Curtis v Curtis

[2023] NSWSC 1164

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Curtis v Curtis [2023] NSWSC 1164

Hearing dates:

18 – 20 September

Date of orders:

28 September 2023

Decision date:

28 September 2023

Jurisdiction:

Equity - Succession & Probate List - Family Provision

Before:

Elkaim AJ

Decision:

1. Pursuant to s 59 of the Succession Act 2006 (NSW) Blake Curtis (the first plaintiff) is to receive, by way of provision, out of the estate of the late Barry John Curtis (the deceased), 20% of the net proceeds of the sale of the deceased’s property situated at xx xxxxx xxxxx, xxxxxxx in the state of New South Wales, being xxx xx xx xxxxxx Folio No xxxxxx, (the property).

2. Pursuant to s 59 of the Succession Act 2006 (NSW) Brock Curtis (the second plaintiff) is to receive, by way of provision, out of the estate of the deceased, 20% of the net proceeds of the sale of the property.

3. No interest is to be paid on the sums payable to the plaintiffs if those sums are paid within 28 days of the settlement of the property.

4. In the event that interest does become payable it is to accrue at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on any unpaid part of the entitlement of each plaintiff calculated from 28 days after settlement of the property.

5. The costs of the plaintiffs are to be paid out of the estate of the deceased, calculated on an ordinary basis.

6. The costs of the defendants are to be paid out of the estate of the deceased, calculated on an indemnity basis.

7. Each party has liberty to apply for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the above orders.

Catchwords:

SUCCESSION – family provision – claim by grandchildren of the deceased – whether plaintiffs are eligible persons under s 57(1) of the Succession Act 2006 (NSW) – whether plaintiffs were wholly or partly dependent on deceased at any particular time – where plaintiffs did not receive money from the deceased’s estate – whether plaintiffs warranted provision – extent of the provision

Legislation Cited:

Probate and Administration Act 1898 (NSW), s 84A(3)

Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:

Chisak v Presot [2022] NSWCA 100

Estate of Awad [2023] NSWSC 765

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Shymko v Lach [2022] NSWSC 1096

Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

Blake Johnathon Curtis (First Plaintiff)
Brock Ryan Curtis (Second Plaintiff)
Peter Arthur Curtis (Defendant)

Representation:

Counsel:
Ms L Clarke (Plaintiff)
Mr C Simpson (Defendant)

Solicitors:
Robbins Watson
Somerville Laundry Lomax

File Number(s):

2022/313246

JUDGMENT

1. Blake and Brock Curtis are brothers, now aged 34 and 31 respectively. Their grandfather, Mr Barry Curtis (the deceased) died on 11 January 2022, leaving a will.

2. For convenience, and without any disrespect, I will generally refer to the persons involved by their first names.

3. The will is dated 16 April 2021. Probate was granted on 11 August 2022.

4. The will makes no provision for the plaintiffs. The plaintiffs think provision should have been made for them and have made an application for provision pursuant to s 59 of the Succession Act 2006 (NSW) (the Act).

5. The defendant is the executor of the will. He is the deceased’s brother. He does not benefit under the will. The sole beneficiary is the defendant’s son, Mr Rodney Curtis. The only caveat is that if Rodney had not survived the deceased for 30 days, then the deceased’s estate would go to Rodney’s son, Kris.

6. The defendant opposes any order in favour of the plaintiffs.

7. Section 59 of the Act raises three qualifying questions:

1. Are the plaintiffs’ eligible persons?

2. If yes, in all the circumstances of the case, are there factors which warrant the making of the application?

3. Again, if yes, has the will of the deceased made adequate provision for the proper maintenance, education or in advancement in life of the plaintiffs?

The family

8. The deceased was born in 1935. He married Elaine in 1962. They had two children, Darran and Rodney born in 1967 and 1970 respectively.

9. Elaine died in 1999. The deceased did not form any new relationships.

10. Darran began a relationship with Ms Victoria Mathew in 1987. They had three children; Blake born in 1988, Bonnie, born in 1990 and Brock, born in 1991. Bonnie is not a plaintiff. She was notified of the proceedings but declined to take any part.

11. Darran and Victoria separated in 1992. There is an allegation that Darran formed a relationship with a woman in about 1997 which produced a single child. That is the extent of the evidence about this child.

