Burke v Burke

[2014] NSWSC 1015

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Burke v Burke [2014] NSWSC 1015
Hearing dates:	21 July 2014
Decision date:	25 July 2014
Jurisdiction:	Equity Division
Before:	Rein J
Decision:	Summons dismissed.
Catchwords:	EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where applicants are eligible persons - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicants - Considerations under Succession Act s 60(2) - Estrangement
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Andrew v Andrew [2012] NSWCA 308 Dodds v Dodds [2013] NSWSC 1933 Dolman v Parker [2005] NSWCA 361 Ford v Simes [2009] NSWCA 351 Goldberg v Landerer [2010] NSWSC 1431 In the Estate of the late Anthony Marras [2014] NSWSC 915 Keep v Bourke [2012] NSWCA 64 Raiola v Raiola [2014] NSWSC 967 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
Category:	Principal judgment
Parties:	Terence John Burke (Plaintiff) Alan Michael Burke (Defendant)
Representation:	Counsel: R Wilson SC (Plaintiff) L Ellison SC (Defendant) Solicitors: Armstrong Legal (Plaintiff) Swaab Attorneys (Defendant)
File Number(s):	2013/184983

Judgment

1. These proceedings concern the estate of the late Beryl Veronica Burke ("the deceased") who died aged 93 years of age on 30 June 2012. The deceased is survived by her three adult children Terence John Burke ("the plaintiff") aged 69 years, Alan Michael Burke ("the defendant") aged 66 and Diana Royds ("Diana") aged 61 years. Mr R Wilson SC appears for the plaintiff. Mr L Ellison SC appears for the defendant.

1. By her will dated 23 June 2003 the deceased appointed the defendant as her Executor and on 28 August 2012 the defendant was granted probate.

1. By her will the deceased left a legacy of $100,000 to Stephen Burke (the son of the plaintiff) ("Stephen") and the balance was to be divided equally between the defendant and Diana. Nothing was given to the plaintiff.

1. The plaintiff seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) ("the Act") that provision be made to him of a capital sum of $400,000 which will enable him to purchase a two bedroom house on the Sunshine Coast of Queensland at a value of between $385,000 and $425,000. During closing submissions Mr Wilson indicated that an amount of $300,000 might be sufficient based on Exh A which was an alternate costing of a house.

1. There is agreement that the estate has a net value of approximately $1.25 million (after anticipated legal costs of the estate) and the payment of the balance of the legacy to Stephen.

1. S 59 of the Act relevantly provides:

(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

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of

"eligible person" in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, 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.

1. S 57(1) by subparagraph (c) includes a child of the deceased as an "eligible person" who may apply to the Court for a family provision order in respect of the estate of the deceased.

1. Section 60 provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

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

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

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

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

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

1. Two affidavits of the plaintiff sworn 25 July 2013 and 25 June 2014 respectively were read in the plaintiff's case in addition to a costs affidavit from the plaintiff's solicitor. The plaintiff was cross-examined.

1. The affidavits of the defendant dated 17 September 2013 and two of 13 June 2014, an affidavit of Diana of 19 September 2013 and another of 13 June 2014 and an affidavit of Stephen of 29 August 2013 were read in the defendant's case in addition to a costs affidavit of the defendant's solicitor. The defendant and Diana were also cross-examined.

1. In evidence is a letter dated 5 August 2010 from the deceased addressed to "whom it may concern". It is in the following terms:

It has come to my attention that my will dated 23 June 2003, may become the object of a challenge by my eldest son Terry Burke. I am setting down the following remarks, so that it is clear as to why I made the decisions contained within that documents.

Shortly after my husband passed away in 1990, Terry (who was residing at my house at 11 Mary Street, Leichhardt after moving to Sydney from rural NSW after his divorce) announced that he had asked his girlfriend Anne to marry him and Terry subsequently moved in to her home at Galston NSW.

From that time on, there was very little contact between Terry and the rest of the family including his brother Alan and sister Diana and their extended families. I believe that he and Anne were married sometime that year, however no one from the family was invited, nor did we ever see any photographs of the event. In time, he became totally estranged from us all without any explanation. Years later I learned that Terry and Ann [sic] had moved to Queensland.

