Burke v Burke

[2015] NSWCA 195

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Burke v Burke [2015] NSWCA 195
Hearing dates:	18 June 2015
Date of orders:	13 July 2015
Decision date:	13 July 2015
Before:	Meagher JA at [1]; Ward JA at [2]; Emmett JA at [112]
Decision:	1.   Leave granted to extend the time for the filing of the appellant’s notice of appeal to 16 October 2014. 2.   Appeal dismissed with costs.
Catchwords:	SUCCESSION – family provision – application for provision by estranged son – challenge to factual findings as to cause of estrangement and as to whether son attempted reconciliation – whether, absent callousness or hostility, estrangement is a determinative factor in case of significant financial need –whether reasonable members of the community would have expected deceased to have made provision for estranged son
Legislation Cited:	Family Provision Act 1982 (NSW), s 7 Succession Act 2006 (NSW), ss 59, 60 Supreme Court Act 1970 (NSW), s 101(1)(a)
Cases Cited:	Andrew v Andrew [2012] NSWCA 308 Bladwell v Davis [2004] NSWCA 170 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Browne v Dunn (1893) 6 R 67 (HL) Chapple v Wilcox [2014] NSWCA 392 Durham v Durham [2011] NSWCA 62 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Hampson v Hampson [2010] NSWCA 359 Hastings v Hastings [2010] NSWCA 197 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2; (1978 – 79) 143 CLR 134 Keep v Bourke [2012] NSWCA 64 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Poletti v Jones [2015]NSWCA 107 Quinn v Bryant [2011] NSWSC 1153 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron [2014] NSWSC 1055 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Texts Cited:	Justinian, Novellae Constitutiones, Novel CXV, Ch 3
Category:	Principal judgment
Parties:	Terence John Burke (Appellant) Alan Michael Burke (Respondent)
Representation:	Counsel: RD Wilson SC (Appellant) L Ellison SC with A Isaacs (Respondent)   Solicitors: Armstrong Legal (Appellant) Swaab Attorneys (Respondent)
File Number(s):	CA 2014/00253335
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity, Family Provision List Citation: [2014] NSWSC 1015 Date of Decision: 25 July 2015 Before: Rein J File Number(s): 2013/184983

HEADNOTE

[This Headnote is not to be read as part of the judgment]

On 30 June 2012, Mrs Beryl Burke died aged 93. She was survived by her three adult children: the appellant (Terry), the respondent (Alan, who was the executor of her will) and Diana. By her will dated 23 June 2003, the deceased left a legacy of $100,000 to her grandson, Stephen (the sole surviving son from Terry’s first marriage) and the residuary of her estate to be divided equally between Alan and Diana. She made no provision for Terry with whom she had had no contact for about 20 years before her death. By a letter dated 5 August 2010, the deceased explained that she had made no provision for Terry to reflect that he, through his own choosing, was no longer a part of her life, having become totally estranged from the entire family, and that such estrangement had caused the family a great deal of pain and upset.

In June 2013, Terry commenced proceedings in the Supreme Court seeking a family provision order out of the deceased’s estate. It was not disputed that Terry was in financial need. He had been made bankrupt on 28 July 2010 and received an automatic discharge from bankruptcy on 26 August 2013.

The primary judge found that the deceased was entitled to regard Terry as a person undeserving of any benefit from her estate whatever his financial circumstances and dismissed Terry’s application with costs.

On appeal, Terry contended that the primary judge had wrongly attributed little significance to an incident at Ashfield bowling club (the “Club incident”) which Terry maintained was the material cause of the estrangement; that the estrangement was due to a misunderstanding to which each had contributed; that he had attempted a reconciliation in 2009/2010; and that in those circumstances, having regard to the size of the estate and his financial need, in the absence of callousness or hostility on his part, the deceased was under a duty to make provision for him. Terry also contended that the primary judge’s finding that no provision ought to have been made for him did not reflect current community attitudes and values and constituted appellable error.

Held dismissing the appeal (Ward JA; Meagher and Emmett JJA agreeing):

1. the primary judge’s assessment of the significance to be attributed to the Club incident as one forming part of a pattern of conduct was not shown to be in error: [61]

2. the primary judge’s conclusion that telephone calls made by Terry to the deceased’s nursing home did not bespeak an attempt at reconciliation and that Terry’s contact was motivated by a desire to ascertain if he was going to receive any inheritance was not contradicted by the evidence: [78]

3. there is no rule or principle that in cases of significant need there is an obligation to make provision for an adult child, irrespective of any estrangement, except in circumstances of hostility or callousness: [94]

Andrew v Andrew [2012] NSWCA 308 applied.

Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361; Ford v Simes [2009] NSWCA 351 considered.

4. estrangement will not be a determinative factor against (nor, is estrangement in the absence of callousness or hostility a determinative factor in favour of) the making of provision for an adult child: [103]. It is a factor to be taken into account: [93], [95], [103]

Keep v Bourke [2012] NSWCA 64; Underwood v Gaudron [2014] NSWSC 1055 referred to.

5. the primary judge’s assessment of the position in all of the circumstances was not so out of kilter with community values and expectations as to bespeak error: [105], [107]

Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; Hastings v Hastings [2010] NSWCA 197; Taylor v Farrugia [2009] NSWSC 801 referred to.

6. (obiter per Emmett JA) s 60(2) of the Succession Act lays down criteria in vary broad terms: [124]. It might have been preferable for the legislature to be more specific: [125].

Justinian, Novellae Constitutiones, Novel CXV, Ch 3 referred to.

Judgment

1. MEAGHER JA: I agree with Ward JA.

2. WARD JA: This is an appeal brought under s 101(1)(a) of the Supreme Court Act 1970 (NSW) from the dismissal of a claim made by the appellant (Terence John Burke) pursuant to s 59 of the Succession Act 2006 (NSW) for a family provision order out of the estate of his late mother, Beryl Veronica Burke.

Background

3. Mrs Burke died on 30 June 2012, aged 93. Mrs Burke’s husband, Herbert, had predeceased her on 2 April 1990. She was survived by their three adult children: Terence, Alan Michael Burke (the respondent, who was the executor of her will) and Diana Mary Royds, all of whom were in their 60’s by the time of the proceedings. Without intending any disrespect, I will refer to the three adult children of the deceased as Terry, Alan and Diana, respectively.

4. By her will dated 23 June 2003, the deceased left a legacy of $100,000 to her grandson, Stephen Patrick Burke (the sole surviving son from Terry’s first marriage, Terry’s other son having predeceased his grandmother). Her residuary estate was divided equally between Alan and Diana. She made no provision in the will for Terry with whom she had had no contact for about 20 years before her death.

5. The reason for the fact that she had made no provision for Terry in her will (and her concern at any interference with her testamentary intentions) was explained by the deceased in a letter dated 5 August 2010, addressed “to whom it may concern”, the text of which was set out in the primary judge’s reasons (at [11]). In that letter, the deceased wrote that, shortly after her husband passed away in 1990, Terry (who had been residing at her house in Leichhardt after having moved to Sydney from rural NSW following his divorce from his first wife – Stephen’s mother) had announced his intention to remarry. She wrote that from that time on there was very little contact between Terry and the rest of his family and that, in time Terry became “totally estranged from us all without any explanation”. She wrote that “[i]n the years since it has become quite clear that Terry does not wish to have any contact with his family”. The letter stated:

This estrangement has caused a great deal of pain and upset to the entire family and given the length of time since our last contact I decide to divide my estate to reflect the fact that Terry (through his own choosing) is no longer connected with my life. Because I have not left anything to Terry, I wanted to bequeath a portion of my estate to his son Stephen Burke and the remainder to my son and daughter who have been a constant source of love and support.

