Davis v Davis - [2012] NSWSC 201

Supreme Court

New South Wales

Medium Neutral Citation: Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201
Hearing dates: 27 February 2012, 1 March 2012
Decision date: 07 March 2012
Before: Slattery J
Decision:
In the Family Provision Act proceedings, order for provision from the estate of the deceased of a legacy of $100,000 (or a third of the deceased's estate, whichever is the greater) made. In the administration proceedings, orders made for the sale of the real estate, the sole asset of the estate. Directions given for the further determination of whether the probate granted to the defendant, the executor of the estate, should be revoked.

Catchwords: EQUITY - Succession - Family Provision - deceased makes provision for intellectually disabled daughter - Whether provision made is adequate for the daughter's proper maintenance, education and advancement in life.
PROBATE AND ADMINISTRATION - whether estate has been properly administered - delay in selling estate property - whether orders should be made for the sale of the single asset in the estate, a residential property.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Guardianship Act 1987 (NSW)
Social Security Act 1991 (Cth)
Trustee Act 1925 (NSW)
Cases Cited: Anderson v Teboneras [1990] VR 527
Bar-Mordecai v Hillston [2004] NSWCA 65
Bates v Messner (1967) 67 SR (NSW) 187
In the Goods of Loveday (1900) P 154
Lewis v Lewis [2001] NSWSC 321
Mavriderdos v Mack (1998) 45 NSWLR 80
McCathie v Taxation (1944) 69 CLR 1
Perpetual Trustee Co Ltd v Noyes (1925) 42 WN (NSW) 56
Pogorzelska v Kazas - Rogaris [2010] NSWSC 1436
Sullivan v Craig [2008] NSWSC 1189
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Category: Principal judgment
Parties: Plaintiff:- Graham Davis
Defendant:- Ian Andrew Davis
Plaintff:- Robyn Davis by Her Tutor Sandra Arnold
Defendant:- Ian Andrew Davis as the executor of the estate of the late John Joseph Davis
Representation: For Robyn Davis:- P. Lane
For Graham Davis:- D. Alexander
For Ian Davis:- in person
For Robyn Davis:- Brian Sandlands
For Graham Davis:- Peter Williamson

File Number(s): 2011/00048414; 2011/00229648
Publication restriction: No

Judgment

John Joseph Davis died on 6 December 2007. His estate has not yet been administered. One of the deceased's six children, Graham Davis, brings proceedings for the administration of the estate against the executor, named in the deceased's will, Ian Davis, another sibling. These administration proceedings are being heard together with Family Provision Act 1982 proceedings that another of the deceased's children, Robyn Adele Davis, brings against the executor, Ian Davis.

Robyn Davis has an intellectual disability. On 26 September 2011 the Guardianship Tribunal appointed the Public Guardian as her guardian under the Guardianship Act 1987 and appointed the NSW Trustee as financial manager of her estate. Robyn Davis commenced her Family Provision Act proceedings by her tutor, Sandra Arnold. But since September 2011 the NSW Trustee has acted as her tutor.

The executor Ian Davis resists relief in both proceedings. The executor has presented his defence in each proceeding without any legal representation. He says he cannot afford lawyers. He opposes the grant of any relief to either plaintiff and asks for both summonses to be dismissed.

For the reasons set out in this judgment I have decided that relief should be granted to both Graham Davis and Robyn Davis. Relief in the administration proceedings is required because the executor has refused to carry out the terms of the will or to administer the estate.

Robyn Davis also succeeds in her Family Provision Act proceedings because the deceased's will has proven inadequate for meeting her financial needs occasioned by her intellectual disability. The deceased recognised that some special provision was required for his daughter in his will. But the mechanism for which he provided has broken down. Without the Court's intervention Robyn Davis has been left without adequate provision for her proper maintenance, education and advancement in life.

Ms P Lane appeared for Robyn Davis and Mr D Alexander for Graham Davis. The Davis family, the deceased's will and the deceased's estate are the first points of focus of these reasons.

The Davis Family, the Will and the Estate

The Davis Family

The deceased, John Joseph Davis and his wife Jocelyn had six children, Ian Davis, Robyn Davis, Graham Davis, Jeffrey Davis, Helen Davis and Peter Davis. Jocelyn died in 1984. All six children survived the deceased. Peter died in 2010 and is survived by his wife, Iris Tait, who has been notified of these proceedings. Peter and Iris had two children.