12. Darran was diagnosed with bowel cancer in 2003. As a result of this illness, he died on 4 November 2008.

13. Blake has a partner called Brydee Collins. They have two sons, born in 2014 and 2017 respectively. The family lives with Brydees’ parents.

14. Rodney formed a relationship with Amanda Beaver in 1998. They have one son, Kris, born in 2001.

15. Accordingly, the deceased was survived by a son (Rodney), four grandchildren and five great-grandchildren (Bonnie has three children).

16. The defendant did not dispute that the plaintiffs were the deceased’s grandsons. He did dispute that they had been wholly or partly dependent upon the deceased or were otherwise entitled to relief.

Earlier wills

17. The first will was made in August 1978. The entire estate went to Elaine, but if she did not survive, then to Darran and Rodney in equal shares.

18. The second will was made in February 2009. Rodney was the sole beneficiary, with the estate going to any children of Rodney, had he not survived.

The estate

19. The estate is primarily made up of unencumbered real estate in West Ballina. This was where the deceased lived. There is about $20,000 held in trust. $15,000 was received as a result of a flood recovery grant. This sum is being held by Rodney.

The first question: dependency

20. Eligible persons are defined in s 57 of the Act. Section 57(1)(e) says a grandchild may be an eligible person if that grandchild was “wholly or partly dependent on the deceased person”.

21. The existence of dependency has been the subject of much judicial comment, but, as a very general statement, every case will be decided on its own facts. Further, as pointed out by the defendant, dependency has a “lowish bar” or a “relatively low” test.

22. Both parties referred me to Chisak v Presot [2022] NSWCA 100. Clearly, as stated at [46], dependency does not require “financial or other material assistance”. The defendant pointed out that there was no evidence of the deceased ever assisting either plaintiff with money or even gifts. Rather, submitted the defendant, there was little more than “occasional care, providing meals from time to time, or occasional personal care for the plaintiffs as children.”

23. The defendant particularly referred me to Chisak at [56] and [57]:

“56. It could be said that a baby left in the care of grandparents for a few hours or overnight, who needs to be fed and changed, is dependent for that particular period of time on his or her grandparents. But such periods of dependence would be minimal. I do not think that dependence for a few weeks or a month on two, three or four occasions could be regarded as minimal. The question under s 57(1)(e) is whether “at any particular time” Ivy was partly dependent on the deceased. No doubt Ivy remained dependent on her father but that does not mean that she was not partly dependent for the particular periods of time in which she stayed with the deceased on her.

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

24. The starting point for dependency in this case is the separation of the plaintiffs’ parents in 1992. Rodney asserted that following this event his family had little to do with the plaintiffs. They were a separate family. I do not accept that assertion. It is, I think, part of Rodney’s overall intent to create different families in which his father had minimal contact with Darran’s children.

25. The details of the asserted dependency are given in the respective affidavits of Blake and Brock. I do not intend to recite all of the detail, but rather to refer to the more controversial elements which were the subject of attack or, at least, comment.

26. Blake began his assertion of dependency, stating “I have always had a close and loving relationship with my Grandad.” He was not challenged on this assertion. He relates, through his affidavits, that his parents separated when he was three years of age after which he usually lived with his mother but spent time during the day with his father.

27. When Blake was about eight years of age he began to spend more time with his father, including alternate weekends. He states that his father was in poor health from 1998, but this was probably some years later, the diagnosis of cancer being made in 2003. Nevertheless, once his father became ill, he would spend longer periods at the deceased’s home. Blake stated that during these periods:

“We spent a lot of time together in the house and out in the yard, as well as fishing and doing other activities as a family.

During this time, Dad was working as a chef and would often travel for work for an extended period. If Dad was away, Brock and I would still reside with Grandad on weekends regardless of whether Dad was away. … Grandad would provide our meals, make sure we were clean, brushed our teeth, and all the usual things a parent does for a child.”

28. It was suggested to Blake that he would have been too old to have been monitored as suggested, for example that the deceased would brush his teeth. Blake was definitely a teenager and no doubt capable of tasks like brushing his teeth, but that does not mean that supervision was unnecessary, in particular for activities like going to bed at certain times.

29. I think the weekends spent with the deceased are an important element of dependency. This is not a case of recreational weekends being spent with a grandfather. This was the deceased stepping in to care for the plaintiffs while their father was working.