6. On 28 August 2012, probate of the will was granted to Alan as the named executor. By the time of the proceedings the estate had a net value of approximately $1.25 million, after payment of legal costs and the legacy to Stephen.

7. By summons filed in June 2013, Terry commenced his proceedings seeking a family provision order. Initially, he sought an amount of $400,000 out of the estate but by the time of the hearing what he sought was an amount of $300,000. The hearing took place on 21 July 2014. There was evidence as to the relevant personal circumstances of each of Terry, Alan and Diana. It is not necessary to summarise those here. It was not disputed that Terry (as also was his wife, who suffers medical problems) was in financial need following the failure of a bed-and-breakfast business they had conducted in Queensland. Terry was made bankrupt on 28 July 2010. He received an automatic discharge from bankruptcy on 26 August 2013.

8. The primary judge dismissed the summons with costs. Terry appeals from that decision and seeks an order for provision in the sum of $300,000 (which would be approximately ¾ of the residuary shares that each of Alan and Diana would then receive if such an order were to be made). There was apparently no suggestion that part or all of any provision that might be made for Terry as a result of this application should be made out of the legacy left to Stephen (which the deceased had indicated was being made because she had not left anything to his father, Terry).

Extension of time

9. As the notice of appeal was filed out of time, Terry requires an extension of time for the filing of the notice of appeal. The explanation for his delay in filing the notice of appeal was that a mistake had been made as to the material date of the judgment at first instance, as a result of which the notice of intention to appeal that had been filed on his behalf was of no effect and his subsequent notice of appeal was therefore out of time.

10. Alan neither consented nor objected to the extension of time that was sought. It was acknowledged that there was no prejudice suffered as a result of the lateness of filing of the notice of appeal. In those circumstances, leave should be granted to extend the time for the filing of the notice of appeal to 16 October 2014.

Additional evidence

11. At the outset of the hearing of the appeal an application was made by Terry to adduce additional evidence, namely an affidavit sworn by him on 10 June 2014, deposing to his wife’s current state of health. She suffered a stroke after the determination of the hearing at first instance. That application was opposed. It was not disputed that this was evidence of matters that had arisen after the hearing but it was submitted that there was sufficient evidence at the hearing as to Terry’s wife’s medical condition and that the evidence now sought to be relied upon did not materially alter the couple’s economic situation.

12. In the event, it is not necessary to admit this evidence. It was only sought to be relied upon if the Court were to uphold the appeal and proceed to re-exercise the discretion. For the reasons that follow, I am of the view that the appeal should be dismissed.

Appeal

13. By way of summary, Terry’s case on appeal is that: his Honour wrongly attributed little significance to the so-called “Club incident” (when Terry visited his mother at Ashfield Bowling Club and left without speaking to her), which Terry contends was the material cause of the estrangement between he and his mother; that the estrangement was due to a misunderstanding to which each had contributed and therefore one for which he was not solely responsible; that he had attempted a reconciliation with his mother in around 2009/2010; and that in those circumstances, having regard to the size of the estate and the relatively comfortable position of his siblings, absent callousness or hostility on his part the deceased was under a duty to make provision for him and there should have been both a finding that inadequate provision had been made for him in the will and an order for provision for him out of the estate.

14. It is submitted by Terry that, irrespective of the outcome of the challenge to his Honour’s factual findings as to the estrangement and reconciliation issues, the finding by his Honour that no provision ought to have been made for Terry does not reflect current community attitudes and values. This is said to amount to an error warranting appellate intervention in the sense explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-504.

15. Senior Counsel for Terry approached his written and oral submissions by dealing first with particular factual findings and the weight to be attributed thereto (grounds 4(a); then 4(b) and 5) before considering the principles applicable under s 60(2) of the Succession Act (ground 3); Terry’s needs and the lack of competing interests (ground 6); and the ultimate findings (grounds 1 and 2). I will approach the consideration of the grounds of appeal in the same order. First, however, I note the relevant statutory provisions.

Relevant statutory provisions

16. The Succession Act provides, relevantly, as follows:

59   (1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

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

…

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

…

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

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

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

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

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

…

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

…

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

…

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

17. Prior to the operation of the Succession Act, the correct approach to an application for a family provision order under the corresponding provisions in the Family Provision Act1982 (NSW), as made clear by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and confirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, was for there to be a two stage enquiry. First, as to whether the provision (if any) made for the applicant was inadequate for his or her proper maintenance, education and advancement in life. Second, which arose only if the determination of the first was in favour of the applicant, as to what provision ought to be made out of the deceased’s estate for the applicant. The first stage of the enquiry has been described as the “jurisdictional question”. Though not strictly speaking a discretionary decision, it is a decision based on an evaluative assessment of the relevant matters (Foley v Ellis [2008] NSWCA 288 at [3]; Andrew v Andrew [2012] NSWCA 308).

18. It was recognised in Singer v Berghouse (at p 210) that the determination of the second stage of the enquiry, should it arise, involved similar considerations to that under the first. The plurality (Mason CJ, Deane and McHugh JJ) there said:

Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

19. Since the Succession Act came into operation in 2006, there have been differing views in this Court as to whether the two stage Singer v Berghouse approach remains the correct approach.

20. In Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that under the Succession Act the two stage approach continued to operate. However, the issue was not there the subject of argument before the Court; the case being there run on the assumption that there was still a two stage enquiry to be made.

21. In Andrew, the question was the subject of argument and there were differing views in this Court as to how it was to be answered. Basten JA considered (at [27]) that the intention of a two stage process was no longer apparent in the structure of either s 59 or s 60 of the Succession Act (though his Honour subsequently made clear in Poletti v Jones [2015] NSWCA 107 at [19] that, by this, he meant only that the legislation no longer dictated such an approach, not that there might not be circumstances in which the approach was the preferable way to proceed). Barrett JA, dissenting in the result in Andrew, was of the opinion that the approach taken under s 7 of the superseded Family Provision Act remained relevant and applicable; and should be followed (at [94]). Allsop P, as his Honour then was, described the issue as “an analytical question of little consequence” (at [6]).

22. In the present case, the primary judge likewise did not consider that the issue was of any real significance. Having noted (at [29]) the varying views expressed by the Court in Andrew, his Honour approached the matter on the basis that he must address the following four questions ([43]):

(1)   Is the plaintiff an eligible person?

(2)   If the answer to (1) is yes do (d), (e) or (f) apply?

(3)   As at the present time has adequate provision for the proper maintenance education or advancement in life of the plaintiff been made by the will, but viewing the situation as at the date of the hearing not the date of the will or the date of the testator’s death.

(4)   If the answer to (1) and (3) is yes ((2) is not relevant) ought the Court make a family provision order?

23. It is not necessary to come to a concluded view on whether the two stage approach should still be followed since, even if his Honour erred in formulating the approach as he did, it is clear that his Honour concluded that in the circumstances there had not been inadequate provision made for Terry in the will and that no order for such provision should be made. Therefore, whichever approach was adopted, his Honour would have reached the same conclusion. For the reasons set out below, no error has been demonstrated in the evaluative judgment his Honour reached such as would warrant appellate intervention.

Primary judgment

24. His Honour made clear that to the extent there was any factual dispute (and he did not consider there was much that was factually in dispute) he preferred the evidence of Alan and Diana to that of Terry ([18]). This was because of his concern as to Terry’s failure to disclose certain matters in his affidavit (going to his current financial position) and his perception of Terry’s unwillingness to provide meaningful information in cross-examination. His Honour considered that Terry’s overall credibility was adversely affected by those matters ([17]). Terry made no affidavit in reply to those of his siblings and his Honour noted (at [18]) that there was no attack on their credit nor any reason to doubt their honesty. There was no challenge on appeal to his Honour’s conclusions as to the credit of the respective witnesses.

