 at JAB-08, JAB-09, JAB-10. However, since then he has been diagnosed with Type 2 diabetes and neuropathy, two common side effects of chemotherapy treatment. To manage his diabetes, he requires four insulin injections and two tablets a day. He would also need an insulin pump for $8,574, with operating costs of $240 per month.

92. Due to his neuropathy, he experiences significant pain from having to test his sugar levels twelve times a day via finger prick. He stated that he wished to purchase a glucose monitor machine, priced at $3,960 with an annual operating cost of $2,500, to avoid this process. To operate this machine, he would need an iPhone, which would cost $1,849, with a $55 per month 40GB phone plan.

93. He also suffers from chronic pain in his hands and feet, as well as depression and anxiety. Due to a deterioration in his health caused by increased iron deficiency, the Plaintiff indicated he would require additional bimonthly iron supplement treatment, at an annual cost of $1,020: Affidavit, John Alexander Brewer, 3 March 2023 at par 8.

94. He wished to purchase a mobility scooter at $6,537, as his balance problems made it unsafe for him to continue using his walker. Additionally, he required a medical bed, costing $4,327, to assist him in getting in and out of bed. Soon, he anticipated needing glasses, costing $600; dentures, costing $2,000; and hearing aids, costing $1,000. He stated that he would benefit from private health insurance as well.

95. The Plaintiff is living in rental accommodation with Tamara, who is his carer. She cooks, cleans, does the laundry, assists him with some personal care tasks, administers his injections, drives him to medical appointments, and takes him grocery shopping. They share living expenses, and he pays half of the weekly rent.

87. He described Tamara’s financial circumstances as “constrained”, as she is a full-time nursing student and single parent with care of two dependent children, aged 3 and 5. However, he noted that this arrangement would have to end when she obtained full-time employment, and he could not afford a paid carer. His son, Matthew, is not in a financial position to extend further financial support to him.

Tamara Tuttlebee

97. Tamara swore two affidavits in the proceedings: the first, sworn 28 July 2022, comprising 25 paragraphs, spanning 6 pages; and the second, sworn 11 April 2023, comprising 12 paragraphs, spanning 3 pages.

98. Tamara was born on 18 February 1994. She described her relationship with the deceased as “always… very close,” recounting many occasions on which the deceased provided her family with money for school uniforms, groceries, or utilities: Affidavit, Tamara Tuttlebee, 28 July 2022 at pars 5-8.

99. Throughout her childhood, she recalled her parents telling her (about three times a year) that the deceased had given them money to purchase clothes and shoes for her. The deceased also paid for Tamara’s, and her brothers’, expenses, when they stayed at, or lived on, the farm.

100. On birthdays, Christmas, and Easter, the deceased gave Tamara and her brothers gifts. Tamara recalled seeing the deceased gift the Plaintiff and Debbie cash, or gift cards, for Christmas, Easter, birthdays, and Father’s Day and Mother’s Day on many occasions.

101. In cross-examination, she agreed that she had never observed the deceased giving the Plaintiff any money in the absence of Debbie. She also conceded that the gifts were given to Debbie, even if the Plaintiff was present: Tcpt, p 59(4-11).

102. Tamara stated that the deceased and Trevor would also butcher cattle to provide her family with meat.

103. She remembered living with the deceased in the main house on the farm, along with her brothers and parents, for at least two periods in her childhood, but could not recall how old she was at those times: Affidavit, Tamara Tuttlebee, 28 July 2022 at par 14.

104. She stated that shortly after Debbie’s death, Tamara, the Plaintiff, and Tamara’s daughter, Savannah, moved in with the deceased and Trevor at the farm, as they could not find affordable rental accommodation. At this time, neither Tamara nor the Plaintiff were employed, and the Plaintiff was in poor health. They lived together on the farm for about a month. Tamara stated that she helped the deceased and Trevor with housework, and the Plaintiff helped as best he could, considering his health: Affidavit, Tamara Tuttlebee, 28 July 2022 at pars 18-20.

105. After 2017, when Tamara and the Plaintiff had found alternative accommodation, she recalled an occasion on which she met the deceased at Martin’s Creek, and the deceased gave her an old ice cream container and told her to “be careful and get home safely”. The Plaintiff, who was in Maitland Hospital, had told Tamara earlier that the deceased was going to give him $6,000 for bills, and asked her to go to Martin’s Creek to collect the money: Affidavit, Tamara Tuttlebee, 28 July 2022 at pars 21-22.

106. However, in her oral evidence, Tamara confirmed that she had not opened the container to see what was inside and did not recall the deceased telling her of the contents: Tcpt, 12 April 2023, p 62(1-29), p 63(14-15).

107. She denied that the Plaintiff was a gambler.

108. Tamara gave evidence in support of the Plaintiff’s financial circumstances as well as of her own financial circumstances. She agreed that they shared rent and utilities equally but paid for their own food. She added that her boyfriend also lived with them, but that he did not contribute to the living expenses or assist her financially. Her income comprised Centrelink allowance of $951 per fortnight and child support payments from her ex-partner of $140 per week.

109. She set out her assets and liabilities as follows:

ASSETS
Bank account – ING	$ 503
Motor vehicle	$ 3,500
Household chattels	$ 1,000
TOTAL	$ 5,003
LIABILITIES
HECS debt	$ 15,000
TOTAL	$ 15,000

110. Due to her pregnancy, she was uncertain of her future employment after her approaching graduation, but she expected to work as a registered nurse afterwards. She noted that she currently helps the Plaintiff with daily chores and shopping but may not be able to continue to do so after the birth of her child: Affidavit, Tamara Tuttlebee, 11 April 2023 at par 12.

