Brown v Brown

[2022] NSWSC 1393

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Brown v Brown [2022] NSWSC 1393

Hearing dates:

31 January, 1, 2, 3, 8 and 11 February 2022. Closing submissions to 6 April 2022.

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Equity - Family Provision List

Before:

Henry J

Decision:

Summons dismissed with costs

Catchwords:

SUCCESSION – family provision – claim by adult plaintiff who was stepson of deceased – where plaintiff lived with deceased during teenage years – where deceased and plaintiff’s mother divorced 31 years ago – where no contact between plaintiff and deceased after 2004 – where deceased’s will provided for whole of estate to be left to his only biological child – not a large estate – where strong competing claim of biological son – whether plaintiff eligible as “child” of deceased – whether factors warranting order – no provision ordered

Legislation Cited:

Administration and Probate Act 1958 (Vic)

Family Law Act 1975 (NSW)

Family Provision Act 1969 (ACT)

Family Provision Act 1970 (NT)

Family Provision Act 1972 (WA)

Family Provision Act 1982 (NSW)

Inheritance (Family Provision) Act 1972 (SA)

Succession Act 1981 (Qld)

Succession Act2006 (NSW)

Succession Amendment (Family Provision) Act 2008 (NSW)

Superannuation Industry (Supervision) Act 1993 (Cth)

Superannuation Industry (Supervision) Regulations 1994 (Cth)

Cases Cited:

A v N [2012] NSWSC 354

Application by BT Funds Management Ltd [2017] NSWSC 45

Armitage v Fraser [2020] NSWSC 979

Bates v Cooke [2015] NSWCA 278

Bezjak v Wyatt [2018] NSWSC 199

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

Chan v Chan [2016] NSWCA 222

Chapplev Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Clifford v Mayr [2010] NSWCA 6

Collings v Vakas [2006] NSWSC 393

Cooper v Atkin [2020] NSWSC 828

Cringle v Cringle [2018] NSWSC 1558

Diver v Neal [2009] NSWCA 54

Estate of Wright [2016] NSWSC 1779

Freeman vJaques [2006] 1 Qd R 318; [2005] QCA 423

Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep)

Haertsch v Whiteway [2020] NSWCA 133

Harris v Ashdown (1985) 3 NSWLR 193

Harris v Harris [2018] NSWCA 334

Heyward v Fischer (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Jones v Dunkel (1959) 101 CLR 298

Limberger v Limberger;Oakman v Limberger [2021] NSWSC 474

Lodin v Lodin [2017] NSWCA 327

Mallitt v Gow [2022] NSWSC 1012

McCarthy v McCarthy [2010] NSWCA 103

Megerditchian v Khatchadourian [2020] NSWCA 229

Meres v Meres [2017] NSWSC 285

National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242

Page v Page [2017] NSWCA 141

Re Estate Grant, deceased [2018] NSWSC 1031

Re Estate Whiteway [2019] NSWSC 266

Re Fulop Deceased (1987) 8 NSWLR 679

Sgro v Thompson [2017] NSWCA 326

Spata v Tumino [2018] NSWCA 17

Steinmetz v Shannon [2019] NSWCA 114

Stone v Stone [2019] NSWSC 233

Trembath v Trembath [2017] VSC 369

Vanderloo v Milne [2014] NSWSC 1932

VigolovBostin (2005) 221 CLR 191; [2005] HCA 11

Walker v Police [1998] SASC 6717

Watson v Foxman (1995) 49 NSWLR 315

Yee v Yee [2017] NSWCA 305

Texts Cited:

Australian Superannuation Handbook: 2022-23 (1st ed, 2022, Thomson Reuters)

New South Wales Department of Justice, Statutory Review of the Succession Act 2006 (February 2018)

Category:

Principal judgment

Parties:

David Brown (Plaintiff)
Robert Frank Brown (Defendant)

Representation:

Counsel:
M J Henry (Plaintiff)
S K Hill (Defendant)

Solicitors:
DL Legal (Plaintiff)
Avid Law (Defendant)

File Number(s):

2020/00302945

Publication restriction:

Nil

Judgment

1. These reasons deal with an application by the plaintiff, David Brown, for an order for provision pursuant to the Succession Act 2006 (NSW) (Succession Act) from the estate and/or notional estate of the late John William Brown (deceased), who died on 23 October 2019 at the age of 76.

2. The plaintiff was the deceased’s stepson. He and his sister, Alison Brown, are children of the deceased’s ex-wife, Margaret Brown, from a previous marriage.

3. The defendant, Robert Brown, is the deceased’s son and only child from his marriage to Margaret Brown. He is the executor of the deceased’s last will and sole beneficiary of the deceased’s estate.

4. Without intending any disrespect, in these reasons I refer to the plaintiff, the defendant and other members of their families by their first names.

5. David commenced the proceedings by Summons filed on 22 October 2020. It is common ground that they were commenced within time and David is an eligible person for a family provision order under the Succession Act. However, there is a dispute as to the basis of David’s eligibility in the context where David claims that he should be considered a child of the deceased under s 57(1)(c) of the Succession Act.

6. Robert also disputes that there are factors that warrant the making of David’s application and puts his financial and other circumstances in issue in response to David’s claim. Robert says that, in the circumstances of this case, no order for provision should be made for David and the Court should dismiss his Summons with costs.

7. The only other potentially eligible persons are Margaret and Alison. They were notified of the proceedings but did not participate in them. Alison and Robert have resolved her potential claim and Margaret is not making a claim on the estate.

The hearing and the evidence

8. The hearing was listed for three days but did not complete within that time due to matters which are unnecessary to detail in these reasons. The Court reconvened to complete the evidence and then set a timetable for written closing submissions which were received (in default of the timetable) on 3 March 2022 (David’s closing submissions), 18 March 2022 (Robert’s closing submissions) and on 6 April 2022 (David’s closing submissions in reply).

9. At the hearing, David relied on three affidavits he had sworn on 8 February 2021, 13 December 2021 and 24 January 2022 and parts of an affidavit sworn on 29 January 2022 (paragraphs [6]-[28]). He also read affidavits from Ben Mitchell (David’s cousin on Margaret’s side of the family) sworn 16 February 2021 and from some friends, Glenn Drabble sworn 11 February 2021, James Gillis sworn 11 February 2021 and Dirk Yates sworn 15 February 2021.

10. Robert relied on his affidavits affirmed 1 March 2021 and 8 December 2021, as well as his administrator’s affidavits affirmed 27 November 2020 and 8 December 2021.

11. In addition to the affidavit evidence, there were numerous exhibits tendered, a number of which were not referred to by the parties at the hearing or in their written submissions. The written closing submissions received from the parties were also extensive (David’s closing submissions in chief and in reply total 114 pages). While I have had regard to all the materials, these reasons focus on the evidence that was addressed by the parties at the hearing and in their closing submissions which is necessary to assess the relationship between the parties and the deceased and the other matters in s 60(2) of the Succession Act to determine David’s claim.

12. The only witnesses who gave evidence and were cross-examined were David and Robert.

13. The parties made submissions concerning the credit and reliability of the evidence of each other, with each asserting that the other gave false evidence and lied about some matters. I have made no finding to that effect. While there were some obvious inconsistences and inadequacies with their evidence, I formed the impression that David and Robert were endeavouring to give their evidence in cross-examination truthfully and to the best of their recollection.

14. I accept that David may have found cross-examination stressful and confusing on occasion (see for example, T430.20-21, T443.18-19, T444.20-21), however, the credibility of David’s evidence was adversely impacted by matters that arose during cross-examination relating to his financial circumstances, his relationship with his biological father and the extent of his claimed impairment, which I deal with at [153], [168] and [191] below.

15. I found aspects of Robert’s evidence regarding the value of the estate, his financial circumstances and Robert’s signature on the deceased’s will not entirely satisfactory although, for the reasons explained at [93]-[97], [142], [205], I am not persuaded that they are of the significance that David’s written submissions contend (see David’s closing submissions at [402], [404] and [406] and submissions in reply at [248]). For example, I saw no evidence to suggest that Robert may have mis-used his position as executor to forgive loans to himself (David’s closing submissions in reply at [196], footnote 111).

16. David submits that Robert’s evidence was self-serving and uncorroborated, and Robert’s submissions also raised concerns about uncorroborated accounts of events in David’s evidence.

17. I formed the impression that the evidence and submissions of both parties were likely impacted by their own self-interest and feelings towards the other. David’s evidence and submissions seemed to be influenced by what was referred to as Robert’s hostility towards David (and Alison) and a suspicion of some collusion between Robert and Alison in relation to Margaret’s future estate and downplayed the nature of the deceased’s relationship with Robert (see for example, David’s submissions in reply at [8], [225] and [244]). On the other hand, Robert came across as though he felt he had been treated unfairly by David over the years, particularly in relation to the incident at the Clovelly property (referred to at [43] below) (see for example, T234.9-12).

18. There were also aspects of David and Robert’s evidence that were based solely on their own testimonial evidence, such as their evidence of statements made to them by the deceased and the regularity of their contact with the deceased.

19. David did not advance any documentary evidence that corroborated his claims about the extent of his contact and relationship with the deceased after 1982, and the evidence adduced from his cousin and friends about those matters during that period was very limited. The statements he attributed to the deceased (for example, at [116] and [121]) cannot now be tested and, in my view, need to be treated with caution.

20. Unlike David, Robert adduced some documentary evidence, in the form of photographs and cards, that corroborated Robert’s evidence that he had a close and continuing father/son relationship with the deceased until his death. There is also some objective evidence (such as the deceased’s last will and the superannuation death benefit forms he signed in 2010 (referred to at [70]-[72], [86] and [88] below)) that, in my view, gave credence to Robert’s evidence about the deceased’s oral statements regarding his testamentary intentions and who he regarded as his son (as referred to at [119] and [141] below).

21. David submitted that the Court should draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) from Robert’s failure to call his wife, Alysha Brown, especially since she was allegedly a witness to Robert’s relationship with the deceased, or other of her relatives who were said to have formed a close bond with the deceased. I am not persuaded by that submission.