25. The crucial aspect of the case, as it was run before his Honour, was what was referred to as the “estrangement issue”: in particular, whether the estrangement was one for which Terry was responsible. It was not suggested that the estrangement was one characterised by callousness or hostility on Terry’s part (although to the extent that Terry had any awareness, which does not seem to have been explored, that his mother was hurt by and did not understand the reason for the estrangement there is a sense in which it might have been thought that Terry’s behavior was at the very least uncaring of his mother’s feelings).

26. At [45], his Honour answered the four questions he had earlier posed (set out at [22] above) as follows:

The answer to (1) is yes and the answer to (2) is no. Since no provision was made for the plaintiff I shall answer question (3) “No” and deal with the first factual issue identified earlier [the estrangement issue] as arising under the fourth question.

27. No issue arises on the present appeal as to the answers his Honour gave to questions (1) and (2).

28. As to question 3, his Honour’s answer, read in context with his Honour’s reasons as a whole, must be understood simply as a statement that (as was evidently the case) there was no provision at all made for Terry in the will; not as a determination of the first stage of the Singer v Berghouse enquiry or “jurisdictional question” (nor, on the approach advocated by Basten JA in Andrew, as a concluded finding at that point in his Honour’s reasons as to the inadequacy of the lack of provision for Terry having regard to all the circumstances, including the competing needs of Terry’s siblings). That is clear from the fact that his Honour dealt with matters that could affect the assessment of the adequacy of provision in the context of considering question 4. This reading of his Honour’s reasons is consistent with the way the issue was approached by Terry in his notice of appeal (ground 2 of which would not make sense if his Honour, by answering question 3 as he did, had in fact addressed at that stage, and favourably to Terry, the issue as to inadequacy of provision for him).

29. The first factual issue that his Honour identified in relation to the fourth question posed by him was the issue of estrangement.

30. At [19], his Honour summarised Terry’s affidavit evidence relevant to the estrangement issue, including (at [19(3)]) that after his wedding in September 1990 Terry had continued to meet with the deceased approximately every four weeks at the Ashfield Bowling Club. At [20], his Honour went on to summarise Alan’s affidavit evidence on that topic, including Alan’s evidence that Terry had said, prior to his second wedding, that he was “starting a new life”; that Alan had been told by his mother she had asked Terry what the problem was and he had failed to give her an answer (at [20(2)]); and that sometime after the Club incident the deceased telephoned Alan following a telephone conversation with Terry and said “Terry doesn’t want anything to do with me. I don’t know what I have done” (at [20(4)]).

31. At [25] his Honour recorded what he considered to be important concessions made by Terry in cross-examination. First, Terry’s acceptance that after the Club incident he had decided to lead his life without any involvement of his family; that as far as Terry was concerned, his family was living their lives without any involvement from him; and that, basically, over the last 20 years of his life his wife Anne was his only family. Second, Terry’s (implicit) acceptance that he had turned his back on his family and wanted nothing to do with them, Terry saying that “I dealt with only one part of the family and that was Stephen”. Third, that Terry never visited, wrote to or called his mother from 1991 (which his Honour accepted was the year in which the Club incident had occurred) until her death.

32. At [46], his Honour made various factual findings relevant to the estrangement issue, including the finding (on which Terry places emphasis and to which I refer in due course) (at [46(a)]) that until 1991 Terry had a “normal loving relationship” with his mother. His Honour then identified (at [47]) those factors that he considered were of assistance to Terry’s case, as well as those which were detrimental to his case and those which were of no assistance.

33. As to the Club incident, his Honour did not accept Terry’s contention that what had been said by Terry (presumably referring to his pre-wedding statement of his desire to start a “new life”) was misinterpreted by the family; nor did his Honour accept, as a cause of the rift, that the deceased or the family had shunned Terry ([51]). His Honour went on to say (at [52]):

I agree that [Terry] may have wrongly inferred that his mother was snubbing him at the Club but it appears that that incident was only a part of the problem which included a declared intention of the plaintiff to lead a separate life without his blood relatives (and not just his mother). He already decided not to invite the deceased to his wedding and had what he describes as a difficult conversation with his mother when he rang from Greece and there was already a withdrawal on his part at the wake [for his father] and the Christmas dinner [at Diana’s in 1990]. In my view the plaintiff’s expressed desire to live a life without the deceased of [sic] his family members, and his acceptance of the proposition that he shunned the family including his mother, coupled with his complete lack of contact with her and his siblings makes the Club incident of far less significance than it might have been.

34. His Honour did not accept that any criticism could be leveled at the deceased for “holding back” or not initiating contact with Terry, stating that there was evidence that she had sought to ascertain the cause of the apparent ill feeling or dissatisfaction with her and that Terry would not reveal to her, or to Alan, the cause ([53]). This appears to be a reference to the evidence from Alan as to conversations with the deceased (see [20(2)] and [20(4)] of his Honour’s reasons) though perhaps also to Diana’s affidavit evidence as to comments her mother had made to her to the effect that she did not know the reason for Terry’s lack of communication with them (see [16], [20], [21] of her affidavit). His Honour referred to the significance attributed by the deceased to the fact that Terry had not attended his elder son’s funeral, and to the fact that Terry had had no contact even with Diana (with whom on any view of the matter he had no basis for grievance), as matters likely to have reinforced the deceased’s view that Terry had decided to cut himself off from all his relatives for reasons that involved no conduct calling for criticism on their part ([53]).

35. The second factual issue addressed in relation to the fourth question was the suggestion, made through cross-examination by Terry’s Counsel, that Alan was to be blamed in some way for having “warned [Terry] off” from contacting the nursing home (and hence from attempting to effect a reconciliation with his mother). This related to events in 2009/2010, by which time Terry was in financial difficulty.

36. His Honour noted that Alan’s view, shared by Diana, was that Terry’s contact (with the nursing home in 2009/2010) was distressing to their mother and referred to their perception that Terry’s only concern was that he was facing bankruptcy and wanted to find out if his mother was still alive because he anticipated some benefit under the will. His Honour said:

I think that [Alan] and Diana were entitled to take the view that they did and I infer that the deceased was of the same view and upset that the only time her son enquired of her well being (without actually seeking to speak to her) was when he was in financial difficulty. I do not accept Mr Wilson’s contention that the evidence supports the conclusion that the plaintiff attempted a reconciliation with the deceased (or any member of the family except his son Stephen). (my emphasis)

37. His Honour considered that the evidence demonstrated that the deceased’s view that Terry had decided he wanted nothing to do with her or the rest of the family was made out and that no rational cause had been identified other than a desire by Terry to create a new life without his family as part of it ([56]).

38. At [57], his Honour concluded that:

In my view, the deceased was entitled, notwithstanding the fact that the plaintiff was her son, to regard him as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of his application. Having regard to the approach required by Court of Appeal authorities referred to in [36] above, I do not think that members of the community would regard such a view by the deceased as not right or as inappropriate even were the deceased to be aware that her son had fallen on hard times following the failure of his business. Accordingly, notwithstanding the poor financial circumstances and taking all matters favourable to him into account including the size of the estate I think no provision ought to be made out of the estate for him.

