Collins v Hawkes

[2025] NSWSC 316

Supreme Court

New South Wales

Medium Neutral Citation:

Collins v Hawkes [2025] NSWSC 316

Hearing dates:

21 October 2024, 15 November 2024

Date of orders:

4 April 2025

Decision date:

04 April 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Finding that the plaintiff ought receive by way of further provision the deceased’s half interest in the Brightwaters’ matrimonial property — Parties directed to bring in short minutes of order and to address costs.

Catchwords:

SUCCESSION — Family provision — Deceased survived by de facto spouse of a 27 year relationship and by his child from a prior marriage — Deceased left a relatively large estate including an interest in a matrimonial home Brightwaters purchased in 2019 and co-owned with the plaintiff —Deceased’s 2013 Will predated the acquisition of the Brightwaters property such that provision regarding a prior matrimonial property adeemed — Deceased’s relationship with the plaintiff had been conducted upon arrangements or understandings regarding financial responsibilities as between them and the nature of the testamentary disposition which the deceased proposed to make for her, which at no stage ever included all of his share in the matrimonial property so as to give her an outright interest in such property — Plaintiff claimed she had been left with inadequate provision in particular with respect to accommodation — Finding that there ought to be an order for provision that the plaintiff receive the deceased’s half interest in the Brightwaters (matrimonial) property

SUCCESSION — Family provision — Claim for provision — For the Court to meaningfully assess claims, appropriate detail regarding how the claimant’s existing position is said to be inadequate and what is sought be way of provision ought to provided — In particular where accommodation provision is sought, the evidence should include detail regarding the alleged inadequacy of the existing accommodation, alternative accommodation possibilities and, where one possibility is renovation or other work to be done in respect of existing accommodation, costing in that regard

SUCCESSION — Family provision — Orders for provision — Nature of provision to be made — Whether absolute interest in matrimonial home, life estate, Crisp order, or other form of provision should be made — Finding that provision should be made for the plaintiff of an absolute interest in matrimonial home in addition to the interest she receives under the 2013 Will

SUCCESSION — Family provision — s 61 Succession Act — Disregarding interests — Prior to the commencement of the hearing, no steps had been taken to locate and serve a potentially eligible child of the deceased’s first wife who appears to have lived with the deceased for a limited period of time, no more than a couple of years — Practitioners should ensure that potentially eligible persons are identified, located and served with a Notice of Claim or that evidence seeking to disregard their interests is marshalled and provided well prior to the hearing so that the hearing may proceed in an orderly way and completed, to avoid costs and uncertainty — Hearing was adjourned part-heard to allow for the necessity for a reasonable time to elapse consequent upon notices being served — s 61 determination ultimately made

Legislation Cited:

Conveyancing Act1919 (NSW)

Succession Act2006 (NSW)

Cases Cited:

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317

Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] HCA 22

Jurak v Latham [2023] NSWSC 1318

Liosatos v Liosatos [2025] NSWSC 44

O'Neill v O'Connell (1946) 72 CLR 101; [1946] ALR 173

Robinson v Tame [1994] NSWCA 266

Sgro v Thompson [2017] NSWCA 326

Shymko v Lach [2022] NSWSC 1096

Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114

Stephens v Debney (1959) 60 SR (NSW) 468; (1959) 77 WN (NSW) 223

Tarbes v Taleb [2023] NSWSC 565

Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229

Williams v Legg (1993) 29 NSWLR 687; [1993] NSW ConvR 59,829

Category:

Principal judgment

Parties:

Lurline Collins (Plaintiff)
Christopher Hawkes (Defendant)

Representation:

Counsel:
S Chapple SC with D Yazdani (Plaintiff)
J Brown (Defendant)

Solicitors:
Alison Butler Law (Plaintiff)
Rafton Family Lawyers (Defendant)

File Number(s):

2023/217176

JUDGMENT

Introduction

1. HIS HONOUR: These proceedings are a family provision claim relating to the estate of the late Robert Scott Hawkes (deceased) who was born in October 1946 and died on 15 August 2022 aged 75.

2. The deceased left a Will dated 22 February 2013, the probate of which was granted to the defendant, the nominated executor, on 20 July 2023 (Will)1. I will refer to details regarding the provision under the Will and the estate below. It suffices to note that Lurline Joyce Collins (plaintiff) claims that the Will made inadequate provision for her. By the summons filed in these proceedings on 7 July 2023 (within time) she seeks an order for provision pursuant to s 59 of the Succession Act2006 (NSW) (Succession Act) out of the deceased's estate in addition to that provided for her in the Will.

Family details

3. The deceased was married to Janice Mary Hetherington (Janice). The evidence does not disclose details of the marriage, or exactly how it ended. There is some evidence suggesting the marriage ended in or about 1989 or early 1990, five years prior to the deceased meeting the plaintiff in late January 1995 [1] and commencing a relationship with her shortly thereafter [2] . Janice had a prior marriage or relationship, the details of which are not disclosed.

   1. Court Book (CB) 56-60

   2. The plaintiff’s outline of submissions asserted that the deceased’s marriage with Janice ended in approximately 1980, citing the plaintiff's evidence at CB 12[13]. However, the evidence which is not otherwise qualified by the plaintiff suggests that the actual date should be approximately 1990 rather than 1980.

4. Relevantly, Janice had a child from that marriage/relationship, Benjamin Hetherington (Benjamin H) [3] who, there is some suggestion, lived with the deceased for a period of time, albeit very briefly [4] . The deceased and Janice had a child, Christopher, the defendant in these proceedings, who was born in late August 1985 and is now aged 39.

   3. CB 12[13]

   4. There are two persons named Benjamin referred to in the proceedings. To avoid confusion I will refer to Benjamin Hetherington as “Benjamin H” and to Benjamin Collins simply as “Ben”.

5. Janice is deceased. The defendant was uncertain as to the exact timing of his mother's death. He believed it occurred around 1998 (based on the fact that he was in year eight at the time) [5] . This accords roughly with the plaintiff’s understanding. She thought Janice passed away when the defendant was aged about 12 or 13 or possibly later in the early 2000's [6] .

   5. Transcript (T) 3.41-4.19

   6. T 33.14-.23

6. The defendant has very little recollection of Benjamin H. He was not sure of whether Benjamin H lived with the deceased under the same roof at any time and has no recollection of the deceased indicating as such [7] .

   7. T 6.44-7.37

7. The plaintiff was born in October 1952 and is now aged 72. She married Robert Henry Collins in 1974 and divorced him on 14 August 1992 [8] . They have one child, Benjamin (Ben) who was born in January 1984 and is now aged 41. Ben lives close to Forster [9] . It appears he has four children, namely Braidyn (born in 2006), Summer (born in 2008), Ellara (born in 2011) and Mia (born in 2013) [10] .

   8. T 34.1-.14

   9. CB 12[12]

   10. CB 20[65]

Evidence and hearing details

8. On the hearing of the proceedings, Dr Chapple SC appeared with Mr Yazdani for the plaintiff and Mr Brown appeared for the defendant.

9. I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (Court Book or CB), transcript pages (T), [11] exhibit numbers or specified abbreviations. Counsel for the parties provided opening written submissions, the plaintiff on 17 October 2024 and for the defendant on 18 October 2024. Counsel made final submissions orally after the conclusion of the evidence.

   11. CB 14[32]

10. The evidence in the proceedings was substantially by affidavit with a few documents tendered. The plaintiff relied upon two affidavits of herself (21 June 2023, 2 October 2024) and an affidavit of her solicitor, Alison Jane Butler, as to costs. The defendant relied upon five affidavits for himself (as administrator - 12 September 2023; in reply - 12 September 2023; as updating administrator - 4 October 2024; as beneficiary - 4 October 2024; draft will - 21 October 2024). The defendant also relied upon a number of affidavits by his solicitor, Kyle McCabe. There are two affidavits of Mr McCabe sworn on 21 September 2023. One deals with costs and the other with service of a Notice of Claim on Benjamin H. Only one of the two affidavits was included in the defendant's list of affidavits to be relied upon, namely the affidavit as to service. However, it was the other affidavit as to costs that was included in the Court Book. Mr McCabe's costs affidavit of 21 September 2023 was not formally read [12] .

    12. References to the Transcript are references to the hearing which took place on 21 October 2024.

11. I will, for convenience of reference, allocate Court Book page numbers 66-69 to the four pages of the defendant's affidavit affirmed on 21 October 2024.

12. There was no objection to any of the affidavits relied upon. The parties proceeded on the basis that the chronological bundle of documents at pages 54-65 of the Court Book were in evidence. The Agreed Schedule of Assets and Liabilities was tendered and marked as exhibit JP–1 (Agreed Schedule). The defendant tendered a Pension Paid Transactions document from Cunach Superannuation Fund relating to the plaintiff in the period 1 February 2023 to 31 October 2024 (exhibit D1) and the plaintiff tendered appraisals in respect of the defendant's property at North Rocks (exhibit P1). The plaintiff was cross-examined, and the defendant briefly cross-examined.

Credit and reliability of the plaintiff and the defendant

13. The plaintiff gave her evidence in a straightforward way, although, in some respects, she qualified her affidavit evidence and was a somewhat vague on details and her plans for the future. The defendant likewise gave his evidence in a straightforward way. He was a little vague in part of his evidence, in particular, in regard to matters in relation to the timing of the death of his mother and details regarding Benjamin H.

14. Generally speaking, and except as I have indicated below, I accept each of their evidence. The conflicts between their evidence were fairly limited and I address those conflicts below.

Notification requirements regarding Benjamin H

15. At the commencement of the hearing, I noted that the plaintiff in her Notice of Eligible Persons had identified Benjamin H as being a potential eligible person. Notwithstanding that, he had not been located or served [13] . I required that steps be taken to attempt to locate and serve him.

    13. T 2-3

16. The plaintiff indicated that the deceased had spoken with Benjamin H when his mother passed away, suggesting that the deceased had very little contact with Benjamin H after the deceased separated from Janice [14] .