30. When Darran passed away Blake inherited a Holden Commodore from his father’s estate. Blake did in fact pay for the car as required by Rodney who was administering the estate. Rodney seems to have carried out his duties as executor in a somewhat informal manner, probably not applying for probate and certainly not calling on the services of a solicitor. Darran’s estate was not large and while it is unclear, Darran’s three children each seem to have received a small amount of cash (or equivalent in the case of Blake’s car) in the order of about $20,000.

31. The defendant submitted that Blake residing in the deceased’s house in 2011 did not amount to dependency because he paid board and was expected to help about the house. This submission ignores the fact that the board was substantially less than a market rent and involved an “invitation” on the part of the deceased, to allow Blake to live in the house. Of itself this is nowhere near dependency but taken together with their relationship since Blake was a child, which involved periods staying with the deceased, seeking and receiving his advice and participating, if only infrequently, in events such as Christmas, then I think dependency for Blake has been established.

32. According to Brock, he began spending more time with his father, in particular overnight stays, when he was about six years of age. He stated:

“My Grandad was instrumental in us being able to live with my dad. He was caring for my father and was also looking after us. Sometimes my father was very sick, and it fell to my Grandad to do the things that a parent does for the child. He feed (sic) me, made sure we were clean and had clean clothes. He made sure we went to bed on time and brushed our teeth.

Grandad had two spare bedrooms at his home. My father permanently moved into the first room, and Blake and I used to live in the room next door when we were in his care … We would stay with my father and Grandad at xxxxx xxxxx every other weekend. During that weekend, Grandad was constantly taking us out to go fishing or to swim down by the creek.”

33. Accepting that there were occasions when the deceased stayed with a Mr Tony Brennan, the above description given by Brock has all the attributes of children being in the care of, and dependent upon, their grandfather, albeit for short periods of time. Perhaps most significantly, the deceased was filling a gap in the plaintiffs’ upbringing which Darran was not providing.

34. Brock relates that when he was 11 or 12 years of age his father moved into an apartment with a woman called Sharron. He and Blake felt unwelcome in that home. Sharon had children of her own and was seemingly “not supportive” of Darran spending time with his sons. Accordingly, they would not stay overnight with their father but would stay with the deceased. On these occasions:

“Grandad did everything for me and my brother when we stayed at his house as Dad was not there.

My father would come once or twice a month and we would all hang out together at Grandad’s place, to avoid Sharron.”

35. Brock was about 14 years of age when Darran and Sharron separated and Darran moved in with the deceased. Brock continues:

“As a young teenager, I would spend weeks at a time living with my father and Grandad. During these years, my father was very sick. Grandad would drive us to the hospital to visit him and try and keep our spirits high.

My father passed away when I was 17 years old. This was an extremely difficult time and Grandad was an amazing emotional support person. Grandad made an effort to get us out of the house and take us fishing, to keep our mind off everything.”

36. Another period of emotional disturbance in respect of Brock arose from events which took place on 8 April 2008 when Brock rescued a friend from the sea after the friend had been attacked by a shark. Brock brought his friend to shore and ministered to him until he died in Brock’s arms. This is the source of the post-traumatic stress disorder (PTSD) suffered by Brock.

37. Brock received an award for his rescue attempt. The defendant submitted that there was no evidence that the deceased attended the award ceremony, suggesting a lack of connection to Brock. I think this conclusion is something of a quantum leap and I reject the suggestion.

38. In his adult years Brock’s relationship with his grandfather continued. When Brock was living in Lismore, after 2014, he visited the deceased regularly. When the deceased was hospitalised, Brock spent time with him and performed some work about the house. He stayed at the house in December 2021, although at this time the deceased was in the nursing home.

39. The attack on the plaintiffs, through cross-examination, made few inroads. This is not a critical assessment of the cross-examination, but rather a reflection of the general honesty of the plaintiffs. The defendant did not assert overt dishonesty on their part, but submitted they were not reliable witnesses, probably having reconstructed their memories. I was referred to the decision of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319:

“Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

40. I think there is some force in the submission, but it is to be remembered that the events about which the plaintiffs spoke stretched over a number of years, not all of them being subject to memories withering over time. Some dates were established to be wrong but otherwise little was achieved by the cross-examination.

41. An example of the “faulty” memory of the plaintiffs related to a Mr Brennan. I accept, as did the plaintiffs under cross-examination, that there were frequent times when Darran stayed with Mr Brennan and not with the deceased. However, there were also substantial periods when Darran, and his two sons, did reside with the deceased, confirming the overall relationship that existed with the deceased.