22. The rule in Jones v Dunkel provides that an inference may (not must) be drawn where there is an unexplained failure to call evidence from a person where a party is required to explain or contradict something: National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 at [138]. While Alysha and some of her relatives would have knowledge about the deceased’s relationship with Robert after 2010 (when Robert and Alysha met), I do not consider that further evidence from them was required in this case. In my view, the nature of Robert’s ongoing relationship with the deceased after 2010 was not open to serious challenge in circumstances where it is common ground that after 2004 David did not have any contact with the deceased at all and only very limited contact with Robert (as referred to at [52] and [122] below), and there is corroborating evidence (in the form of photographs) that the deceased had continuing contact with Robert and visited him on the Central Coast before the deceased moved to live there in 2018.

23. For these reasons, and in the context where David has the onus to establish his claim, I have approached the evidence on the basis that David’s uncorroborated account of events had to be carefully considered and a preference for Robert’s evidence where there was a conflict and no evidence of any circumstance that pointed to the likelihood of David’s account of the disputed matter being correct.

Background facts

24. The deceased was born in 1943. He worked as a Mine Deputy and lived in or near Wollongong, New South Wales, for most of his life. He had a sister, Joan, and was close to her husband, Colin.

25. In 1971, the deceased commenced a relationship with Margaret who was previously married to Graham Truswell. David was born in 1961 and Alison was born in 1965. Margaret and Graham separated in 1966 and their marriage was dissolved in 1971 or 1972. David’s evidence is that Graham’s religion [1] caused a strain on the marriage and conflict regarding the children’s religious instruction. After Margaret and Graham separated in 1966, David and Alison lived with Margaret. David saw Graham every second weekend and spent 50% of the school holidays with him.

    1. Graham had been brought up in the Exclusive Plymouth Bretheren, a strict religious movement.

26. In mid 1971, the deceased moved in to live with Margaret, David and Alison at Margaret’s rented accommodation. The deceased and Margaret were married in December 1972. After they married, David did not see or have contact with Graham until 1982.

27. In February 1973, the deceased and Margaret purchased a house in Figtree, New South Wales (the Valley Drive property) which they moved into with David and Alison. In mid-1973, Robert was born.

28. The deceased, Margaret, David, Alison and Robert lived together at the Valley Drive property until January 1978 when David was asked to leave the house by Margaret. He went to board with another family. David had left school the previous year, at the age of sixteen. He gives evidence that he was working and supporting himself when he moved out of the Valley Drive property.

29. In mid-1978, David moved back to the Valley Drive property. He slept in a caravan that was separate from the house and joined the family for meals and other gatherings. David paid board to Margaret and the deceased while he lived in the caravan.

30. In around July 1982, David moved out of the Valley Drive property to live in a share house with friends in Wollongong. In or about 1982 or 1983, Alison moved out of the Valley Drive property.

31. In January 1984, the deceased and Margaret separated. The deceased remained living in the Valley Drive property and Margaret moved to rented accommodation in Port Kembla with Robert, who was then aged 11. After the separation, Robert spent every second weekend and holidays with the deceased.

32. In around June 1985, the Valley Drive property was sold for $69,000. Following the sale of the Valley Drive property, the deceased moved into a rented apartment in Smith Street, Wollongong. The property settlement between Margaret and the deceased provided for the net proceeds of sale to be split 57.5% to Margaret and 42.5% to the deceased. The deed of settlement between the deceased and Margaret records that the deceased was entitled to any superannuation benefits from his employment, their agreement was a maintenance agreement for the purposes of s 87 of the Family Law Act 1975 (NSW) and they agreed to seek the approval of the Court to the agreement pursuant to s 87(4) of the Family Provision Act 1982 (NSW) and could plead the agreement in any action brought by either party under the Family Provision Act 1982 (NSW).

33. Pausing here, David’s closing submissions contended that the settlement did not seem to be a “just and equitable” division of assets and the monies paid to Margaret for Robert’s upkeep were limited (David’s closing submissions at [262]). To the extent that this submission seeks to invite the Court to make a finding about the adequacy or fairness of that settlement, I decline to do so. I do not consider it to be necessary for the purposes of this case nor appropriate for this Court to enquire into that settlement. I do not accept David’s submission that the monies stated to be paid to Margaret for Robert’s upkeep (which he describes as very limited) has some bearing on Robert’s relationship with the deceased or that Robert seeks to establish that relationship as one of dependency, as David’s closing submissions suggests (at [263] and [264]).

34. In about 1985/1986, the deceased travelled in England and around Europe for some months. While away, the deceased formed a relationship with a woman named Jill but returned to Australia to remain close to his family.

35. In 1988, Robert moved to live with the deceased in a unit in North Wollongong.

36. Also in 1988, David and his fiancé, Beverley Clark, moved to Wollongong, close to where the deceased and Robert lived.

37. In 1989, Margaret moved to Sydney. Robert remained in Wollongong living with the deceased.

38. In 1989, David and Beverley were married. The deceased, Margaret and Robert attended the wedding. That year, David and Beverley purchased and moved to a house in Fernhill and hosted a Christmas party which was attended by the deceased, Robert, Joan and Colin. It is common ground that David did not attend any further Christmas gatherings with the deceased or Robert after 1989. David’s explanation for this is that he had a disagreement with “Uncle Colin” at the Christmas function and he and the deceased lacked enthusiasm for Christmas (David’s affidavit sworn 8 February 2021 at [141]-[142]).

39. In 1990, Robert moved to Sydney and lived with Margaret while he completed year 12. He spent weekends in Wollongong with the deceased. After Robert completed year 12, he moved back to live in Wollongong with the deceased and lived there on a full-time basis until March 1991, when he moved back to live with Margaret and started work as a luggage porter at a hotel in Sydney.

40. In October 1990, David and Beverly separated. David moved out of the Fernhill property into rental accommodation in Corrimal. They divorced in 1991. David gives evidence that their separation was a catalyst for a serious depressive episode and suicidal ideation, a voluntary admission to the Wollongong Hospital Psychiatric Unit for a day for assessment and a two-year program of intensive psychological counselling. He describes a period of social withdrawal from his family and friends for two years, including from the deceased.

41. On 30 August 1991, Margaret and the deceased’s divorce was finalised.

42. In 1992, David moved to Sydney. He commenced a new relationship with Donna Wachsmuth. From December 1992, David, Donna and Robert lived in a rented property in Clovelly.

43. After some months of David, Robert and Donna living together, there was an incident at the Clovelly property after Robert had come home with friends and made noise which woke up David (and Donna). Early in the morning, David went into Robert’s bedroom. The ensuing incident resulted in an injury above Robert’s eye (requiring stitches) and Robert attending Waverly Police Station to report an assault, although he did not press charges. Robert asserts that David intentionally headbutted Robert. David contends the injury was an accident. Irrespective of the cause, I am satisfied that the incident led to Robert moving out of the Clovelly property to a studio apartment in Paddington and relations between David and Robert becoming strained for some years during which they had little contact. I am also satisfied that the deceased knew about the fight between them and was concerned that David had hurt Robert.

24. In 1995, David started an electrical contracting business, Eastelectric Pty Ltd, which was he owned and operated with Donna.

25. In October 1997, the deceased bought and moved into a house in West Wollongong.

26. In 1997, Robert moved to live and work in England. While Robert was in England, the deceased was seriously injured at work and spent 15 weeks in hospital. The deceased did not tell David or Robert about his accident. The evidence suggests (although it is not clear) that the deceased received a compensation payout after the accident, did not return to work as a Mine Deputy and may have retired at that time.

27. Robert returned from England at the end of 1999 and worked in hospitality in Sydney. Relations between David and Robert had improved by this time. David and Donna picked Robert up from the airport and, on one occasion, they travelled together to visit the deceased in Wollongong.

28. In late 2000 or early 2001, Robert started working for David at Eastelectric as a “Coordinator”, which involved booking jobs and issuing invoices. According to David, Margaret asked David to help find Robert a job and the deceased indicated that he did not consider Robert’s “hotel job” to be a “real man’s job”. Robert gives evidence that he thought the deceased was proud of his achievement as Head Concierge and he accepted the role with David as the hours were better and offered more money.

29. In June 2003, David arranged a 30th birthday celebration for Donna which the deceased and Robert attended.

30. Between January and March 2005, David spent about seven weeks in Phuket, Thailand assisting as a volunteer rebuilding houses after the tsunami. David gives evidence that his continuing depression was the motivating factor in making this decision as he wanted to make himself feel better having found out that he had a large tax bill in mid-2004, and that he left Donna and Robert in charge of the business while he was away.

31. In early 2005, while David was overseas, Robert decided to quit and left Eastelectric.

32. Robert gave evidence in cross-examination that he told Donna that he was leaving but did not tell David (T264.36-39). According to Robert, prior to David leaving to go overseas, David had offered Robert and another employee a 25% share of the profits while David was away but he did not see any of the profits. His evidence is that he left because he wanted to take up a work opportunity and seek a further career, he thought the Eastelectric business was being mismanaged and he did not ask for his money from David but cut his losses having made a decision to leave and to have nothing further to do with David (Robert’s affidavit at [53]; T260.18-24, T261.21-34, T262.20-22, T264.4-13). David also gave evidence about halving the profits of the business with Robert and the other employee in return for them managing the business in David’s absence. He says that after he returned to Australia, he discovered the business was not running well, Donna had moved out and had not been doing the accounts, Robert had not told him about these matters and the business faced a cash flow crisis (David’s first affidavit at [235]). It is not necessary to resolve the dispute on the evidence as to whether the business was being mismanaged, and if so, by whom, or the reason why Robert and Donna left the business. Whatever occurred, I am satisfied that Robert’s departure from Eastelectric precipitated the final breakdown of relations between Robert and David. It is common ground that they did not speak after David went to Thailand and had not seen each other until the hearing of these proceedings.

33. In August 2005, a receiver was appointed to Eastelectric and the company was subsequently wound up in October 2005. David formed a new company, Eastelectric (NSW) Pty Ltd and bought some of the assets from the receivers. In 2006, David moved to Thailand for several months. In January 2007, he wound up the new business. In March 2007, he took a job as a Maintenance Manager at Lizard Island Resort in Queensland. In 2008, David relocated to Brisbane. Between 2008 and February 2012, David bought three properties in Brisbane and sold two of them. He worked in different facilities management roles during that period.

34. In 2011, David commenced a relationship with Maliwan Pabao, who has a son, Thattep (who David refers to as his “former step-son”). In April 2012, David commenced working overseas. He was in a serious motorcycle accident in Thailand in August 2013, spent time in Australia after the accident and then returned to Thailand in November 2013, where he lived for the next 15 months while he underwent rehabilitation.