    14. T 3-4

17. The plaintiff says that the deceased indicated to her that Benjamin H had lived with him while he was with Janice for “Probably, at the best, a couple of years” [15] . The plaintiff was unaware where Benjamin H was living at the time of his mother's death and has not had any other knowledge of where he was living other than some indication the deceased had intimated that Benjamin H may have lived somewhere in the southern suburbs of Sydney after the deceased separated from Janice [16] .

    15. T 6.47-8.3

    16. T 8.10-.18

18. During the day of the hearing, Mr McCabe swore an affidavit in which, consequent upon arranging for a Person Name Search, he was able to identify seven potential candidates with the name Benjamin Hetherington at various locations in Western Australia, Queensland and New South Wales and arranged to serve those persons by Express Post. At the end of the conclusion of the evidence and submissions on 21 October 2024, I directed that a further notice be sent to those persons indicating that the proceedings had been heard by me and that, subject to appropriate notification being given to Benjamin H, if no notice was received by 5 PM on 13 November 2024, I would proceed to determine the matter and disregard the interests of Benjamin H pursuant to s 61 of the Succession Act.

19. Mr McCabe swore a further affidavit on 13 November 2024. Apart from the Person Locator Search, he had also obtained results from a National Electoral Roll Search and served twelve persons with Notices of Claim. Two letters had been returned to Mr McCabe's office “return to sender” and he received a telephone call from one person in East Aubrey indicating that they were not the relevant “Benjamin Hetherington”. Otherwise, he had received no correspondence or contact from any of the other persons served with a letter and Notice of Claim. At the listing of the matter on 15 November 2024, Mr McCabe's affidavit sworn 13 November 2024 was formally read and I formally reserved judgment.

20. The state of the evidence regarding Benjamin H’s eligibility was far from ideal. The only plausible possibility of his eligibility arises by dint of s 57(1)(e) of the Succession Act. That basis for eligibility requires consideration of dependency and membership of a household.

21. Ultimately, I propose to proceed on the basis of the plaintiff’s evidence that the deceased had indicated to her that Benjamin H had lived with him and Janice for no more than a couple of years.

22. On that basis, Benjamin H for some time during the “couple of years” might arguably be regarded as having been “a member of the household of which the deceased person was a member”.

23. The issue of dependency is more fraught. It is clear that in family provision proceedings, a deceased’s provision of accommodation to an applicant can give rise to a sufficient basis for satisfying the requirement of dependency: see Shymko v Lach [2022] NSWSC 1096 at [786] and the cases cited therein.

24. Thus, the possibility arises that Benjamin H might have been dependent upon the deceased for accommodation. However, the precise nature of the living arrangements between the deceased, Janice and Benjamin H was not the subject of any detailed evidence. Ultimately, the evidence does not enable me to confidently make any firm findings regarding Benjamin H’s eligibility.

25. However, if I am wrong in that regard and Benjamin H is eligible, I find that any further attempted service of notice is unnecessary in the circumstances of the case and propose to disregard the interests of Benjamin H. I so determine having considered the lengthy distance of time that has passed between the period giving rise to any eligibility and the deceased’s death with apparently no further contact between the deceased and Benjamin H, and the fact that Benjamin H has not even now been specifically identified but steps have been taken to send notices to persons with that name.

26. The fact that the hearing commenced in circumstances where Benjamin H had not been located and served with a Notice of Claim nor evidence provided to the Court addressing s 61 Succession Act considerations is regrettable. It meant that the hearing progressed with some degree of uncertainty as to whether Benjamin H, if located, might make a claim. Further, it necessitated adjourning the matter part heard to allow for searches to be undertaken, notices to be sent and evidence to be adduced.

27. The procedures regarding identification of persons who may be eligible persons, searches for such persons and service of Notices of Claim on them have been substantially addressed by me in Jurak v Latham [2023] NSWSC 1318 (relevantly at [88]-[106],[116]-[121]), and in Liosatos v Liosatos [2025] NSWSC 44 (relevantly at [160]-[161] and [215]-[237]).

28. The issue regarding location and service of Benjamin H should have been addressed in the interlocutory stages of the proceedings. In particular, it should have been raised by the legal practitioners at the pre-trial directions listing before me so that specific orders could have been made to allow the hearing to commence in circumstances where either service of a Notice of Claim had been effected on him or evidence adduced addressing s 61 Succession Act considerations to permit disregarding of his interests.

29. There was no suggestion that there was particular difficulty in undertaking searches and arranging for service of notices. Indeed, whilst belated in the sense that I have indicated above, from the time of the commencement of the hearing, Mr McCabe acted with commendable speed and efficiency in being able to undertake searches and arrange for service of notices. Nonetheless, service of certain notices on the day of the hearing inevitably meant that some time would be required to elapse after the conclusion of the first day of the hearing to enable evidence to be adduced of results of the service of notices and any contact from the party (in this case Benjamin H) to be served.

30. Thus, without dwelling further on the issue, I take this opportunity to gently remind practitioners that they should ensure that potentially eligible persons are identified, located and served with a Notice of Claim or that evidence seeking to disregard their interests is marshalled and provided well prior to the hearing so that the hearing may proceed in an orderly way and completed, without cases being adjourned part heard to allow for the necessity for a reasonable time to elapse consequent upon notices being served.

Real issues

31. There is no real dispute regarding the plaintiff's eligibility. The defendant's counsel acknowledged that the plaintiff qualified as being a person with whom the deceased was living in a de facto relationship at the time of the deceased's death: s 57(1)(b) Succession Act.

32. The parties’ joint statement of real issues in the proceedings listed simply two issues for determination, being:

1. Whether adequate provision for the proper maintenance, education or advancement in life has been made for the plaintiff?

2. If the answer to issue (1) is no what would be adequate and proper provision for the plaintiff, having regard to the facts of the case?

33. So identified, the statement of issues described the issues essentially as ultimate questions under s 59 Succession Act. However, as is invariably the case in family provision proceedings, the hearing of the proceedings raised a number of important factual issues that bear upon those ultimate issues.

34. One matter, in particular, which assumed some degree of importance in the cross-examination of the plaintiff and the ultimate submissions, related to “arrangements” that the plaintiff had entered into with the deceased from early on in the relationship bearing upon their intentions for the ultimate distribution of their respective estates.

Estate & Will

Date of death details

35. The inventory of property [17] discloses the deceased had as at the date of his death an estate totalling $737,924.95, comprised of credit balances in a number of bank accounts and term deposits, shares, and a motor vehicle. In addition, he held joint property, being relevantly a half share as tenant in common with the plaintiff in a property at XX XX, Brightwaters (Brightwaters property) valued at $750,000 and a 25/100 share (as tenant in common) with the defendant in a property at XX XX, North Rocks (North Rocks property) estimated at $300,000. In addition, he co-owned, albeit with a very minor share with others, three named racehorses. His share in those horses totalled $10,000. Further, the inventory of property disclosed that the deceased held in joint tenancy with the defendant the proceeds of two bank accounts totalling $12,683.06 and held as tenant in common with the plaintiff the proceeds of a CBA Smart Access account with a balance of $7.17. The Agreed Schedule of the deceased's assets and liabilities at the date of death included the values attributed to the property held by the deceased as tenant in common as per the inventory of property, giving a total gross value of the deceased’s estate of $1,797,924.95 [18] . There were no disclosed liabilities.

    17. T 8.20-.40

    18. CB 61-62

Current details

36. Subject to the value of the North Rocks property, the Agreed Schedule of assets and liabilities as at 4 October 2024 disclosed the following assets:

1. term deposit invested with CBA $460,632.40;

2. Rafton Family Lawyers Trust Account $56,397.86;

3. ANZ E-Trade account $1,646.95;

4. ANZ E-Trade Share Portfolio $234,288.15;

5. half share in the Brightwaters property $987,500;

6. 25/100 share North Rocks property $325,000; and

7. share of sale proceeds of three horses $1,158.11

8. Total $2,066,623.47.

37. There is a disclosed liability of racehorse monthly fees and charges paid for by the defendant and reimbursable from the deceased’s estate in the sum of $10,484.77.

38. The Agreed Schedule also disclosed two items said to be “notional estate” being:

1. State Superannuation Pension - paid to plaintiff $1,997.90 per fortnight ongoing; and

2. Aware Super Death Benefit - paid to defendant $734,212.68.

The Brightwaters property

39. The Brightwaters property has four bedrooms, three bathrooms and a two-car garage [19] .

    19. JP1 Agreed Schedule

40. There is no specific evidence as to the percentage share of monies contributed by the plaintiff and the deceased to the purchase of the Brightwaters property. Nonetheless, Dr Chapple SC, for his part, accepted that the proceeds of sale of the Glenhaven property (see below) were effectively used to purchase the Brightwaters property and Mr Brown accepted that would be a proper inference that should be drawn [20] . I proceed on that basis.

    20. T 29.33-.35

41. The defendant was asked about the value of $1,000,000 that he had attributed to a half share of the Brightwaters property as at 4 October 2024 [21] . He indicated that it was an estimate. He was aware that his solicitor had obtained two appraisals from McGrath and Ray White on 19 September 2024 and believes that those appraisals informed the estimate of $1,000,000 [22] . No counter appraisals or other evidence as to the value of the Brightwaters property was adduced or tendered by or on behalf of the plaintiff. However, a figure of $987,500 is specified in the Agreed Schedule and I propose to proceed on the basis that the deceased’s half share of the Brightwaters property is accordingly valued at $987,500 (rather than the defendant’s estimate of $1,000,000 or the plaintiff’s estimate of $900,000 [23] ).

    21. T 40.19-.43

    22. CB 46[5]

    23. T 34.28-35.18

The North Rocks property

42. The North Rocks property was originally owned by the defendant's grandparents. In or around 2006-2007, the defendant’s grandmother died and left 50% of the property to the defendant's uncle Gregory, and 50% to the defendant [24] . The defendant's uncle Gregory died in or around 2011 and, in his Will, left half of his share in the property to the defendant and half to the deceased. Thus, the defendant’s 75% interest in the property came from his grandmother as to 50% and his uncle as to 25%. Under the deceased's Will he is entitled to the remaining 25% [25] .