42. The testing of the witnesses, by both sides, as to the dates of birth and names of various people did not assist.

43. The defendant made some specific submissions about “non-disclosures, inaccuracies and contradictions in Brock’s evidence.” The most significant of these concerned Brock not disclosing a contribution to a rental obligation that he had, thus overemphasising the financial burden that was upon him. Essentially, he had failed to deduct a contribution from a flatmate from the amount he was paying in rent.

44. I agree that there was a non-disclosure and that there is a resulting impression of Brock having more expenses than he did. Having seen Brock, and Blake, in the witness box I suspect the non-disclosure was more a feature of him not having paid careful attention to the figures rather than a deliberate intention to deceive.

45. In respect of Blake, it was submitted that he had omitted any mention of his grandmother (Elaine) caring for him while she was alive. I am not sure of the significance of the submission. I do not see that it affects any issue in the case.

46. Another submission against Blake was the suggestion that he had been asked to leave the deceased’s home after he had been living there for a period. Blake said that he had been asked to leave in order for a carer to move in. Rodney said that no carer had ever moved in, and that, at the relevant time, the deceased had not needed a carer. It is difficult to resolve this issue because I frankly have doubts about the reliability of both Blake and Rodney on the point. Neither side thought it appropriate to put the deceased’s medical records for the relevant time before the Court.

47. It also emerged in cross-examination that Brock had never filed a tax return. Obviously, this does not reflect well upon him. Ultimately the evidence disclosed that he had always had tax deducted from his wages so that the probable loser of his failure to lodge returns was himself, having deprived himself of tax refunds.

48. Another angle of attack on the dependency issue came from the calling of witnesses to say that they had seen little or no evidence of the plaintiffs in the presence of the deceased, or even heard the deceased talking about them.

49. Little weight can be given to some of the witnesses, in particular Mr Formaggin and Mr Lusted. I have no doubt they were honest witnesses doing their best to recall events as they remembered them. However, they were either neighbours and/or close friends who could hardly be said to have had the deceased’s home under 24-hour surveillance. In addition, the evidence was to the effect that the deceased was a private and independent man and I have some doubts as to the extent to which he would have exposed any softer side of his nature to his friends.

40. The deceased’s nature, perhaps indicative of his time and situation in life, may have shown a reluctance for overt emotion, but was perhaps subtle in some of his words, such as referring to Rodney as “his nibs”. This is consistent with the suggestion that Rodney was to some degree a controlling factor in the deceased’s life.

41. The observation I have just made is not a suggestion, as momentarily emerged from the plaintiffs’ counsel, of “elder abuse.” Rodney unquestionably was devoted to his father and helped him a great deal.

42. This is a convenient point to deal with an allegation made against Rodney of breaching his fiduciary duty under the power of attorney that he had been granted by his father. The plaintiffs cross-examined Rodney on his use of the deceased’s eftpos card for his own benefit. Rodney’s response was that every purchase that he made using the card was either for goods to be used by the deceased, shared with the deceased (for example groceries for family meals) or was with the express permission of the deceased.

43. I generally accept Rodney in his evidence about the use of the card although his purchases while the deceased was in hospital or in St Andrews nursing home are distinctly suspicious. An examination of the St George Bank statements relating to the card, indicate a very substantial increase in expenditure for daily items, such as petrol and supermarket goods which would not have been of any use to the deceased.

44. However, notwithstanding my suspicions, I cannot elevate them to any degree equal to a conclusion that Rodney had acted either in breach of his fiduciary duties or without the express permission of his father. The same is true of the $30,000 transferred to Rodney from his father’s bank account in October 2021.

45. The most significant evidence on dependency, on behalf of the defendant, came from the defendant and from Rodney. The defendant’s evidence was split into two parts; his administration of the estate and his observations about life in the deceased’s household. In relation to the former, I had the distinct impression that the defendant had little appreciation of his obligations and had probably been guided by his solicitors. He seemed unaware, or perhaps unconcerned, about the use of estate funds by Rodney and his understanding of the various figures seemed distinctly basic.

46. In relation to his observations of the deceased’s household, I generally accept his evidence, but with one very stark exception. In his affidavit of 8 December 2022, from paragraph 13, the defendant describes the periods when he would stay with the deceased, in particular when he was suffering from one or more of various medical conditions. He describes, for example, having back surgery in about 2003 when he stayed with the deceased for 3 to 4 weeks after his discharge from hospital. Another example is that in 2015 and 2016 the deceased stayed with him for up to a week following two bouts of cataract surgery. Then in 2017, after suffering a ruptured disc, and receiving treatment, he stayed with the deceased for about three weeks.