In 1998 Terry's youngest son David (aged 25) was killed in a motor bike accident in Sydney. His mother Tina chose to have him buried in their original home town of Albury NSW. I traveled [sic] to Albury together with my son Alan and daughter Diana to attend the funeral. Terry did not attend his son's funeral.

In the years since it has become quite clear that Terry does not wish to have any contact with his family, however I believe that he occasionally speaks with his only surviving son Stephen who resides and works in the USA.

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.

After several falls at home, my son Alan and daughter secured accommodation for me at Aldersgate Aged Care Facility, close to my family home in Leichhardt where I currently reside.

In closing; I trust that if you are being petitioned to alter the wishes set down in my last will and testament, that you will take this statement into account when making a decision.

It is quite distressing to think that my wishes would not be honoured.

Yours faithfully,

Beryl Burke

1. There is no dispute that since an occasion at Ashfield Bowling Club in either 1991, 1992 or 1993 which I shall refer to as "the Club incident", the plaintiff has not seen or spoken with his mother, and since then has had virtually no contact with Diana or the defendant.

1. It seems that the deceased and his siblings were quite fond of the plaintiff's first wife Christine (also known as Tina) and were surprised by the break up of that marriage and the timing of the plaintiff's involvement with Anne who the plaintiff married in 1990. The defendant did let the plaintiff know of his view that the plaintiff's marriage to Anne was precipitous, a view shared by the deceased and which she also communicated to the plaintiff.

1. The plaintiff did not invite his mother, or anyone else from his family (including his own children aged 18 and 19), to his wedding with Anne.

1. The estrangement to which the deceased referred in her letter is regarded by the parties as the crucial aspect of the case, Mr Wilson posing as a critical factual questions "What was the cause of estrangement of the plaintiff and the deceased 20 years ago?"

1. There is also a question as to whether the plaintiff has provided a full and frank explanation of his financial circumstances so as to enable the Court to reach a conclusion on what provision should be made for his proper maintenance, education or advancement in life, if the Court is of the view that a provision should be made.

Credit of the plaintiff

1. The plaintiff did not disclose in his affidavit that he receives a small pension from the Canadian Government and did not disclose that he has lent money to a Mr Richard Coverdale, receiving total payments of approximately $20,000 over four years: see Exhibits 2 and B. I had difficulty accepting the plaintiff's evidence that he has no knowledge of the amount loaned to Mr Coverdale or its terms or the extent to which money is owing. He was trained as a physics and chemistry high school teacher and he taught those subjects for 40 years and is obviously an intelligent man. He says that he is inept with money - even were that true it does not explain why he is not able to answer questions about the arrangements. It does not explain why he did not make reference to that amount in his affidavit, and he accepted that he had not disclosed to his trustee in bankruptcy or to the relevant social security agency responsible for administering Centrelink that he had the savings out of which loans were made to Mr Coverdale (T22). I accept that whatever the arrangements are with Mr Coverdale the amount of it (and the Canadian pension) are not large and would not be likely to otherwise preclude a substantial provision being made but the plaintiff's failure to disclose these matters in his affidavit and unwillingness to provide meaningful information in his cross-examination is a concern and affects his overall credibility.

Credit of the defendant and Ms Royds

1. There was no attack on the credit of the defendant or Ms Royds and I have no reason to doubt their honesty. The plaintiff in fact did not challenge any of their evidence by any affidavit in reply. To the extent that there is any factual dispute between the plaintiff on the one hand and the defendant and Diana on the other I prefer the evidence of the defendant and Diana (although there is actually little in dispute).

Estrangement

1. I summarise below the evidence of the plaintiff relevant to the estrangement issue contained in his affidavit. He says that:

(1)   When he first told his mother he was going to live with Anne and marry her his mother "showed an angry response" but eventually she accepted his decision.

(2)   After his wedding to Anne "communications with my mother and my family became strained". He speaks of a very difficult telephone conversation with his mother when he rang from Greece whilst on his honeymoon, but very little content is provided.

(3)   He continued to meet with the deceased approximately every four weeks and that he would meet her on her bowling day at the Ashfield Bowling Club, which was close to the school at which he was employed. He claims that on an occasion in 1993 he visited her at the Club and she ignored him turning her back on him and he left without speaking to her. I shall refer to this as "the Club incident".

(4)   Subsequent to the Club incident he received a call from the defendant who insisted that he apologise to the deceased and that he asked what had he done to necessitate an apology. He says his brother said "you will not be told when your mother passes away. Nor will we inform you of her funeral arrangements".