35. On 24 November 2013, David sent a Facebook message to Robert, which referred to Robert “probably [being] surprised to hear from” David, wished him happy birthday, referred to David’s recent motorcycle accident, stated “I’ve been thinking about you and me and from my point of view it’s not worth holding onto the past” and that David would like to see Robert and detailed when he would be in Australia. Robert did not respond to this message. In cross-examination, Robert gave evidence that he was not interested and did not need or want any further communication with David and had no intention of making peace with him (T270.13-21).

36. In January 2015, David and Maliwan started living together in Phuket.

37. On or about 17 June 2015, David found out that Colin had died. David sent a Facebook message to Robert asking him to pass on a message of condolence to the deceased. Robert did not reply to that message. Robert gives evidence that he passed on the message to the deceased who did not respond or ask any questions regarding David’s wellbeing at the time.

38. In about June 2016, David returned to live in Brisbane and commenced working for Moffat Ltd as a State Service Manager. In October 2016, David and Maliwan separated. In November 2017, David resigned from Moffat Ltd.

39. In March 2018, David formed Unitrade Facilities Management Pty Ltd (Unitrade) with the intention of obtaining contracts for building maintenance. In mid-2018, David sold his property in Bulimba and moved to Thailand to live in Phuket.

40. After leaving Eastelectric in early 2005, Robert continued living in Sydney and worked various Corporate Hospitality, Concierge and Advertising Sales roles. Robert met Alysha in 2010 and they were married in Fiji in 2016. The deceased attended the wedding and witnessed the marriage certificate.

41. In July 2018, the deceased sold his house in West Wollongong and moved to live in a rental property at Wamberal, on the Central Coast of New South Wales, close to where Robert, Alysha and their children lived. Robert and the deceased had discussed selling their properties and buying a property together with a granny flat so that the deceased could live with Robert and his family. In December 2018, Robert and Alysha sold their house at North Avoca and moved into rental accommodation.

42. The deceased died on 23 October 2019. The following day, David (who since July 2019, had been living and working in Brisbane) found out that the deceased had died from Ben Mitchell. It is common ground that, at the time of deceased’s death, David had not seen or spoken to him since 2004.

43. There was no service or funeral for the deceased. Robert’s evidence is that the deceased had pre-paid for a “no-service, no-attendance” funeral.

44. Robert arranged for an announcement to be published about the deceased’s death on FuneralAnnoucement.com.au. It stated:

“Passed away on October 23, 2019.

Dearly loved father of Robert, Alison and David. Father In Law of Alysha, grandfather of Evie and Arlo, brother of Joan (dec) and brother in law of Colin (dec). John will be sadly missed by his family and many dear friends. …

Family and friends are invited to attend a celebration of John’s life on Tuesday November 12, 2019 at the Figtree Bowling Club, 120 The Avenue Figtree at 12 noon. A private cremation has been held.”

65. Robert gave evidence in cross-examination that he referred to the deceased as the father of David (and Alison) in the funeral announcement as “a gesture” to them, the deceased had “no hand” in writing the announcement and it would have been worded differently if the deceased had written it (T273.41-48, T273.50-T274.3).

66. On 30 October 2019, David wrote to Robert via Alison’s email, expressing his condolences on “our” loss. David’s email states that he had been informed by several people that Robert would prefer that he did not come to the memorial service, he did not “wish to add awkwardness to [his] grief” so would not attend, he was sure that Robert would not have any objections to David paying his respects in his own way and thanked Robert for including his name in the funeral notice. Robert did not respond to David but replied to Alison, stating that it (which I read to relate to David’s attendance at the memorial celebration) was “not all about” Robert but also honouring the deceased’s wishes. In cross-examination, Robert accepted that the deceased had not told Robert that he did not want David at his funeral but said that they had not spoken for 20 years and he thought that the deceased was in a “similar position to me” (T273.6-7).

67. On 3 November 2019, David attended the funeral home after requesting some time to attend a private viewing.

68. Robert arranged and paid for the memorial celebration for the deceased and invited the deceased’s closest friends and work friends. David was not invited and did not attend.

69. Margaret has been diagnosed with dementia and, since 2021, has resided in an aged care facility in Brisbane. Alison has been granted her power of attorney.

The deceased’s will

70. The deceased’s last will was made on 3 July 2018.

71. Under that will, the deceased appointed Robert as the sole executor and gave him the “whole of my Estate” (cl 1). If Robert did not survive the deceased, Aleisha (sic) Brown (Robert’s wife) and Peter Nosworthy were to be executors and hold his estate on trust to pay debts, funeral and testamentary expenses, with the residue to Robert and Alysha’s two children and any grandchildren yet unborn upon each of them reaching the age of 25 (cl 2).

72. The deceased’s last will does not mention David, Alison or Margaret. There is no other will of the deceased in evidence.

73. Probate of the will was granted to Robert on 25 March 2020.

Value of the deceased’s estate

74. According to the Inventory of Property attached to the grant of probate, the deceased left an estate valued at $821,500.00, comprising cash in bank accounts ($578,700.00), IAG shares (317 shares valued at $2,500) and superannuation accounts (Mine Super of $189,200.00 and MLC MasterKey Super of $51,100.00). The Inventory of Property identified no liabilities of the estate.

75. At the time of his death, the deceased also owned a 2012 Kawasaki GTR 1400 motorbike worth an estimated $8,000, which Robert transferred into his name after the deceased’s death, and a car that Robert sold to a third party for the sum of $4,000 which amount Robert has retained.

76. The estate has paid testamentary expenses and other liabilities since the deceased’s death of $57,524.30, made up of probate costs of $6,437 paid to Bryan Leo (a solicitor), a Westpac credit card debt of $262.30, $50,000 to Alison in settlement of her potential family provision claim pursuant to a Deed of Family Arrangement dated 17 June 2020 [2] and legal costs of $825 relating to advice and settlement of Alison’s claim. The estate has also paid $63,002.65 in legal costs relating to these proceedings up to 30 November 2021.

    2. Paid from the deceased’s estate’s Commonwealth bank account number xxxx6794 (Estate bank account) on 18 September 2020 by way of reimbursement to Robert who made the $50,000 payment to Alison on or about 11 July 2020 (T367.18-21, T368.1-13).

77. Robert does not make any claim for commission as the executor of the deceased’s estate and no estate liabilities are identified other than unbilled and unpaid legal costs.

78. The parties prepared a schedule of assets and liabilities of the deceased’s estate (and legal costs) and referred to the value of the estate in their closing submissions but did not reach agreement on that matter. Their positions may be summarised as follows:

David	Robert
Value of estate at date of death	$833,400.00[3]	$581,200.00 [4]
Value of estate at date of hearing	$704,548.69 [5]	$464,248.69 [6]

3. David’s closing submissions at [294].

4. Excludes the value of the superannuation accounts. Robert contends they were erroneously included in the Inventory of Property.

5. Amount referred to in David’s schedule prepared prior to the hearing. David’s closing submissions in chief and reply do not identify the value of the estate as at the date of the hearing.

6. Amount referred to in Robert’s schedule prepared prior to the hearing, his closing submissions at [18] and his administrator’s affidavit affirmed 8 December 2021 at [3].

79. The disagreement primarily relates to the treatment of the deceased’s superannuation death benefits. David’s submissions also raise issues regarding the payment to Alison and Robert’s lack of disclosure relating to the deceased’s car.

80. For the following reasons, I have concluded that the gross value of the deceased’s estate that is available for distribution is $476,248.69, which comprises cash in the Estate bank account and the value of the deceased’s motor bike and car but excludes unbilled and future legal costs. In my view, the deceased’s superannuation death benefits should not be treated as forming part of the deceased’s estate, although I have taken them into account in assessing Robert’s financial circumstances and the question of whether adequate provision has been made for David by the deceased.

Superannuation death benefits

81. Robert excludes the superannuation accounts as he says the superannuation death benefits were erroneously included in the Inventory of Property and do not form part of the deceased’s estate. He gives evidence that the death benefits in respect of the deceased’s superannuation Mine Super and MLC MasterKey Super accounts were paid to him in 2020 after he made applications to the trustees of the relevant funds to have them paid out to him (Robert’s affidavit affirmed 27 November 2020 at [7], T289.9, T292.3-10). The amount received by Robert, of $217,508.42, is held by him in a Commonwealth Bank Youth Saver bank account (in the name of his daughter), account number xxxx8843 (T341.48-T342.3, CB954).

82. David submits that it was clearly the deceased’s testamentary intention that his superannuation accounts were to form part of his estate as the Inventory of Property for probate was prepared by the deceased’s solicitor, Mr Leo, who also prepared the deceased’s last will. He submits that the superannuation amounts should be reincorporated back into the estate for the purposes of valuing the estate.

83. David also contends that the money from the deceased’s superannuation accounts appeared to have been appropriated from the estate by Robert (when he sought to claim it for himself as a dependent of the deceased and informed the trustees of the fund that he would like to be considered as a potential beneficiary) and that Robert had sought to invoke (and did invoke) the discretion of the trustees where there is no scope to do so due to the existence of binding death benefit nominations (David’s closing submissions at [283] and [291]). In closing submissions in reply, David asserted that the nomination forms were not binding and also made the following submissions (at [12], [16] and [33]): the Court should make a finding that Robert, as executor, has failed to account for an unknown sum of money held in the MLC MasterKey Super account xxxx2287; if the Court finds that the superannuation accounts did not form part of the estate, then it would have to find that Mr Leo acted incompetently or contrary to his client’s instructions by including the assets in his application for probate; and if the Court finds that the “binding non-lapsing nominations” remained unchanged and were probative of the deceased’s testamentary intentions, then the Court would need to find that the trustees of the two superannuation funds acted unlawfully or illegally by disregarding their strict statutory duty not to exercise any discretion so as to give effect to the binding non-lapsing determinations.

84. I am not persuaded by David’s submissions. In my view, the evidence does not warrant findings that Mr Leo, the trustees or Robert acted improperly in relation to the superannuation accounts, or that the deceased intended for the superannuation accounts to form part of his estate.

85. It was a matter for the trustees of the Mine Super and MLC MasterKey Super superannuation funds to determine and distribute the deceased’s superannuation death benefits in accordance with any existing binding death benefit nominations or in the exercise of trustee discretion based on the terms of the relevant trust deed and superannuation legislation.