Determination

39. The task of an appellate court on an appeal of this kind, whether or not there is still to be a two stage enquiry, requires the application of the principles applicable to appeals from discretionary judgments. This was made clear in Andrew (see Basten JA at [42]; Barrett JA at [99]-[102]). There, Basten JA pointed out (at [45]) that the occasion for interference by an appellate court with an evaluative judgment by a trial judge may be “relatively limited” and cautioned against ‘over-eagerness’ of an appellate court to identify statements in the reasoning of the trial judge as formulating propositions of principle at some level of generality sufficient to indicate an erroneous approach.

40. What is therefore required is that Terry establish error in the sense explained in House v The King (see Hampson v Hampson [2010] NSWCA 359 per Campbell JA at [73]-[74], cited in Andrew by Barrett JA with approval at [99] and [102]; Durham v Durham [2011] NSWCA 62 per Campbell JA at [82]); i.e., an error of principle, a material error of fact; a failure to take into account some material consideration, or the converse; or that the result is unreasonable or plainly unjust so as to bespeak error of such a kind.

41. With that in mind I turn to the grounds of appeal in the order indicated earlier.

Ground 4(a) – the Club incident

4.   The learned primary judge failed to give adequate or any weight to the fact that:

(a)   the estrangement between the deceased and the appellant originated from a misunderstanding between them in that the appellant may have wrongly inferred that the deceased was snubbing him at the club in 1993 (the club incident) (J52) and that after the club incident the appellant said to the deceased “[w]hat did I do to displease you?” to which the deceased refused to respond (J19(5));

42. As adverted to earlier, the Club incident was an occasion when Terry visited his mother at the Ashfield Bowling Club (as he said he had done every four weeks or so after his second wedding) and he left without speaking to her. He said that the deceased had ignored him and had turned her back on him. He apparently considered that she had thereby snubbed him. (His siblings’ evidence as to what had occurred on occasions when they had visited their mother at the Club suggests that Terry may have misconstrued what had occurred on this occasion or had perhaps been overly sensitive.)

43. In his affidavit, Terry deposed that afterwards he received a call from Alan who had insisted that he apologise to his mother and that his (Terry’s) response was to ask what he had done to necessitate an apology. (There is no suggestion that Terry ever did apologise to his mother. Although he gave some evidence, to which I refer below, that he had sought to ascertain from his mother what he had done to displease her, that is inconsistent with the position taken by him on appeal that the Club incident was the last occasion on which he saw or spoke to her.)

44. Relevantly, there were two factual issues in respect of the Club incident: first, whether it had taken place in 1991 (as Diana believed) or 1993 (as Terry’s affidavit had placed it) and, second, whether it was the last time that Terry spoke with his mother or whether there had been a subsequent telephone conversation between them.

45. The significance of the first issue is limited at best. Terry maintains that the incident must have taken place after March 1991 (since Diana recounted an occasion in March 1991 when she and Terry were both at the club but on no account of events was Diana present when the Club incident took place). Even accepting that this is the case, there is no reason not to accept Diana’s estimate that the incident took place sometime in 1991. Terry accepted in cross-examination that the incident was closer to his second wedding in September 1990 than to 1993. If the incident in fact took place later in 1991 this means at most that there would have been perhaps some nine or so more occasions during 1991 when Terry’s monthly visits to the Club may have taken place. Nothing turns on there being potentially a few more monthly visits in 1991 and therefore nothing turns on the exact date of the incident, as his Honour concluded.

46. As to the second issue (i.e., whether there was a telephone conversation between Terry and his mother after the Club incident) Terry’s evidence was contradictory. In his affidavit, Terry deposed that after the Club incident contact with his mother became “less regular” and was only initiated by him, and he said that he had asked her “what did I do to displease you” to which he said she refused to respond. In cross-examination, he said that the Club incident was the last occasion on which he had seen his mother. His position on appeal (see his submissions at [18]) was that his evidence at the hearing should be taken as being that the Club incident was also the last time that he spoke to his mother. Alan, on the other hand, deposed to a conversation with his mother sometime after the Club incident in which she referred to her having had a telephone conversation with Terry and she said words to the effect recounted at [20(4)] of his Honour’s reasons.

47. While there was some confusion as to the precise nature of the challenge in this respect (see AT 10.22 cf 11.19 and the terms in which ground 4(a) is itself expressed), Terry’s Counsel confirmed in the course of argument that what is challenged is the inference drawn by his Honour (at [27]) that, after the Club incident, there was a telephone conversation between Terry and his mother in which Terry said something that caused her to form the view that Terry did not want anything to do with her, which she subsequently communicated to Alan (see AT 11.24; 11.39; 11.45-6).

48. His Honour considered such a conversation to be consistent both with what Terry had said to Alan (about his desire “for a new life”) and his subsequent actions; as well as with Terry’s failure to deny an allegation to a similar effect when it was put to him by Alan in a conversation in December 2010.

49. Terry argues that this finding is inconsistent with his acceptance in cross-examination that the last time he spoke to his mother was the time of the Club incident. He also complains that it was not put to him in cross-examination that he had said something to the effect that he did not want anything more to do with his mother in a telephone conversation with her after the Club incident.

50. As to the alleged inconsistency, what Terry accepted in cross-examination was that the last time he saw his mother was at the Club on the occasion of the Club incident. He does not appear to have been asked when was the last time that he had “spoken” to his mother or whether he spoke to her at any time after the Club incident (and, as noted earlier, in his first affidavit he had himself deposed to contact with his mother after the Club incident). As to the complaint as to lack of fairness in not having put this conversation directly to Terry in cross-examination, Terry himself appears to have chosen not to respond directly to the statement in Alan’s affidavit from which the inference of a subsequent telephone conversation was drawn (whether to deny having said anything to his mother after the Club incident or to deny having said anything to the effect of that which she had conveyed to Alan). There was no lack of fairness in Counsel not putting to Terry an inference squarely arising from material in Alan’s affidavit to which Terry had not responded.

51. The relevance of whether or not the inference (that Terry had said something to his mother in a subsequent telephone conversation that caused her to believe he wanted nothing more to do with her) was properly drawn lies in the significance to be attributed to the Club incident.

52. His Honour’s finding at [46(a)] (on which Terry places much weight in this context) must, read with what is said at [24]-[25] of his Honour’s reasons be understood as a finding that up until the Club incident (whenever it took place in 1991) Terry enjoyed a normal loving relationship with his mother. Terry accepts that the finding at [46(a)] should be read in that way (see AT 8.24; 32).

53. Terry argues that it follows, from a finding that he enjoyed a normal loving relationship with his mother up until the Club incident, that the prior incidents “fade into the distance” in terms of their significance in causing the estrangement and that the Club incident is correspondingly elevated as the cause of the estrangement. Terry further argues that, if (as he submits) there was no subsequent telephone conversation with his mother, then the deceased must have regarded the Club incident as very significant because she must have concluded from it (alone) that Terry did not want anything more to do with her. Thus, it is submitted his Honour erroneously attributed little significance to the Club incident because he erroneously concluded that there had been a subsequent conversation following that incident in which Terry had said something to his mother to the effect that he did not want anything more to do with her.

54. Terry maintains, as he did at the hearing below, that the Club incident was the pivotal incident in causing the estrangement and that it is significant that he was not the sole cause of the incident (a fundamental plank in his argument that, absent callousness or hostility, the mere fact of estrangement did not ‘entitle’ his mother to make no provision for him in her will).

55. However, as Terry’s submissions themselves implicitly acknowledge, on any view of the Club incident there had been “prior incidents” which revealed tension in the relationship. If there was no telephone conversation or other contact between the two after the Club incident, that does not necessarily lead to the conclusion that it was the Club incident alone (and not the build up of events leading to that incident) that had caused the deceased to form the view that Terry did not want anything to do with her any more.