(5)   After the Club incident, contact with his mother became less regular and was only initiated by him. He says he asked her "what did I do to displease you?" to which, he says, she refused to respond.

(6)   During the last three years of his mother's life he made calls to Aldersgate Nursing Home ("Aldersgate") (where his mother was then residing) to enquire after his mother's health asking the staff member to pass on his best wishes to his mother.

(7)   After a couple of these calls he received a call from the defendant who told him to stop calling their mother because "it just upsets her". He says he continued to call the home but he did not ask the staff to pass on his wishes to his mother.

He asserts that his mother owed him a responsibility arising out of her parental relationship with him.

1. The defendant's evidence on the topic of estrangement is that:

(1)   When he was informed by the plaintiff that the plaintiff was not going to invite any family members including the deceased to his wedding with Anne he asked the plaintiff if he would invite the deceased to which the plaintiff replied "No, I am starting a new life".

(2)   Prior to the Club incident he tried to stay in contact with the plaintiff and Anne but rarely saw them. The deceased told the defendant that she was mystified by the plaintiff's behaviour. The defendant asked the plaintiff why his relationship had changed so suddenly and the plaintiff responded, "you know why". The defendant thought that it might be because he had offered the plaintiff advice about rushing into a second marriage so soon after the break up of the first. The defendant heard from the deceased that she had asked the plaintiff what the problem was and that he had failed to give her an answer.

(3)   That when the defendant picked his mother up from the Club she was never in a hurry and usually kept him waiting whilst she finished talking to her friends at the Club.

(4)   Some time after the Club incident the deceased telephoned her after she had had a telephone conversation with the plaintiff and said "Terry doesn't want anything to do with me. I don't know what I have done".

(5)   The defendant spoke to the plaintiff and had an argument with him but denies saying the words appearing at the end of [35](3). The defendant points out that his mother was 74 at the time, in good health and living independently.

(6)   The defendant says that he is not aware of the plaintiff having contacted his mother after 1993, and he says his mother said to him words to the effect:

"I don't know what I have done to Terry to make him cut off all contact with me so completely".

And

"I could understand if he just cut me off but he has cut off the whole family, what have we all done to deserve this".

(7)   That in 2003 the deceased in the presence of Diana asked the defendant to arrange a new will stating that the plaintiff "has not anything to do with us for many years. Why should he get anything from me. I want you and Diana to get everything".

(8)   That he had no contact with the plaintiff between 1993 and 2009.

(9)   In 2009 Stephen, who was in regular contact with the defendant, told the defendant that the plaintiff wanted to contact the defendant and had asked whether the defendant would have any objection to which he replied he would not.

(10)   On or about 12 December 2009 the plaintiff called the defendant and said: "I don't know who I am. I need to speak to Mum about our family". The defendant asked the plaintiff not to raise these matters with the deceased as she was having a difficult time having lost her sister and had just moved into a new nursing home. The defendant invited the plaintiff to send him a list of questions but the plaintiff did not take up the offer.

(11)   The defendant raised the conversation with the deceased who said: "what does he want after all these years?"

(12)   The defendant wrote to the plaintiff on 7 January 2010 enclosing personal histories written by the deceased and their father. He also enclosed some photographs of the plaintiff and his family again inviting the plaintiff to provide him with questions. The plaintiff replied by letter dated 15 January 2010, see annexure D to the defendant's affidavit.

(13)   The defendant raised with the deceased the calls of the plaintiff to Aldersgate to which she replied "I don't want to talk to him now, after all these years".

(14)   The defendant rang the plaintiff on 25 January 2010 and informed him that their mother did not want to speak to him and that his calls were upsetting her. The plaintiff replied "I have my rights as a son and will not have my enquiries filtered through you".

(15)   On 5 February 2010 the plaintiff contacted the defendant and had a conversation to the following effect:

Terry: I have a list of questions to ask you.

Alan: I will try and answer them if I can.

Terry: What is mum's current state of health?

Alan: Mum's health is not good.

Terry: What has happened to the property and contents at 11 Mary Street Leichhardt?

Alan: I don't think that is any of your concern at the moment, as you walked away from the family many years ago.