    24. CB 25 [3]

    25. T 36.44-37.7

43. The precise value of the deceased’s share in the North Rocks property was the subject of some dispute in the proceedings. The Agreed Schedule recorded a value of $325,000 for the deceased’s share, which was provided by the executor. The plaintiff tendered five appraisals (exhibit P1) with those appraisals providing a range of values between $1,800,000 and $2,200,000.

44. The defendant was asked about the value attributed to the North Rocks property ($325,000 for a 25/100 share as at 4 October 2024) [26] . He did not obtain any appraisal for that property and is not sure why his solicitors obtained an appraisal for the Brightwaters property and not the North Rocks property [27] . The estimate of $325,000 (for the quarter share) was, according to the defendant based on a couple of properties “throughout this period” (the period not being specified) on the same street that were sold for around that figure [28] . He disagreed that the whole of the North Rocks property would be worth somewhere between $1,800,000 and $2,200,000 simply believing that the (accurate) estimate is under that figure [29] .

    26. T 37.17-.28

    27. CB 46[5]

    28. T 35.20-36.14

    29. T 36.16-.25

45. The five appraisals for the North Rocks property show current market estimates of sale price as follows: (a) 16 October 2024 Partridge Realty “in the vicinity of $1,950,000-00”; (b) 15 October 2024 Ray White “approx $1,880,000-$1,980,000”; (c) 16 October 2024 Belle Property “sale between $1,800,000 and $1,925,000”; (d) 15 October 2024 Laing + Simmons “in the vicinity of $2,000,000 to $2,200,000”; and (e) 15 October 2024 First National Real Estate “$1,800,000-$1,980,000”.

46. Neither counsel provided any specific submissions or detailed analysis as to how I should determine the value of the North Rocks property. Dr Chapple SC submitted that a “25% interest in North Rocks, which is, we say, worth somewhere between $450,000 to $500,000” [30] . Thus, he was proceeding on the basis of a value between $1,800,000 and $2,000,000. Precisely how he arrived at the value range in the submission was not explained. Nonetheless, it is broadly consistent with the figures other than the somewhat higher figure in the Laing + Simmons appraisal, which, on one view, might be regarded as an outlier.

    30. T 36.27-.37

47. It seems to me that the appraisals tendered by Dr Chapple SC are a more reliable basis for estimating the value of the North Rocks property, having been gleaned from agents with presumably some degree of experience, rather than the approach to value taken by the defendant. No sufficient detail was provided by the defendant to enable me to assess whether the “couple of properties” on the same street were in any way comparable.

48. It is not particularly satisfactory that the Court should have to determine the value on the above state of the evidence and submissions. Leaving aside the Laing + Simmons appraisal, the approximate midpoint of the other four appraisals is relatively close to $1,900,000 which is in between the figures submitted by Dr Chapple SC. I propose to proceed on the basis that the value for the North Rocks property as a whole is $1,900,000. Accepting that it is not an exact science, I further propose to proceed on the basis that the estate’s 25% share of the North Rocks property has an estimated value of $475,000 and the defendant’s 75% of the property has a value of $1,425,000.

Costs

49. The Agreed Schedule, contrary to the pre-trial directions, did not give estimates of costs. However, there was other evidence of costs.

50. Based on the listing of a two-day hearing, the plaintiff's costs calculated on the ordinary basis are estimated to be $71,329.65 (and $95,106.20 on the indemnity basis) [31] . The plaintiff's costs agreement provides that payment of the plaintiff's costs is contingent on a successful outcome but there is no uplift fee payable in respect of those costs [32] .

    31. T 44.40-.41

    32. CB 30[4]

51. The defendant’s estimate of costs based on a two-day hearing is $70,000 inclusive of GST and counsel's fees. There is some potentially conflicting evidence as to the amount of legal costs paid from the estate. The defendant’s updating administrator affidavit refers to two different amounts of legal costs having paid from the estate being $22,218.58 and a sum of $14,000 which “has already been paid on account of those costs of the proceedings”. It may be that the explanation of the difference between the sums is that a sum of $8,218.58 is referable to legal costs not technically costs attributable to the proceedings. The defendant acknowledged that, in the event that the hearing was concluded in one day (which other than a brief mention on 15 November 2024 - in fact occurred), there would be a saving of legal costs [33] .

    33. CB 31[5],[6]

52. Despite the lack of clarity, I propose to proceed on the basis that there is estimated to be a sum of approximately which is $56,000 is unpaid.

Will

53. The deceased, by his Will, gave to the defendant:

1. all his personal items;

2. his interest in the North Rocks property;

3. his superannuation entitlements with First State Super; and

4. the residue of his estate.

54. The Will addressed the deceased's interest in the property at XX XX, Glenhaven (Glenhaven property).

55. The Glenhaven property was sold before the deceased's death and accordingly the gift adeemed.

56. However, to the extent it may be relevant, the Will gifted 10% of the (then) 60% interest the deceased held in the Glenhaven property to the plaintiff with a stated intent of raising her interest in the property to a 50% share with the notation “which gift I make with regard and affection for our lengthy relationship” [34] . In light of this, the deceased gave his then share in the property to the plaintiff for life or until she chose to live elsewhere or sell the property or enter into a de facto relationship or remarry on terms that she be responsible for the proportion of outgoings attributable to the deceased's share, including but not limited to insurance, rates, taxes and the like. On the death of the plaintiff (or upon her choosing to live elsewhere, sale of the property, remarriage or entering into a de facto relationship), the deceased gave his share in the property to the defendant [35] . In the events which occurred, the gift in relation to the Glenhaven property adeemed with the consequence that, apart from the deceased's entitlements with the State Superannuation Authority which he gifted to the plaintiff, the Will makes no other provision for the plaintiff [36] .

    34. CB 47

    35. cl 2(ii) CB 58

    36. cl 2(ii) CB 58-59

57. Ultimately, there was an adjustment of 10% made in favour of the plaintiff, effectively increasing the plaintiff’s share in the Glenhaven property from 40% to 50%. That occurred in November 2019 with the plaintiff indicating that, upon the sale of the Glenhaven property, she and the deceased shared the proceeds of sale equally (i.e. 50% each) [37] . The equal interest is also evident from details in a draft Will document which I outline below. There was no serious dispute in the proceedings that such an adjustment had in fact occurred.

    37. cl 2(iv) CB 59

Draft Will document

58. In around the Christmas holidays in 2021, the deceased informed the defendant that he was updating his Will on a computer [38] . According to the defendant, he subsequently had the following conversations with the deceased regarding the Will and his wishes for the estate:

4. During that same holiday period in early January 2022, Dad and I had a conversation as follows:

Dad: "Do you still have a copy of my signed will?"

Me: "Yes, I have the copy you gave me locked in my office draw at home."

Dad: "I've drafted a new will and there is another copy of the earlier will in a safe custody packet at the bank. I have named you as the executor of the estate because I trust that you will follow up on my wishes for estate."

Me: "No worries, you know that I will do that for you"

At the end of the conversation Dad said "I will get the will signed when I am feeling better and am able to get around."

38. CB 16[39]

59. At or about the same time (January 2022), the deceased, according to the plaintiff, told her that he was preparing a new Will. Her evidence in this regard is as follows [39] :

    39. CB 67[3]

46 In about January 2022 Robert told me he was preparing a new will. We had a conversation in words to the following effect:

Robert: 'I will give you my share portfolio.'

He later said:

Robert: 'I will give you my Commonwealth Bank shares.'

Then he said:

Robert: 'I phoned State Super and told them I want you to receive either the reversionary pension or a lump sum. They said your pension could be about $1,160 per fortnight.'

I calculated this to be just over $30,000 per year. At the time, Robert received approximately $70,000 per annum from State Super.

Me: 'I think that is too low. I thought the pension was two thirds of what you receive?'

He did not respond to my comment about it being too low. I was not impressed as he had, some years ago, discussed also leaving me some cash. I remember he had said:

Robert: 'I don't want you to have to struggle.'

But on this occasion he was not willing to discuss the matter further with me. He was very ill so I did not pursue it.

60. The defendant gives evidence of further discussions with the deceased as follows [40] :

    40. CB 17

5. In or around February 2022 Dad and I had a conversation regarding conversations he had with Lurline regarding his will whilst he was a patient in Wyong Hospital. Dad said he had spoken with Lurline about his will and that they had an argument or disagreement regarding his wishes for his estate.

Dad: "Lurline is not happy about my will."

Me: "Why?"

Dad: "We talked about my will. She wasn't happy about it. I think that she wants the house. She always knew she was getting to live in the house but then you get my share."

Me: "Don't worry about that now. You can worry about that when you get out of hospital and are feeling better."

Dad: "I don't want to give her my share in the house. I want you to have it and I don't think it would be fair to see Ben inherit the house after I'm gone. I don't want that to happen."

6. In May 2022, my father and I had a conversation regarding his will in his office. During the conversation Dad was sitting in his office chair and displayed his will on the computer. He showed me where the will was saved and outlined that Lurline and I were the only beneficiaries of his will

Dad: "I've finished the will and it Is saved in my (Robert) folder on the computer. Sit down for a minute"

Me: "Ok"

Dad: "The will is very similar to my old will but includes this house and my current assets. Lurline and you are the only beneficiaries of my estate. I am giving Lurline the option of lifetime residency in the house, but given our age, I want my share of the house to be yours."

Me "If you are happy with it, I'm happy with it"

Dad: I still need to get it signed."

From my understanding and opinion Dad believed the Will was not valid until he signed it.

7. Dad read through and outlined his wishes for his estate to me. He explained to me that he had recently added his purchased shares to his updated will (I believe that this was the last item he added to the will). He was feeling better on this day and we had celebrated watching Mankayan win a race on TV this afternoon.

8. In August 2022, Dad and I had a conversation regarding his will when I was driving him back home from a medical appointment where he had his lung drained. Dad was apologetic that he was never able to get his updated will and was remonstrating his concern that Lurline may challenge his will.

Dad: "I've stuffed up."