Robyn Davis lived with and was financially dependent upon the deceased during his lifetime. The deceased and Jocelyn cared for Robyn at the family home in Cordeaux Road, Unanderra New South Wales ("the Cordeaux Road property") until 1984, then the deceased looked after her there. For most of the period since his death in December 2007, Robyn has continued to live in the Cordeaux Rd property with Ian, but she is now living elsewhere. The reasons for her separation from the Cordeaux Road property have become important issues in the proceedings.

The Will of John Joseph Davis

The deceased made his will on 17 February 1984, shortly after Jocelyn's death, and a long time before his death in December 2007. The will appoints Ian Davis as executor of the deceased's estate. In making the will the deceased recognised that his daughter Robyn would need special care after his death. He provided a testamentary structure to provide some stability for Robyn's future. He then divided the balance of the estate equally. The will relevantly provided as follows:-

"3. My executor shall hold the whole of my estate upon trust and after payment of all my funeral and testamentary expenses:-

(a) to pay one-third of my estate to my son Jeffrey John Davis should he survive me but if he does not survive me leaving children then those children shall upon attaining the age of twenty-one years take equally the share which their father would otherwise have taken;

(b) to divide the residue of my estate equally between those my children who survive me and attain the age of eighteen years but if any child of mine dies before me or before attaining the age of eighteen years leaving children then those children shall on attaining the age of eighteen years take equally the share which their parent would otherwise have taken.

4. I appoint my son Jeffrey John Davis of [address not published], North Haven, Adelaide in the State of South Australia as testamentary guardian of my daughter Robyn Adle Davis. In recognition of my son Jeffrey John Davis undertaking to care for and provide for my daughter Robyn Adle Davis after my death I have in this Will provided for my son to receive one-third of my estate.

5. My executor shall have the following powers:

(a) in respect of all property vested in him the powers of a trustee for sale;

(b) to apply for the maintenance education or benefit of any beneficiary as my executor thinks fit the whole or any part of the executor thinks fit the whole or any part of the capital or income to which that beneficiary is entitled or may in future be entitled provided that on becoming absolutely entitled he shall bring into account any payments received under this clause;

(c) to invest and change investments freely as if he was beneficially entitled and this power includes the right to invest in property for occupation or use by a beneficiary;

(d) to postpone the sale conversion and calling in of any or all of my estate for such time as he thinks fit."

There was debate between the parties as to the meaning of the words in clause 3 (b) of the will, "to divide the residue of my estate equally between those of my children who survived me and attain the age of eighteen years" [emphasis added]. The expression "my children" in this residuary clause, in my view, means all the deceased's children, including Jeffrey and Robyn. It was faintly suggested in submissions, that the fact that Jeffrey receives one third of the estate under clause 3(a), in recognition of his undertaking to care for and provide for Robyn, represents his and her complete entitlements under the will. But there is nothing in the expression "my children" which would limit the scope of the gift in 3(b) to children other than Jeffrey and Robyn. Even though Jeffrey and Robyn otherwise benefit under clause 3(a) of the will, they are also entitled to an equal share of residue under clause 3(b).

Clause 5 of the will became controversial. Mr Ian Davis offered his opinion to the Court, uninformed by any legal advice, that clause 5 meant he could do whatever he liked with the Cordeaux Road property. His persistence in this incorrect view and his self professed unwillingness, or incapacity, to seek legal advice about issues related to the administration of the estate, has caused the Court to have doubts as to his possible fitness to continue as its executor. Ian Davis was given notice in the course of these proceedings that this was a matter to which the Court might return at the time of giving judgment. It is discussed later in these reasons.

Probate and the Estate

Probate of the will of the deceased was granted to Ian Davis in this Court on 24 March 2009. Ian Davis as executor swore as to the inventory of property of the estate. His affidavit recorded the only assets of the estate as the Cordeaux Road property, at the executor's then estimated value of $325,000, together with a Commonwealth Bank account containing only 39 cents. The estate's inventory of property does not record any liabilities.