(16)   On 2 December 2010 the plaintiff rang him and there was a conversation to the following effect:

Terry: I need to know about my inheritance. I am now bankrupt and 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 that 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.

(17)   The defendant was aware of only three calls made by the plaintiff to Aldersgate all of them in 2010.

(18)   On 12 July 2012 the plaintiff wrote to the defendant seeking details of the solicitor handling the deceased's will.

1. In her affidavit Ms Royds in dealing with the estrangement issue says that:

(1)   The deceased did express to her concern that the plaintiff was rushing into marriage with Anne and her belief that it was "too soon".

(2)   That she, Diana, said nothing negative to the plaintiff, hugged him and told him she was very happy for him.

(3)   The deceased said to her, tearfully on learning that neither she nor other members of the family were invited to the wedding "I feel very hurt by this fact".

(4)   That the plaintiff would not show any photos of his wedding to her when she asked to see them.

(5)   At the wake in April 1990 for their father the plaintiff and Anne did not socialise with any other members of the family rather spending the entire time in the upstairs apartment. The deceased asked Diana "why did your brother and Anne disappear?".

(6)   Diana invited the plaintiff and Anne to Christmas dinner in 1990 as well as other family members. The plaintiff and Anne did not socialise and indicated they wished to leave early.

(7)   That when she, Diana, went to pick up the deceased from the Club she was never in a rush to leave and would often ignore her whilst chatting with her friends.

(8)   He last contact with the plaintiff was in about March 1991. She says:

"I had gone to the Ashfield Bowling Club to pick mum up, mum had already finished and we were sitting down together when Terry arrived. Terry came and sat next to us. He appeared annoyed with mum and was cold and distant towards me, but he did not explain why".

(9)   On that occasion Diana asked the plaintiff why he had not phoned her to enquire about Eric's bypass surgery. The deceased said after the plaintiff had left words to the effect: "I don't know what I have done to make him treat me that way".

(10)   That having given employment to Cathy, Anne's daughter at the café at which Diana worked, the plaintiff would call and engage in no conversation with her when he wished to ascertain what time Cathy would be finishing.

(11)   To her knowledge the plaintiff did not contact their mother from the time of the Club incident on. Her mother often said to her words to the effect:

"Well, that's it, he (meaning Terry) obviously doesn't want anything to do with me. I don't know what I've done to deserve this".

(12)   The deceased was horrified that the plaintiff had not attended his son's funeral in 1998 rather sending a bunch of flowers.

(13)   Diana wrote to the plaintiff following the funeral to tell him of a fond memory of David, and expressing her condolences. The plaintiff did not respond to that letter.

(14)   The plaintiff did not attend his son Stephen's graduation (which Diana, her husband and the deceased did).

(15)   The plaintiff never enquired of her whether their mother needed assistance and whether he could provide any.

(16)   She does not understand why this family rift occurred so quickly and completely. She says:

"I believe from conversation that I had with Terry that he was upset because both Mum and Alan expressed well-intentioned concerns about him marrying too quickly after meeting Anne. I know from conversations with my mother and that she in no way intended this to be a reflection on Anne herself or her character, as she seemed genuinely devoted to Terry and presented as a strong, independent and capable woman, happy to have found someone to love later in her life. Mum was just concerned that Terry was rushing into a relationship too soon after his divorce from Tina".

(17)   On the day of the deceased's funeral the plaintiff rang and left her a message to the effect that he was bankrupt and the Public Trustee wanted to know if he was a beneficiary of any inheritance. She says that he plaintiff expressed no concern or grief and offered no condolences.

1. Stephen's affidavit went mainly to his relationship with his father and his very positive relationship with the deceased, the defendant and Diana and nothing was said about the affidavit in submissions, other than Mr Ellison drawing my attention to the plaintiff's email to Stephen of July 2010, see [27] below, and to paragraph 24 of it in which the plaintiff is described as having cancelled his invitation to Stephen to visit in Queensland due to the limited time Stephen was able to spend with his father. He said to the plaintiff "it's not just all about you Dad" to which the plaintiff replied, "Well actually it is all about me" and hung up the phone.

1. The plaintiff did not respond to the defendant's affidavit and as there is no reason to doubt the veracity of the defendant and Diana (or Stephen) I accept their evidence.