John Ashton Whittle

111. Mr Whittle swore one affidavit in the proceedings on 28 August 2022, comprising 18 paragraphs, spanning 6 pages. He was not required for cross-examination.

112. He is a friend of the Plaintiff. They met in 1995 at Maitland Christian School, where they were both employed. He described the Plaintiff as a “highly valued, much loved and respected member of staff” who was “well liked by the students” and performed work of a “very high standard”.

113. Through the Plaintiff, he met Debbie and their children. He gave evidence that they would meet approximately three to four times a year, either at his home, or at the Plaintiff’s home. They did not dine out, as he knew that the Plaintiff could not afford to do so.

114. Mr Whittle was aware of the Plaintiff’s difficulties in meeting the family’s living expenses, particularly rent. He observed that the Plaintiff never purchased expensive food, or had spare cash: Affidavit, John Ashton Whittle, 28 August 2022 at par 8.

115. He had never heard Debbie complain that the Plaintiff’s conduct was the cause of these financial difficulties. Rather, he believed that the Plaintiff was a low-income earner because he was unskilled and there were few relevant employment opportunities available in regional areas. He noted that the Plaintiff worked full time, would do odd jobs, and work additional hours, to earn extra income: Affidavit, John Ashton Whittle, 28 August 2022 at par 11.

116. Mr Whittle recounted a telephone conversation with the Defendant, said to have occurred in late June or early July 2022, in which she asked him to confirm that “[the Plaintiff], Debbie and the children stayed overnight in the principal’s office… and that later Debbie stayed at [the deceased’s] and [the Plaintiff] stayed at the school overnight”. He told her he had no knowledge of this and to speak to the school principal instead. The Defendant then asked him if he saw the Plaintiff. When he said that he did not, as he had not had any contact with the Plaintiff over 2020 and 2021 due to COVID, the Defendant told him that she would have to give the Plaintiff some money from the deceased’s estate because the Plaintiff was seeking provision. The Defendant denied that she said this: Affidavit, Tracey Lynne Ney, 27 October 2022 at par 2.

117. Mr Whittle remembered that he and his wife had attended a function at the deceased and Trevor’s property in Hilldale for the Plaintiff’s birthday celebration, though he could not recall the date. He noted that 80-100 people were in attendance, and that the Plaintiff was treated by the deceased and Trevor as a close family member. He did not observe any unfriendly behaviour or tension: Affidavit, John Ashton Whittle, 28 August 2022 at par 17.

The Defendant

118. The Defendant swore five affidavits in the proceedings: the first, sworn 21 June 2022, comprising 16 paragraphs, spanning 6 pages; the second, sworn 18 July 2022, comprising 84 paragraphs, spanning 15 pages; the third, sworn 12 August 2022, comprising 34 paragraphs, spanning 9 pages; the fourth, sworn 27 October 2022, comprising 2 paragraphs, spanning 2 pages; and the fifth, sworn 1 March 2023, comprising 8 paragraphs, spanning 4 pages.

119. The Defendant had a much better recollection of events and was a much better historian than was the Plaintiff. I accept her evidence about the events that occurred where it is in conflict with that of the Plaintiff and, on one particular topic, the evidence of Tamara. In fact, I found her to be a witness who was doing her best to tell the truth and to assist the Court. In addition, her evidence was credible and straightforward, and she was unshaken in cross-examination.

120. By way of example, in response to a question from the Bench about her firm denial that the Plaintiff and Tamara had resided on the property with the deceased and Trevor in 2017, the Defendant gave considered reasoning, stating that her parents were both receiving close medical attention for health problems during this period, including home visits from a district nurse and visits to the hospital, and that she had also provided care to them. Aside from her own observations that nobody else was residing with them in their home, she did not believe either of her parents could have looked after the Plaintiff and his family when they were struggling to look after themselves: Tcpt 12 April 2023, p 87(47)-88(15).

121. I also found that she answered questions directly and did not prevaricate even if the answer might be favourable to the Plaintiff’s case. Overall, I accept her evidence.

122. In relation to her relationship with the deceased, she recalled helping around the farm with milking, cattle work, husbandry, droving, sowing and reaping crops, maintaining the books of the farm business, and generally maintaining the property. She recounted a long history of working on her parents’ farm, along with David, for no financial reward. She said that David had also contributed financially to sustain the farm’s operations through difficult times, such as drought. (She was not challenged on this evidence.)

123. The Defendant had also provided care to her parents, and to her grandparents, and she described her relationship with her parents as “exceptionally close and loving”. She stated that she had also assisted her parents with their finances, including paying their bills electronically and doing their shopping. She held a joint account with the deceased for this purpose.

124. The Defendant also deposed to the long history and the heritage of the properties and her family’s attachment to the land. She maintained that she had no intention to leave, or sell, the properties, and stated that she wished to continue living there with her husband and children, and possibly, with her grandchildren. She gave evidence that she required the entirety of the land to sustain her cattle, to prevent overgrazing.

125. Her view of the relationship between the Plaintiff and the deceased was not similar to that of the Plaintiff’s, particularly after Trevor’s death. She gave evidence that the Plaintiff had enquired about Trevor’s Will, and this had caused the deceased to become “upset and angry”: Affidavit, Tracey Lynne Ney, 18 July 2022 at pars 11-12. She claimed that the deceased had told her she did not trust the Plaintiff and that she hated it when he visited her by himself.

126. She did not accept that the relationship of the Plaintiff and the deceased was close or loving. She said that the deceased and Trevor believed in charity, due to their Christian values, and were accordingly hospitable towards the Plaintiff, and other visitors, such as missionaries, who had stayed at their property.