Graham Davis alleges in the administration proceedings that Ian Davis has not accounted for one other chattel, said to be an estate asset, a 1971 V8 Ford Fairmont XY motor vehicle. This vehicle is said to have had a value of $25,000 at the time of the deceased's death. Analysis of the dispute about this vehicle is also set out below.

Family members paid for the deceased's funeral. The executor did not adduce any evidence of having created any accounts in relation to his administration of the estate after the grant of probate to him in March 2009. Nor does he hold any receipts for income or expenditure resulting from his administration of the estate, either before or after the grant of Probate. Ian Davis seemed unperturbed about this state of affairs. The absence of any such accounts was a matter that Graham Davis raised in the administration proceedings as a basis for the relief he sought against the executor.

Robyn Davis and Ian Davis - December 2007 to date

Robyn Davis

The plaintiff, Robyn Davis is aged 56. She has suffered an intellectual disability since birth. Robyn was psychologically assessed at the time of her mother's death in 1984, when she was in her late 20's. She was found then to have intellectual abilities only to the upper moderately retarded range. Even at that time she was found to have no concept of money, was dependent upon her father and sister for buying her clothes, and appeared to have little appreciation of how to handle social situations. It was assessed at that time that she had the potential to develop independent living skills in relation to self care, communication, cooking and shopping. In the intervening period she did not develop these independent living skills. The Guardianship Tribunal's decision in September 2011 to appoint the Public Guardian was based on findings that there had been no improvement in her capacity to decide about accommodation, the services she receives, and her health care. Just why her development between 1984 and 2007 did not match earlier expectations the evidence did not make clear.

After Robyn's mother died the deceased cared for her at the Cordeaux Road property, until his death in December 2007. By the time of his death she had developed a number of serious health problems, including epicondylitis, essential hypertension, non-insulin dependent diabetes mellitus and hypercholesterolemia. She now requires a constant regime of medication for her hypertension and diabetes.

The evidence presented contrasting views about the closeness of Robyn's relationships with each of her siblings. Robyn herself did not give evidence in the proceedings. The Court therefore did not hear from her directly about these relationships, nor indeed about any of her other preferences. The plaintiff's tutor did not adduce any sworn evidence from her. In the course of the hearing, Ian Davis asked for her to be called to give sworn evidence. But he had not issued a subpoena to her for this purpose. Nor did he give advance notice prior to hearing of any proposed application under Civil Procedure Act , s 68 or Evidence Act , s 36 for her to give evidence. Counsel for Robyn's tutor, Ms Lane, did not call her as a witness in response to Ian Davis' request. The Court declined to make any order for Robyn Davis to give evidence. Given Robyn Davis' intellectual disabilities, in the circumstances the Court exercised its discretion not to make orders for her to give evidence. The lack of advance notice of Ian Davis' application denied the plaintiff an opportunity to obtain medical advice as to whether her giving evidence was in her best interests. Also, Robyn's intellectual disabilities and her malleability to verbal suggestion meant that her sworn oral evidence was unlikely to be useful to the Court. The application for her to give evidence was declined.

There is little direct evidence in the proceedings about Robyn Davis' care by her father before his death in 2007. Ian Davis claimed that since the death of their mother he took on her role in looking after his siblings, including giving special care to Robyn. He says that this meant doing all domestic cleaning, maintenance of the house and personal care. He says that he found Robyn's care particularly challenging and that she needed special attention.

Ian Davis' account is that he took care of domestic tasks to allow his father to get out of the house during the day and enjoy his life. Having seen Ian Davis in 2012, I do not wholly accept the correctness of this part of his account. He clearly did more for Robyn than any of the other siblings who left home. The impression Ian Davis' evidence gives on this subject is that he bore the main burden of Robyn's care after their mother's death. But a more accurate picture, in my view, is that he assisted his father, the deceased, to look after Robyn.

The deceased was diagnosed with cancer in 2006. In my view, Ian took a more significant role in Robyn's daily care from this time. Ian says he played a special role in taking the deceased to and from Wollongong Hospital and caring for him and Robyn at home until he died in December 2007. There is no reason to doubt in the material before the Court that in the final years of the deceased's life Ian Davis certainly did fulfil such a role, both for Robyn and for the deceased.

After December 2007

Between the deceased's death in December 2007 and the hearing, Robyn has lived in three locations. Directly after her father died Robyn continued to live at Cordeaux Road with Ian. She did so until January 2009. That month family members made arrangements to give effect to the will and organised for Robyn to travel to Adelaide to live with Jeffrey and his wife.