1. It will be apparent that the plaintiff in his affidavit says that the "incident" at the bowling club was in 1993 and the defendant does not dispute that. Diana has it in 1991. The plaintiff agreed that it could have been 1991 or 1992. Very little turns on the precise date but I accept Diana's estimate of the year partly because the relationship had started to change before the plaintiff's wedding and the plaintiff had already indicated his desire for a new life. In cross-examination (in contrast to his affidavit) the plaintiff agreed that the Club incident was the last time he saw or spoke to his mother.

1. Importantly and additionally the plaintiff made some concessions in cross-examination that are very significant:

(1)   At T6.44-T7.1:

Q. Would it be fair to say then that after this time you decided to live your life without any involvement of your family and as far as you were concerned your family was living their lives without any involvement from you?

A. That would be the case.

Q. Then basically over the last 20 years of your life Ann, your wife, was your family?

A. My only family

(2)   At T15.19-36:

Q. You didn't show any family members any of your wedding photos, did you?

A. No.

Q. You didn't send one to Mum and say, look, a few family problems but I've moved on, I am happy. Here is a photo?

A. No.

Q. And you basically shun after you got married, you shun the family, correct?

A. That could go both ways.

Q. I am asking you sir that you shunned the family after you got married. Correct?

A. Describe shun?

Q. Mr Burke, you turned your back on them and wanted nothing to do with them?

A. I dealt with only one part of the family and that was Stephen.

(3)   He never visited, wrote to or called his mother, from 1991 until her death.

1. Even on the plaintiff's evidence when he called the nursing home in 2010 he did not ask to speak with his mother.

1. Consistent with the evidence set out in [25] he told Stephen in an email in July 2011 that he (Stephen) was not to discuss the plaintiff: "in any way with your mother, grandmother, aunt or uncle. For now I do not want to hear about them". I infer from the conversation set out at [20](4) above think the deceased had been told by the plaintiff that he did not want anything more to do with her. That is consistent with what he said to the defendant and his subsequent actions, and his failure to deny an allegation to a similar effect when it was put to him by the defendant: see [20](16) above.

1. I find on the undisputed evidence that the defendant and Diana provided extensive care and non-financial support for the deceased, see for example, 28-36 of Diana's affidavit of 19 September 2013.

SS 59 and 60 of the Succession Act

1. The precise approach to be taken to s 59 and s 60 of the Act has engendered much judicial attention in this Division since Andrew v Andrew [2012] NSWCA 308 ("Andrew") given Basten JA's view that the approach taken by the High Court in Singer v Berghouse (1994) 181 CLR 201 is not binding on the Court of Appeal because it was dealing with differently worded provisions in the former legislation, a view which was not shared by Barett JA in Andrew, who cited a unanimous decision of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 in support of his view that Singer v Berghouse and Vigolo v Bostin (2005) 221 CLR 191 applied to ss 59 and 60 of the Act. The recent decisions are collected in Dodds v Dodds [2013] NSWSC 1933 per Hallen J to which should be added the view of Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915 at [15]. In the present case the deceased made no provision for her adult son, the plaintiff, and I doubt whether the "two stage/one stage" debate is really of any significance here (and I note that Allsop P who formed the majority with Basten JA in Andrew did not actually express a concluded view on the point rather describing it as "an analytical question of little consequence").

1. There is however a more significant question in respect of Andrew which is relevant to the task which the Court must perform in applications of this kind.

1. To understand the point I need to refer first to Ford v Simes [2009] NSWCA 351 in which Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed, said:

[70] ... The present case is distinguishable from those cases relied upon by the appellant in that this was a unilateral abandonment of a father for 14 years from when he was aged 76 until he died at aged 90 with a single abusive encounter in that period.

[71] 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 [1962] HCA 19; (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.

[72] 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.

1. In Andrew at first instance ([2011] NSWSC 115) at [74](d) Hallen As J (as his Honour then was) referred the passage from Ford v Simes at [71]. Allsop P noted that the trial judge had referred to Ford v Simes and:

[18] ... Appears to have approached the matter by recognising a species of legal right ("the entitlement") of the testator to make no provision if love and support are withheld "unjustifiably" over a period of many years. This is to concentrate or distil a complex life-long relationship into encapsulated rights of testamentary power and the need of the claimant to justify her conduct. To the extent that it is derived from Pontifical Society v Scales it is the impermissible formation of principle or rule from a particular factual assessment of circumstances by reference to human and societal values. Even accepting it as an approach, like Basten JA, its fulfilment in this case is more than doubtful.