Me: "What are you talking about"

Dad: "I wasn't able to get my will signed. I'm sorry. You may have a fight on your hands. If you get stuck remember my will is saved on the computer"

Me: "What do you mean."

Dad: "Lurline will challenge my will."

Me: "I don't know."

Dad: "She will. Promise me that you'll fight it."

Me: "I promise, I will follow your wishes word for word."

61. Counsel were agreed that the unsigned Will document at CB 64-65 is a true copy of the document that was on the deceased's computer (draft Will document) [41] . Essentially, the document made specific provision addressing the Brightwaters property in the following terms in clause 2(ii):

2. I APPOINT my son, CHRISTOPHER SCOTT HAWKES of XX XX, North Rocks, NSW, Executor and Trustee of my Will and indicate that my cousin, DAVID OSRIC JENKINS and my partner LURLINE JOYCE COLLINS have offered their assistance to CHRISTOPHER in the execution of these duties. I GIVE the whole of my Estate of whatsoever nature and whatsoever situate as follows:-

…

(ii) AS TO my 50 % Interest which I hold as tenant in common with my defacto partner LURLINE JOYCE COLLINS in the land and improvements known as XX XX, Brightwaters ("the property") I GIVE my share in the property to my son CHRISTOPHER SCOTT HAWKES absolutely.

I wish my partner LURLINE JOYCE COLLINS to have the right to live in the property for her life or until she chooses to live elsewhere or sell the property. To maintain my SON'S Interest in the property l stipulate that the property is to be sold rather than tenanted in any manner.

The previous property shared by my partner and myself at XX XX, Glenhaven was purchased as tenants in common with shares in accordance with capital invested (le. HAWKES 60%, COLLINS 40%). This Agreement was not changed despite the fact that I paid the majority of the remainder of the mortgage during our occupation of the dwelling. On sale of this property I GAVE 10% of the property to the said LURLINE JOYCE COLLINS thereby raising her share in the property to 50%.

This gift was made with regard and affection for our lengthy relationship. I believe these facts should be taken into consideration if my WILL is legally challenged at any stage.

41. CB 67-69

62. Further, essentially, the draft Will document made the following provision by way of gift to the defendant:

1. all items of a personal nature;

2. the deceased’s 25% interest in the North Rocks property;

3. the deceased’s superannuation entitlements with Aware Superannuation (both Accumulation Account and Income Stream Account);

4. the deceased's share investments in his E-Trade share portfolio other than the Commonwealth Bank share;

5. the funds in the deceased's Commonwealth Bank and Teachers Mutual Bank accounts (including term deposits);

6. a Mazda 6 sedan;

7. share in the racehorses; and

8. the residue of the deceased’s estate.

63. Other than addressing the Brightwaters property, the draft Will document made the following provision for the plaintiff:

1. the deceased’s superannuation entitlements with State Superannuation Authority; and

2. the Commonwealth Bank shares in the deceased's E-Trade share portfolio.

64. In relation to the superannuation, the deceased stated that he believed that the plaintiff would be entitled to a pension of approximately $1,160 per fortnight for life which could be converted (or commuted) to a lump sum.

65. The hearing proceeded on the basis that the draft Will document recorded testamentary intentions of the deceased. However, the final legally recognised testamentary act of the deceased was his Will rather than the draft Will document.

Background facts

66. I find the following facts which were either admitted or not seriously disputed on the evidence, particularly in light of what I have outlined in respect of the credit and reliability of the plaintiff and defendant above.

67. The plaintiff grew up at Yeoval in central western New South Wales (which I observe is the location of the childhood home of Banjo Patterson) and attended high school at the Yeoval Central and Presbyterian Ladies College, Orange [42] . The plaintiff attended Sydney University and was conferred with a Bachelor of Economics and later qualified as a chartered accountant [43] . In late January 1995, the plaintiff first met the deceased. They began a relationship shortly thereafter [44] .

    42. T 45.19-.41

    43. CB 12[11]

    44. CB 12[11]

68. In July 1996, they purchased the Glenhaven property. The precise purchase price and accordingly how much money each contributed is not specified in the evidence. Nonetheless, entitlements as tenants in common of 60% to the deceased and 40% to the plaintiff, according to the plaintiff, reflected their initial capital contributions. The capital contributions were supplemented by funds borrowed from the Commonwealth Bank subject to a mortgage. They contracted a company to build a house on the property [45] . The plaintiff indicates that she spent a lot of time researching household items from kitchen appliances to furniture and light fittings, which information she discussed with the deceased and they made a joint decision about purchase of such items [46] .

    45. CB 12[13]

    46. CB 12[15]

69. In September 1997, they moved into the Glenhaven property with Ben and the defendant, then aged 13 and 12 years old respectively. They resided with them full-time, although Ben spent a couple of nights every second week with his father [47] .

    47. CB 12[16]

66. The plaintiff did all the cooking, cleaning, washing, ironing and shopping for the family [48] .

    48. CB 12[17]

67. In or around 1997, the plaintiff recalls the deceased making a Will which, according to her understanding, left his estate including his 60% share of the Glenhaven property to the defendant with a right for her to remain in the property [49] .

    49. CB 12[18]

68. The plaintiff says that she and the deceased had “numerous discussions” over the years about their relative interests in the Glenhaven property [50] :

We agreed that after 10 years together I would be entitled to an extra 10% so that we both held equal shares.

50. CB 13[20]

73. At the time the relationship commenced, the plaintiff operated a part-time accountancy business from home and the deceased earned considerably more than she did and accordingly paid a larger share of mortgage payments than she did [51] .

    51. CB 13[21]

74. The deceased appears, at least in the early years of the relationship, to have had a small consultancy business [52] .

    52. CB 13[22]

75. In relation to the children, at least in the early years, the plaintiff drove them both either to school or in Ben’s case, to the railway station where he caught the train to school [53] . The defendant asserts that at least in or around 1998 the deceased dropped him at the bus stop on the Old Northern Road the majority of school mornings [54] . Separately, the plaintiff took Ben to his extracurricular activities and the deceased took the defendant to his activities [55] . In July 2000, the plaintiff took a full-time job with an accounting firm in Parramatta and increased her mortgage contributions to match the deceased's. The mortgage was repaid in full in about 2008 [56] .

    53. CB 13[23]

    54. CB 13[18]

    55. CB 37 [2], cf 13 [23]

    56. CB 13[23]

76. The deceased paid health insurance premiums for himself and the plaintiff as well as their children until they took out separate health insurance. Ben was 21 when that occurred and the defendant 25. The plaintiff states that it was cheaper to have them all covered on the one policy and, in any event, the deceased was earning considering more than she was “at that stage” [57] .

    57. CB 13[25]

77. From the time the plaintiff moved into the Glenhaven property, she prepared and lodged the deceased's business activity statements and tax returns at no charge, and when she returned to full-time work, she lodged the deceased's returns through the firm that she worked for [58] . The plaintiff and the deceased entertained friends, family and work colleagues at home (with a frequency I address below) on which occasions the plaintiff planned the menu, carried out the shopping and did the cooking. They also hosted Christmas gatherings at the Glenhaven property with various family members and neighbours attending [59] .

    58. CB 14[26]

    59. CB 14[27]

78. In about 2002 (according to the defendant) or 2003 (according to the plaintiff), the deceased had a falling out with Ben and, apart from some occasional visits by Ben to the Glenhaven property, the deceased ceased contact with him as a result [60] .

    60. CB 14[28],[29]

79. In October 2006, the plaintiff held a surprise party to celebrate the deceased's 60^th birthday which was held at Glenhaven and attended by friends, family, and many of the deceased’s existing and previous formal work colleagues. The plaintiff prepared the invitations, planned the menu, bought the groceries and cooked the food for the occasion [61] .

    61. CB 14[30], 38[6]

80. From October 2007 through to 2018, the plaintiff and the deceased travelled extensively overseas [62] .

    62. CB 14[31]

81. From about 2010, the deceased had his right hip replaced and subsequently suffered from some health issues. In around 2015, he had a pacemaker fitted and cataract operations and, in November 2016, he had a half knee replacement. As a consequence of those issues, the deceased was unable to drive and the plaintiff drove him to appointments or other destinations as needed, and provided him with meals and such additional assistance as he required with everyday tasks [63] .

    63. CB 14-15[33]

82. In December 2016, the plaintiff retired and in February 2017 the deceased retired [64] .

    64. CB 16[34]-[37]

83. In November 2019, the plaintiff and the deceased sold the Glenhaven property and shared the proceeds of sale equally. In December 2019, they purchased the Brightwaters property as tenants in common in equal shares [65] .

    65. CB 15[38]

84. The plaintiff and the deceased maintained separate bank accounts throughout their relationship, except for one joint account, which was opened in early 2020. That account was used to pay for renovations and other expenses relating to the Brightwaters property [66] .

    66. CB 16[39],[40]

85. The plaintiff and the deceased also entertained friends and family at the Brightwaters property [67] .

    67. CB 16[41]

86. In April 2021, the deceased was diagnosed with osteoblastic metastases with the primary cancer being in his gastrointestinal region. In July 2021, the deceased commenced chemotherapy at Wyong hospital. The plaintiff drove him to and from those appointments (albeit she was unable to attend the appointments due to the COVID-19 lockdown). She also drove him to oncologist appointments at Wyong or Gosford. The deceased had weekly blood tests in nearby Bonnells Bay, but by late 2021 he was unable to drive himself, and so the plaintiff took him to those [68] .

    68. CB 16[42]

87. The plaintiff and the deceased had plans for further travelling which were not realised, I infer, by dint of his illness [69] .

    69. CB 16[43],[44]

88. In about January 2022, the deceased had discussions with both the plaintiff and the defendant regarding the new Will he was preparing. He had further discussions with the defendant regarding this up until August 2022. I have outlined these discussions above.

89. In February 2022, the deceased was hospitalised after contracting pneumonia and sepsis. He was discharged home but was very weak, at times unable to walk unaided and had several falls [70] .