This did not work out. Robyn returned to Cordeaux Road about six months later in about mid 2009. There is only a limited account in the evidence of the reasons for her return from Adelaide. Jeffrey did not give evidence himself. It is difficult therefore clearly to understand his side of what happened. But Ian Davis' account is that the burden of Jeffrey's other obligations in South Australia meant that he needed to place Robyn in institutional care in that State. Ian says that in those circumstances he offered to take Robyn back and to have her continue to live in the Cordeaux Road property. Ian says that Jeffrey agreed with this course. In my view, something like this did happen. Jeffrey's care of Robyn in South Australia was obviously unsatisfactory to one or both of them. So it was arranged for her to return.

Ian Davis' evidence was that in the first half of 2009 he was attempting to sell the Cordeaux Road property and to administer the estate, before he heard the proposal that Robyn was to come back from South Australia to live with him. But there is no documentary evidence of him listing the Cordeaux Road property for sale, arranging for appraisals for a possible sale, or indeed communicating with any of his siblings about the future sale of the property during this period whilst Robyn was in South Australia. Ian says it was his intention at that time to move up to Queensland and start a new life. But there is little objective evidence he had taken any steps to effect this purpose.

Robyn Leaves the Cordeaux Road Property

Between mid 2009 and mid 2011 Robyn lived with Ian at the Cordeaux Road property. Moves to have Robyn live in her own accommodation away from the Cordeaux Road property commenced in late 2009 when Robyn came under the attention of Tracy James, a case manager employed by a NSW Government agency, Ageing Disability and Home Care ("ADHC"), which is administered by the Department of Family and Community Services. Tracy James was first allocated as Robyn's ADHC case manager in July 2009. From that time Tracy James took an active interest in Robyn's well being on behalf of ADHC.

The steps leading to Robyn's departure from the Cordeaux Road property on 19 May 2011 are recounted below. Ian disputes that there was any need for Robyn to leave. Both Tracy James and Sandra Arnold give an account of Robyn's reasons for wishing to leave the Cordeaux Road property. Robyn recounted those reasons to them. This material was admitted into evidence. Although strictly hearsay, Ian Davis did not take objection to this material. Had he done so he would be likely to have been met with an application without notice under Evidence Act , ss 63(2) and 67(4) for the material to be adduced on the basis that Robyn Davis was "unavailable" to give evidence. Given Robyn's intellectual disabilities, and Ian's lack of giving prior notice of the objection, that application was likely to have been granted. Because of Ian Davis' non-objection to the material such issues did not arise in the end.

Credit Issues

But an important contest of credibility did arise between Ian Davis on the one side and Tracy James and Sandra Arnold on the other. It is necessary therefore to make some observations about the respective credibility of these witnesses. Both Sandra Arnold and Tracy James appeared to the Court to be highly competent experts in the management of persons with intellectual disabilities such as Robyn Davis. They were both cross-examined. They both gave their evidence with objectivity and professional detachment. Their approach to Robyn's situation and her case management showed attention to detail, patience, diplomacy and a capacity to contemplate and work through with her a number of different potential solutions. I find that Robyn expressed to Tracy James as early as July 2009 Robyn's desire to leave the property. I saw no hint in either of their evidence that they had become partisan advocates of a particular point of view. Robyn Davis' wellbeing was their focus.

The same cannot be said for Ian Davis. He had a complete incapacity to separate his own interests from Robyn's interests. Examples of this appear later in these reasons. He was incapable of accepting that he should account to anyone else in respect of Robyn's care. He was quite unaccepting of the possibility that his care for Robyn might not have been always at a proper standard and in her best interests. He could not see any point of view about Robyn other than his own. In most respects where they are in conflict (except where I specify otherwise in these reasons), I prefer the evidence of Tracy James and Sandra Arnold to that of Ian Davis.

I find that Ian Davis' care of Robyn since December 2007 was well intentioned but, measured by a number of objective factors, less than was ideal. For example, Robyn's nutrition at the Cordeaux Road property, after her father's death, appeared to be poorly supervised. Both Tracy James and Sandra Arnold indicated that she had lost about 20 kilograms after leaving the Cordeaux Road property in May 2011, due to her better diet. It was undisputed in the evidence that she suffered a number of skin infections and other medical issues due to her substantial weight loss after May 2011. Robyn's weight was objective evidence of Ian's unsatisfactory health care for Robyn after December 2007.