[19] That is not to say that in conducting the assessments in ss 59(1) and (2) estrangement, the reasons therefore, an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary "entitlement" or right in respect of an adult child.

1. Basten JA also allowed the appeal rejecting the notion that what had been said in Ford v Simes could be considered as either a factor in specific circumstances "or a principal [sic] of general application" (at [54]).

1. Basten JA expressed doubt, at [52], as to whether the daughter's conduct had been so reprehensible as to substantially disentitle her by reducing her share to a nominal sum, notwithstanding her financial needs, and at [57] said:

"Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant".

1. Mr Wilson contended that Andrew effectively changes the law in relation to the Court's approach from that which earlier applied and which I summarised, correctly, it was agreed, in Goldberg v Landerer [2010] NSWSC 1431 at [29] to [40] in respect of the earlier legislation. He submitted, that it would be only the most egregious conduct of a child of the deceased (such as murder) (see T63.09-14) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. I am unable to accept that proposition for reasons which I shall explain.

1. Basten JA did not, as did Allsop P (and Barrett JA) make reference to the need for judges to take into account community standards in assessing what provision should be made. Allsop P put is this way:

"[16] If I may respectfully paraphrase Sheller JA in Fraser at 46, the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made. This, Sheller JA said, referring to Mahoney JA in Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported), involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering the application and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This is another consideration which makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court".

and Barrett JA put it this way:

"[95] Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that "community expectations" play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA):

So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes.

[96] In Evans v Levy, the same judge said (with the concurrence of Campbell JA and Sackville AJA):

It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so.

[97] Particularly since the decision of the High Court in Vigolo v Bostin (above), however, concepts of "moral duty" must be approached with considerable care: see Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1 at [25]. But the clear need for the court, in addressing the first-stage question, to recognise community expectations is undiminished. The task is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is and must be the court itself": Kearns v Ellis (unreported, NSWCA, 5 December 1984, BC8400149 at 8 per Mahoney JA)".

1. Although Barrett JA was in the minority, having regard to what Allsop P said and to the earlier Court of Appeal authorities, I think I must regard what Allsop P said at [16] and the cases to which Barrett JA referred at [94]-[97] as still applicable to the task at hand.

1. As noted in Goldberg at [39] the Court of Appeal has accepted that the FPA was an intrusion into the freedom of testators to leave property to whomever they wish and that:

(1) the Court should accept that testators are, in certain circumstances, entitled to make no provision for children, particularly in the case 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": see Ford at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed; and

(2) the Court should not seek to remake the will, but only alter it to the extent that adequate provision is to made for the eligible person: see Alexander v Jansson [2010] NSWCA 176 at [20] per Brereton J (with whom Basten JA and Handley AJA agreed), citing Re Fulop (1987) 8 NSWLR 679 and Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987). In a passage in Walker v Walker [1996] NSWSC 188 (approved in Palmer at [111]), Young J (as his Honour then was) said:

"I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at p 19."

1. In my view whatever subtle change may have been introduced by the Succession Act the views expressed by the Court of Appeal and set out above are as equally applicable to the Succession Act, and more importantly, neither Allsop P nor Barrett JA in Andrew said anything to suggest that these earlier cases were wrongly decided or not relevant, and if Basten JA did so it was inferentially and without expressly saying so.

1. Neither Allsop P nor Basten JA described what had been said in Ford v Simes as wrong. It might well be said that Basten JA was implicitly critical of what had been said in Ford v Simes but Allsop P said this:

[17] In my view, the learned primary judge introduced a consideration that does not lie within the words or purpose of the relevant provisions. The notion expressed by the primary judge at [149] that the Act should be administered in a way to "maintain the integrity of the process", if elevated to an operative principle, does not find its source in the Act. Of course, as Dixon CJ said in Pontifical Society v Scales at 19 and as Bergin CJ in Eq said in Ford v Simes at [71], there may well be cases where a testator is entirely justified in making no provision for an adult child. To express the matter, however, as an operative consideration as "maintaining the integrity of the system" would be to deflect consideration from the circumstances of the case at hand and the application of the words of the statute. I do not read Bergin CJ in Eq in Ford v Simes at [71] as doing more than emphasising the evaluative choice made in that case, or introducing any principle of entitlement or right of the parent and justification by the offspring.