47. The various examples he gives amount to very short periods when averaged over the range of more than 20 years that he describes. In addition, he stated:

“Aside from visits when the Deceased would care for me when I was unwell, I would visit and stay with the Deceased at least four times per year right up until he went into a nursing home. The length of my stay varied but was often between two days and a week at a time.”

58. When he was cross-examined about his estimates of time he spent in the deceased’s household, and was asked, by me, to give an average, after a period of evasive answers, his estimate rocketed to an average of 30 weeks per year. His affidavit evidence comes nowhere near this amount. It is important evidence which one might have expected to have been included in his affidavit. I reject that evidence entirely. I prefer his original evidence which probably, at best allows for an average of a week or two per year.

59. I should add that in final submissions counsel for the defendant very properly disavowed the assertion of 30 weeks per annum, submitting that the defendant had perhaps fallen prey to the anxiety of being under cross-examination and receiving a question from me.

60. Another unusual aspect of the defendant’s evidence was his direct statement that the deceased was not a good father. He did later, and fairly, qualify his answer by stating that as an unmarried man having had no children, he was perhaps not qualified to make such an assessment.

61. Turning to Rodney, the burden of his evidence was that following Darran’s separation from Victoria, there was also a separation of the families within the Curtis family umbrella. He even seemed to suggest that Darran had little or no relationship with his own children and that he had a stronger relationship with Rodney’s son. I reject that assertion. I find it consistent with Rodney’s apparent overriding intent to paint a picture of alienation between the deceased and Rodney’s family, so as to defeat the plaintiffs’ claim.

62. An example of the fallacy in Rodney’s assertions are to be found in the exchange of text messages between him and Blake in 2021, when Blake was endeavouring to assist his grandfather and Rodney responded consistently with those endeavours. Another telling text is on 22 October 2020 when Rodney sends birthday greetings to Blake, somewhat at odds with the picture of separate families that Rodney tried to paint.

63. In his first affidavit Rodney recounts his family history. He says that he is the younger of two brothers and that his “recollection of my childhood was a very happy one. Mum and Dad were supportive loving parents.” Presumably, he is referring to the attitude of his parents to both himself and his brother. It would therefore seem incongruous that in later life the deceased would have little affection for his grandchildren.

64. Rodney recounts that he operated a supermarket at Wollongbar from 2001 until August 2020. This naturally took up a great deal of his and his wife’s time. He said that his son, Kris, would spend his school holidays with the deceased, there were weekly family visits to the deceased as well as visits on special occasions.

65. Rodney states that after Darran and Victoria separated, his family (presumably him, his wife and their son) saw “very little” of the plaintiffs. He says that the separation was not amicable and that Darran turned to drinking and gambling, “a very different lifestyle” to that led by Rodney.

66. According to Rodney “our family, including Dad, saw very little of the children and they did not attend Christmas functions or other special occasions until they were grown. Even then, it was a one-off event after Blake and Dad reconciled in about 2017, that Dad attended”. It is not clear what dispute had existed that required a reconciliation.

67. Rodney refers to the period when Blake stayed with the deceased in about 2011. He places the period at about three months, rather than the 11 months or so referred to by Blake. Rodney says that during this period the deceased often said that Blake “did nothing around the house to assist.” He says that after some weeks the deceased asked him (Rodney) to request Blake move out. Blake reluctantly did so. Rodney says that he believes Blake resented being told to move out leading to some six years of no contact between Blake and the deceased.

68. Rodney says that Brock’s relationship with the deceased was “non-existent until Dad became older and eventually became ill.”

69. Rodney stated that:

“By around 2021, Dad was slowing up becoming more reliant upon assistance. As a result, Mandy and I agreed to sell the supermarket at Wollongbar so that I could become Dad’s carer.”

70. I asked Rodney about this statement because it seemed to me that it was something of a radical step to sell a business for the sole reason of becoming the deceased’s carer. Rodney then stated that caring for his father was but one factor in the decision to sell the business.

71. I think Rodney’s initial statement, as recorded in his affidavit, is an indication of his effort to present himself as the principal, if not only, subject of his father’s affections.