86. The deceased had signed a non-lapsing binding nomination form in favour of Robert (as a son) in relation to his MLC MasterKey Super superannuation on 14 September 2010. On 2 October 2020, MLC MasterKey Super notified Robert that the death benefit amount of $44,495.57 was paid to him. David’s submissions raise the question of whether the deceased’s nomination form remained operative and whether the payment related to the deceased’s applicable MLC MasterKey Super account.

87. I am inclined to the view that the deceased’s nomination in favour of Robert continued to be binding on the trustees of the MLC MasterKey Super fund. The form was explicitly stated to be “non-lapsing” and “binding on the Trustee”, was not expressed to only apply for a particular period of time (such as three years) and the nomination of Robert as his beneficiary was still appropriate to the deceased’s personal circumstances at the time of his death. Based on the wording of the form and the fact that it was signed by two witnesses (a requirement for acceptance by the trustee), presumably the trust deed expressly allows for non-lapsing (or permanent) binding nominations, such that the requirements of reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (which provides that notices such as the nomination form lapse after three years) did not apply: Application by BT Funds Management Ltd [2017] NSWSC 45 at [5]. Also, although the non-lapsing nomination form refers to a superannuation account number (xxxx2287) which is different to the number stated in MLC MasterKey Super’s 2 October 2020 letter to Robert (which refers to account number xxxx8060), the non-lapsing binding nomination form was expressed to apply to all of the deceased’s “MLC MasterKey account(s)” and the deceased’s death benefit payment was in respect of the same customer number as that referred to on the nomination form.

88. As to the Mine Super account, the deceased had executed a binding nomination form in relation to Auscoal Super (now known as Mine Superannuation Fund) on 19 October 2010 that nominated Robert as the dependent beneficiary, but it was expressed to be current for three years and there is no evidence that this nomination form was renewed or confirmed by the deceased. On 15 June 2020, Robert completed a “Dependency Confirmation” form that identified Robert as a child of the deceased who was not financially dependent on the deceased at the time he passed away and who would like to be considered a potential beneficiary (Ex 83). On 11 August 2020, the Trustee of the Mine Superannuation Fund notified Robert that it had considered and approved the distribution of 100% of the death benefit ($173,012.85) to Robert (son) as a “Dependant” under the trust deed and non-dependant for tax purposes.

89. The trustees of Mine Super (and MLC MasterKey Super if the non-lapsing binding nomination form was no longer operative) were entitled, in the exercise of their discretion, to distribute the deceased’s death benefit to Robert. He was a “dependent” within the meaning of s 10 of the Superannuation Industry (Supervision) Act 1993 (NSW) (SIS Act), as a child of the deceased. It was also Robert (as a son and a dependent) and not the deceased’s estate that the deceased had identified as the sole beneficiary of his death benefits on the nomination forms he had signed, matters which seem to me to be something the trustees may have taken into account when considering Robert’s application(s) in relation to the death benefits. I also note that, even though “stepchild” is included within the meaning of “child” in s 10 of the SIS Act, the Superannuation Complaints Tribunal (SCT) has ruled that a child of a deceased’s former spouse was not a potential beneficiary as they were not a “child” of the deceased (as the deceased had divorced their former spouse prior to their death): Determination D10-11/06 cited in Australian Superannuation Handbook: 2022-23 (1^st ed, 2022, Thomson Reuters) at [17 500] (Superannuation Handbook).

81. To my mind, nothing can be gleaned from the deceased’s will as to whether the deceased considered his superannuation death benefits to form part of his estate. The will does not mention superannuation but simply refers to “my whole Estate”. I do not consider that I should infer from the Inventory of Property that the deceased instructed Mr Leo to include his superannuation accounts as an estate asset. As noted above, the distribution of the death benefits fell to be determined by the trustees of the funds. As Robert submits, the superannuation accounts may have been mistakenly included in the Inventory of Property as an estate asset by Mr Leo. In my view, the evidence overall does not support the drawing of the inference that the deceased changed the binding non-lapsing nominations prior to his death and then altered his testamentary intentions when he left the superannuation accounts to his estate, or that there was some challenge to the nomination form such as, for example, on the basis that the deceased lacked testamentary capacity.

82. An interest in a superannuation fund does not generally form part of an estate of a deceased person for the purposes of distribution, although the Court may take account of a superannuation payment in deciding the jurisdictional question. It may also designate an interest in or payment from a superannuation account as part of notional estate: Vanderloo v Milne [2014] NSWSC 1932 at [18] and [23]; Clifford v Mayr [2010] NSWCA 6 at [50] per Campbell JA; Superannuation Handbook at [17 300].

83. To make an order designating superannuation as notional estate, it must be for the purpose and in the circumstances referred to in s 78 of the Succession Act. The Court needs to consider whether the payment to Robert was a “distribution” of the estate or a “relevant property transaction” and whether the other provisions of Division 2 apply. If satisfied of these matters, the Court must also consider and be satisfied of the matters referred to in s 87 to s 90 of the Succession Act. These matters were not addressed by David’s submissions. Rather, he contended that whether any component needs to be subject of any notional estate order is largely irrelevant because, even if David’s claim is accepted, the “lion’s share” of the estate or any notional estate shall still be paid to Robert (closing submissions in reply at [45]). By that submission, I understand David to accept that the question of whether the Court needs to designate any payment (such as the superannuation death benefits) as notional estate does not arise as the amount of provision sought (of $240,000) is less than the deceased’s gross estate or any costs that would be paid if ordered: Succession Act, ss 89(2) and 99.

Other matters relating to the value of the deceased’s estate

93. In written submissions, David also contended that Robert had artificially deflated the value of the deceased’s estate, seemingly for the purpose of bringing it under the amount of $500,000. In particular, he submitted that the way in which the compromise of Alison’s family provision application was resolved and Roberts’s failure to disclose certain matters raised concerns about his conduct as executor.

94. In relation to the first point, I see nothing irregular in Robert’s conduct as executor, in resolving Alison’s potential family provision claim on the deceased’s estate by making a payment to her of $50,000. Alison was an eligible person for the purposes of the Succession Act and the payment was made on a without admissions basis to avoid litigation. In my view, that payment was a legitimate estate expense and I do not draw any adverse inference regarding Robert’s conduct as executor from the fact that he made the payment to Alison and was later reimbursed from the Estate bank account by Mr Leo. I reject David’s submission that the inference is open that Robert was reimbursed so as to try and minimise the monies held in the estate for the purposes of the trial (closing submissions at [302]).

95. Nor do I consider that the payment of $50,000 to Alison should be characterised as having been made for the purpose of deflating the value of the deceased’s estate because the recitals to the Deed of Family Arrangement between Robert and Alison refer to seeking to “preserve their relationship” when the evidence suggests it was not a close or happy one and Robert referred to Alison in an uncomplimentary fashion in his bank records at the time the payment was made (T333.13-15). As Robert explained in cross-examination, he was unhappy about making the payment and wanted it “out of the way” (T333.46-T334.6). Further, the payment was made pursuant to a Deed of Family Arrangement that recorded the terms of an arrangement that arose out of Alison’s claim made on about 4 December 2019 and settlement discussions at the end of May 2020, prior to the notification of David’s claim and commencement of these proceedings.

96. Robert gave evidence about the deceased’s car and his receipt of the $4,000 sale proceeds for the first time when cross-examined about transactions in his bank accounts. He should have disclosed those matters in his administrator’s affidavit, although I accept his evidence that the failure to disclose that matter was an “oversight”, rather than finding that he was dishonest or motivated by anything more untoward (T328.11-30, T329.1-14,48-49). It follows that I reject David’s submission that Robert should be referred to law enforcement authorities for further investigation in relation to what was described as “theft” from the deceased’s estate and having deliberately told lies under oath in his administrator’s affidavit (David’s closing submissions in reply at [248]).

97. In conclusion, other than in relation to the deceased’s car, I am not satisfied that David has established that Robert has “artificially devalued” the deceased’s estate or he has failed to make proper disclosure in respect of the deceased’s estate in some other way.

Legal costs

98. David’s legal costs are estimated to be $101,414 on an ordinary basis and $120,000 on an indemnity basis, of which he has paid $38,953.

99. Robert’s costs of the proceedings are estimated to be $76,126.99 on an ordinary basis and $101,502.65 on an indemnity basis, of which $63,002.65 has already been paid out of the estate.

100. The parties’ estimates of legal costs are based on a hearing of three days. The hearing went for almost twice the allocated hearing time and so it is to be expected that the parties’ legal costs may be significantly more than the estimates given, although the extra hearing time resulted in a costs order in favour of Robert (Order 9 made on 11 February 2022).

101. Adopting the value of the deceased’s estate at [80] above, and assuming that David is successful with his claim and orders are made that his costs are to be paid on an ordinary basis ($101,414) and Robert’s costs (as the executor) are to be paid on an indemnity basis ($101,502.65), the net value of the deceased’s estate (excluding any potential notional estate) that is available for distribution would be $273,332.04.

Further facts - Relationships with the deceased

David’s relationship with the deceased between 1972 and 1982

102. David gives evidence that from the moment he met the deceased, he liked and respected him and came to love him as his father. His evidence is that after Margaret and the deceased were married, David started to refer to the deceased as “dad”. He says that he and Alison spoke with each other and decided they would ask the deceased if they could call him dad and the deceased said, “I’d like that”.

103. David says he changed his surname to “Brown” in January 1973 and that he started High School using that name. He gives evidence that he told Margaret that he wanted to take the deceased’s surname and she told him to go ahead and change it, and that it was legal to do so. It appears that David’s name change was not recorded in the Register of Births, Deaths and Marriages until September 2005 (Ex 98). According to David, this might have been done at that time to obtain a passport (T187.28-36).

104. David describes the deceased as providing him with the care and support that a father would be expected to provide to a son and that he referred to David as “son”, although open displays of love and affection were rare with the deceased. David says that during his teenage years the deceased taught him to be a “young man” (shaking hands, looking people in the eye etc), gave him gifts (including a dog named “Cassius”), took him on camping trips, attended sex education classes with him, taught David how to drive in 1977, was involved in disciplining David and frequently offered fatherly guidance.

105. David says that the family (Margaret, the deceased, David, Alison and Robert) holidayed together and attended other outings and celebrations as a family, for example, Christmas with other family members, such as Joan and Colin. He says that he virtually forgot about Graham and did not miss him.

106. David gives evidence that he was bullied and by 1975, had virtually given up on school. He spent most nights with a group of boys from the neighbourhood, with whom he went camping most weekends and experimented with alcohol. David gives evidence that Margaret was concerned about the drinking, the deceased was more relaxed about it, and David became closer to the deceased than Margaret.