127. She deposed to conversations where the deceased had expressed to her that the Plaintiff’s presence made her feel “claustrophobic” and “suffocating”, and that the deceased believed that the Plaintiff wanted something from her, calling him “a snake in the grass”. Sometimes, in the Defendant’s presence, the deceased would not answer calls from the Plaintiff, dismissing him as “the Weasel”. She annexed copy text messages in which the deceased referred to the Plaintiff as “weasel” and “worm”: Affidavit, Tracey Lynne Ney, 18 July 2022 at Annexure TLN-01. She recounted other conversations where the deceased had told her about the Plaintiff acting suspiciously during visits, such as looking through her glass cabinet and using a measuring tape in the dining room.

128. The Defendant claimed that the Plaintiff had “various failed businesses and a gambling problem”, which caused the deceased concern. She maintained that she had seen no evidence of the deceased providing financially for the Plaintiff during Debbie’s lifetime or after her death, and that any benefit he received was indirect, through gifts made to Debbie.

129. However, she acknowledged that she, and the deceased, had supplied the Plaintiff and his children with meals and meat from the farm after Debbie’s death, and provided them with emotional support, stating that it was “as Debbie would have wanted”. She also accepted that the Plaintiff continued to be included in family events, although his relationship with the Defendant became more distant.

130. She noted that the Plaintiff’s own parents had also provided assistance to him, including regularly buying groceries for him, giving him money to pay bills, and paying for his car repairs: Affidavit, Tracey Lynne Ney, 18 July 2022 at pars 7-9, 32.

131. She was not aware of the deceased asking the Plaintiff to be a signatory to her cheque account. She was also unaware that Debbie had received $50,000 from the deceased or Trevor from the proceeds of sale of any land and stated that she had not received a gift $50,000: Tcpt, 12 April 2023, p 84(34-35), p 85(8-10).

132. As the Defendant and her family lived next door on “Morrowville”, she described herself as the sole carer of the deceased and denied that the Plaintiff provided the deceased with any material, or physical, care.

133. The Defendant agreed that the Plaintiff, Debbie, and their children had lived with the deceased in 1997, but she was unable to recall the precise dates. She recalled that the deceased had told her she was “so annoyed that [the Plaintiff had] landed Debbie and the kids in this situation” and called the Plaintiff “useless”: Affidavit, Tracey Lynne Ney, 18 July 2022 at par 29.

134. In cross-examination, she clarified that she was not present on the farm during the week, as, at that time, she was working full-time in Dungog: Tcpt, 12 April 2023 at 71(50)-72(26).

135. She also recalled that the Plaintiff lived on the property “a couple of nights a week” on the weekends in 2000, but again could not recall dates: Tcpt, 12 April 2023, p 74(4-31).

136. There was no record of the Plaintiff, Debbie, or their children residing with the deceased and Trevor in Trevor’s diary entries during this period. The Defendant remembered that the deceased had become very ill at this time and had been hospitalised.

137. She denied that the Plaintiff, Tamara, and Tamara’s daughter, had stayed with the deceased and Trevor for a month in 2017. At this time, she was living and working on the farm, and providing close support to the deceased and Trevor after Debbie’s death. She claimed she had not observed the Plaintiff or Tamara living there. She said that Trevor’s diary did not make mention of the Plaintiff or Tamara staying there. She also stated that the electricity bill for that period did not reflect the greater electricity consumption that would be expected from additional residents in the house, noting that the electricity usage had decreased compared to the previous year: Affidavit, Tracey Lynne Ney, 12 August 2022 at pars 32-33; Affidavit, Tracey Lynne Ney, 18 July 2022 at pars 25, 29, Annexure TLN-06.

138. Additionally, she denied observing the Plaintiff, or Tamara, help with housework, or with the farm work, in 2017. She stated that she had no recollection of the Plaintiff assisting with chores or on the farm in the last 26 years: Affidavit, Tracey Lynne Ney, 12 August 2022 at par 34; Affidavit, Tracey Lynne Ney, 18 July 2022 at par 46. However, in cross-examination she conceded that the Plaintiff may have assisted while she was not present on the farm due to her work elsewhere: Tcpt, 12 April 2023, p 72(28-35).

139. The Defendant only recalled that the Plaintiff visited, with Tamara, “once or twice” after his cancer diagnosis in May 2017: Tcpt, 12 April 2023, p 76(19-37).

140. The Defendant recounted the events surrounding Trevor’s death in September 2020. As the deceased was also very ill at this time, the Defendant went to the hospital to attend to the paperwork, where she met the Plaintiff, who escorted her in to see Trevor in the Emergency Department. The Defendant stated that Trevor had become agitated and had told her to return home to look after the deceased. While the Defendant was meeting with Trevor’s treating doctors to discuss his end-of-life care, Trevor was transferred into a high dependency ward. Subsequently, the Defendant was unable to visit him as he already had the maximum number of visitors allowed which the Defendant presumed to be the Plaintiff and Tamara, so she left the hospital to be with the deceased: Affidavit, Tracey Lynne Ney, 18 July 2022 at pars 58-69.

141. As the deceased’s enduring Attorney, the Defendant was responsible for her medical care and noted that all of the necessary paperwork had been attended to: Affidavit, Tracey Lynne Ney, 18 July 2022 at pars 70-75.

142. Around the time of the deceased’s admission to hospital and her death in June 2021, the Defendant stated that she was either with the deceased, or nearby in the hospital chapel, as she was conscious of COVID limitations on visitor numbers and knew other people wished to see the deceased as well. After several days, she left the hospital to be with her children. She stated that she did not know where the Plaintiff was when she left.