72. My observation in the preceding paragraph is an indication of my overall conclusion that Rodney, through his evidence, was intent on defeating the plaintiffs’ claims in order to secure the maximum benefit from the estate for himself.

73. While there were unquestionably some errors in the evidence of the plaintiffs, in particular concerning dates, I nevertheless accept their evidence as to their relationship with their grandfather. I prefer this evidence to that of Rodney to the extent that his evidence tends to minimise the relationship.

74. Ultimately, I accept that Brock and Blake were dependent upon the deceased, at least partly, but to an extent that qualifies them as eligible persons to bring their claim.

The second question: factors warranting the claims?

75. The defendant submitted that this was the strongest part of his case. I agree, but disagree that it is strong enough to defeat the plaintiffs’ claim.

76. The principal reasons behind the defendant’s submissions were as follows:

1. The fact that the plaintiffs were eligible does not establish this requirement. So much is evident, for example, from the judgment of Lindsay J in Estate of Awad [2023] NSWSC 765, at [70]:

“The question whether there are ‘factors warranting’ the making of an application for a family provision order is not to be equated with the question whether there are ‘reasonable grounds’ for the making of the application or for a belief that the applicant is in need or worthy of provision, although there may be some affinity between the two questions in some cases. The ‘factors warranting’ criterion represents a gateway to section 59(2). It refines the nature of the relationships identified in section 57(1) considered appropriate for the making of a family provision order. It provides a filter through which a person who has established ‘eligibility’ must pass, recognising that ‘eligibility’ is not of itself sufficient to ‘warrant’ (that is, justify) a claim on a deceased person’s bounty.”

2. That the relationship between the plaintiffs and the deceased “amounts to no more than an archetypal grandparent/grandchild relationship - what appears in that evidence are no more than the ‘ordinary characteristics of a family relationship’”.

3. In support of the preceding subparagraph the defendant gave examples of the contact between the deceased and the plaintiffs all of which suggested no more than the normal relationship of a grandchild with a grandparent.

4. More importantly, submitted the defendant there were “notable features apparently absent from the relationship, especially one said to approach that of a parent/child.” For example, there was no evidence of financial assistance, no evidence that the deceased held himself out to third parties as the grandfather of the plaintiffs, advice to the plaintiffs was limited, the deceased never attended any “occasions” linked to the plaintiffs (such as sporting events or graduations), the deceased never had holidays with the plaintiffs and there was little to no relationship with the deceased’s siblings (Peter and Wendy).

77. Each of the above points is valid, but each can be met by the nature of the relationship that did exist. As I have already mentioned, the deceased was an apparently independent and private man, perhaps not given to the “typical” relationship that sometimes exists between a grandchild and a grandparent.

78. There was almost no evidence about the deceased’s sister, Wendy, and it is impossible to know what factors influenced the little contact she had with the plaintiffs. As to the defendant himself, the impression I had of him was that any lack of contact was probably more at his instigation than the plaintiffs.

79. The defendant submitted that a critical point against the plaintiffs was the absence of any “testamentary recognition.” Relying again on Awad, the defendant referred to this passage at [67] of the judgment:

“Had the deceased made modest testamentary provision for any one or more of the second, third and fourth plaintiffs (as she was entitled to do) they might well have been plausibly regarded as a natural object of testamentary recognition. However, she made no such provision for them and section 59(1)(b) requires the Court to be satisfied that ‘there are factors which warrant the making’ of their respective applications for family provision relief, a broader question.”

80. I was also referred to Shymko v Lach [2022] NSWSC 1096 where Meek J stated, at [820]:

“ … a clear indication of whether an applicant is or might be described as a natural object of testamentary recognition involves looking at the terms of the Will or Wills that the relevant deceased person has made.”

81. The deceased had made two previous wills. Neither of them mentions the plaintiffs. I’ve already described above the contents of the earlier wills.

82. The plaintiffs countered the absence of testamentary recognition with their evidence of “testamentary” intention.

83. Blake recounted this conversation with the deceased when he was installing some health aides at the deceased’s home to assist with mobility issues:

“Grandad: There is probably no point to this, I am not going to live for ever.

Blake:   Do you need anything, have you got a will?

Grandad: I have been talking to your mum about this, we have made an appointment to see a lawyer to update it.

You will be taken care of; Rodney will take care of you both.”

84. There is perhaps some inconsistency between the suggestion of a change to the will and reliance being placed on Rodney. On the other hand, the reliance on Rodney is consistent with the will not being changed because Rodney would “take care” of the plaintiffs.