    70. CB 16-17[45]

90. In late July 2022, the deceased was again admitted to intensive care at Wyong Hospital after developing an infection and sepsis. He was discharged home after six days. The plaintiff attended to him as he required assistance with getting out of chairs and bed. For the last 10 to 12 days of the deceased’s life, the defendant took time off work and stayed with them, assisting with the administration of medication, toileting and other mobility issues [71] .

Plaintiff’s and deceased’s financial arrangements and testamentary disposition

71. CB 18[47]

Finances

91. The plaintiff indicated that prior to purchasing the Glenhaven property, she had had discussions with the deceased about the way in which the property was to be purchased. She confirmed that they both agreed that they would keep their finances separate [72] .

    72. CB 18[48]

92. Certain expenses were shared. Thus, the plaintiff and the deceased contributed equally to household expenses including groceries, rates, insurance, home repairs and gardening. The plaintiff actually paid the bills and the deceased reimbursed her for his share. They each paid for their own motor vehicles and expenses in respect of that [73] .

    73. T 9.17-.23

93. The plaintiff agreed that it was important for her, from both at the outset of her relationship with the deceased and up to the date of his death, to define her financial position as between the deceased and herself [74] . One of the reasons the plaintiff had kept her finances separate from the deceased was because they had children from different relationships [75] .

    74. CB 13[19]

    75. T 10.21-.26

94. The arrangement for payment of joint expenses was not merely an ideal but it seems generally enforced throughout the relationship. The plaintiff kept a detailed ledger of bills that came in, even up until the time of the deceased's death [76] . The plaintiff states that as the deceased's illness advanced, the deceased became somewhat confused about many matters including money. She gives some details of this, including in relation to a matter or payment of a sum to a draughtsman who had drawn up plans for an extension to the rear deck of the Brightwaters property. The plaintiff states that she was forced to follow the deceased up several times to pay his share of bills and, as at the date of his death, she states that she had not been reimbursed for bills she had paid covering his share in a total of $5,860.51 [77] .

    76. T 11.15-.18

    77. T 10.36-11.13

Testamentary intentions

95. In or around 1997, the plaintiff recalls the deceased making a Will in which he left his estate, including his 60% share of the Glenhaven property, to the defendant with a right for her to remain in the house [78] .

    78. CB 18[49]

96. The plaintiff accepted, with qualification, that she had always intended that her estate would be left to her son Ben and that the deceased's assets that he had brought into the relationship would be left to the defendant [79] . The qualification being that some change presumably in the nature of a 10% adjustment (see below) would be made due to the length of their relationship [80] . Whilst the plaintiff was aware of the deceased's draft Will document on his computer prior to his death and had discussed it with him, she had disagreed with him about her being given only a right of residence in the Brightwaters property [81] . The plaintiff did not accept that her disagreement with the deceased regarding the right of residence would be a breach of the arrangement that they had previously reached about her financial position because “the arrangement had been reached 25 years previously. Things change over that amount of time” [82] .

    79. CB 13[20]

    80. T 11.20-.27

    81. T 11.29-.35

    82. T 11.37-.50

97. The plaintiff thought that the deceased’s contemplated figure for her pension of $1,160 per fortnight was not enough (for her), though knew that the figure that the deceased had been quoted regarding that was probably incorrect [83] .

    83. T 12.1-.6

98. I generally accept the plaintiff’s evidence in relation to the above matters. It is evident that at least from around 1997 until her conversation with the deceased in January 2022, the plaintiff was aware that the provision that the deceased had made for her was limited to a form of right of residence in the Glenhaven property, save that they agreed that after 10 years together, the plaintiff “would be entitled to an extra 10% so that we both held equal shares” [84] . Whilst the plaintiff did not see the (2013) Will until after the deceased’s death, it appears she did discuss with him rights of residence [85] . In any event, at no stage did the deceased indicate that he would provide for her an outright interest in either the Glenhaven property or the Brightwaters property.

    84. T 12.8-.19

    85. CB 13[21]

99. The plaintiff has a current Will which leaves everything to Ben. She denied that her motive for bringing the proceedings and maintaining them was to make sure that she could leave him as much (provision) as possible [86] . The plaintiff also denied that, if she did receive funds as a result of an order for provision from the estate, there was a real possibility that she would just give the money to Ben [87] . It is not clear to me that Mr Brown put, let alone pressed, a submission that the plaintiff had no real need for provision herself but rather was attempting to obtain financial benefit from the estate for Ben. However, to the extent that any such submission was either intimated or maintained, I reject the submission, at least in those terms.

    86. T 27.10-.29

    87. T 24.30-25.8

Plaintiff’s lending to Ben

100. The plaintiff was questioned regarding how much money she had lent to Ben in the last ten years. She indicated that she would have to consult her records, though, in response to a question as to amount, she stated that it would be less than $100,000 [88] .

     88. T 19.5-.14

101. In the plaintiff’s first affidavit, she disclosed that she had lent Ben a total sum of approximately $28,000 in the previous three years but, given Ben's health condition (Huntington’s disease) and financial circumstances, has not asked him for repayment of the money [89] .

     89. T 17.25-.30

102. She accepted that at least in relation to the $28,000 sum, she did not expect that Ben would be repaying that sum to her and (in substance) it is now treated as a gift to him [90] . The plaintiff agreed that the deceased did not approve of her gifting money or lending money to Ben [91] . Apart from the $28,000 sum mentioned by the plaintiff in her first affidavit [92] , the plaintiff indicated that in the last three months prior to the hearing, she had lent to Ben $30,000, including $10,000 in the prior six weeks [93] .

     90. CB 19[51],[56]

     91. T 17.32-.37

     92. T 17.43-.45

     93. CB 19[56], 20[61]

103. The plaintiff did not accept that, whenever Ben needed money, she was happy to loan it to him if she had available funds. In particular, she indicated that she had no intention of continuing to loan to the plaintiff at the rate of $30,000 as she had done in the last three months [94] . Mr Brown suggested to the plaintiff that she had deliberately withheld from the Court the fact that she had made the further loan of $30,000 to Ben. She intimated that it was an oversight and I accept that [95] .

     94. T 17.47-18.2

     95. T 19.16-.31

104. The reason why the plaintiff lent to Ben is that he has been going into or changing some new business ventures, with a plan to increase his income. The money lent in the last three months ($30,000) was to provide capital to enable him to do that. She regarded the provision of those funds as important because, at the moment, his income is barely covering his costs and (from her perspective) he needs to be able to increase the amount that he can earn over time without involving so much labour from him [96] .

Plaintiff’s position

96. T 19.42-20.38

Plaintiff’s contributions

105. I have outlined above the plaintiff’s contributions to the maintenance and improvement of the deceased’s property and to his care and welfare. Subject to the following, broadly speaking, those contributions were not in dispute.

106. The defendant took issue with some aspects of the plaintiff's evidence regarding travel to school and extracurricular activities [97] . I accept the defendant’s evidence regarding the deceased’s involvement in dropping him to the bus stop and attending school activities.

     97. T 31.20-.37

107. The defendant asserted that the deceased had made the majority of mortgage repayments on the Glenhaven property and that this “caused some friction in Dad and Lurline’s relationship” [98] . The plaintiff did not dispute that there was some friction as between herself and the deceased regarding repayments on the Glenhaven property. I accept the evidence of the defendant in that regard. The fact that the deceased appeared to make the majority of the mortgage payments per se does not seem to be seriously in dispute. The precise amount of payments was not the subject of evidence. Beyond what I have just stated, neither counsel suggested to me that a particular finding regarding the amount of the payments for the mortgage or the precise extent of the friction should be made.

     98. CB 37[2],[3]

108. The defendant disputes the plaintiff’s evidence regarding the frequency she and the deceased entertained friends and family, asserting that on average it was approximately three to five times per year and not once every fortnight [99] . The plaintiff was cross-examined about this. She indicated that it would be more than three to five times a year prior to the deceased's illness, but accepted that after the deceased became ill, they entertained infrequently, depending upon his health. Her reference to entertaining every fortnight referred to periods of time much earlier than their residence at the Brightwaters property. When they had people over at the Brightwaters property, she indicated that it would be for a number of days rather than just for a meal [100] . I accept the plaintiff’s evidence in this regard.

     99. CB 37[4]

     100. CB 37[5]

109. With respect to the deceased’s ill-health issues from around 2015, the defendant seemingly did not take particular issue with the plaintiff’s description of her care assistance to the deceased, but he outlined particular assistance that he provided the deceased with, which evidence I generally accept [101] .

     101. T 21.27-22.23

Plaintiff’s financial circumstances

110. The plaintiff outlined details of her financial circumstances as at June 2023 [102] .

     102. CB 38[7]-[9]

111. As at 2 October 2024, the plaintiff's evidence of her assets are as follows [103] :

     103. CB 19[53]-20[63]

1. Brightwaters property 50% share $900,000;

2. Commonwealth Bank balance $1,625;

3. 2016 Skoda Octavia $12,000;

4. Household contents $10,000;

5. Accrued superannuation entitlement $337,500;

6. Total $1,261,125.

112. In light of the Agreed Schedule, and for the purposes of consistency, I propose to proceed on the basis that the plaintiff’s 50% share of the Brightwaters property has an estimated value of $987,500 rather than the plaintiff’s above figure of $900,000.

113. The plaintiff accepted that the household contents were insured for $310,000. She distinguished between the insured value and the replacement value. In response to the suggestion that they were worth a lot more than $10,000, she suggested they may be worth $50,000 if she sold them, but that would be all [104] . It was not suggested that I need to make a particular finding regarding the value of the household contents. To the extent relevant, in light of the cross-examination, I propose to proceed on the basis that the value of the household contents is in excess of $10,000 and may be worth up to $50,000.

     104. CB 25

114. However, in any event, in my experience, family provision cases are not normally conducted on the basis that the defendant’s counsel invite the Court to assume that household contents are a ready source of available cash to surviving spouses. I certainly did not understand Mr Brown to put any such submission.