143. Following the deceased’s death, the Defendant stated that the Plaintiff continually contacted her for information about the deceased’s Will, through Tamara. He had first approached her at the deceased’s funeral on 28 June 2021. Annexed were copies of text messages from Tamara, on the Plaintiff’s behalf, inquiring about the Will on 1 July 2021, 5 July 2021 and 22 July 2021: Affidavit, Tracey Lynne Ney, 18 July 2022 at Annexure TLN-07. The Plaintiff also contacted the Defendant’s solicitors about the deceased’s estate.

144. The Defendant agreed that she had not allowed Tamara to collect any children’s toys from the farm following the deceased’s death but clarified that this was due to COVID restrictions at the time prohibiting people from leaving their local government area: Affidavit, Tracey Lynne Ney, 18 July 2022 at Annexure TLN-08. She said that she was aware personal effects formed part of the deceased’s estate and could not be distributed. She did not know if the toys belonged to Tamara or to the deceased, as the deceased had a toy basket for grandchildren and any visiting children, and denied that the toys Tamara wished to collect were those left from a stay in 2017: Tcpt, 12 April 2023, p 81(3-44). Upon obtaining a grant of probate and clearing out the house, she said that she did not find any toys that could have belonged to Tamara: Tcpt, 12 April 2023, p 87(25-27).

Kathleen Louise Jean Bentley

145. Ms Bentley swore one affidavit in the proceedings on 21 July 2022, comprising 13 paragraphs, spanning 5 pages.

146. She was a close friend of the deceased and Trevor, and had known them since buying land in Hilldale, from Trevor, in about 1986 or 1987. When they lived there, she and her husband would visit the deceased and Trevor on Sundays. After five years, they moved away, but continued to stay in contact the deceased and Trevor on a basis she described as “quite regular”, including telephone calls, and in-person visits “every chance [she] could”: Tcpt, 12 April 2023, p 90(48)-91(8). She described them as “like a part of my family” and deposed to sharing thoughts and feelings with the deceased in confidence.

147. She met the Plaintiff at the deceased’s funeral.

148. Ms Bentley recounted several conversations with the deceased. She said that in one such conversation, after Trevor died, the deceased told her that the Plaintiff had asked about what he would receive under Trevor’s Will. In cross-examination, she clarified that she was uncertain about the sequence in which these conversations had happened, due to the number of conversations they had, particularly after Trevor’s death: Tcpt, 12 April 2023, p 91(47)-92(7). Even so, I accept that the conversation occurred. It is consistent with the evidence of the Defendant.

145. She also said that the deceased had told her that when she was in hospital, she had asked the Plaintiff not to visit and telephone so often, so that she could get some rest.

146. Ms Bentley also recalled instances when the deceased had expressed suspicions about the Plaintiff taking her valuables or “planting something to listen”, and said he was “just interested in the money”. She said that the deceased told her she did not wish for the Plaintiff to live with her and be her carer as she would have to cook and clean for him, and that she wanted time and space to herself: Affidavit, Kathleen Louise Jean Bentley, 21 July 2022 at pars 7-8.

147. She also remembered a conversation where the deceased told her the Plaintiff had turned up to one of her doctor’s appointments and that she was annoyed by this and told him she did not want him there. The deceased described the Plaintiff as “hoping to find out how long [she] had left”.

148. She claimed to have overheard a conversation between the Plaintiff and the Defendant at the deceased’s funeral where the Plaintiff said he wanted to speak to the Defendant about the deceased’s Will: Affidavit, Kathleen Louise Jean Bentley, 21 July 2022 at par 12. This evidence is in direct conflict with the evidence of the Plaintiff on this topic. I accept Ms Bentley’s evidence as there was no suggestion that she had a motive to lie.

149. Her oral evidence was that when they would converse about the Plaintiff, it was “the only main thing that ever troubled [the deceased]”. She could not recall the deceased saying “a bad word” about anyone else: Tcpt, 12 April 2023, 92(9-23). She did not recall the deceased telling her that the Plaintiff had moved in with her on any occasion after Debbie’s death: Tcpt, 12 April 2023, 92(30-46).

150. I observed Ms Bentley to give her evidence in a way which leads me to have no hesitation in accepting that evidence. It was not suggested that she had any reason to give untruthful evidence, or to favour the case of the Defendant. Where her evidence conflicts with that of the Plaintiff, I accept her evidence.

151. As earlier stated, from the evidence, the deceased’s view of her relationship with the Plaintiff was very different to the view seemingly held by him.

Anne-Marie Tuttlebee

156. Mrs Tuttlebee swore one affidavit in the proceedings on 14 July 2022, comprising 8 paragraphs, spanning 3 pages. She was not required for cross-examination. She is the mother of Bradley Tuttlebee, Tamara’s ex-husband.

157. She stated that she often visited, and stayed at, the homes of Tamara’s family members and would come into contact with the Plaintiff. This continued after Tamara and Bradley’s separation, as Mrs Tuttlebee had promised Debbie she would take care of Tamara and Tamara’s children.

158. Mrs Tuttlebee recounted an occasion on which she was staying at the Beresfield property where the Plaintiff, Tamara, Bradley, and her grandchildren, were residing, shortly before Tamara and Bradley’s separation. The Plaintiff and Tamara had just returned from visiting the deceased in hospital. Mrs Tuttlebee stated that the Plaintiff told her that when the deceased died, half of the farm would be his: Affidavit, Anne-Marie Tuttlebee, 14 July 2022 at par 5.

159. She deposed that on another occasion, when she was staying with the Plaintiff, Tamara, and her grandchildren, while the deceased was in hospital, the Plaintiff said to her that he could move into the deceased and Trevor’s house if the deceased went to live with the Defendant and the Defendant’s husband, David. (It was not suggested that this was said in the presence of the deceased.)