85. Brock stated:

“When I was younger, especially after my father’s passing, Grandad would frequently make comments to the effect of ‘you will always be looked after’.

As Grandad got older, he would make comments to the effect of ‘I am not going to live for ever, Rodney will take care of you when I am not around.’”

86. The suggestion that Rodney would act in the interests of the plaintiffs is also evident in the affidavit of Victoria, who stated:

“He got out a copy of his 2009 will which benefited Rodney and Rodney’s only son. He said words to the effect of ‘Rodney will make sure Darran’s children get something’”

87. The consistent message of reliance on Rodney is clearly contrary to Rodney’s understanding of his father’s wishes. Rodney has made it clear he has no intention whatsoever of assisting the plaintiffs.

88. The real point however, is that the important factor of an absence of testamentary intention is met, and I think defeated by the statements by the deceased that, rather than the deceased changing his will, Rodney would “do the right thing”.

89. Another factor that I think is important is that following the death of Darran the link between the deceased and the plaintiffs filled the gap created by Darran’s absence. In other words, there can be no doubt that Darran would have established a testamentary intention to be a beneficiary under his father’s will, a status that, in his absence, was assumed by his children.

90. Although the question of dependency is separate to the “factors warranting” question, the matters which led to the finding of dependency can also be taken into account in the current question. Taken together with the deceased’s statements about the role to be played by Rodney, I am satisfied that there are factors warranting provision for the plaintiffs.

The third question: adequate provision

91. The plaintiffs have moderate incomes. Blake earns a gross salary of $54,000 per annum. He has about $77,000 in superannuation and he owes about $7,000. His partner, Brydee, has a net income of about $51,000 per annum. They individually earn substantially less than average weekly earnings in New South Wales, which at November 2022 stood at a gross weekly figure of $1,894.30.

92. Blake and Brydee have two young children. The family lives with Brydee’s parents. They pay $350 per week in rent. Much was made by the defendant of a trust account held on behalf of the children. The amount in the account is limited, about $26,000, and had its source in an inheritance Brydee received from her grandmother. I do not see the existence of the account as having any substantial effect on the family finances, although it might of course assist with school fees, should private education be selected.

93. I note here that Brydee was an overwhelmingly honest and impressive witness.

94. Like Blake, Brock does not own any real estate. He is now earning $57,000 per annum, which I assume is after tax. His weekly expenses of $1255 per week are no doubt mitigated by the fact that he has a contribution to his rental payment. He has a motor car worth about $35,000 and about $20,000 in superannuation. He has debts of about $9,500 and about $2,000 savings in the bank.

95. As mentioned above, Brock suffers from PTSD, for which he continues to receive treatment.

96. Rodney gave details of his financial position, no doubt to establish that he too has a need. His most recent statement of his finances is to be found in his affidavit of 7 August 2023.

97. Rodney is married with one son. He and his wife, Mandy have a property in Fernleigh which he values at $1,400,000. There is a mortgage with an outstanding balance of about $238,000. He has three motor vehicles with a total value of $140,000. He has superannuation of $151,000. Mandy has a superannuation balance of $231,000.

98. Besides the mortgage Rodney has a very small outstanding car loan and overdrafts of about $8,500.

99. The house is being renovated, with the costs seemingly continually escalating. They now stand close to $600,000. Part of this has been funded by the net proceeds from the sale of Rodney’s IGA business, but no doubt the family finances are being impacted by the continuing costs.

100. According to his latest figures, Rodney has an income of $4,146 per annum and Mandy earns $7,595 per annum. They, together, run a cleaning business, most of which involves work done for real estate agents.

101. Rodney listed his monthly expenses at $6,021. The couple’s joint income of $978 per month obviously is incapable of meeting these expenses. It was suggested to Rodney that he might not have been entirely accurate in stating his income, in particular his bank account receipts display income from the cleaning business between 11 July 2022 and 4 July 2023 as $69,872.17.

102. Rodney rejected the suggestion that he was being paid in cash and said his income figures had been provided by his accountant. He also adopted the oft repeated diversion that he was not responsible for the family bookkeeping. In submissions the low-income figures were said to be explained by them being limited to a short period. In addition, it was said that the earnings from the cleaning business would obviously be reduced by the costs associated with that business. While these are all valid points, I remain sceptical about the veracity of Rodney’s figures.