115. Whilst the plaintiff did have a bank account with St George, that was closed seemingly in about 2023 [105] .

     105. T 20.43-21.11

116. The plaintiff has a liability of a credit card debt of $8,366 [106] .

     106. T 21.13-.25

117. The plaintiff’s annual net income is constituted by superannuation payments as follows [107] :

1. Pension State Super $50,044;

2. Cunach Superannuation Fund minimum of $17,000;

3. Total minimum of $67,044.

   107. CB 25[4]

118. The plaintiff's pension had increased slightly at the date of the hearing to $1,997.90 per fortnight [108] .

     108. CB 25[5]

119. The plaintiff’s annual expenditure totals $74,447 [109] .

     109. T 6.20–.33

Plaintiff’s superannuation entitlements

120. The plaintiff was cross-examined regarding payments from the Cunach Superannuation Fund in part by reference to her affidavit [110] and in part by reference to exhibit D1.

     110. CB 26[6]

121. As the plaintiff understands it, it is a self-managed super fund, of which she is the only beneficiary [111] .

     111. CB 19[53]

122. There was some discord regarding the amount that the plaintiff has received and will receive from the Cunach Superannuation Fund. Mr Brown submitted that the plaintiff gave false evidence regarding that and that, at the very least, it was misleading. He submitted that I should accordingly find that her income had not been properly disclosed, that I could not make a clear finding about exactly what the plaintiff’s income has been for the last 12 months, and therefore could not make a finding as to whether she had a surplus of income over expenditure or not [112] .

     112. T 12.46-13.9

123. Mr Brown was successful in demonstrating that over a period between 1 February 2023 and 31 October 2024 the plaintiff was seemingly paid pension benefits in the sum of $72,250 and not $17,000 [113] .

     113. T 50.8-51.5

124. However, the cross-examination [114] did not in my assessment demonstrate that the plaintiff had inaccurately asserted that the only income she received from the fund was a sum of $17,000 per annum [115] . As the plaintiff's affidavit made clear and as the plaintiff reiterated in cross-examination, the reference to the figure of $17,000 per annum was to a minimum pension entitlement [116] .

     114. exhibit D1

     115. T 12.46-17.13

     116. CB 19[53]

120. The operation of the Cunach Superannuation Fund was explained by the plaintiff in evidence. I generally accept her evidence in this regard. It is a self-managed fund and, under the regulations governing it, there is a minimum pension requirement which is 5% of the capital balance per annum. A beneficiary is also entitled to draw a pension greater than that amount or take the benefit as a lump sum once he or she is retired [117] . The minimum pension is established on 30 June each year on the basis of the capital value of the fund at that stage. Thus, if the minimum income for a financial year is fixed at $17,500 and the income of the fund is less than that amount, the pension recipient is required to draw down the minimum amount of $17,500, from the capital to the extent that there is insufficient income, thus reducing the capital value of the fund [118] .

     117. T 14.9-.13

     118. T 29.44-.47

121. Despite the plaintiff initially giving answers in cross-examination whereby she appeared to accept that payments listed in exhibit D1 were of income [119] , later, the plaintiff was unable to indicate what portion of the amounts listed in exhibit D1 totalling $72,250 were income and what portion were capital drawings [120] .

     119. T 30.14-.22

     120. See T 15.40-.49, 16.35-.45

122. Dr Chapple SC submitted that what the plaintiff draws from year to year, from her superannuation is in some sense immaterial, observing that what is important is the amount of the capital sum from which she is deriving an income “whether it is an income that is paid from income and capital or whether it is just an income paid from income” [121] .

     121. T 30.24-.27

123. Beyond the plaintiff’s evidence and exhibit D1, no attempt was made by either party to clarify the position by reference to any reliable documentation what income could be expected from the fund in the future.

124. I accept the plaintiff’s evidence that there is a minimum amount of income which is to be paid to the plaintiff from the fund and that, to the extent the income generated on the capital of the fund is insufficient, payments are made to the plaintiff by drawing upon the capital of the fund.

125. Apart from his submission regarding false evidence, which I have rejected, it is not clear to me what submission Mr Brown ultimately sought to put in relation to the superannuation fund and the benefits from it.

126. However, to the extent that he submitted that the plaintiff’s receipt of “income” of $72,250 over the 21 months between 1 February 2023 and 31 October 2024 is in some way indicative of a level of “income” that the plaintiff could expect to receive going forward, it is far from obvious to me that that level of “income” could sustainability be payable at that rate from the sum going forward for many years. Certainly, my invitation to Mr Brown to explain any such sustainability of income from the fund was not met with any clear answer [122] .

     122. T 40.4-.8

Plaintiff’s health

132. The plaintiff suffers from macular degeneration in her left eye which is treated with monthly injections. In 2017, she developed a hole in the macula in her right eye which required an operation to correct. In 2018 and 2020, she had cataract operations. She also suffers from high blood pressure [123] .

     123. T 16.47-17.13

Plaintiff’s plans and claim for provision

133. The plaintiff deposed to her current and future lifestyle and claim for provision.

Suitability of the Brightwaters property

134. The plaintiff acknowledged in both her affidavit evidence and in cross-examination that the Brightwaters property is too big for one person [124] . However, she loves the location and the lifestyle associated with living there. She has joined a number of social groups and developed friendships since the deceased's death [125] . The plaintiff would like to have accommodation with sufficiently ample space to accommodate her sister and her family, her son and his children, and other visitors [126] .

     124. CB 19[50]

     125. CB 20[64]; T2 2.25-.27

     126. CB 20[64]

135. Plans that the plaintiff and the deceased had to extend a small balcony which faces the water and which were approved by the local council were discontinued due to the deceased’s health. However, the plaintiff in her initial affidavit indicated that she would like to pursue it to add amenity to the house and extended the plans to incorporate an outdoor dining and entertaining space adjacent to the main living areas [127] .

     127. CB 20[65]

136. The plaintiff deposes that the house requires maintenance, including painting of the outside and a gazebo in the front garden, repairing or replacing damage to upstairs flooring, repairing or replacing a retaining wall at the rear, renovating the laundry, gardening, and new fencing, including installing screening plants along a fence line to maintain privacy in the front yard [128] . No specific costing was provided in relation to that work.

     128. CB 21[66]

137. In the event that the Brightwaters house becomes too big for the plaintiff to maintain alone, she would like to either arrange for someone to undertake maintenance work or to downsize to a similar waterside property within the same area. Alternatively, she acknowledges that another possibility is staying in the property by creating a separate downstairs self-contained area that she could rent out or use to accommodate a housekeeper or a gardener, though acknowledged that there would need to be renovation steps to achieve that, including renovating the existing downstairs bathroom, adding a kitchen and making other modifications [129] . However, no costing was provided regarding that.

     129. CB 21[67]

138. Ideally, the plaintiff would like to have the deceased’s share in the Brightwaters property transferred to her so that she owns the property outright and would have the freedom to make accommodation decisions for herself in the future [130] .

     130. CB 22[69]

139. The defendant was aware that the deceased and the plaintiff had plans drawn up regarding extension to the balcony adjacent to the kitchen and living area but believed that the extension did not occur because the deceased was concerned regarding the overall building and construction costs [131] . In relation to the plaintiff's reference to adding an additional outdoor dining and entertainment space, the defendant says the existing balcony currently fits outdoor furniture including a two-seater lounge, two chairs, egg chair and a table and can comfortably sit five adults with additional standing room [132] .

     131. CB 22[69]

     132. CB 38[11]

140. Whilst the plaintiff acknowledged that the defendant had not impinged on her rights to live in the property at this stage, she was not sure that he would allow her to do so without conditions [133] . The plaintiff later clarified that she would be “quite happy” to live in the property for as long as she was able to do so [134] . Whilst the plaintiff acknowledged that she had discussed with the deceased and agreed that she would be allowed to live in the property for as long as she was able to do so, she added that was what had been agreed many years ago [135] .

     133. CB 39[11]

     134. T 23.13-.15, 23.40-24.6

     135. T 24.12-.17

141. Specifically in relation to fencing, the plaintiff says that recent neighbourhood subdivisions have required new fencing, and that she has paid a 50% share of the cost of one fence and expects “there to be more” (I infer more fencing costs) [136] .The defendant asserts that he offered to pay 50% and requested the plaintiff to email him the fencing bill but did not hear back from her [137] .

     136. T 24.12-.28

     137. CB 21[67(f)]

142. The plaintiff was cross-examined regarding the fencing issue. She cannot recall the defendant offering to pay 50% of the new fence nor requesting her to email him the fencing bill [138] . I accept the defendant’s evidence in respect of proposals regarding the fencing costs.

     138. CB 39[13]

143. When Mr Brown returned to questioning the plaintiff about conditions on a right of residence [139] , the plaintiff indicated that her concerns related to the rights that the defendant would have in ownership of half the property, specifically “Occupation. Cost of maintenance” [140] .

Possibility of accommodation elsewhere or a Crisp order

139. T 23.17-.38

140. T 26.41-27.2

144. The plaintiff was uncertain about where she might move to if she were forced to sell the Brightwaters property when she was questioned about it. Whilst Ben lives in Forster, she does not believe that he would stay there long term. She did not think that she would move to live in Forster. She accepted the possibility that she might move to a location towards where her sister currently lives in San Remo in Victoria, but as I understood it, simply did not know nor had any clear sense or plan where she would move to [141] . She thought Ben might possibly move to Brisbane if he left Foster [142] . The plaintiff accepted that if it was absolutely necessary for her to do so, she would “downsize”, although she is not sure what she would downsize to. She did not accept that if she were given a right to live in the property until she downsized, that that would not necessarily suit her needs [143] .

     141. T 27.1-.2

     142. T 18.7-19.3

     143. T 22.29-.30

145. The plaintiff did not know whether she would move out of the area in which she is currently living if she did move [144] .

     144. T 22.42-23.8

146. The plaintiff had received some advice regarding a Crisp order. She understood that it permitted her to remain in the current property but did not seem to understand that it might allow her to move from the property if she needed, at some point in time, to change properties [145] .

     145. T 29.11-.14

Other claims

147. The plaintiff would like to travel more. She had booked a trip to the Kimberley and a Western Australian wildflower tour for September/October 2023 (it is unclear whether she undertook the trip) [146] .