160. She recalled several occasions on which she had been present at the Plaintiff’s residence after the Plaintiff had returned from visiting the deceased in hospital. On one of these, she said that he told her that David had said that if the deceased moved in with them, they would rent out the deceased’s house and the Plaintiff would not be able to live there.

161. I have borne in mind the relationship of Ms Tuttlebee and Tamara. However, as she was not cross-examined, it could not be suggested that she was giving false evidence, or that she was motivated by malice. Nor could it be suggested that she had any reason to give evidence in support of the Defendant’s case.

The Law

Eligibility – wholly or partly dependent and member of the household

162. In relation to s 57(1)(e) of the Act, the test is twofold. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased and the second is being “a member of the household of which the deceased person was a member”. It is necessary to deal with both elements of the test as there is a dispute in relation to each. An applicant cannot succeed except by virtue of a combination of status and actual dependency.

163. In Ballam & Ors v Ferro & Anor [2022] NSWSC 1200, I wrote at [378]- [394]:

“I take some of the principles on the determination of this element of eligibility to be:

The sub-section expresses a general concept relevant to the relationship between any two persons, including adults (grandchild of the deceased, or member of the household of which the deceased was a member), but adds the additional notion of whole, or partial, dependency in respect of each of those relationships.

The Act contains no definition of the words "dependent on". There are no "tests" as such for the meaning of the term. It should be given its plain, grammatical, meaning. In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. The word 'dependent' is an ordinary English word and dependency is not to be given any restrictive meaning.

The question whether, at any particular time, there was a relationship of dependency between an applicant and the deceased is a question of fact which may be complex, and which, often, involves consideration of many elements. It is not determined by reference to arbitrary rules.

It is not part of the discretionary exercise of jurisdiction under the Act to make an order for provision. Whilst not a discretionary decision, it does involve matters of evaluation.

Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance, education and advancement in life. Yet, there is no limiting purpose identified in s 57(1)(e) (such as dependency for maintenance, education, or advancement in life).

There may be imported into the word a degree of reliance on someone else for the whole, or partial, satisfaction of some need. It is not limited to purely financial, or material, reliance, and it may exist irrespective of whether the dependent person is financially, or physically, able to support himself or herself, so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute. Dependency refers to a state or condition of being dependent, to having been in this relationship with the deceased.

The Act provides that the dependence may arise “at any particular time” and what must be shown is that the applicant was “wholly or partly” dependent upon the deceased. These matters indicate an expansive, rather than a restrictive, scope of the statutory pre-condition of dependence. The phrase “wholly or partly dependent on the deceased person” must be considered within its relevant statutory context.

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented (at page 6, lines 15-20), that "[c]ommon sense requires that certain trivial activities should be disregarded even if they literally come” within a statement of principles about what constitutes dependency.

Reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Tobin v Ezekiel at [109]-[111] (Meagher JA).

Dependency does not necessarily correlate with a legal duty to maintain.

Recently, the Court of Appeal, decided the appeal in Chisak v Presot [2022] NSWCA 100, a claim brought by a grandchild, whilst a minor and living with her father, who had stayed with her grandmother for two or three relatively short periods of time many years before the grandmother’s death. The reasons were not published prior to the Court reserving the decision in this case. Although that case may be distinguished on the facts, it is necessary to say something about the case.

White JA (with whom Macfarlan and Gleeson JJA agreed) wrote at [42]-[44]:

“Ivy deposed that in about 2000 when she was five years old she stayed with her grandmother in the deceased’s Lidcombe home for about a month. She deposed that she stayed with the deceased on three or four occasions between 2000 and 2003 for about three weeks up to about a month. As noted above, the primary judge accepted that on two or three occasions between 2000 and 2003 Ivy stayed with her grandmother for short periods of time… His Honour found that these periods of stay when Ivy was a young child did not make her an eligible applicant. His Honour said:

“The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.”

After citing authorities addressed below, his Honour continued:

“The Defendants submitted that regardless of the “elasticity” in the definition of “partly dependent” for eligible persons, infrequent and short stays with the deceased does not make her dependent on her grandmother in the ordinary sense of the word. They also submitted that if the Court finds there was some dependency on the deceased, she was not at the level of “partly dependent”, merely minimally dependent, if at all.

The indirectness of any assistance provided by the deceased to Ivy, such as is evident here, must be viewed in the context of Ivy having remained in the care of her father, her ordinary primary care-giver, and upon whom, she was dependent for her maintenance and education. Indeed, as Ivy herself stated, she did not want to jeopardize her relationship with her father, by contacting the deceased against his wishes.

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

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

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

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

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

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

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

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

Whilst, of course, the decisions of the Court of Appeal, where not distinguished, are binding upon this Court, it is necessary to note that none of the members of the Court of Appeal specifically referred to s 60(1)(a) of the Act, which sub-section provides that the Court may have regard to the matters set out in s 60(2) “for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person”.

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

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

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

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

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

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

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

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

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

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

"I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive."

In Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779, Judge Norris QC, sitting in the Birmingham High Court, Chancery Division, said:

"It is, of course, dangerous to try and define what 'living in the same household' means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator. ...It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends and some of those weekends were long. But that does not mean that they lived in one household."

In Re Dix deceased [2004] 1 WLR 1399, a claim was brought under the Inheritance (Provision for Family and Dependents) Act 1975 (UK). Ward LJ in the Court of Appeal (with whom Mummery and Rix LJJ agreed) addressed the meaning of the word "household". At [23] and [24], his Lordship approved a definition of "household" in Santos v Santos [1972] Fam. 247; [1972] 2 WLR 889 as meaning "people held together by a particular kind of tie, even if temporarily separated", and said "[t]hus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that binds them together ...".”