107. When he moved out for six months at the beginning of 1978, David says he visited Margaret and the deceased and had his birthday at the Valley Drive property that year. After he moved back to the Valley Drive property in mid-1978 (to sleep in the caravan), he says he continued to have a father/son relationship with the deceased and gave evidence of often sitting and talking with the deceased late into the night after being out on a Saturday night with friends.

108. In February 1981, David started an electrical apprenticeship. He gives evidence that the deceased bought him his first set of tools and a toolbox. The following year Margaret and the deceased hosted David’s 21st birthday party at the Valley Drive property and gave him a skiing holiday in New Zealand as a present.

109. James Gillis, who met David in 1981, gives evidence that he spent time with David and the deceased in David’s “parents back yard” and observed warmth and affection between them.

110. Robert is 12 years younger than David. While they both lived in the Valley Drive property with the deceased, Robert was only five when David moved out for six months and nine when David left home in 1982. In cross-examination, Robert conceded (appropriately) that he did not have a good memory of matters before the age of 10, while David was living at the family home (T198.49-T199.2).

David’s relationship with the deceased from 1982 to 2004

111. David says that, after he moved to Wollongong in 1982, he maintained regular contact with Margaret, the deceased, Alison and Robert, usually seeing them on a fortnightly basis.

112. David gives evidence that after Margaret and the deceased separated, David continued to regularly visit the deceased (who had taken “custody” of David’s dog, Cassius), first at the Valley Drive property and then at the deceased’s rental accommodation. He says that the deceased rarely visited David, although he would sometimes come and have dinner with David and Beverley when they were living together. As noted at [38], David did not attend any Christmas gatherings with the deceased and his family after he and Beverly hosted Christmas in 1989, and the contact between them reduced.

113. David gives evidence that he and the deceased shared an interest in motorbikes and cars, and they would sometimes go riding on their motorbikes together. In his affidavit, Robert rejected David’s evidence on this issue (Robert asserted that the deceased and David could not have gone motorcycle riding together because David used to borrow the deceased’s motorcycle and the deceased only owned one), although he accepted in cross-examination that he did not recall when David owned his own motorcycle and that it was possible that the deceased and David did go riding together because they both owned a motorcycle at the same time (T207.18-20).

114. David did not see the deceased at all between October 1990 and April 1992. David explains this as being due his mental health issues and withdrawal from social contact during that time (described at [40] above).

115. David says that by around April 1992, he had recovered enough to recommence visiting the deceased and did so, approximately once a week. He gives evidence that the deceased never queried why David had not visited him as regularly as in the past and that he did not tell the deceased about his mental health issues. David says that the deceased was not the sort of person to involve himself in such matters and he thought the deceased would regard David as a coward due to his suicidal thoughts. This belief appears to have been based on the deceased expressing a view to David and another person in 1977 to the effect that it was “bloody stupid” for David to talk about taking one’s own life if a person was not happy and stating, “That’s a bloody coward’s way out”. David gives evidence that he was left in no doubt that the deceased regarded depression and suicide as a contemptible weakness.

116. I have difficulty accepting David’s evidence regarding this conversation and his assertion that the deceased was not understanding about mental illness in general, also referred to at [126] below. Leaving to one side the inherent fallibility of human memory (the conversation occurred some 45 years ago (when David was only 15 or 16 years old) and the overlay of perceptions and self-interest (Watson v Foxman (1995) 49 NSWLR 315 at 319), David’s evidence of the deceased’s views is not corroborated by and is at odds with Robert’s evidence. In his affidavit, Robert describes his own mental health issues after a relationship breakdown in about 2000. Robert says that when he told the deceased about his dark thoughts and feelings, the deceased was emotionally available and supportive and came up from Wollongong two to three times a week to spend time with Robert. In contrast to David, Robert described the deceased as someone he could always turn to, was caring and supportive when Robert suffered from depression and suicidal ideation during his life, assisted him with doctors and psychologist appointments and openly discussed these matters with him. The deceased may have expressed some views that did not come across to David as supportive, but in view of Robert’s evidence (which I accept), I do not find that the deceased was unsupportive of mental illness, including depression. It seems to me that David’s reticence in raising his health issues with the deceased likely reflected a relationship with the deceased that was not as close as his submissions contend and statements about mental illness that he attributes to Margaret, Alison and other members of his family (see, for example, David’s first affidavit at [23], [36], [40], [149], [150]).

117. David says that he maintained contact with the deceased after his move to Sydney, although from 1994, their in-person contact reduced to about four times per year (when David went to Wollongong) and they rarely spoke on the phone. David says that, while their contact was reduced, there was no deterioration in their relationship, although I find that evidence unconvincing in the context of the Clovelly incident in 1992 and the deceased’s knowledge that David had hurt Robert, and Robert’s evidence (at [120] below).

118. Robert deposes that in late 1992, a man called to speak to David at the Clovelly unit and left a message to tell David that “his father rang”. There is a dispute on the evidence as to whether Robert was surprised by this, was angry that David had not raised his paternity with Robert and whether they had a discussion in around 2001 during which, David says, Robert was upset and said he was humiliated by the deception about David’s paternity and explained that was why his attitude changed during the time he was living at Clovelly with David and Donna. I prefer Robert’s evidence to David’s about this matter.

119. Robert denies having a discussion with David in the terms deposed to by David. He gave evidence, which I accept, that he was aware from before 1992 from things he had overheard his relatives discuss that the deceased was not David’s biological father, although he accepted in cross-examination that neither the deceased or Margaret had told him directly about David’s (or Alison’s) paternity and he believed that David was the first person to tell him directly that the deceased was not David’s biological father during a drive to or from Wollongong shortly prior to leaving for London in 1999 (T222.13-223.30). Robert also gave evidence that he had raised the issue of David’s paternity with Margaret after the Clovelly incident when he told her “I no longer have a step-brother” but did not raise the issue with the deceased directly, although he deposed that the deceased said to Robert a few years after his divorce that “They [David and Alison] are no longer my concern, you’re my son and that’s it”, and also referred to Robert as his “only child” and “only son” (Robert’s first affidavit at [62], [71] and [85]).

120. David recalls visiting the deceased in 1995 and describes the deceased telling him to “patch it up” with Robert and “Do your old man a favour”, which he said he would do. He also gives evidence that between 1997 and 1999, while Robert was in England, David continued to see the deceased when he went to Wollongong. He says that he visited the deceased at his West Wollongong property on several occasions and spoke to the deceased when he was in hospital, although their contact became less frequent, with David only seeing the deceased about two times per year and maintaining some ad hoc phone contact.

121. As noted above, in 2003, the deceased attended the 30^th birthday celebration for Donna that David arranged. David says he saw the deceased twice more after that, at the deceased’s West Wollongong property, which he recalls was in 2004.

David’s relationship with the deceased after 2004

122. It is common ground that David did not see or speak to the deceased at all after 2004.

123. David says that, from mid-2005 (after the receivers were called in), he had another long depressive episode and commenced treatment with a psychologist and focused on his recovery from late 2005, before returning to Thailand in 2006. He says that during this time, he maintained contact with Margaret but did not contact the deceased, and the deceased did not call or reach out to David, although David says he was aware that the deceased knew about his depression. David did not give evidence about the basis of that awareness, and I make no finding that the deceased was aware of that matter.

124. Glenn Drabble gives evidence that, in 2006, David told Glenn that he wished he was still in contact with the deceased but explained that he and Robert had a falling out when his business collapsed, he believed Robert was poisoning the deceased against him, and he did not think he could cope with having the door “slammed… in [his] face”.

125. David describes his relationship with the deceased as in “suspension” after David moved to Brisbane in 2008.

126. Although they never had a disagreement, David says he was reluctant to call the deceased because he was concerned the deceased would take sides with Robert, that Margaret and Alison had disparaged David to the deceased and he believed that the deceased would have thought that David did not have the capacity to ‘man up’ to his state of mental health. David gives evidence that he felt alone, feared rejection and did not feel emotionally capable of being rejected without being allowed to explain his “side of the story”.

127. David says that he started to think about the deceased in July 2018, around the time that Margaret’s health was in decline. He gives evidence that he started to write a letter to the deceased, expressing the desire that they would get to see each other again before one of them died, but he did not finish nor send it.

122. David says that he was devastated when he heard that the deceased had died. As noted above, David did not attend the memorial celebration but attended at the funeral home.

123. Ben Mitchell gives evidence that David was concerned that he and the deceased had not spoken in years and asked for advice about how he could resurrect the relationship. He deposes that in about 2017 or 2018, Ben told David to just “knock on his door” and David replied that he was worried that he would “slam it in my face”. Ben also gives evidence that he went the funeral home with David on 11 November 2019 and observed that David was visibly upset and crying.

124. Robert’s evidence is that the deceased never spoke about David during this period. He deposes that the deceased would sometimes ask whether Robert had heard from Margaret or Alison (such as at Christmas or around Robert’s birthday) but never asked about David. Robert gave evidence in cross-examination that for a period of 20 years (which I take to be the 20 years prior to the deceased’s death), the deceased never mentioned David to Robert and did not ask Robert whether he had heard from David on his birthday or at Christmas, although he would enquire whether Robert had heard from his mother or Alison and, as far as Robert knew, the deceased had not spoken to David for 20 years (T272.40-45, T273.6-7).

Robert’s relationship with the deceased

131. Robert gives evidence that he was close to both his parents growing up and that the deceased was loving, caring and compassionate to him, including in relation to his own mental health issues (as referred to at [116] above).

132. When Margaret and the deceased separated and Robert lived with Margaret, Robert spent every second weekend, the holidays and some afternoons with the deceased. According to Robert’s affidavit, he was very upset when his parents separated and Margaret told him that it was the deceased’s fault, so Robert was angry at the deceased for a few weeks. As Robert got older, he would also spend afternoons with the deceased, and preferred living with the deceased than with Margaret.

133. Robert deposes that he and the deceased wrote letters to each other weekly while the deceased was travelling in England and Europe in around 1985 or 1986.

134. Robert says that when he started work in Sydney in 1991, he visited the deceased every second weekend and they spoke on the phone at least once or twice a week. He also gives evidence that when he moved to England, he communicated with the deceased at least two to three times per week except for about 15 weeks when the deceased was hospitalised and would not accept Robert’s calls, after which period they spoke nearly daily.