     146. T 25.10-.27

148. The defendant indicates that, in relation to the deceased’s and the plaintiff's plans for further travel, the deceased did not enjoy being away from home. He indicated that, at this stage of the deceased’s life (seemingly about 2021), the plaintiff was more motivated to travel than the deceased [147] .

     147. CB 21[68]

149. The plaintiff indicated that she would like to have a lump sum provided for her for future unexpected contingencies in life [148] .

     148. CB 38[10]

Defendant’s position

150. The defendant is presently single and states that it is his hope to have a family in the future [149] . He is employed as a school teacher with the New South Wales Department of Education at Quakers Hill High School [150] .

     149. CB 22[69],[70]

     150. CB 52[11]

Defendant’s financial circumstances

151. Up until a little under three weeks before the hearing, the defendant had not adduced any evidence putting his financial circumstances in issue. In an affidavit sworn on 4 October 2024, the defendant set out his financial circumstances.

152. In summary, his financial circumstances are as follows.

153. The defendant's assets were listed by him as being [151] :

     151. CB 52[7]

1. 75% share of the North Rocks property $975,000;

2. 2013 Mazda vehicles $10,500;

3. Aware Superannuation $76,000;

4. NSW Teachers Mutual Bank accounts and term deposit $836,612.71;

5. Commonwealth Bank account $3,004.60;

6. Share in racehorse $1,500;

7. Total $1,902,617.31.

154. The defendant’s figure for his share in the North Rocks property was based on an approximate value of $1,300,000 [152] .

     152. CB 51-52

155. The defendant has invested in a term deposit with Commonwealth Bank certain estate monies which total $460,632.40 [153] .

     153. CB 51[5]

156. The defendant has a credit card debt of $595.

157. The defendant’s teacher employment contract will end at the conclusion of the 2025 school year [154] . His current salary is $114,115 per annum and he also receives interest from his term deposits [155] .

     154. CB 51[5]

     155. CB 52[7]

Defendant’s plans and claim to retain his provision under the Will

158. The defendant states that he is unsure what will happen with his employment position based on school numbers in the future, asserting that it is “entirely possible that I will need to find another job” [156] .

     156. CB 52[6]

159. The defendant is a level two certified Rugby Union Coach and expressed a goal to gain employment in the future with a GPS school with a rugby union program. If that occurs, he expects it would require him to relocate to the Lower North Shore or inner west of Sydney [157] .

     157. CB 52[8]

160. The defendant says the North Rocks property is in need of significant repair and renovation. Some of the work required includes roof restoration, bathroom renovations, installation of air conditioning, installation of new garage doors, new bedroom wardrobes, flooring upgrades and removal of several large trees and subsequent landscaping [158] . The defendant did not provide any costing in relation to such work.

     158. CB 52[9]

161. The defendant indicates that if he were to move, it would require a significant amount of money to purchase a home in the abovementioned areas (i.e. Lower North Shore or inner west of Sydney) “far above what my current residence is worth” [159] .

     159. CB 52-53[12]

162. Whilst the defendant expressed some uncertainty regarding his future employment, I am not satisfied that I should proceed on any basis other than that the defendant is capable of being employed further into the future, whether continuing in his existing employment or at some other school.

163. The defendant says that, from the time of the deceased’s diagnosis, he travelled each weekend to visit the deceased and spent considerable time working in the gardens to help maintain those areas [160] . I accept his evidence in this regard and have had regard to it.

     160. CB 52[9]- [10]

Principles

164. The statutory scheme and the elucidation of principles which govern the exercise of the power to make a family provision order were summarised by me in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222]. I have had regard to that outline in applying the statutory scheme and undertaking the evaluative task. In determining whether to make a family provision order and the nature of any such order, the Court may have regard to a number of matters enumerated in s 60(2)of the Succession Act. In this regard, I refer to my comments in Shymko v Lach [2022] NSWSC 1096 at [759]-[763].

165. Whilst an applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, it “is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter”: Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 (Chan v Chan) at [22] per Basten JA  (Simpson JA agreeing at [74]). Proper provision and adequate provision is not to be determined purely by a calculation of financial needs: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [71] per White JA (McColl JA agreeing at [1]) quoting Chan v Chan at [22].

Plaintiff’s submissions

166. Dr Chapple SC submitted that, other than the Brightwaters property, the plaintiff has little in the way of other capital assets and that proper provision for her includes provision to her of the deceased's interest in the Brightwaters property for the following reasons [161] .

     161. CB 39[12]

167. First, the properties (Glenhaven and Brightwaters) were truly properties of their relationship [162] .

     162. T 40.10-.13

168. Secondly, he submitted that the plaintiff and the deceased were partly dependent upon each other for accommodation over the 27-year period of their relationship and that the plaintiff made substantial financial and non-financial contributions both to the acquisition of the properties and to the household more generally [163] . Dr Chapple accepted that the deceased and the plaintiff kept their finances separate. However, for the purposes of assessing what is proper and adequate provision, he emphasised the non-financial contributions of the plaintiff need to be factored into the analysis [164] .

     163. T 40.13-.17, 41.11-.13

     164. T 41.13-.18

169. Dr Chapple SC rejected the notion that a Crisp order would, in this case, provide adequate provision, emphasising that the plaintiff ought to be in a position where she is the “mistress of her own life” and enabled to “lead an independent and dignified life”. He says the prospect of that would be diminished if she did not have the benefit of the fee simple [165] .

     165. T 41.25-.27

170. Dr Chapple SC submitted that the defendant was in a relatively comfortable financial position and that provision could be made for the plaintiff, whereby she receives the deceased's interest in the Brightwaters property and an additional sum of $115,000, which would not unduly affect the defendant's position [166] . Dr Chapple SC submitted that the deceased's concern that he did not wish Ben to receive his share of the property, whilst part of the overall metrics of considerations, was not significant at least because it focuses upon the deceased not looking to moral obligations that he owes to the plaintiff as his de facto spouse, but rather ensuring that others do not derivatively receive his property. In a sense, it is said that would involve the deceased trying to control disposition of property from the grave [167] .

     166. T 41.27–.37

     167. T 41.39-.50

171. Dr Chapple SC indicated that he did not make any submission that the plaintiff had been left without an adequate income [168] . Dr Chapple SC, whilst submitting that the plaintiff should receive the deceased's interest in the Brightwaters property, appeared to acknowledge that, if such provision was made, the case for the plaintiff receiving an additional capital sum may not be strong [169] .

     168. T 42.12-43.14

     169. T 43.46-.47

Defendant’s submissions

172. Mr Brown emphasised that the analysis of what is adequate and proper provision must have regard to the agreement and understanding of the deceased and the plaintiff regarding their financial arrangements and intentions regarding disposition of property [170] . Mr Brown highlighted that the deceased wanted to make sure that share of the property went to his son eventually [171] and submitted that the deceased’s Will did make adequate provision for the plaintiff [172] . Mr Brown stressed that there is a lack of clarity from the plaintiff regarding what her accommodation needs would be if she had to move from the property and downsize [173] . Mr Brown sought to distinguish the financial relationship between the deceased and the plaintiff from what he described as that of a nuclear family [174] .

     170. T 44.7-.20

     171. T 46.14-47.25

     172. T 46.29-.32

     173. T 47.26-.34

     174. T 48.10-.32

173. In emphasising the significance of the deceased's wishes in the draft Will document [175] , ultimately Mr Brown submitted that appropriate provision for the plaintiff was a right of residence or, alternatively, the deceased’s Commonwealth Bank shares. Further or alternatively, he submitted that the Court might consider a Crisp order over the deceased's half interest in the Brightwaters property [176] . He submitted that if the plaintiff were to receive a Crisp order, she did not need to be provided with the deceased’s Commonwealth Bank shares [177] . He further submitted that when and if the plaintiff needed to move and downsize, she would have enough capital to do that [178] .

     175. T 46.45, 48.38-.39

     176. T 45.19-46.6, 51.14-.46

     177. T 54.11-.16

     178. T 54.28-.31

174. Mr Brown submitted that to the extent that the plaintiff seeks a buffer for contingencies, the evidence does not permit me to have an accurate understanding of the plaintiff's ability to draw down from the superannuation fund and cover any shortfall she needs [179] .

Determination

179. T 55.19-.22

Issue 1: Has adequate provision not been made for the plaintiff?

175. The defendant did not seriously dispute that there was a de facto relationship between the plaintiff and the deceased. The relationship commenced “shortly after” the plaintiff met the deceased in late January 1995 and subsisted until the deceased’s death in August 2022, being for a period of at least 27 years.

175. I accept Dr Chapple SC’s submissions that the plaintiff made substantial financial and non-financial contributions, both to the acquisition of the properties and to the household more generally. Whilst Mr Brown cross-examined on some matters, such as the extent of entertaining and the like that I have noted above, there was no serious dispute that the plaintiff’s contributions were other than substantial.

176. Different perspectives regarding the significance of the financial agreement between the plaintiff and the deceased and their intentions to disposition of their estates loomed large in the way the parties approached the matter of adequacy of provision and nature and form of provision. Further, it formed the basis of much of the submissions which were put on the part of each of the plaintiff and the defendant.

177. The Court in exercising its jurisdiction to make a family provision order under the Succession Act is not necessarily constrained by financial arrangements and expressed testamentary intentions as between a plaintiff and the deceased: e.g. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9. In many cases, such matters, whilst not controlling the Court’s ultimate decision in the case, will in varying degrees inform the context in which family provision claims are litigated. Certainly, in this case, those matters did give rise to a level of some dissatisfaction on the plaintiff’s side with the provision the deceased had made (by his Will) and later proposed to make for her and conversely gave rise to expectations on the part of the defendant as to what provision would be made for him and what, from his perspective, was appropriate by way of provision for the plaintiff.

178. Mr Brown was not quite so bold as to suggest that the agreement or expectations between the plaintiff and the deceased should preclude any claim for provision per se.