103. Nevertheless, as already stated, Rodney and his wife have debts, they are older than the plaintiffs and the benefits provided by the will would significantly improve their financial stability. Although Rodney is not a plaintiff, bearing in mind his comparative position to that of the plaintiffs, his needs are well described by the High Court in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, at [6]:

“The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them”

104. Section 60 of the Act provides a list of matters that a court may take into account in determining an appropriate order. Some, but not all of them, are applicable in the present case.

105. In reaching my conclusions I have specifically taken into account the following:

1. Subsection 60(2)(a): I have made comments about the relationship between the plaintiffs and the deceased, which I think establish a close relationship which was long-standing and enhanced by the death of Darran.

2. Subsection 60(2)(b): the obligations owed by the deceased to the plaintiffs must take into account that they are grandchildren and have a lesser demand on the estate than Rodney who is not only a son but also made significant contributions to his father’s welfare.

3. Subsection 60(2)(d): the plaintiffs have limited resources, they will have ongoing needs for their continuing livelihoods and, in the case of Blake, for his children. Again, these needs must be balanced against the needs of Rodney, for reasons already stated.

4. Subsection 60(2)(f): although apparently not an economic threat, Brock suffers from PTSD and, in the nature of that illness, is likely to continue to do so.

5. Subsection 60(2)(h): the plaintiffs did make some contributions to the deceased’s welfare and house, but I do not consider them to be other than a minor factor.

6. Subsection 60(2)(j): as discussed above, I think there are distinct examples of testamentary intention, not expressed through inclusion in a will, but rather through an aspiration that Rodney would draw on the estate in aid of the welfare of the plaintiffs.

106. I asked counsel whether they considered that any distinction should be made between Brock and Blake. They both, and I do not criticise them, declined to make any recommendation. It might be thought that Blake has greater needs because he has a family. On the other hand, Brock has a significant mental health condition and may well have a family in the future. Ultimately, I think any distinction would be minor and I do not see it as appropriate to distinguish between the brothers.

107. The plaintiffs provided me with draft orders which include a provision by way of a lump sum for each plaintiff. The parties agreed that any provision could only be consequent upon the sale of the deceased’s house. I am mindful however that any sale cannot occur, at least with the intent of obtaining the maximum benefit, until the flood damage has been rectified. I understood the costs of rectification were in the order of $50,000. I do not think it would be appropriate to require Rodney to expend this amount of his own money in order for the repairs to be done.

108. The result is that the amount that will ultimately be realised by the sale is unknown. I therefore think the best approach is to award each plaintiff a percentage of the proceeds of sale of the property.

109. I think adequate provision for each plaintiff, bearing in mind the obligations owed by the deceased to Rodney, will be achieved by awarding them each 20% of the net proceeds of sale of the house, the balance to be provided to Rodney.

110. In respect of costs, I will follow the suggested orders, which I note might be described as “usual” and were not the subject of any argument from the defendant.

111. The plaintiffs have asked for certain notations to be added to the orders. I see no utility in doing so but I will allow further submissions to be made pursuant to the liberty that I will include in the orders.

Orders

112. I make the following orders:

1. Pursuant to s 59 of the Succession Act 2006 (NSW) Blake Curtis (the first plaintiff) is to receive, by way of provision, out of the estate of the late Barry John Curtis (the deceased), 20% of the net proceeds of the sale of the deceased’s property situated at xx xxxxx xxxxx, xxxxxxx in the state of New South Wales, being xxx xx xx xxxxxx Folio No xxxxxxxxx, (the property).

2. Pursuant to s 59 of the Succession Act 2006 (NSW) Brock Curtis (the second plaintiff) is to receive, by way of provision, out of the estate of the deceased, 20% of the net proceeds of the sale of the property.

3. No interest is to be paid on the sums payable to the plaintiffs if those sums are paid within 28 days of the settlement of the property.

4. In the event that interest does become payable it is to accrue at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on any unpaid part of the entitlement of each plaintiff calculated from 28 days after settlement of the property.

5. The costs of the plaintiffs are to be paid out of the estate of the deceased, calculated on an ordinary basis.

6. The costs of the defendants are to be paid out of the estate of the deceased, calculated on an indemnity basis.

7. Each party has liberty to apply for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the above orders.

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Amendments

15 November 2023 - Jurisdiction amended to Equity

Decision last updated: 15 November 2023