42. His Honour’s conclusion that the Club incident occupied less significance than it might otherwise have done was because it was part of a pattern that had commenced prior to Terry’s second wedding. His Honour referred to evidence that the relationship had become strained and had started to change by then; and to events after Terry’s second wedding and before the Club incident that indicated tension in the relationship. His Honour’s conclusion as to the significance to be attributed to the Club incident is not inconsistent with the finding at [46(a)] nor is it at odds with any incontrovertible evidence.

43. His Honour said at [50] that Terry did not really explain why he had cut himself off from his family. That was a conclusion readily open on the evidence. His Honour accepted the possibility that Terry was hurt that the family were fond of his first wife, or not encouraging of his decision to marry his second wife so soon after his divorce, but his Honour considered that even if he were able to infer that either or both of those matters were the reason for the estrangement it did not lead his Honour to the conclusion that the deceased or his siblings were at fault and therefore must take some responsibility for the estrangement. No error has been shown in that conclusion.

44. His Honour’s reasons make clear that his Honour was prepared to accept that the Club incident was the product of a misunderstanding on Terry’s part (see [52]). Whether there was also a misunderstanding on the part of the deceased adds little in my opinion to the factual matrix. The evidence, including Terry’s conduct after the Club incident, supported his Honour’s conclusion that from around the time of his second wedding Terry had decided to live his own life separate from his mother and siblings. His mother expressed distress at this and, both at the time and later in her life, expressed bewilderment as to why he had done so.

45. As to the suggestion that there was some fault on the deceased’s part for the lengthy period of estrangement because she had not held out an “olive branch” (which appears to be based solely on the observation by Diana that her mother was a person inclined to avoid confrontation), that is not consistent with the evidence that the deceased had sought unsuccessfully to ascertain the cause of the rift (see Alan’s evidence as recorded at [20(2)] of his Honour’s reasons).

46. Whatever the rights or wrongs of the Club incident, by that stage the relationship was showing signs of strain. Terry had stated an intention to lead a separate life and he proceeded to do so. His determination not to be part of his family’s life was confirmed as late as July 2011 when he sent an email to his son Stephen (in July 2011) telling him that he (Stephen) was not to discuss Terry “in any way with your mother, grandmother, aunt or uncle. For now, I do not want to hear about them”.

47. His Honour’s assessment of the significance to be attributed to the Club incident as one forming part of a pattern of conduct was not shown to be in error.

48. Ground 4(a) is not made out.

Grounds 4(b), 5 – the “attempted reconciliation”

4.   The learned primary judge failed to give adequate or any weight to the fact that:

(b)   during the last three years of the deceased’s life the appellant tried to reconcile with her by making calls to the Aldergate Nursing Home to enquire about his mother’s health asking the staff to pass on his best wishes to the deceased but after a couple of these calls, he received a call from the respondent who told him to stop calling their mother because “it just upsets her”. He continued to call the home but he did not ask the staff to pass on his wishes (J19(6)(7); 49(4)).

5.   The learned primary judge committed an error of fact in finding that:

(a)   the appellant did not attempt a reconciliation with the deceased (J54);

(b)   the appellants [sic] only concern in contacting the deceased in the last three years of her life was to enquire whether he would receive any benefit in the deceased’s will (J54).

63. The evidence relied upon by Terry as amounting to an attempt at reconciliation was that he called the nursing home where his mother was then residing on a few occasions in the last three years of her life (which would encompass the period from about June 2009 to June 2012) in order to enquire after his mother’s health ([25]-[26] of his affidavit). He said that on the first couple of occasions he asked that the nursing staff pass on his best wishes to his mother. As his Honour noted (at [26]), even on Terry’s evidence when he called the nursing home he did not ask to speak with his mother.

64. The occasions on which Terry asked the staff to pass on his best wishes seem, having regard to Alan’s evidence, to have taken place prior to January 2010, since at that time Alan says he had a conversation with his brother in which he referred to Terry’s calls to the nursing home and Terry’s evidence was that after that he stopped asking the nursing home to pass on his best wishes (though he continued to enquire after his mother’s well-being).

65. Prior to that, Alan had received a telephone call from Terry (on or about 12 December 2009) in which he says Terry said “I don’t know who I am. I need to speak to mum about our family”. Alan’s response was that he did not want Terry to speak with his mother as she was having a difficult time having lost a sister and having just moved into a new nursing home. (It may be that this was how Terry first became aware that his mother was in a nursing home, though nothing turns on that.) Alan said that he raised the December 2009 conversation with his mother who said; “what does he want after all these years?”.

66. Alan suggested that Terry put his questions in writing and there was some communication between them in that regard. Terry’s correspondence did not indicate any desire for a reconciliation with his mother and Terry did not challenge Alan’s account of the December 2009 telephone call, i.e., that it related to an enquiry for information about family history (not as to his mother’s well-being).

67. Alan also said that he had raised with the deceased the fact that Terry had called the nursing home and that she replied “I don’t want to talk to him now, after all these years”, following which he rang Terry (on 25 January 2010) and informed him that their mother did not want to speak to him and that his calls were upsetting her. He says that Terry replied “I have my rights as a son and will not have my enquiries filtered through you”. (It is not clear from that reply whether Terry was referring to “rights” as a son to make enquiries through his mother as to the family history or to make enquiries as to her well-being, but nothing turns on this save to note that Terry did not suggest that the “rights” to which he was referring included a “right” to seek reconciliation with his mother.)

68. Alan further deposed that, on 5 February 2010, Terry contacted him and they had a conversation in which Terry asked about his mother’s current state of health and as to what had happened to the property and contents at Leichhardt (the family home). An enquiry as to his mother’s assets, at a time when Terry was experiencing financial difficulties (which began in about November 2008, according to a later report to his creditors), is of itself suggestive of a financial motivation for the call.

69. Further, on 2 December 2010, Alan deposed that Terry rang him and there was a conversation to the following effect:

Terry:   I need to know about my inheritance. I am now bankrupt and I am worried that my creditors will tie up my inheritance.

Alan:   Mum is not dead yet. Anyway, you are not provided for in her will. She told me she was not leaving you anything because you gave up on her and the family many years ago.

Terry:   Well that takes care of that.

70. Finally, Diana’s evidence was that on the day of the deceased’s funeral Terry rang and left a number of messages to the effect that he was bankrupt and the Public Trustee wanted to know if he was a beneficiary of any inheritance. She said that he expressed no concern or grief and offered no condolences.

71. Terry stresses the order in which evidence concerning the telephone calls he made to the nursing home occurred: namely, that he deposed to making the calls and that Alan then responded by deposing to a belief as to Terry’s motivation. That order of events is hardly surprising. As plaintiff, it was for Terry to put on his affidavit evidence first. In any event, Alan’s belief as to the motivation for the calls is not of any relevance.

72. The timing of the calls (after a lengthy period in which there had been no communication) at a time when Terry was in financial difficulty supports an inference that Terry only called the nursing home to enquire as to his mother’s health out of self-interest, not a desire for reconciliation with his mother, particularly when the calls were not followed up by any other attempt at contact with his mother (notwithstanding his apparent protestation as to his “rights” to make enquiries).

73. It is submitted by Terry that, as a matter of fairness and pursuant to the rule in Browne v Dunn (1893) 6 R 67 (HL), in order properly to determine whether or not he had attempted a reconciliation in 2010 he should have been asked directly in cross-examination about his calls to the nursing home. Reliance is placed on what was said by Sackar J in Quinn v Bryant [2011] NSWSC 1153 (at [14]-[16]) as to fairness dictating that a party (there, the defendant) be directly and fairly confronted with an allegation of the kind there made (of misappropriation) so as to be given an opportunity to deal with it.