179. One must have some conception of what is proper maintenance, education and advancement in life for an applicant, in order to be able to assess whether the provision made, if any, is adequate: Sgro v Thompson at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).

180. The evaluative task in assessment of family provision claims involves understanding how the plaintiff asserts or claims that he or she has been left with inadequate provision.

181. An applicant’s expression of a preference for a proposed expenditure, if the preference is soundly based, informs what is “proper” maintenance (or advancement) for the applicant: Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 at [32] per White JA citing Sgro v Thompson at [74]. However, not infrequently, whilst some general indication is given of the nature of a claim for provision, applicants fail to provide the Court with appropriate detail regarding such claims or costing for such claims. For the Court to meaningfully assess claims appropriate detail regarding how the claimant’s existing position is said to be inadequate and what is sought be way of provision ought to provided: see e.g. Robinson v Tame [1994] NSWCA 266, Kirby P at 8. In particular where accommodation provision is sought, the evidence should include detail regarding the alleged inadequacy of the existing accommodation, alternative accommodation possibilities and, where one possibility is renovation or other work to be done in respect of existing commendation costing in that regard. Failure to do so leave the plaintiff at some risk that the claim may be dismissed.

182. In this case, whilst the plaintiff has indicated she wishes to receive the balance of the deceased’s interest in the Brightwaters property, there is no evidence of costing for the renovation work that she states is necessary in respect of the property. Nor has she provided any clarity of any alternative or “Plan B” regarding other forms or types of accommodation to facilitate Court’s determination on the real issues stated above.

183. Overall, having regard to all the circumstances of the case, which I have outlined and summarised above, including:

1. the nature and length of the relationship between the plaintiff and the defendant;

2. the plaintiff’s and the deceased’s financial arrangements, including accounting for joint expenses;

3. the nature and extent of the deceased’s estate;

4. the superannuation entitlements each of the plaintiff and the defendant have received;

5. the parties’ own respective financial resources (including earning capacity) and respective financial needs, both present and future;

6. the plaintiff’s age (72) and health;

7. the contributions, both financial and otherwise, by the plaintiff to the acquisition, conservation and improvement of the deceased’s estate and to his welfare - especially care in ill-health and well as the defendant’s contributions in looking after the deceased;

8. the provision made by the deceased during his lifetime for the plaintiff including the 10% adjustment on the Glenhaven property net proceeds;

9. the Will, especially the circumstance where the sale of the Glenhaven property led to an adeeming of the accommodation provision that the deceased had made in the Will; and

10. the evidence of his testamentary intentions as embodied in the draft Will document,

185. I am satisfied that the plaintiff has been left with inadequate provision. Notwithstanding, the paucity of the plaintiff’s evidence regarding costing of work to be done to the Brightwaters property and possible alternative accommodation provision, I am persuaded that as matters stand the plaintiff’s current position regarding accommodation is inadequate for her.

Issue 2: What, if any, order for provision should be made for the plaintiff?

186. The far more difficult question is that which relates to the nature and form of any order for provision.

187. The plaintiff, in her initial affidavit in support of the summons, emphasised her claim for accommodation provision as being the deceased’s share of the Brightwaters property to be transferred to her outright [180] . As noted, no attempt was made in the plaintiff’s affidavit to outline alternative accommodation options.

     180. T 51.7-.11

188. Because the case was presented that way, and having regard to the plaintiff’s answers in cross-examination, the Court was ultimately left with scarce evidence as to any identifiable alternative accommodations and what their availability, suitability and costing might be.

189. Initially, the plaintiff sought a lump sum for unexpected contingencies in life [181] . The extent of the lump sum was not identified by her, though a sum of $115,000 was suggested in submissions. The plaintiff intimated that she would like to travel more in future [182] . Whilst her evidence regarding this was located in the part of her initial affidavit under the heading “need for provision”, precisely what if any monetary provision she was seeking in respect of facilitating travel is unclear. The plaintiff’s updating affidavit did not further address any of her claims for needs.

     181. CB 22[69]

     182. CB 22[70]

190. The plaintiff’s claim for provision in respect of accommodation is vexed.

191. Whilst the plaintiff identified that the house requires various maintenance works and that she would like to pursue an extension of the balcony [183] , as noted she did not adduce any evidence regarding the cost of such work.

     183. CB 21[68]

192. I have considered the possibility raised by the defendant that he had no objection to the plaintiff having a form of right of residence in the Brightwaters property. Such a proposal would still be on the basis of the parties having co-ownership of the Brightwaters property.

193. The plaintiff, as noted above, identified two concerns regarding co-ownership of half the property specifically “Occupation. Cost of maintenance” [184] .

     184. CB 21[66]

194. As to “occupation”, if the concern is one in respect of sale of the property, a sale of property would be precluded by a gift of occupation or residence.

195. That is because, where an interest in property which gives co-ownership has been derived from acceptance of a testamentary gift which is expressed to be subject to a condition for the benefit of another such as a right of residence, that provides the basis for a submission that the Court should exercise its discretion to refuse an order pursuant to s 66G of the Conveyancing Act1919 (NSW) for the appointment of trustees for sale of the property. This is on the basis that the acceptance of the gift so conditioned gives rise to a personal equitable obligation analogous to a contractual obligation: see Williams v Legg (1993) 29 NSWLR 687 at 693C-694D; [1993] NSW ConvR 59,829 citing inter-alia Stephens v Debney (1959) 60 SR (NSW) 468 at 469-470; (1959) 77 WN (NSW) 223; O'Neill v O'Connell (1946) 72 CLR 101 at 120; [1946] ALR 173; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 418-419; [1932] HCA 22.

196. As to the “cost of maintenance”, I accept there may well be issues regarding payment of maintenance and outgoings. While these could clearly be addressed by terms placed on any order for provision, the parties did not specifically provide submissions regarding this. Further, a right of residence based on co-ownership leaves the parties financially tied to one another.

197. Overall, I am not satisfied that a form of right of residence is adequate and proper provision for the plaintiff.

198. I have considered Mr Brown’s submissions regarding a Crisp order.

199. Such an order was described by Hallen J in the following terms in Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229 at [187]-[188]:

187.   Because it was referred to, what is described in the cases as a "Crisp order" is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep), except in part, in L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) at par [9433]. Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a "Crisp order" confers a "portable life interest": Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep), cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109, at [47]-[48].

188.   In Re Schlink; Keane v Corns [2020] VSC 180 at [79], McMillan J described this type of order as:

“… a practical way of crafting relief which provides for the proper maintenance and support of an applicant in a flexible manner, while also preserving the estate for the remaining beneficiaries. The usual circumstance in which a Crisp order may be appropriate in family provision claims is where an applicant for further provision is a surviving spouse or partner of a deceased and the deceased failed to provide adequately for them.”

200. Ultimately, I am not persuaded that a Crisp order would be appropriate in the circumstances of this case. In considering that, I have taken into account all the circumstances of the case, including submissions of Dr Chapple SC regarding the plaintiff having the dignity of being the mistress of her own destiny without being tied to further ongoing involvement with the defendant in respect of the property that would be subject to a Crisp order.

201. In the course of the hearing, I raised the possibility of a mortgage on the property and Dr Chapple SC intimated that, for his part, that was preferable to a Crisp order [185] . Mr Brown submitted that in a sense the plaintiff is a mistress of her own destiny in that she has a half interest in the Brightwaters property, which is sufficiently valuable to enable her to purchase alternative accommodation. He adds that a Crisp order is an attractive proposition because apart from the funds the subject of the Crisp order, the plaintiff has her own funds which is free to use as she chooses [186] . In relation to a mortgage, Mr Brown did not seem to enthusiastically embrace the idea, principally because there is no clarity as to how much the plaintiff might need if she were to downsize, indicating that the Court should assume that the money (whether it be $900,000, $1,000,000 or the Agreed Schedule value of $ 975,000) she receives from her own half interest in the property on a sale may well be enough for her to be the mistress of her own destiny [187] .

     185. T 27.1-.2

     186. T 55.24-57.4

     187. T 55.48–56.24

202. In assessing what is adequate and proper provision, I have anxiously considered all the circumstances of the case, and the applicable s 60(2) factors including the matters that I have referred to above.

203. Further, in particular, I have considered the plaintiff’s claim for provision was not merely limited to accommodation but to other aspects that I have mentioned above including a claim for a fund for contingencies.

204. Ultimately, whilst I have carefully considered Mr Brown’s submissions, I am persuaded that, overall, the appropriate provision for the plaintiff is that she receive the deceased’s half interest in the Bridgewater’s property in addition to the provision given to her pursuant to clause 2 (iv) of the Will.

205. The 10% adjustment regarding the ownership of the Glenhaven property occurred approximately after 10 years of the relationship. However, the relationship subsisted for approximately another 17 years, almost twice as long as that initial period, and at least part of the latter period was marked by failing health of the deceased and increased care by the plaintiff for him [188] .

     188. T 56.24-.39

206. However, I am not persuaded that any further additional sum should be provided to the plaintiff by way of a fund for contingencies.

207. Lest there be any doubt as to what I have considered, I have had particular regard to the position of the defendant. I am not persuaded that the defendant will have difficulty with future employment. However, even if it were the case that the defendant did have some period of unemployment, had to shift or seek further employment, and/or had to obtain accommodation in the Lower North Shore or inner west of Sydney, I am satisfied that the provision I have indicated appropriately evaluates those matters in all circumstances. I consider that he will be able to adequately and properly address his circumstances through his own financial resources and the provision that will be available for him after making provision for the plaintiff.

Costs

208. Prima facie, the plaintiff’s costs, calculated on the ordinary basis, and the defendant’s costs, calculated on the indemnity basis, ought to be paid out of the estate. I propose to so order subject to giving any party opportunity to vary such order if there is good reason to do so, such as an Offer of Compromise or Calderbank offer having been served.

Conclusion

209. I light of all of the above, I will ask the parties to bring in short minutes of order to give effect to my indications regarding the nature of order of provision I propose (regarding the deceased’s half interest in the Bridgewater’s property), costs and any ancillary orders.

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Endnotes

Decision last updated: 04 April 2025