1. I think that the majority in Andrew are to be taken as rejecting the notion that the Court should start with a "principle" that a testator is free to provide nothing for an adult child. Whether or nor that conclusion is inconsistent with earlier authority is really a matter for the Court of Appeal to itself decide - since Andrew is the latest case on the topic I think I am bound to accept that I must not treat the statute as containing any such principle. As Allsop P makes clear that that approach does not make absence of love, hostility, resentment and carelessness of the hopes and wishes of another as inappropriate for consideration.

1. I do not accept that Andrew stands for the preposition 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 need for financial assistance. That proposition is inconsistent with Dolman v Parker [2005] NSWCA 361 and regard should also be had to what was said in Vigolo v Bostin (2005) 221 CLR 191 at [13]-[25] per Gleeson CJ, and Callinan and Heydon JJ at [113]-[121].

1. I approach the matter on the basis that I must address the following questions:

(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? And if so, in what amount?

1. In considering question (4) I can take into account the matters in s 60(2)(a)-(p) in forming a view, and in considering the significance of 60(2)(j) and (m) I must bear in mind the caution directed by Andrew.

1. 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 as arising under the fourth question.

1. I shall deal in the following paragraphs with each of the matters referred to in s 60 (2)(a)-(p).

(a)   The plaintiff is the son of the deceased and the answer to [24](1) is yes. Until 1991 the plaintiff had a normal loving relationship with his mother.

(b)   The deceased had no obligations or responsibilities to the plaintiff.

(c)   The estate has a net value of approximately $1.3 million.

(d)   The plaintiff does not own his own home (and nor does his wife). He has no superannuation. He and his wife were made bankrupt in 2010 following the collapse of a bed and breakfast establishment with him owing $465,000. He was discharged from bankruptcy in 2013. I accept that the plaintiff is not working full time and although I think that Mr Ellison's cross-examination exposed the possibility of the plaintiff earning casual income he is 69 years of age and I do not think he ought be deprived of any provision merely because he is not working (other than in a limited capacity for a small nursery business that he and his wife operate).

(e)   The plaintiff is married and his wife's financial circumstances are no better than his it would appear from his evidence.

(f)   The plaintiff was in 1989 diagnosed with depression and from which he continues to suffer. As Mr Ellison pointed out he has had the condition for many years and it has not prevented him from working. His wife suffers from bipolar disorder.

(g)   The plaintiff is 69.

(h)   The plaintiff gave no evidence of having contributed anything to the estate of the deceased or her welfare save that he paid her $50 a week for a period of time in 1989 after separation from Christine and before his marriage to Anne in return for which the deceased essentially provided him full board. He did take his mother to see his father at Aldersgate Nursing Home where the father was, in his later years, residing until his death in 1990.

(i)   No provision has been made to the plaintiff by the deceased whilst she was alive.

(j)   I have set out the clearly expressed intention of the deceased.

(k)   The plaintiff was not in any way being maintained by the deceased before her death

(l)   No other person is liable to support the plaintiff other than the Commonwealth Government which it does by providing a pension to the plaintiff and his wife.

(m)   I shall deal separately below with the character and conduct of the plaintiff.

(n)   There was an attempt on the part of the plaintiff, at least in Mr Wilson's cross-examination, to suggest that it was Alan who had come between the plaintiff and the deceased, which I shall also deal with below.

(o)   The plaintiff is not of Aboriginal or Torres Strait heritage.

(p)   Any other matter. I also regard it as relevant to have regard to the extensive care and support that the defendant and Diana gave to their mother in stark contrast to the plaintiff and the very positive relationship they had with her throughout their lives. I think it is of some, albeit limited, relevance that the deceased gave a legacy of $100,00 to the plaintiff's son.

1. I regard (a)-(e), (i) and (l) as of assistance to the plaintiff's case, (g), (h), (j), (m) and (p) as detrimental to the plaintiff's case and (f), (k), (n) and (o) as matters irrelevant in these circumstances or of no assistance to the plaintiff.

1. I proceed on the basis that the plaintiff has limited financial means. I also proceed on the basis that if a provision of the kind sought by the plaintiff were made for the plaintiff the defendant and his sister would still be quite comfortable. It was agreed by the estate that if any provision were to be made out of the estate Stephen's legacy would not be affected.