74. Apart from the fact that an allegation of misappropriation (there raised independently of an equitable estoppel claim by the defendant) is hardly analogous to the facts of the present case, Terry himself had not suggested that he had sought a reconciliation. It was raised by way of submission only. If, as is now contended, Terry’s motivation for contacting his mother (or, more precisely, her nursing home) was fundamental to the issue as to what significance was to be placed on the estrangement issue, it lay squarely within Terry’s ability to give evidence of that motivation. He chose not to respond to his siblings’ affidavits in which their perception that he was only interested in contacting his mother for his own financial reasons was clearly raised. The first reference to the suggestion of an attempted reconciliation appears to have been in the submissions made at the hearing as summarised at [49(4)] of his Honour’s reasons.

75. Terry not only gave no evidence as to his motivation, his actions belied the motivation it was ultimately submitted that he had for making the calls – he did not write to his mother asking for a reconciliation or expressing hope for a reconciliation, nor did he ask to speak to her on the telephone when he called the home; nor did he apparently make any effort to visit her at the nursing home. There was no denial of procedural fairness in the respondent not cross-examining Terry on a matter that Terry did not himself put in issue in his evidence in chief or in reply.

76. Terry submits that Alan’s evidence shows that the deceased understood that Terry was wanting to talk to her and that when she wrote her “to whom it may concern” letter on 5 August 2010 she had failed to record that he had attempted to contact her at the nursing home earlier in the year. It is not suggested, however, that reliance could not be placed on that letter as a matter to take into account with all the other circumstances.

77. Finally, it is submitted that, but for the intervention of Alan in discouraging Terry from speaking to the deceased, there was a prospect of some form of reconciliation or contact between them. That is pure speculation. Moreover, it is inconsistent with the response Alan says Terry gave, which was to assert his “rights” as a son.

78. His Honour’s conclusion that the telephone calls to the nursing home did not bespeak an attempt at reconciliation, and that Terry’s contact was motivated by a desire to ascertain if he was going to receive any inheritance (and/or because of concern that his creditors might ‘tie up’ his inheritance), was not shown to be contradicted by the evidence.

79. These grounds are not made out.

Ground 3 – application of principles re import of estrangement

3.   The learned primary judge erred in failing to apply the following principles in his consideration of the application by the appellant:

(a)   the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirements under the Act (see: Palmer v Dolman: Dolman v Palmer [2005] NSWCA 361 at paras 110, 112 per Ipp JA);

(b)   a state of estrangement or even hostility between a testator and a claimant does not terminate the obligation of the testator to provide for the claimant (see: Foley v Ellis [2008] NSWCA 288 at para 101 per Basten JA).

80. The third ground of appeal is described as a free-standing point in the sense that it does not depend on success on the grounds considered above.

81. On the import of the issue of estrangement, his Honour considered various authorities, including the decision in Andrew which Terry’s Counsel contended had altered the law in this kind of case.

82. His Honour considered that the majority in Andrew were to be taken as rejecting the notion that the Court should start, on applications of this kind, with the principle that a testator is free to provide nothing for an adult child ([41]) but did not accept the submission that Andrew stood for the proposition that all that is required, for an adult child to have a provision made in his or her favour, is to prove the relationship and the fact of the need for financial assistance (at [42]).

83. His Honour considered, correctly in my opinion, that such a proposition (for which Terry still contends on this appeal) was inconsistent with Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361. His Honour also pointed to what was said in Vigolo v Bostin (at [13]-[25] and [113]-[121]) in this regard.

84. What has been made clear in various decisions of this Court (in particular, see Andrew and Chapple v Wilcox [2014] NSWCA 392) is that statements of general principles (such as those set out by Hallen AsJ, as his Honour then was, in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] in relation to claims by grandchildren) may give assistance and provide guidance but are not to be elevated to rules of law. Basten JA emphasised in Chapple v Wilcox (at [19]) that:

… the real provenance of the “principles” [there referring to those set out in Bowditch] is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance.

85. Similarly, Barrett JA (at [67] in Chapple) referred to the Bowditch guidelines as providing “a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply “the feeling and judgment of fair and reasonable members of the community” in cases of [that] kind”.

86. The approach contended for by Terry goes beyond this.

87. His Honour had regard to what was said in Ford v Simes [2009] NSWCA 351 (at [70]-[72]), and to what was said by Allsop P in Andrew (at [18]-[19]); as well as to the caution with which judicial interference with the freedom of testation should be made.

88. His Honour did not err in rejecting the submission that it would only be the most egregious conduct of a child of the deceased that would deprive even an adult child of a right to have his or her needs taken into account by Court and to have an appropriate decision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. True it is that in Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 it was said that the stronger the applicant’s case for relief the more reprehensible must have been his conduct in order to disentitle him to the benefit of any provision. However, the authorities do not, in my opinion, stand for the proposition that in all cases where estrangement is not the product of callousness or hostility there is a prima facie entitlement to provision.

89. In Palmer v Dolman (at [110]), Tobias JA was of the opinion that “the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the [now superseded Family Provision] Act. Nevertheless, it does not follow from that that there is a prima facie entitlement to provision in circumstances where there is financial need on the part of an estranged adult child.

90. In Ford v Simes, Bergin CJ in Eq said (at [71]-[72]):

It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility. (my emphasis)

It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.

91. The words italicised above do not support Terry’s contention that, almost as of right, provision should be made in the absence of hostility or callousness. Her Honour was there contemplating that estrangement was a factor that would appropriately be taken into account; that it would not necessarily preclude the establishment of a claim for provision; and that circumstances of hostility or callousness were ones in which it might be particularly appropriate for a testator to choose not to make provision for an estranged adult child. But her Honour did not suggest that callousness and hostility are the only circumstances in which the community might reasonably consider it not inappropriate for there to be no provision made for an estranged adult child even though that child was in straitened financial circumstances.

92. In Keep v Bourke, Barrett JA (at [37]) made clear that estrangement did not enjoy the status of a determinative consideration. There, the testator was the instigator of the separation. The fact that the daughter (who had married against her parents’ wishes) did not attempt reconciliation was treated by the primary judge as not barring a claim for provision though it reduced her claim on the testator’s bounty. Barrett JA considered that his Honour’s decision should be upheld, on the basis that his Honour had addressed all relevant matters going to jurisdiction and an assessment was made by way of appropriate “multi-faceted evaluative judgment” taking those matters into account.

93. What these observations demonstrate is that it is for the primary judge to evaluate all the relevant circumstances, including, where there has been a period of estrangement, the circumstances of that estrangement and whether there has been any attempt at reconciliation; and that there may be no one right answer: reasonable minds may differ.

91. In Andrew, the error on the part of the primary judge was the elevation, to the status of a rule, the principle expounded in Ford v Simes as to freedom of testation. The nub of Terry’s submissions on the appeal invites the Court here to fall into the same kind of error. The proposition contended for by Terry, in effect, is that in cases of significant need there is an obligation to make provision for an adult son, irrespective of any estrangement except in cases of hostility or callousness. That, in my opinion, wrongly seeks to elevate statements made in particular cases (to the effect that ordinarily estrangement will not preclude an application for provision succeeding on the facts of the particular case) to some form of overriding rule or principle.