Ian's unsatisfactory care for Robyn at the Cordeaux Road property was also supported by Graham Davis, whose evidence I also accept in preference to that of Ian Davis on this subject. Ian Davis' case was that after it was clear Robyn could not live in South Australia, it was agreed at a 2009 family meeting of all siblings that Robyn could be returned to the Cordeaux Road property and live there with Ian. According to Ian it was at least implied from this agreement that Ian would not have to sell the property, whilst Robyn was living there.

Graham Davis denied this. He emphasised his denial by explaining that he disagreed with the way that Ian Davis was looking after Robyn at Cordeaux Road. He said on this subject in evidence, that I accept as correct, "The situation was when Robyn was returned she started living there and I didn't agree with the conditions she was living in there because I knew what was going to go on again". And again he said about Ian's post December 2007 care for Robyn, "Well, I have never liked the way my brother, right, looked after Robyn. It was all one sided, not enough for her. She got the rough end of the stick there all the time, so". This informal description anticipates the Court's own findings later in these reasons about the lack of Ian Davis' separate treatment of Robyn's financial affairs.

Tracy James' evidence included a report from Robyn that her brother Ian was "yelling at her" and that she repeated the statement, "he has just got to stop the drinking". Ian Davis said that he disputed much of Tracy James' evidence. But he cross-examined her on very little of what he says he disputed. On the issue of drinking, I accept Ms James' account of what she says Robyn said to her. I find that Ian's drinking was a problem within the Cordeaux Road household. Ian denied this. But I do not accept the denial. The proceedings started on Monday, 27 February 2012. They were not completed by the end of the day. The Court proposed that the proceedings continue until the following day, Tuesday, 28 February 2012. Mr Ian Davis told the Court he was unable to attend that following day because he was due to appear in Court facing a charge of driving with excess of the prescribed concentration of alcohol in his blood (PCA). The matter was adjourned to Thursday, 1 March 2012, on which day it was completed. On that day Mr Ian Davis reported that he had pleaded guilty to the PCA charge and his licence had been suspended for five months. All this information came from Mr Davis himself. It is some evidence of his current socially irresponsible use of alcohol.

Tracy James Assists Robyn to Leave Cordeaux Road

Tracy James first met Robyn Davis in person in July 2009 at the House with No Steps, a non government funded service providing day placement for people with intellectual disabilities. Robyn then attended the House with No Steps for three days a week. Ms James says, and I accept, that Robyn immediately told Tracy James that she wished to move out of the Cordeaux Road property "and have her own place". From then on Tracy James took an active role in supporting Robyn in that endeavour. I accept Tracy James' evidence that she had difficulty in talking to Ian about Robyn's situation and that Robyn herself asked Tracy James not to raise with Ian, her [Robyn's] ambition to move out of home. I infer from this that Robyn was apprehensive about Ian's reaction should he become aware of her plans to leave.

I find that Tracy James, as Robyn's case manager, has had a direct involvement with her day to day life since July 2009: taking her to medical appointments; taking her to outings, including morning tea or lunch; ascertaining Robyn's understanding of the implications of moving out of home; and, seeking appropriate permanent accommodation for her.

In early 2010, House with No Steps brought to Tracy James' attention Robyn's non attendance at its facility. Upon Ian Davis being questioned by Tracy James he said, "I can't afford the program fees with all the rent and bills and food that I have to pay for". Tracy James arranged for Robyn to continue with House with No Steps, even though her fees were not paid in the short term. I accept Tracy James' evidence that Robyn Davis enjoyed her time at the House with No Steps.

Ian's decision not to fund Robyn's attendance at House with No Steps is, in my view, another concrete illustration of his failure to consider Robyn's separate interests. The program fees for House with No Steps in early 2010 were $60 per month. The fees are no higher than this relatively modest sum because places at House with No Steps are substantially government funded. The monthly $60 fee is constructed to cover extra excursions and activities to enrich the experience of those attending. A monthly fee of $60 is not large in comparison to Robyn's pension of approximately $750 per fortnight. When confronted with his decision to refuse payment of these fees, Mr Ian Davis was not able to give an adequate account of his reasons for doing so. His reasons were especially unimpressive when it was revealed that in one single night he was prepared to spend more than this sum from Robyn's disability pension on drinks, meals and poker machines at a nearby recreational club.