168. In Oakes v Oakes [2014] NSWSC 1312 at [3], which involved a claim brought by a divorced former daughter-in-law of the deceased, Pembroke J wrote:

“The notion of a 'household' is not the same as the notion of a 'house'. The latter is a fixed and objective concept. The former is flexible, variable and to some extent immanent. Among other things, living in the same household connotes some element of frequency of contact, some element of mutual support and some element of community of resources. It is perfectly possible to have one household and two properties.”

169. In Purnell v Tindale [2020] NSWSC 746 at [159]-[162], Henry J wrote:

“Central to the concept of being a member of a household is people “living together” in a home. This is consistent with the Oxford English Dictionary definition of “household” being "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)".

Prima facie, there must be some element of residence or living of the two people concerned in the same house. It is not sufficient for a person to visit on a regular basis without regularly staying overnight.

The phrase ‘household’ is abstract and is to be contrasted to the word ‘house’. There are no hard and fast rules as to what constitutes a household, and the point at which a living arrangement becomes a household is one of degree. A person can be a member of two households. As Hallen J notes, it is the characteristics and dimension of the domestic relationship that makes a “house” a “household”.

The concept of membership of a household also connotes a degree of continuity and permanency of mutual living arrangements. There is no set period of time in which a person has to be a member of the household, but they must be a member of the same household as the deceased for some period.” (Citations omitted.)

170. In Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958 at [151]-[152], Kunc J wrote:

“The Oxford English Dictionary defines “household” as “the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc)”. Being a “member of the household” is therefore predicated upon the collective notion of persons “living together” in the same home. Each individual forms a part of and participates, to a substantial degree, in the general life of that household: Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) at 22, referring to the Full Court of the Supreme Court of Canada’s decision in Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577. Underscored by a sense of unity, intimacy and shared experience, it is evidently the characteristics and dimension of the domestic relation that make it a household: Russell [39].

The concept of being a member of a household thus requires a degree of continuity and permanency of mutual living arrangements: Kingsland v McIndoe [1989] VR 273, per Gobbo J, as cited in Russell at [42]. As observed by Henry J in Purnell v Tindale at [161], the point at which a living arrangement becomes a household is one of degree and it is entirely possible for a person to be a member of two households.”

Factors warranting the making of the application

171. Where an applicant is found to be an eligible person within the definition of s 57(1)(e) of the Act, the Court may make a family provision order if it is satisfied that there are “factors which warrant the making of the application”: s 59(1)(b).

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

173. In Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241), McLelland J stated:

“…the “factors” referred to in the subsection are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.”

174. In Bezjak v Wyatt [2018] NSWSC 199 at [99], I set out the following generally applicable propositions stated by Sackville AJA (Basten and White JJA agreeing) in Lodin v Lodin [2017] NSWCA 327 at [126]-[129]:

1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting the making of an application for family provision order from the estate of the deceased.

2. What an applicant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward; others may not be.

3. A significant matter is likely to be the nature of the relationship between the applicant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a social, domestic or moral obligation on the deceased to make testamentary provision for the applicant.

175. In Page v Page [2017] NSWCA 141 at [38], Leeming JA noted:

“An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was ‘at any particular time, wholly or partly dependent upon the deceased’ and (b) that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 57(1)(e)(i) and s 59(1)(b). These are both ‘jurisdictional’ questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made.”

176. In Lodin v Lodin at [13], White JA commented:

“The circumstances referred to, being a combination of financial need of the applicant and an ample estate from which provision could be made without affecting the interests of the appellant, would no doubt be highly relevant to a decision as to whether or not adequate provision was made for the proper maintenance and advancement in life of the respondent (assuming there were factors that warranted the bringing of the application). But they do not go to the question of whether, in the circumstances of this case there were factors warranting the making of the application, that is, factors that indicated that the respondent could be regarded as a natural object of the deceased’s testamentary recognition.”

Inadequacy of provision

177. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210–211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.

178. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.

179. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], noted that the words ‘adequate’ and ‘proper’ are always relative and that what the testator regarded as 'superior claims or preferable dispositions' is a relevant consideration:

“The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

180. Section 60 of the Act provides:

(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining—

(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the Court—

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(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,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

181. The matters set out in s 60(2) have been described by Basten JA in Andrew v Andrew at [37] as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as “a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order, and the nature of any such order.

182. In Russell v NSW Trustee and Guardian at [100], I wrote:

“Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).”

The Submissions

183. Counsel for the Plaintiff submitted that the Plaintiff is eligible as a dependent member of the deceased’s household, under s 57(1)(e), noting that dependency is a question of fact and need not be direct: Spata v Tumino. Dependency was established by the three periods in 1997, 2000, and 2017 in which it was claimed that the Plaintiff lived rent-free with the deceased in her home, in combination with rental assistance, provision of meat and meals, and gifts of cash, in light of his difficult financial circumstances.

184. Counsel pointed to a “clear pattern of financial assistance” from the deceased and Trevor, during times when the Plaintiff and Debbie could not provide for themselves. He stated that dependency arose in the sense that the Plaintiff was reliant on the assistance to survive, even if it was given primarily to Debbie, as the provision was made to the Plaintiff and Debbie as a collective unit: Tcpt, 13 April 2023, p 106(11-31).

185. The three periods of cohabitation were also relied upon to establish that the Plaintiff was a member of the deceased’s household for the purposes of s 57(1)(e)(ii). Counsel submitted that the Plaintiff had lived as a family unit with the deceased in the same home during these times and contributed to domestic life by assisting around the home and sharing meals: Russell v NSW Trustee and Guardian. In particular, he pointed to the three-month period in 1997 that was not the subject of dispute as displaying a sufficient degree of continuity and permanency.