92. The fact of estrangement (occurring after the Club incident, which formed part of a pattern whereby Terry indicated his desire to lead a separate life from that of his blood relatives) was a matter to be taken into account (as his Honour both appreciated and did) but it was not necessarily determinative (see Underwood v Gaudron [2014] NSWSC 1055 at [230], [231]).

93. I am not persuaded that an error in the House v The King sense has been demonstrated in the consideration and application by his Honour of the principles under s 60(2) of the Succession Act. Ground 3 is not made out.

Ground 6 – consideration of Terry’s needs and lack of competition

6.   The learned primary judge erred in failing to give adequate or any weight to the fact that:

(a)   the appellant was in a position of significant need;

(b)   given the size of the estate and the relatively comfortable financial circumstances of the respondent and the appellant’s sister Diane [sic] Royds, there was little competition to the appellant’s claim (J48).

97. Ground 6 does little more than expand upon ground 3. His Honour accepted that there was significant financial need on Terry’s part and noted the evidence pointing to the disparity between the siblings’ respective positions. The Court was not taken to matters that suggested his Honour had failed to consider those matters as part of the evaluative judgment his Honour was required to perform. I am not persuaded that his discretion miscarried in this regard.

98. Ground 6 is not made out.

Grounds 1 – 2 ultimate findings

1.   The learned primary judge erred in finding (J57) that:

(a)   the late Beryl Veronica Burke (the deceased) was entitled to regard the appellant as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of the application;

(b)   members of the community would regard this view by the deceased (in ground 1(a)) as not right or inappropriate even were the deceased to be aware her son had fallen on hard times following the failure of his business;

(c)   notwithstanding the appellant’s poor financial circumstances and the size of the estate, no provision ought to be made out of the estate for him.

2. The learned primary judge erred in failing to find pursuant to s 59(1)(c) of the Succession Act 2006 that adequate provision for the proper maintenance and advancement in the life of the appellant was not made by the will of the deceased.

99. These grounds challenge the ultimate findings and, so far as they raise issues as to the correct apprehension of the relevant principles, they have been dealt with in the consideration of ground 3.

100. The failure correctly to determine community values, which is raised by these grounds, was identified by Terry as the House v The King error that is necessary before appellate intervention is warranted (see AT 44.46). In effect what is said is that his Honour’s decision was so unreasonable or unjust that it bespeaks error even if specific error cannot be found.

101. The difficulty in ascertaining what community values may be, for the purpose of forming the evaluative judgment required under the Succession Act has been noted by various judges. I need do no more in this context than note what was said by White J in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 at [125]:

I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew (at [36]; 664), the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow’s claim is paramount, have been rejected (Hunter v Hunter (1987) 8 NSWLR 573 at 580; Golosky v Golosky [1993] NSWCA 111; Bladwell v Davis [2004] NSWCA 170 at [12]-[19]). To say that the court itself is the spokesman for the fair and reasonable man or woman in the community (Kearns v Ellis (Supreme Court of New South Wales, Court of Appeal 5 December 1984, unreported, BC8400149) is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.

102. White J noted that the fact that the assessment involves a broad evaluative judgment not to be constrained by preconceptions and predispositions (as recognised in Bladwell v Davis [2004] NSWCA 170) means that there are no definite criteria for the exercise of the evaluative judgment. His Honour considered that respect should be given to a capable testator’s judgment as to who should benefit from the estate if it could be seen that the testator had duly considered the claims on the estate, subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.

103. In the present case, it may be accepted that as a general proposition estrangement (or ‘mere estrangement’) will not be a determinative factor against (nor, I would add, is estrangement in the absence of callousness or hostility a determinative factor in favour of) the making of provision for an adult child. It is simply a factor to be taken into account with all the circumstances of the particular case.

104. In Hastings v Hastings [2010] NSWCA 197 Basten JA noted at [20]:

Whether there is any generally held social view as to the existence of a moral or natural obligation to adult able bodied children, sufficient to deprive a parent of the unfettered right of testamentary disposition, may be open to doubt. Almost certainly views would differ. There can, in such circumstances, only be a legitimate range of views available to judges called upon to administer the legislation. Further, because the standard cannot be identified with precision, the application of an appropriate standard to particular circumstances may also give rise to a range of legitimate outcomes.

105. In the present case, reasonable minds may well have differed as to whether, in all the circumstances, fair and reasonable members of the community would have expected that a testator in the deceased’s position ought to have made provision for her estranged son had she known of his current financial need. However, his Honour’s assessment of the position was not in my view one which was so out of kilter with community values and expectations as discerned in the cases referred to above as to bespeak error in this regard.

106. Speaking in the context of the now superseded family provision legislation, in Taylor v Farrugia [2009] NSWSC 801, Brereton J said, of claims by adult children (at [57]-[58]):

… It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].

Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.

107. In the present case, having taken into account the various matters referred to in s 60(2), the primary judge came to an evaluative judgment. I am not persuaded that his Honour erred in the evaluative judgment that he made, having regard to: the lengthy period of estrangement; Terry’s stated intention, prior to ceasing all communication with his mother, to lead a separate life; the distress caused by his deliberate decision to withdraw all love and support for his mother over that period, and the deceased’s own explanation both of the reasons for her decision to exclude him from the will and of her concern as to any interference with her testamentary decision; notwithstanding that Terry is now in a position of significant need particularly when compared with the position of his siblings and notwithstanding that the estate is of a size that could accommodate some provision to be made for him.

108. For completeness, I add that had I been persuaded that to make no provision at all for Terry was inadequate in all the circumstances, then the provision that I would have considered appropriate in the re-exercise of the discretion would not have been a sum to enable the acquisition by Terry of his own home but, rather, some sort of buffer to assist in his day to day life.

109. In Andrew, where there had been almost total absence of contact between the testator and the appellant for some 35 years, the further provision made for the estranged daughter was that, in lieu of the legacy of $10,000 provided for her in the will of the deceased, there be a legacy of $60,000 (out of an estate of around $800,000). Had I been of the opinion that an order for provision ought to have been made I would have limited it to a legacy of, say, $50,000.

110. As it is, grounds 1 and 2 are not made out.

Conclusion

111. I am of the view that the appeal should be dismissed with costs.

112. EMMETT JA: The appellant, Mr Terence Burke (Terence), made an application under Pt 3.2 of Ch 3 of the Succession Act 2006 (NSW) (the Succession Act) for a family provision order in relation to the estate of his mother, Ms Beryl Burke (the Deceased), who died on 30 June 2012 at the age of 93 years. The value of the Deceased’s estate after realisation of her assets is in the vicinity of $1,250,000. A judge of the Equity Division (the primary judge) dismissed the application. Terence has now appealed to this Court from the orders of the primary judge.

Background

113. By her will dated 23 June 2003 (the Will), the Deceased appointed Terence’s brother, Mr Alan Burke (Alan), as executor. Probate of the Will was granted to Alan on 28 August 2012. By the Will, the Deceased left a legacy of $100,000 to Mr Stephen Burke, Terence’s son. The balance was to be divided equally between Alan and Ms Diana Royds (Diana), who is the sister of Terence and Alan. Thus, Terence received nothing under the Will.

114. Terence, who is presently aged 70, is in straitened financial circumstances following the failure of his business. He became a bankrupt on 28 July 2010 and was discharged from bankruptcy on 26 August 2013. The primary judge found that, until 1991, Terence had a normal loving relationship with the Deceased. However, from about that time, Terence cut himself off from the rest of his family and he had no direct contact with his mother until her death, and had no indirect contact with her until 2009 or 2010. Terence agreed that from a time in about 1991, he decided to live his life without any involvement of his family (including, to a certain extent, his son Stephen). Since that time, his wife, Anne, was his only family. As far as he was concerned, his family members were living their lives without any involvement from him.