135. In 2000, after his return from England, Robert arranged a surprise function for the deceased and his co-workers.

136. Robert gives evidence that, in 2005, he told the deceased about David offering 25% of the profits of Eastelectric to Robert and another employee while David was overseas. He says that the deceased responded, “You should get that in writing. Mate, without that in writing I guarantee you won’t see the money off him”. Robert says he did not ask David to put the agreement in writing as he trusted David to pay him the share of the profits.

137. Robert deposes that after he married Alysha, the deceased said to Robert, “You’re the last of the Browns. I’d love you to have a son so the name can carry on.” He also gives evidence that before the deceased moved to the Central Coast in 2018, he would come to stay with Robert and Alysha every second or third weekend, including Easter, long weekends, Christmas and birthdays, and they had two set days, Monday and Wednesday, when he would call the deceased to have a chat.

138. In about 2016 or 2017, the deceased granted Robert a power of attorney in relation to his financial affairs and appointed him as his enduring guardian.

139. Robert’s evidence is that the deceased’s move to the Central Coast in 2018 was precipitated by Colin’s death. He says that he and Alysha suggested that the deceased move as he was retired and had no more family in Wollongong. Robert and Alysha helped the deceased move from Wollongong, by packing, transporting, and unpacking his things. After the move to the Central Coast, the deceased would come to Robert’s house for dinner once a week, drop in 2-3 times a week and Robert would visit him after work once a week. Robert also assisted by taking the deceased to his medical appointments and helping him with his online banking.

140. Robert described the deceased as generous with money. The deceased gave Robert $110,000 for a deposit on a property at North Avoca and mortgage insurance, sometimes lent him money, bought Robert three cars over the years, including Robert’s first car when he was 16 at a cost of around $800 (T311.47-T312.1), bought a car for Alysha, was generous when it came to presents for Robert and Alysha’s children and would give Robert $500 when he and Alysha were going on a holiday.

141. Robert gives evidence that, after the Clovelly incident, the deceased told him to “Get out of there if [David’s] going to behave like that…”. He also gives evidence that the deceased said to him when talking about his will, “It’s mine and it will be yours, you [are] my only son.” He says that from the time when he was young and living with the deceased, the deceased would say, “everything of mine when I fall off the hook is yours” and Margaret would say, “when your father passes, you’ll get all of his money.”

142. In cross-examination, Robert was asked about the deceased’s will and his move to the Central Coast. Robert gave evidence that to his knowledge, the deceased did not have a previous will and he found the will when he searched the deceased’s possessions (T307.33-36). Robert was asked whether he had a discussion with the deceased about the changing of his will around the time they discussed buying the house and gave evidence to the effect that the deceased brought the will up to the Central Coast, asked him to sign it and took it back to Wollongong and referred to his “witnessing signature” (which was his signature “in the margin”). Robert was pressed on whether he had a clear recollection of the event, and his evidence was that he did recall the deceased asking him to “sign it there” and they were sitting on the lounge at “Beachcomber Parade” (T309.1-4 and T309.43-48).

143. David’s submissions refer to Robert’s evidence about witnessing the deceased’s will as an instance of Robert willing to lie and invent evidence as he was clearly mistaken. I accept that Robert’s evidence was incorrect. His signature on the deceased’s will (in the margin) relates to the annexure attestation when Robert swore his affidavit in 2021, not when the will was executed in 2018. However, I do not accept the submission that Robert was lying. Rather, I consider that Robert mistakenly conflated events, noting that his evidence in re-examination was that the documents the deceased brought to him to sign were the power of attorney and enduring guardian and he believed that he signed the will in a bundle of documents sent up by Mr Leo relating to probate (T366.19-25).

Conclusions

144. I accept David’s evidence that the deceased stepped in and took on the paternal role to David from 1972, when David was eleven. From that time, until David moved out of the Valley Drive property in 1982, David was treated as the deceased’s son and a full-time member of the Brown family, as evidenced by David’s use of Brown as his surname and calling the deceased “dad” and his lack of contact with Graham.

145. The relationship between David and the deceased (and Margaret) likely deteriorated in January 1978 (when David was asked to leave the Valley Drive property) and David may have spent many nights out with his teenage friends and most weekends camping with them, but I am satisfied that David continued to be treated as part of the deceased’s family, albeit he had more independence as he lived in the caravan and was supporting himself financially.

146. The regularity of David’s visits to the deceased from the early 1980’s through to the mid-1990’s, including the deceased’s attendance at David’s wedding in 1989, satisfy me that David’s relationship with the deceased continued after he separated from Margaret and the deceased continued to play a paternal role in David’s life after 1984. That said, the totality of the evidence indicates that David’s relationship with the deceased evolved over the period from the early 1990’s to 2004, possibly due to the lack of contact between October 1990 and April 1992, the impact of David’s mental health issues and the Clovelly incident. The fact that David did not tell the deceased about his period of depression in the early 1990’s (or later periods in David’s life) and the deceased did not call or reach out to him during that or later periods, is telling in my view, as it signifies that David was not as emotionally dependent on the deceased as his submissions contend (closing submissions at [378]). The deceased may have attended Donna’s 30th birthday in 2003, but David’s contact with the deceased was more ad hoc and sporadic between 1994 and 2004 and their relationship could not, in my view, be described as mutually close and supportive from that time, especially when compared to the extent of contact and connection between the deceased and Robert. It follows that I am not persuaded by David’s submission that David’s close paternal relationship with the deceased continued uninterrupted for 35 years.

147. I accept that the deceased’s attitude towards David from early 2005 was likely adversely impacted by the deterioration in Robert’s and David’s relationship and the deceased may have opted to side with Robert in the context of the brothers’ dispute. I also accept that David may have been reticent to contact the deceased for the reasons outlined at [126]. However, I am not persuaded by David’s characterisation that the deceased apparently decided to disown David from that time. Even on David’s evidence, there was little (if any) contact from the deceased to David for some years prior to 2004. The lack of any contact between David and the deceased after 2004 and Robert’s evidence at [130], [137] and [141] leads me to find that the deceased did not have any real connection with David after 2004 and their relationship had likely dissolved by the time of the deceased’s death.

148. I do not accept David’s submission that he had a more mature and meaningful relationship with the deceased than with Robert (for the first 33 years of Robert’s life). The conclusion I draw from the evidence is that the deceased and Robert enjoyed a close and loving father/son relationship throughout Robert’s life. Despite the fact that Robert had lived in Sydney (including with Margaret) and overseas for long periods, his relationship with the deceased was characterised by regular contact, ongoing emotional support and care and assistance provided to the deceased by Robert and Alysha, particularly when the deceased moved away from Wollongong.  To my mind, it also does not follow that the provision of financial assistance to Robert during the deceased’s lifetime made David, in comparison to Robert, a good son who was able to fully reciprocate in a mature adult way up until 2004 (closing submissions at [375]).

David’s relationship with Graham

149. David gives evidence that, shortly after the wedding of Margaret and the deceased, he was told that Graham had moved to the United States of America with his new wife and was relieved as this meant he would not have to see him again. He says that he later found out that Graham had moved to Western Australia and then to Canberra and describes the reference to a move to the USA as a “fiction” that was perpetuated by Margaret and the deceased.

150. David says that he has seen Graham about eight times and spoken to him by telephone on about three or four other occasions. One of those occasions was in 1982, after he moved out of the Valley Drive property when David made contact and visited Graham in Canberra, having received his phone number from a cousin. David deposes that within an hour of being with Graham, his curiosity was satisfied, it was clear to David that Graham had no interest in him, David did not have any interest in Graham, and that it felt like a meeting of strangers and “very odd”. David describes telling Margaret about the visit and being told by her that she hoped the deceased never found out.

151. In a letter that David wrote in April 2006 in anticipation of seeing a psychiatrist, Dr Daniel Gibson (Ex 101), David refers to meeting Graham and keeping in touch with him. David refers to Graham as his “father” and the deceased as his “stepfather”. He describes Graham as someone who “has an amazing capacity to turn his hand to anything”, that meeting Graham gave David “a self-confidence” and reminded him he was “my father’s son”, they kept in touch until “he started going back to his religious phases”, Graham would make contact with David and David would go and visit him (Graham did not visit David), and David once asked why Graham stopped the contact visits and was told that if Graham couldn’t have “all of” David, he “didn’t want anything”. In addition to noting his mother remarrying, there is only one reference to the deceased in the letter, in the context of what the deceased would say in response to suicide, as a “bloody coward’s way out”.

152. When cross-examined about the letter, David accepted that he had described reconnecting with his father, “Mr Truswell”, which was the first time seeing “his father” in 10 or 11 years (T136.30-32). He sought to explain the absence of any commentary about the loss of his relationship with the deceased on the basis that the letter was not written to provide the psychiatrist with information to understand what he was struggling with at the time but was just “the things [he] was thinking and themes” (T134.1-4), he had not lost the relationship with the deceased (T138.22-24) and he had not written about feeling scared that the deceased would reject him because it was not “a letter to explain current relationships” but was prepared “to explain all of the daggers that [he felt].. all the points of [his] pain” (T139.5-10).

153. Robert submits that the contents of David’s letter to Dr Gibson undermines his credibility having regard to his affidavit evidence that downplays the importance of Graham in his life and suggests an indifference upon meeting him as a young adult. I agree. In comparison to David’s affidavit evidence (described at [105], [149] and [150] above), the letter paints a quite different picture of how David felt about Graham and his description of his meeting with Graham.

154. I accept that the deceased may have taken on the paternal role to David in Graham’s absence. However, Graham was a constant presence in David’s life until the age of 11 and maintained some contact with David after 1982. In my view, the evidence overall does not demonstrate that the deceased’s relationship with David from 1971 completely extinguished the paternal bond between David and Graham.

David’s personal and financial circumstances and claimed needs

155. At the date of the hearing, David was 61 years of age. He is single with no children or other dependents. He lives in Brisbane in rented accommodation with two other people (T158.31-35).

Current employment and financial position

156. David describes himself as self-employed as a building caretaker. As outlined above, between 2007 and 2017, he was employed in a variety of facilities management related roles.

157. David is currently the sole director and shareholder of Unitrade and UFM Realty Pty Ltd (UFM Realty) and the sole beneficiary of the David Brown Family Trust (DBFT).