186. Though the total length of time was short, Counsel argued that there was a substantial degree of mutual living arrangements, and he distinguished the Plaintiff’s stays from the pre-defined and temporary lengths of a stay over Christmas or school holidays, as the Plaintiff had moved in without a definite end date: Tcpt, 13 April 2023, p 115(45)-116(16).

187. Counsel submitted that there were factors warranting the making of the application, including the relationship between the Plaintiff and the deceased which persisted past Debbie’s death, the moral obligation on the part of the deceased to provide for the Plaintiff due to their lengthy and intimate relationship where the Plaintiff viewed himself as a quasi-son, the periods of reliance on the deceased for financial and material assistance, the Plaintiff’s significant financial needs, and the fact that Trevor had named the Plaintiff as a beneficiary under his Will. He stated that the combination of these factors made the Plaintiff a natural object of the deceased’s testamentary recognition.

188. Given the sustained and continuing nature of the relationship, counsel submitted that a lump sum of $100,000 to $200,000 would be adequate and proper provision, plus the agreed gross sum of $100,000 for costs. He noted that the Defendant had not put on any evidence of her own financial circumstances, or of any other beneficiary.

189. Counsel for the Defendant accepted that partial dependence, for the purposes of s 57(1)(e)(i) had been met, considering the Court of Appeal’s observations in Page v Page. However, he denied that the Plaintiff was a member of the deceased’s household, describing the Plaintiff’s stays as a “form of hospitality that was temporary” and a “stop-gap measure”, rather than a permanent or continuous pattern of mutual living arrangements that would constitute a household: Porthouse v Bridge [2007] NSWSC 686. He compared the facts to Nagatomi v Hudson (Supreme Court (NSW), Young J, 18 September 1997, unreported), where several months of cohabitation in the same dwelling over an 18-month period was held to be insufficient to establish membership of the household, and Kingsland v McIndoe [1989] VicRp 22; [1989] VR 273, where 39 weeks of cohabitation in the same dwelling was held to be insufficient.

190. Furthermore, it was submitted that there are no factors warranting the making of the application. Counsel pointed to several matters, noting that the Plaintiff was not named as an object of bounty under her Will and that any support he received from the deceased derived indirectly from his being married to the deceased’s daughter, more akin to hospitality than parental responsibility. The deceased had never identified herself as fulfilling the role of a mother in his life or encouraged an expectation in him that he would receive provision from her estate. Rather, the deceased had, after Trevor’s death, consciously decided not to include the Plaintiff in her Will: Tcpt, 13 April 2023, p 135(37-46).

191. Counsel also submitted that the Plaintiff’s evidence of providing assistance in terms of care or housework during the deceased’s illness ought not to be accepted, given his other evidence about his disabling physical limitations. There was no reliable evidence of the Plaintiff receiving direct financial assistance from the deceased, and it was argued that the alleged $6,000 gift after Debbie’s death was inconsistent with the deceased’s usual practice when it came to cash gifts even while Debbie was alive, as these were typically amounts of under $100.

192. Even if the Plaintiff were eligible and there were factors warranting, Counsel asserted that the Court should nonetheless decline to make provision for the Plaintiff. This was because the Defendant and her husband had a very strong moral claim as the primary objects of the deceased’s testamentary bounty who had provided emotional and material support to the deceased throughout their lives. There was no undischarged moral obligation owed by the deceased to the Plaintiff. Counsel stressed the freedom of testamentary disposition and the regard that should be had to the evidence of the deceased’s unfavourable impression of the Plaintiff and to what the deceased considered to be “superior claims and preferable dispositions”: Jodell v Woods [2017] NSWSC 143.

183. Further, counsel noted that the provision of the entire Morrowville property save for the block devised to the deceased’s grandchildren was rational in the “context of preserving a farm that’s been there for a long time”, given the Defendant’s unchallenged evidence about the difficulty of conducting sustainable and effective farming on a smaller property: Tcpt, 13 April 2023, p 142(33-37).

Determination

194. Having considered all of the evidence, I am satisfied that the Plaintiff was partly dependent upon the deceased. I am also satisfied that, for a short period, in 1997, he was a member of the household of which the deceased was a member. With Debbie and other members of their family, he lived at the home of the deceased and Trevor for a period of about three months. During this period, he was also partly dependent upon the deceased. At other times, he was partly dependent upon her because the deceased (and Trevor) provided Debbie with financial assistance.

195. The Plaintiff is, therefore, an eligible person, within the meaning of that term in s 57(1)(e) of the Act. However, this finding does not, itself, give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance or advancement in life of the applicant; it is merely the first step.

196. More difficult is the question whether there are factors warranting the making of the Plaintiff’s application. Here, the starting point for applying s 59(1)(b) of the Act is that an eligible person such as the Plaintiff is not normally regarded as a natural object of testamentary recognition by the deceased. He must, therefore, establish circumstances that justify regarding him as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of the relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the deceased to make some provision for him.

197. Whilst I accept that the Plaintiff was related to the deceased by marriage, being her son-in-law, and that the relationship existed for over 30 years, I do not accept that it was as close a relationship as the Plaintiff suggested. He may have believed that he had such a relationship with the deceased, but I am satisfied that the deceased did not view their relationship in the same way.

198. The stay in 1997 was for a few months only. Even if he and Tamara did stay there in 2017, which I have not accepted, on the evidence it was a matter of a few weeks only. It is to be noted that the Plaintiff was never a member of the deceased’s household on his own.

199. Furthermore, it could not be suggested that the Plaintiff had made a significant contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased. His contribution to the welfare of the deceased, or the deceased's family, was viewed differently by each of them. Importantly, the deceased expressed suspicion about the Plaintiff’s motives in doing what he did, and in circumstances where he enquired about the content of Wills, it is not difficult to understand the basis for the suspicion. What he did do, does not make him a natural object of testamentary bounty.