115. Terence asserted that the beginning of his estrangement was an incident that occurred at the Ashfield Bowling Club, when he went to see his mother there. The primary judge accepted that he may have wrongly inferred that his mother snubbed him at the time. However, his Honour considered that that incident was only a part of the problem that included a declared intention on the part of Terence to lead a separate life without his blood relatives. Another factor in Terence’s familial estrangement was his marriage history: his family members were fond of his first wife and were surprised when he divorced her and married his second wife very shortly afterwards.

116. The primary judge concluded that Terence had decided that he wanted nothing to do with the Deceased or the rest of the family, and that that decision was not caused by any fault of the Deceased or of Terence’s siblings. His Honour considered, therefore, that the Deceased was entitled, notwithstanding the fact that Terence was her son, to regard him as a person undeserving of any benefit from her estate, whatever his financial circumstances were at the time of his application.

117. The primary judge did not consider that members of the community would regard the view adopted by the Deceased as not right or as inappropriate, even had the Deceased been aware that Terence had fallen on hard financial times. His Honour concluded that, notwithstanding Terence’s poor financial circumstances and taking all matters favourable to him into account, including the size of the Deceased’s estate, no provision ought to be made out of the estate for him.

The Appeal

118. In the appeal, Terence challenges two factual findings made by the primary judge. Terence also contends that the primary judge erred in concluding that estrangement in the circumstances of the case was insufficient to preclude the making of a family provision order in the absence of a finding of callousness or hostility on his part.

119. Section 57(1)(c) of the Succession Act relevantly provides that a child of a deceased person is an “eligible person” who may apply to the Court for a family provision order in respect of the estate of the deceased person. Under s 59, the Court may, on such application, make a family provision order in relation to the estate of the deceased person if the Court is satisfied as to certain matters. Section 60 provides that the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person and whether to make a family provision order and the nature of any such order. The provisions of s 59 and s 60 are set out by Ward JA.

120. The occasion for an appellate court dealing with an application under the Succession Act to interfere with an evaluative judgment by a trial judge may be relatively limited. An appeal court should not be over-eager to identify statements in the reasoning of a trial judge as formulating propositions of principle at some level of generality, sufficient to indicate an erroneous approach. The boundary between a permissible outcome and an erroneous outcome is not easily drawn. [1] An appellate court should acknowledge the entitlement of a deceased person, in certain circumstances, to make no provision for an adult child, particularly in respect of a child who, over many years, withholds, without proper justification, support and love from a parent.

     1. Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [45]-[46].

121. The term “estrangement” describes not conduct, but the condition that results from the attitudes or conduct of one or both parties. It is a term that may be applied to the process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life. [2] Accordingly, it may be necessary to pay attention to the apparent causes of the estrangement. If, for example, the immediate cause is overt hostility on one side, it may be necessary to apportion blame, or at least responsibility, for that situation. [3] Thus, there will be cases in which the circumstances leading to an estrangement between a deceased person and a child of the deceased are such that the deceased parent is entitled, without interference by the Court, to make no provision for the estranged child.

     2. Andrew v Andrew at [40].

     3. Andrew v Andrew at [49].

122. The task before the primary judge in considering Terence’s case involved the following:

• determining the extent of the provision made for Terence’s maintenance, education and advancement in life by the Will;

• forming an opinion as to the adequacy of that provision;

• making an evaluative judgment, if the opinion was that adequate provision had not been made, as to what provision ought to be made out of the estate of the Deceased for Terence’s maintenance, education or advancement in life, after taking into account the matters in s 60(2).

123. There is an overlap between the second and third steps. Community expectations play a role in determining whether adequate provision has been made and, if not, what provision should be made. The task is to make a determination according to the feeling and judgment of the fair and reasonable man in the community. [4] In making an evaluative judgment as to what provision ought to be made, having determined that adequate provision has not been made, the Court exercises a true discretionary power. The Court’s decision as to the amount and type of provision to be made is reviewable only in accordance with the principles established in House v The King (1936) 55 CLR 499. [5]

     4.    Andrew v Andrew at [95]-[97].

     5. Andrew v Andrew at [101].

124. While community expectations and the feelings and judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely. [6] Indeed, it may be that individual members of the community would take the view that, apart perhaps from spouses, minors or disabled children, there should be no restraint on testamentary freedom. The Succession Act itself, in s 60(2), lays down criteria in very broad terms, leaving a very wide discretion for the Court.

     6. Slack v Rogan; Palfy v Rogan [2013] NSWSC 522; 85 NSWLR 253 at [125].

125. It might have been preferable for the legislature to be more specific. For example, the somewhat amorphous criteria in s 60(2) might be compared with the specific causes for the disinheritance of children laid down by Justinian in Ch III of Novel 115, enacted in AD 542. That measure provided as follows:

sancimus igitur non licere penitus patri vel matri, avo vel aviae, proavo vel proaviae suum filium vel filiam vel ceteros liberos praeterire aut exheredes in suo facere testamento, nec si per quamlibet donationem vel legatum vel fideicommissum vel alium quemcumque modum eis dederint legibus debitam portionem, nisi forsitan probabuntur ingrati et ipsas nominatim ingratitudinis causas parentes suo inseruerint testamento.

Therefore we order that no father or mother, grandfather or grandmother, great-grandfather or great-grandmother shall, under any circumstances, forget to mention their son, daughter, or other descendants in their wills, or disinherit them unless they have left them, by donation, legacy, or trust, or in some other way, the shares to which they are entitled by law; or it has been proved that their children are ungrateful, and have expressly stated the instances of their ingratitude in their wills.

The statutory proportion was originally one quarter but Justinian subsequently altered the proportion to one third or one half, depending on how many children the deceased left.

126. Novel 115 then set out the only 14 grounds upon which descendants should be considered ungrateful: no other basis of ingratitude could be relied upon. The 14 grounds of ingratitude might be summarised as follows:

1. the child has laid violent hands upon parents;

2. the child has heaped gross insults upon parents;

3. the child has brought criminal accusations against parents for offences that did not involve the Emperor or the State;

4. the child is a malefactor or consorts with malefactors;

5. the child has attempted the life of his parents;

6. the child, being a son, has criminal intercourse with his step-mother or his father’s concubine;

7. the child, being a son, has acted as informer against his parents and has subjected them to great expense;

8. the child who has the capacity to do so refuses a request by an ill parent to provide security for the debts of the parent;

9. the child, being a son, prevents his parents from making a will;

10. the child, being a son, continues to associate with actors or gladiators, contrary to the wishes of his parent, unless that is the profession of the parent;

11. the child, being a daughter, refuses to be married and prefers to lead a life of debauchery, where the parent desires to provide the daughter with a husband and bestow a dowry;

12. the child fails to treat a parent who has become insane with the proper respect and care (assuming the parent is subsequently cured of insanity);

13. the child does not pay a ransom demanded by the captors of a parent retained in captivity;

14. the child does not acknowledge the Catholic faith and does not commune in the church where the true religion is taught and where the doctrines of the holy Councils of Nicaea, Constantinople, Ephesus and Chalcedon are accepted.

While I hasten to add that I do not suggest that all of the above grounds would be appropriate for New South Wales in the 21st century, such criteria would leave much less to the difficult exercise of discretion by judges.

127. I have had the advantage of reading in draft form the proposed reasons of Ward JA. I agree, for the reasons proposed by her Honour, that the appeal should be dismissed with costs.

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Endnotes

Amendments

13 July 2015 - Par 113 - typographical error

Decision last updated: 13 July 2015