158. Unitrade, as trustee for the DBFT, holds the management and letting rights in relation to a residential apartment building located in Teneriffe, Queensland pursuant to a Caretaking Agreement dated 25 March 2020 (Ex 17) and a Letting Agreement also dated 25 March 2020 (Ex 18) (the Agreements). The Agreements commenced on 1 April 2020 and are for an initial ten-year term. They provide for annual caretaking remuneration of $108,874.71 (increased annually by CPI), with commissions and charges for letting services to be negotiated with the owners of the apartments. UFM Realty, which was incorporated on 5 May 2020, is the entity that manages the letting rights held by DBFT.

159. David says that the legacy of his injuries from his accident in 2013 prevents him from sustaining the physical work required under the Caretaking Agreement. He deposes that he engages a contract cleaner on a part-time basis as well as a permanent part-time assistant, which he says reduces the caretaker salary to about $75,000 per annum, from which he pays other business costs and his own wages.

160. David’s affidavit evidence refers to an annual net salary of approximately $24,900, receiving about $20 per month in interest from funds he has invested, fortnightly expenses of $1,365 (excluding credit card payments) and assets, which he valued at $282,213.85 as at 8 February 2021, and at $178,139.69 as at 13 December 2021, comprising the following:

Asset description	Value
2007 Nissan Tiida sedan	$1,500
2013 Honda Forza	$2,000
ANZ Access Advantage account	$1,065.04
Bank account with ANZ	$9,956.65
Bank account with Macquarie Bank	$15,300
Furniture and other personal items	$7,000
Shares in A2 Milk Company (as at 9.12.2021)	$67,278
Shares in Northern star (as at 9.12.2021)	$74,040
TOTAL	$178,139.69

161. David does not have any superannuation, having withdrawn all his superannuation of $122,387.09 to pay down the mortgage of the Bulimba property that he sold in May 2018.

162. The reduction in David’s asset position from February 2020 to December 2021 is said to be due to several additional expenses and financial liabilities (primarily legal and medical expenses and also relating to the new business venture) and losses incurred on the share market. He submits that his investments in shares were made on the advice of a stockbroker and that he has acted in a financially responsible way. In hindsight, David’s decision to continue to invest in shares (albeit on the advice of his stockbroker) might be categorised as “well-intentioned, but improvident, investment decisions” given the reduction in his asset position and the impact on his claimed needs. That decision it is a factual matter that, together with David’s other circumstances, can be taken into account in the context of the available estate and a consideration of the effect on Robert’s competing claim: Bates v Cooke [2015] NSWCA 278 at [1], [3], [68]; Sgro v Thompson [2017] NSWCA 326 at [40], [93], [94] (Sgro v Thompson).

163. David disclosed no liabilities apart from a credit card debt of $1,827.53 and legal costs (owing to DL Legal of $25,871 and counsel of $28,750). He deposes that he has not sold any property or gifted amounts of $1,000 or more but has provided financial assistance to his former stepson of about $7,000 per year.

164. David’s second affidavit and his submissions address the value of Unitrade’s management rights under the Agreements and whether he would be able to sell them as an asset. He gives evidence that, in normal circumstances, they could be valued at more than $500,000 but due to increased costs and the terms of the contract (which, amongst other things, prohibit him from selling or assigning the rights until 1 April 2025 (cl 8.9) and require any assignee to have certain qualifications and language skills), they would be very difficult to sell and the most he could hope to realise would be between $280,000 to $315,000 (David’s second affidavit at [20] and [28]–[29]).

165. David submits, and I accept, that the terms of the Agreements place limits on his capacity to assign the rights prior to 2025 and it is difficult to predict what, if any, value he could realise after 2025, noting that the value would likely be determined as a multiple of the net operating profit. This is particularly as Unitrade’s most recent profit and loss statement, for the period 1 July 2020 to 30 June 2021 (Ex 49), discloses an overall loss after tax of $5,415, based on a gross profit of $105,082 and expenses of $110,503 (of which $53,476 was for salaries and wages, $12,238 for contactor payment and $3,414 for rent), the most recent UFM Realty profit and loss statement for the period 1/07/2021 to 3/1/2022 (Ex 91) discloses net earnings of $12,881.11 and the previous financial year disclosed nil sales and a loss of $90 (Ex 49), and David’s evidence is that he was making a loss on the “management contract” and had to inject $30,000 of his personal savings to keep the business afloat.

Should an order for provision be made?

258. Before making an order for provision out of the deceased’s estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for David’s proper maintenance, education or advancement in life has not been made by the deceased’s will: Succession Act, s 59(1)(c). If the Court is so satisfied, it may make such order as the Court thinks ought to be made for David’s maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: Succession Act, s 59(2).

259. In this case, having regard to David’s age and circumstances, the relevant objects of the order for provision are for his maintenance and advancement in life.

260. Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of the adequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and, if so, the nature of that order, including what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 (Chan v Chan) at [21].

261. The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2).

262. A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required to determine whether adequate provision was made for the claimant’s proper maintenance, education or advancement in life: Sgro v Thompson at [6] (Payne JA), [86] (White JA, McColl JA agreeing).

263. While adequacy is concerned with quantum and the word “proper” prescribes the standard of the maintenance and advancement in life, they are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ) (Vigolo v Bostin); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [423] (Limberger v Limberger).

264. The relevant circumstances will include a claimant’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs: Chan v Chan at [22]. A claimant’s needs are different to their “wants” and do not simply equate to “demands” or “desires”: Bezjak v Wyatt [2018] NSWSC 199 at [120]. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell at [7]-[8]; Vigolo v Bostin at [114]. Any assessment of a claimant’s needs requires consideration of the size of the estate and the claims of others on it: Chan v Chan at [22].

265. In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant’s maintenance, education or advancement is proper, the Court should give considerable weight to the deceased’s testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court’s assessment of whether there has been adequate provision for the claimant’s proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased’s death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian v Khatchadourian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon [2019] NSWCA 114 at [53] per White JA, [96] per Brereton JA (Steinmetz v Shannon). A well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary: Steinmetz v Shannon at [112] (Brereton JA, Simpson AJA agreeing).

266. David makes his claim as an adult stepchild. I have already referred to the comments in Graziani v Graziani. In Cooper v Atkin [2020] NSWSC 828 at [203], Hallen J referred to the statement of Keane JA (as his Honour then was and with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques [2006] 1 Qd R 318 at 322 [29]; [2005] QCA 423 at [29], where His Honour referred to the evaluative balancing of relevant considerations in the context of a claim by stepchildren, as follows:

"The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a step-parent's estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support."

267. The interests of Robert as the sole beneficiary under the deceased’s will is relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for David, both for the purpose of s 59(1)(c) and in determining whether provision should be made and the nature of any such order. Where, as here, Robert has adduced evidence of his financial position, the Court will consider his financial resources and needs as a relevant circumstance of the case: Succession Act, s 60(2)(d); Sgro v Thompson at [71]–[74].

Additional facts and matters: s 60(2) of the Succession Act

268. I have already dealt with most of the matters referred to in s 60(2) of the Succession Act, namely the matters in s 60(2)(a), s 60(2)(c)-(g), s 60(2)(j) and s 60(2)(m). In relation to the other matters, I make the following findings.

Nature and extent of any obligations or responsibilities owed by the deceased to David and to any beneficiary of the deceased’s estate: s 60(2)(b)

269. David is an eligible person and I have found that the nature of his relationship with the deceased warrants the making of his application and he could be considered a natural object of testamentary disposition.

270. As the deceased’s son, Robert is a natural object of the deceased’s testamentary bounty. He is recognised as such in the deceased’s will and other statements made by the deceased regarding his testamentary intentions (referred to at [119] and [141] above).

David’s contributions to the deceased’s estate or welfare: s 60(2)(h)

271. David paid board while living at the Valley Drive property, gives evidence of providing support to the deceased following his separation from Margaret in 1991 and maintained social contact with the deceased until 2004. There is no evidence that he otherwise made contributions, financial or otherwise, to the building up of the deceased’s estate and to the deceased’s care and welfare.

Any provision made by the deceased for David during the deceased’s lifetime or made from the deceased’s estate: s 60(2)(i)

272. Other than the financial support when he lived at the Valley Drive property and the gifts referred to at [104] and [108] above, the deceased made no provision for David during his lifetime or in his will.

Whether David was being maintained, either wholly or partly, by the deceased before his death: s 60(2)(k)

273. There is no evidence that David was being maintained, either wholly or partly, by the deceased after he moved out of the Valley Drive property in 1982.

Whether there is anyone else liable to support David: s 60(2)(l):

274. Margaret is still alive, although it is unclear what amount David could expect to receive from her estate. There is no other person liable to support David.

Conduct of any other person before or after the death of the deceased: s 60(2)(n)

275. I have dealt with the matters raised regarding Robert’s conduct as executor, his expenses, his departure from Eastelectric, his dealings with Alison and David’s claim that he “white ant[ed]” David, by smearing his reputation, to the deceased (at [252] below).

276. David’s submissions also refer to the “unrealised agreement” between Robert and the deceased to purchase a house together, the deceased relocating to the Central Coast to live in a “cheap rented 2-bedroom unit” and “the alleged joint house purchase agreement”. To the extent that David seeks that the Court make findings adverse to Robert in relation to these matters (such as that there was no such arrangement between Robert and the deceased, that Robert somehow breached an agreement with the deceased or there was a connection between that agreement and the making of the deceased’s will in favour of Robert), I see no basis at all to make such findings. It is enough to say that I accept Robert’s evidence that he and the deceased made a plan to sell their homes and live together and the fact they acted on it evinces a desire on their part to provide care and support to each other, in addition to confirming the close nature of their relationship.

277. I have dealt with aspects of Alison’s and Margaret’s conduct (at [196]-[197] and [246]), but otherwise do not consider their conduct towards David to be of relevance to the issues for determination.

Any other matter considered relevant: s 60(2)(p):

278. David’s submissions did not raise any additional matters but restated the matters canvassed in his submissions and placed particular reliance on the factors he said that warranted his claim which I have dealt with above.

279. Robert submissions refer to David seeking to use the proceedings to air grievances between he and Robert, such as concerning the Clovelly incident and whether Robert’s departure from Eastelectric was in breach of some agreement, which are not relevant to the case, and to investigate the supposed conspiracy between Robert and Alison, which represents an abuse of process. Suffice to say that I did not consider it necessary to make factual findings about the first matters and, as already noted, I saw no evidence of any such conspiracy or collusion between Alison and Robert.