Over a period of about 12 months Tracy James and Sandra Arnold discussed with Robyn the possibility of moving out of the Cordeaux Road property. At the same time they were negotiating arrangements with someone with whom Robyn could live when she moved out. I accept their evidence that throughout these discussions Robyn continued to insist that Ian Davis not be informed about her plans to move out.

On 19 May 2011 Robyn finally moved out of Cordeaux Road. Even at the time of the trial Ian Davis found Robyn's decision to do this, aided by Sandra Arnold and Tracy James, as confronting. The move was achieved by Sandra Arnold and Tracy James collecting Robyn from House with No Steps, attending at Centrelink to change her bank account details, applying for a crisis payment to cover the costs of clothes and medication and moving Robyn for about two months into the accommodation that had been arranged for her. Ian Davis contacted the local police and reported to them Robyn's sudden move out of the house.

After two months in emergency accommodation, in June 2011 Robyn moved to the Rosnel Boarding House at Bundanoon. Robyn was not entirely happy at Rosnel, as she was away from her local area. But Tracy James took her to visit House with No Steps and the Flagstaff Sheltered Workshop, where she still works one day a week.

On 9 September 2011 Robyn left Rosnel and moved into the Emergency Response Transition Unit (ERTU), a four bedroom house in the Illawarra area providing, as its name suggests, transitional accommodation for people with disabilities. Robyn is now awaiting alternative accommodation in a group home on a more permanent basis. At the ERTU Robyn pays 75 per cent of her disability support pension, which covers all board and meals. That 75 per cent arrangement is a standard fee structure adopted by most disability accommodation providers and will therefore also apply to any permanent accommodation arranged for her.

Robyn's Current Circumstances

I accept Tracy James' evidence that since she has been Robyn's case worker and before Robyn moved out of the Cordeaux Road property, Robyn has not had direct access to her own money. Robyn does not know how to use an ATM. Tracy James reports that Robyn said to her, and I accept, that Ian would give her limited amounts, such as $20 for lunch on Saturday but otherwise she had no access to her own money.

I also accept Tracy James' account of Robyn's currently expressed wishes and Ms James' assessment of Robyn's needs and progress, since Robyn left the Cordeaux Road property. Tracy James says, and I accept, that Robyn has lost about 20 kilograms since then. The health advantages of this have nevertheless have meant that, according to Ms James, she will need new clothes and may need surgical intervention for her loose skin.

According to Ms James, the present plan is for Robyn to remain living in the ERTU until suitable permanent accommodation is available. That is in prospect, but not immediately. I also accept that Robyn also speaks to Ms James about going on holidays or on an assisted tour, which Ms James believes would be stimulating for her.

Ms James' assessment of Robyn's capacity for independence now, is in my view accurate. It is that: (1) Robyn cannot live independently as she is unable to cook for herself without planning support; (2) Robyn's personal grooming requires assistance - although she can shower herself she needs assistance with washing and to prompt her to wash herself properly and she needs to be reminded to apply skin creams to avoid infection; (3) Robyn cannot use public transport unassisted and has no independent understanding of planning a journey and carrying out a trip; (4) Robyn needs to be prompted to take her diabetes medication; and, (5) Robyn needs assistance to use an ATM and to undertake even simple purchases and to control impulse spending.

Much of the evidence adduced by the plaintiffs in both proceedings focused upon the negative side of Ian Davis' care for Robyn. But it must be recognised, as he says, that for many years he has personally helped her with day-to-day chores, assisted her with matters of personal hygiene, and reminded her to do the things that she has forgotten. He is quite right that he seems to have been the only sibling who was in a position to and prepared to look after Robyn within the family as he did. He would have to repeat things to her constantly. I accept his evidence that she was hard of hearing and disliked putting on hearing aids and that he would have to speak to her more loudly than usual to get her to hear him at times. Although by objective standards Robyn's care under Ian's management could have been better, in my view, he did his best and was genuine in his concern for her. His very considerable efforts should not go unremarked, merely because they did not meet externally assessed professional standards. He was receiving a carer's pension. He did a great deal for Robyn in his role as her carer.