200. I do not accept that the evidence, overall, establishes that the deceased regarded the Plaintiff like a son, or that she had a quasi-parental relationship with him. I prefer the evidence of the Defendant and Ms Bentley about the deceased’s view to the evidence of the Plaintiff on these topics. I think it more likely than not, that the Plaintiff received accommodation and financial assistance, not because of any relationship that he had with the deceased, other than as a son-in-law, but because he was Debbie’s husband. Finally, it was not suggested that the deceased had ever identified herself as the Plaintiff’s mother.

201. In this case, factors warranting do not arise merely from the relationship as a son-in-law, or from the fact that he was the husband of an adult daughter to whom the deceased might have owed an obligation to make provision, had she survived the deceased. The Plaintiff cannot make some form of “tracing claim” in effect asserting that an obligation which the deceased owed to her now deceased daughter has somehow transferred to her daughter’s husband.

202. Nor could the payment, by Trevor and the deceased, of their grandson’s funeral, and later Debbie’s funeral, be regarded as making the Plaintiff a natural object of testamentary bounty in relation to the deceased.

203. The failure to include a reference to the Plaintiff in her Will, whilst making provision for her other son-in-law, is telling. The deceased thereby demonstrated that she did not regard the Plaintiff as a person who was a natural object of her testamentary recognition. Nor did she consider it was necessary to explain why she had not made any provision for him, which, had she done, might suggest that she had considered him to be a person who might be regarded as such a person.

204. In my view, the evidence does not raise the Plaintiff to the status of a person who, having regard to all the circumstances, would be regarded as a natural object of testamentary recognition by the deceased.

205. Not being satisfied that there are factors which warrant the making of the application, the Court does not need to consider whether at the time when the Court is considering the application, adequate provision for the proper maintenance, or advancement in life of the Plaintiff has not been made by the Will of the deceased. However, in case I am wrong, I shall express my conclusion on this aspect also.

206. The fact that no provision was made in the deceased’s Will for the Plaintiff does not, of itself, bespeak inadequacy. But that is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant and David, the claim of each on the bounty of the deceased and as chosen objects of testamentary bounty, as well as the size of the deceased’s estate, are relevant factors in determining the answer to the question imposed by the Act.

207. Similarly, whether adequate provision has been made is not to be determined simply by a calculation of financial needs. A claimant’s needs are different to his, or her, “wants” and do not simply equate to “demands” or “desires”: Bezjak v Wyatt at [120].

208. The Court is not entitled to rewrite the deceased’s Will in accordance with its own ideas of fairness or justice and must place itself in the position of the deceased, as the will-maker, and consider what she ought to have done in all the circumstances of the case, treating her for that purpose as a wise and just, rather than a fond and foolish will-maker.

209. Counsel for the Plaintiff did not rest the application for provision only upon the fact of the Plaintiff having been married to Debbie. He placed emphasis upon the contributions which the Plaintiff was said to have made, over the many years before Debbie’s death, and subsequently, to the deceased’s estate and to her welfare.

210. The fact that neither the Defendant, nor David, has given evidence of her, and his, financial and material circumstances does not elevate the Plaintiff’s claim. Had he demonstrated that the deceased had an obligation to make provision for him, the Court would have inferred that the claim of each of them was not a competing financial claim on the bounty of the deceased. Here, however, in the context of the Defendant and, perhaps, to a lesser extent, David, having made such a significant contribution to, and where each is a chosen object of testamentary bounty, the moral claim of each cannot be forgotten. In addition, the deceased’s freedom of testation should be respected. The intention of the Defendant to maintain the properties should also be respected.

211. This is also not a case where the deceased sought the Plaintiff’s assistance as she aged, particularly after Trevor’s death. There was no need to do so as she had the assistance of the Defendant and David. However, I have considered the Plaintiff’s contributions to the properties, when he visited, or when he and Debbie stayed there. I also remember the gift of $50,000, made to Debbie, upon which the Plaintiff relies for which he received some benefit. In addition, the other contributions, financial and otherwise, made by the deceased and Trevor, to Debbie, in respect of which the Plaintiff received a benefit, ought not be forgotten. Furthermore, he received a legacy of $15,000 from Trevor’s estate.

212. The deceased did not have any legal obligation to the Plaintiff, as her son-in-law, imposed upon her by statute or common law. Whilst there is no definition of the "obligations" or "responsibilities" to which the s 60(2)(b) refers, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. Relevantly, s 60(2)(b) of the Act permits the Court to consider the obligations or responsibilities to the applicant and to any beneficiary of the deceased person's estate.

213. Nor is there any evidence that she ever encouraged in the Plaintiff a belief or expectation that he would be made a beneficiary of the deceased’s estate. I have referred to the Plaintiff’s assertion that Trevor had done so, but his Will does not reflect any such intention.

214. The consideration of all these matters leads me to find that there was no failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of the Plaintiff. It follows that the Court, on this basis also, cannot make an order for provision.

215. Even if I am wrong in these conclusions, I would not, as a matter of discretion, make an order for provision out of the deceased’s estate for the Plaintiff. Taken with the above matters, the interests of the chosen objects of testamentary bounty, and the competing moral claim of each, are relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for the Plaintiff, both for the purpose of s 59(1)(c) of the Act and in determining whether provision should be made and the nature of any such order.

216. I therefore decline to make an order for provision for the Plaintiff out of the deceased’s estate. The Court orders that the proceedings be dismissed. I do not make any order for the Plaintiff’s costs to be paid out of the estate. I order that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

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Decision last updated: 19 May 2023