Consideration and determination

280. David claims that adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will in all the circumstances and seeks provision in the amount of $240,000.

281. He submits that the evidence demonstrates he has needs arising from his mental illnesses and physical disabilities that were unknown to the deceased at the time he made his will. He says that a wise and just testator in the same position as the Court armed with objective and accurate information about David’s position (including in respect of Robert and David’s interactions in relation to Eastelectric, his serious mental illness and relationship breakdown) would not have made the decision to disown a man who had been raised as a son for 35 years, and would make sufficient provision for a mentally and physically ill child to ensure that they had a modest level of comfort in their old age. This is in the context where David contends that he was a dutiful and good son up until 2004, when Robert and (allegedly) the deceased decided to disown him, was emotionally a full dependent on the deceased until 2005, he never asked the deceased for anything (and never took from him, unlike Robert) and there is no other person liable support him.

282. As already noted, David’s submissions refer to being ostracised and marginalised by Margaret, Alison, and Robert throughout the course of his life, Robert’s general ambivalence and sense of hostility towards David, the complete renunciation of him by his family, being saddened by the loss of the deceased and his family relationships and, as already noted, concerns regarding Margaret’s future estate.

283. At this point, it is appropriate to record that the Court is not engaged in an exercise of addressing any sense of wrong, hurt feelings, disappointed expectations or of achieving fairness or equality between beneficiaries and claimants on the deceased’s estate. The Court's role goes no further than determining whether "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in David’s life has been made by the deceased’s will and if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon at [94]- [97]; Meres v Meres [2017] NSWSC 285 at [114]; Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at [8].

284. Applying those principles, I do not accept David’s submission that his feelings regarding the loss of his family relationships are relevant to a consideration of the issues or greatly assist in explaining his reasons for not contacting the deceased “between 2004 and 2009 when he tried to reach out to the deceased and was ignored” (closing submissions in reply at [226]). I have already set out why I do not accept that David reached out to the deceased and was ignored by him.

285. Even though I have found that there are factors that warrant the making of David’s application, the fact that no provision is made in the deceased’s will for him does not automatically mean that he will have satisfied the description of being “left without adequate provision”: Cooper v Atkin [2020] NSWSC 828 at [222]. Whether there are factors that warrant the application is different from the question of whether David was, at any particular time, wholly or partly dependent upon the deceased and the further question which arises under s 59(1)(c) of the Succession Act as to whether adequate provision for David’s proper maintenance or advancement in life has not been made by the deceased’s will: Spata v Tumino at [72]; Page v Page [2017] NSWCA 141 at [38].

286. The question whether the deceased’s will made adequate provision for David’s proper maintenance or advancement in life must be considered in the context of the totality of the relationship between the deceased and David, the relationships between the deceased and Robert beneficiaries, the size of the deceased’s estate, David’s needs and the competing claim of Robert (as the only chosen beneficiary), having regard to the evidence summarised above concerning their financial and other circumstances (see [155]-[209] above).

287. I have described and made findings about the totality of David and the deceased’s the relationship, relevantly concluding that there existed a father/son relationship for some years. However, other than the condolence message sent by David, no effort was made by either of them to keep in contact and maintain their relationship after 2004. Whatever emotional attachment David had towards the deceased, it is not difficult to conclude that it was likely one-sided by the time of the deceased’s death and the deceased regarded and treated Robert as his only son. David maintains that it was Robert’s character and conduct that caused this and that Robert and the deceased disowned him. I do not accept that submission. The issues between David and Robert may have influenced the deceased’s views about David, but the evidence does not support a finding that deceased disowned David in 2005. Whatever thoughts David may have had during his periods of depression and subsequently, I am also unpersuaded that that his fear of rejection is a complete answer to why he did not reach out to the deceased, particularly as he reached out directly to Robert and maintained contact with Margaret and Alison during that period.

288. The deceased may not have known of the extent of David’s mental health and physical limitations at the time he made his will but that is the consequence of David not raising those matters with him. In the context where David did not discuss his mental health issues with the deceased and their contact was sporadic and ad hoc for some years prior, I am not persuaded by David’s submission that he was emotionally a full paternal dependent on the deceased until 2005.

289. David was financially independent of the deceased for many years before his death. The deceased did not provide David with any financial support or provision after 1982, a factor which, to my mind, tends against a finding of continuing dependence on the deceased and the recognition of a corresponding obligation or responsibility by the deceased towards David.

290. On the issue of David’s needs, there is force to Robert’s submission that David has set up streams of income, has demonstrated business experience in different fields and there is some evidence that David might have the capacity to expand into building management consultancy (Ex 97 and T185.16-T186.33). However, at 61 years of age and with health issues, it is to be expected that David’s capacity to earn significant income over a lengthy period of years and change the nature of his employment is somewhat limited.

291. While I accept Robert’s submission that the deceased’s conduct cannot be attributed to the development of his mental illness, the fact is that David will need funds to pay for his going treatment. Overall, the evidence outlined at [187] to [194], satisfies me that David has established some financial needs to meet demands that he is likely to face in his advancing years. In comparison, Robert is in a better financial position than David, although I do not accept David’s submissions that Robert is substantially better off. His net asset position and monthly income may be greater than David’s, but Robert supports a wife and two young children, his expenses exceed his monthly income, and he also lives in rental accommodation. While I have approached Robert’s estimate of $2 million for housing with caution, I am satisfied that he has a legitimate competing need for funds in relation to accommodation, health and education related costs. The fact that Robert has received the deceased’s superannuation death benefits does not entirely diminish his needs for other funds, nor does the fact that he has received provision from the deceased over the years.

292. There is no documentary evidence that the deceased recognised he had a moral duty to provide for David or considered him as a potential claimant and decided to exclude him from his estate. However, his testamentary wishes, as expressed by the terms of his will, are consistent with statements he made regarding his intentions throughout his life and his attitude that Robert was his only son.

293. In my view, a key matter is the size of the deceased’s estate, which is relatively modest, particularly when regard is had to the legal costs incurred by the parties. Any provision, if ordered, will be at the expense of Robert who, in my view, has a strong competing claim as the only biological child of the deceased and natural object of the deceased’s testamentary bounty.

294. When considering how the deceased would make his decision regarding his relatively moderate sized estate, he was faced with a recognised moral obligation to provide for Robert (and by extension Robert’s family) who has financial needs and had a continuing and mutually loving and supportive relationship with the deceased throughout his life, as reflected by the financial assistance given to Robert by the deceased over the years and the support and companionship Robert provided to the deceased, including assisting the deceased’s move up to the Central Coast. This has to be balanced against David’s claim, a stepson who took on the deceased’s name and was treated as a son by the deceased in the absence of his biological father, has mental health issues and financial needs but had no contact with the deceased during the last 15 years of the deceased’s life, sporadic and ad hoc contact for some years prior to that, was financially independent from the deceased for his whole adult life, has made no contributions to the deceased’s welfare or to his estate (financially or non-financially) and whose mother divorced the deceased over 35 years ago.

280. I accept that a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed and that, where an adult child falls on hard times and there are assets in the estate available, then the community may expect parents to provide a buffer against contingencies or something to assist in retirement where otherwise they would be left destitute: Armitage v Fraser [2020] NSWSC 979 at [151]. But where parental ties, affection and support arise from a “step” relationship and the marriage from which that relationship derives has ceased prior to a testator’s death, to my mind, there may be no expectation that the adult stepchild would be a natural recipient for provision. As has been observed, in the context where the marriage has not ceased, there can be no guarantee that a “surviving spouse will feel the same obligation to step-children that a parent could be expected to have”: Harris v Harris [2018] NSWCA 334 at [34] per Simpson AJA.

281. Notwithstanding the history of the relationship between the deceased and David and David’s needs, making an evaluative judgement based on all the circumstances assessed at the date of the hearing, in my view, it was open for the deceased, acting as a wise and just testator, to provide for Robert to the exclusion of David.

282. I accept that there may be a range of views on what community standards and expectations would require in this case, particularly given the matters to which I have referred to at [254] to [257], and David’s needs. In my view, these factors, while significant, do not justify a conclusion that inadequate provision has been made for David’s proper maintenance and advancement in life, in the circumstances of Robert’s strong competing claim. The nature of the past paternal relationship between David and the deceased and David’s needs are not dispositive.

283. Providing David with $240,000 plus his legal costs on an ordinary basis, would leave Robert with approximately $33,332.04 from the deceased’s estate after the payment of his legal costs on the usual executor indemnity basis. That amount is not what I consider to be an appropriate outcome having regard to all the circumstances of this case, even taking into account that Robert has received the deceased’s superannuation death benefits as his son and “dependant”.

284. It follows that, I am not satisfied that, having regard to all the facts known as at the date of hearing the application, adequate provision for David’s proper maintenance and advancement in life has not been made by the deceased’s will and I decline to make an order for his provision out of the deceased’s estate.

285. Had I been persuaded that adequate provision had not been made by the deceased for the proper maintenance and advancement in life of David, I would have ordered the provision of a smaller legacy that he sought, in an amount of approximately $50,000, to provide for his advancement as a fund for exigencies in life. I would also have capped the recovery of his legal costs to ensure that Robert was left with a sufficient fund.

Costs and orders

301. As to costs, I see no reason why costs should not follow the event and propose to make an order that David pay Robert’s costs on an ordinary basis. At the hearing, it became apparent that offers had been made. Accordingly, I have deferred the entry of that order so that if either party wishes to seek a special costs order, they can apply to do so within 14 days.

302. For these reasons, the Court makes the following orders:

1. Dismiss the plaintiff's summons claiming provision out of the deceased’s estate pursuant to s 59 of the Succession Act 2006(NSW).

2. Unless a party makes an application for a different costs order within 14 days, the plaintiff to pay the defendant’s costs of the proceedings on an ordinary basis as agreed or assessed.

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Endnotes

Amendments

17 October 2022 - 17/10/2022 - Armitage v Fraser [2020] NSWSC 979 added to coversheet

17/10/2022 - "David and Donna left" changed to "Robert and Donna left" in paragraph [52]

17/10/2022 - "to him he relating" changed to "to him relating" in paragraph [183]

17/10/2022 - "and are likely" changed to "and they are likely" in paragraph [205]

17 October 2022 - 17/10/2022 - "Family Provisions Act" changed to "Family Provision Act" in paragraph [32] and coversheet

Decision last updated: 17 October 2022