It is now necessary to analyse each of the two applications before the Court, Robyn's Family Provision Act claim and Graham's administration claim.

Robyn's Family Provision Act Application

Before analysing Robyn's Family Provision Act application it is useful to state the legal principles that apply to its assessment.

Statutory Provisions

The relevant statutory provisions of the Family Provision Act engaged by the plaintiff's application are set out below. As a daughter of the deceased the plaintiff qualifies as an "eligible person" entitled to make a claim against the estate of the testator. She was also financially dependent upon the deceased and was a member of his household. So she would also have qualified as an "eligible person" under Family Provision Act, s 6(1)(d). But it was not necessary to consider in her case whether there were Family Provision Act s 9(1) factors warranting the making of her application, as she otherwise qualified under s 6(1)(b), as "a child of the deceased person".

The principles developed in the authorities relevant to the exercise of this discretion are set out below. But the governing statutory provisions are relevantly the following.

"7 Provision out of estate or notional estate of deceased person

Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

...

9.Provisions affecting Court's powers under secs 7 and 8

(1) Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph I or (d) of the definition of eligible person in section 6 (1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

(b) in the case of an order under section 8:

(i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or

(ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person,

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances."

The present case raises questions both as to (1) whether, within Family Provision Act , s 9(2) at the time of the Court's determination the provision for Robyn under the will was inadequate for her proper maintenance, education and advancement in life, and if so as to, (2) what kind of provision if any, should be made out of the estate of the testator. These questions are discussed below. Family Provision Act s 11 gives the Court a broad range of remedial choices in making provision, once a finding is made that some order should be made. Family Provision Act , s 15 also permits the Court to make an extensive range of consequential and ancillary orders to give effect to an order for provision out of an estate.

Legal Principles

The legal principles that apply to the Family Provision Act jurisdiction the Court is called on to exercise in this case are not controversial. They have been clearly summarised in a recent decision of Taylor v Farrugia [2009] NSWSC 801, where Brereton J described the two stage process of the exercise of jurisdiction required by authority in the following:

"[9] Applications such as these under the (NSW) Family Provision Act 1982 for provision out of the estate of a deceased person, have been described by the High Court of Australia in Singer v Berghouse (No 2) (1994) 181 CLR 201 as involving a two stage approach. The first requires the determination of the jurisdictional fact whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and the second - which arises only if the first is resolved affirmatively - involves the discretionary assessment of what provision ought to be made out of the estate for the applicant. However, as the High Court explained, similar considerations inform both stages of the process:

The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

[10] Because the considerations relevant to both stages overlap in this way, consideration of an application under the Family Provision Act does not always divide neatly into the two questions, as Callinan J and Heydon JJ pointed out in Vigolo v Bostin [2005] HCA 11 ; (2005) 221 CLR 191, 192. Nonetheless, in an application under the Act, the court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes. The relevant principles and considerations were summarised by McClelland CJ in Eq, in Re Fulop (dec'd) (1987) 8 NSWLR 679 at 679:

In making these determinations, the following principles apply: First, the Court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life. Secondly, the expression "proper" in this context connotes a standard appropriate to all the circumstances in the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff, (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.

[11] It is important also to bear in mind the principle articulated by Young J, as his Honour then was, in Stewart v McDougall (New South Wales Supreme Court, Young J, 19 November 1987, unreported), in explaining that the court's role is limited to making adequate provision for an eligible person's proper maintenance and advancement:

It is important to state what the Family Provisions Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equal, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty."

These are the principles that the Court will apply to the assessment of Robyn's Family Provision Act claim.

Extension of Time for Application

But Robyn has not brought her Family Provision Act claim within time. Family Provision Act , s 16(1) provides that the prescribed period for bringing a claim is 18 months after the death of the deceased, a period which expired in this case in June 2009. The Court has a discretion to grant an extension of time "having regard to all the circumstances of the case": Family Provision Act , s 16(2). But the extension may only be granted if the parties consent or the plaintiff "shows sufficient cause" for the application for extension not having been made within the prescribed period: Family Provision Act , s 16(3).