1. Mr Wilson, in dealing with the cause of the estrangement made the following points:

(1)   That when the plaintiff told the defendant that he was not inviting any o the family including the deceased to his wedding to Anne it was misinterpreted by the family.

(2)   That there was a misunderstanding between the plaintiff and the deceased at the bowling club. Mr Wilson put it this way:

"He thought mum had turned her back on him, she felt he's left without speaking to her and it went on a false premise. And in the middle of it, his brother Alan Burke, saying to mum his brother says he wants to start a new life and he is really putting us all behind him" (T57.36).

(3)   The deceased should not have sat back and waited for the plaintiff to contact her.

(4)   He tried to reconcile with his mother three years before her death, by contacting the nursing home for the purpose of seeking to foster a relationship with his mother (see T57-59).

1. I note that the plaintiff did not really explain why he had cut himself off from the family - it is possible that he was hurt that the family were fond of Christine or not encouraging of his decision to marry Anne so soon after his divorce but if I am able to infer that either or both of those matters are the reason it does not lead to the conclusion that the deceased or his siblings were "at fault" and therefore must take some responsibility for the estrangement, as Mr Wilson submitted.

1. I do not accept the contention that what was said by the plaintiff was misinterpreted and nor do I accept as a cause of the rift that the deceased, or the family, shunned the plaintiff as the plaintiff seemed to suggest in the passage set out at [25](2).

1. I agree that the plaintiff 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 and the Christmas dinner. In my view the plaintiff's expressed desire to live a life without the deceased of 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.

1. I do not think that any criticism can be levelled at the deceased for "holding back" or not initiating contact. There is evidence that she sought to ascertain the cause of the plaintiff's apparent ill feeling or dissatisfaction with her and that he would not reveal to her the cause. Nor would he reveal the cause to the defendant. The fact that the plaintiff did not attend his son David's funeral was seen as a significant matter by the deceased and the fact that he had no contact even with Diana, with whom on no view of the matter he had any basis for grievance is likely to have reinforced the view that the plaintiff had decided to cut himself off from all of his relatives for reasons that involved no conduct calling for criticism on their part.

1. There was an attempt, at least through the cross-examination, to lay blame on the defendant for having "warned the plaintiff off" from contacting the nursing home. The defendant's view, shared by Diana, was that the plaintiff's contact was distressing to their mother. Their perception was that the plaintiff'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. The plaintiff has not persuaded me that their perception was wrong. I think that the defendant 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).

1. Insofar as Mr Wilson, through cross-examination of the defendant and submissions, sought to criticise the defendant for having asked the plaintiff to apologise to his mother after the Club incident I do not agree that the criticism is justified. The defendant understood that his mother was aggrieved by the some aspect of the plaintiff's conduct and sought to encourage the plaintiff to repair that damage. I do not think the defendant or the deceased had appreciated how serious the plaintiff was in his declaration that he wished to have a new life. I do no accept the plaintiff's evidence that the plaintiff said the words which the plaintiff attributed to him and which I have set out at [23](3) above, not only because the defendant denies it and I have no reason to doubt his veracity unlike the plaintiff, but because it seems highly unlikely that the defendant would have raised such a matter at that time given his mother's good health.

1. The evidence demonstrates that the deceased's view that the plaintiff had decided he wanted nothing to do with her or the rest of the family is made out. No rational cause has been identified other than a desire to create a new life without his family as a part of it.

1. 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 be made out of the estate for him.

1. I should note that this morning counsel, quite properly and aware that I was intending to hand down judgment this afternoon, jointly drew my attention to the recent decision of Black J in Raiola v Raiola [2014] NSWSC 967 in which his Honour refused to make a provision to an adult son and daughter having regard to a number of matters including inadequacy in the evidence of one of the claimants, as to her present financial position, the state of a property and other matters: see [51]. Mr Wilson SC indicated that if I intended to dismiss the summons on the basis of Raiola he would like an opportunity to make submissions. I have reached my conclusion as to the outcome of the case without reliance on Raiola.

Conclusion

1. It follows that the plaintiff's summons should be dismissed.

Costs

1. I will hear the parties on the question of costs.

Amendments

25 July 2014 - Reference in para [22] from [30] to [27]

Amended paragraphs: [22]

Decision last updated: 25 July 2014