In the exercise of the Family Provision Act , s 16 discretion to grant leave the Court commonly considers four matters: Lewis v Lewis [2001] NSWSC 321 at [82] per Hodgson J (approved in Bar-Mordecai v Hillston [2004] NSWCA 65 at [143]). The four matters are: the existence and strength of a case for relief under the Act; the explanation given for failure to commence proceedings in time; any prejudice caused by late commencement of proceedings; and, any unconscionable conduct by either side.

Robyn has a persuasive case for an extension of time. I will order the time be extended. No unconscionable conduct was alleged on either side. Robyn's case for principal relief is strong. She has been under a legal disability because of her intellectual impairment, the same disability which has required the appointment of a tutor. The executor has not made a case that any prejudice will be suffered by the extension of time. This is not surprising as the estate has not been administered, the subject agitated in Graham's administration proceedings. There clearly has been no deliberate calculation by the plaintiff to delay the commencement of proceedings for advantage. Time will be extended.

Robyn's Claim

Robyn's financial needs, as a result of her intellectual disability and her present accommodation requirements, are substantial. Robyn says her income barely meets her outgoings, she is not able to save anything to apply to discretionary expenditure and that as a result the provision made for her under the will is inadequate. Both Graham and Ian say that there is a surplus available to her when her financial situation is analysed properly. It is necessary to choose between the merits of these two contentions. In my view, for the reasons which follow Robyn's contention is to be preferred.

The Plaintiff's Current Financial Position

Robyn Davis has no net assets. The executor advanced no evidence that prior to Robyn leaving the Cordeaux Road property any money had been accumulated over time to provide a fund for Robyn's future needs. All her income was spent on the mixed financial needs of herself and Ian and the household at Cordeaux Road. That situation changed after May 2011. After that date some accounting was done in respect of her separate financial affairs. That was regularised in September 2011 when the Guardianship Tribunal appointed the NSW Trustee as her financial manager. There is evidence (in Exhibit B) of Robyn's income and expenditure from that time on. The evidence, discussed in more detail below, shows that she has been able to make limited savings since then. There is no evidence of any other savings fund having been accumulated for her between her mother's death in 1984 and 2007. I infer that a contribution of her living and financial circumstances and the management by others of her pension during that period did not permit her to accumulate any savings or other assets of any value.

This is itself a remarkable part of the plaintiff's history. It tends to suggest that for quite a long period of time there was no separation of Robyn's own financial interests from those of the other members of her family. Even a quite small sum of money invested early in the 27 year period between 1984 and 2007 would have produced some capital for Robyn.

Despite her lack of current assets Robyn Davis has one significant financial liability. When Robyn left Cordeaux Road she accrued a liability for her accommodation at Rosnel House. The managers of Rosnel House did not seek repayment of this liability until the Guardianship Tribunal made its financial management order. Robyn's accumulated Rosnel House accommodation costs are $4,511.20, which have now been billed to the NSW Trustee. Since then the NSW Trustee has arranged for that sum to be repaid at the rate of $100 per fortnight out of Robyn's disability pension. There is a suggestion in other evidence that the NSW Trustee is seeking recovery of these funds from Ian (Exhibit 1). To the extent the Court can assess this issue on the basis of the materials available, this does not appear to be a sustainable claim by NSW Trustee against Ian. It is acknowledged on all sides that Ian relinquished control over Robyn's bank accounts after she left the Cordeaux Road property. But this whole debt was incurred after that time. Accordingly, I assess this debt as Robyn's liability, which must be met out of her future pension payments. It is not treated in these reasons as Ian's liability. This finding is made upon the basis of an express, and if I may say so on the available evidence, an appropriate concession by counsel for Robyn Davis, that Ian Davis did not have access to Robyn's pension account after she moved out.

An accurate appraisal of Robyn's income and expenditure can be made. The plaintiff's disability pension with her allowances as a single person gives her a total income of $748.80 per fortnight. She is currently receiving slightly more than this, namely $868.20 per fortnight (according to Exhibit B). But this difference is temporary and is accounted for by a determination from the Social Security Appeals Tribunal on 17 October 2011. That determination was that an advance payment of disability support pension in the sum of $1,046.85 paid to Robyn Davis in April 2011 and being deducted by way of repayments from her existing pension was a sum that she had no legal obligation to repay under Social Security Act (Cth) 1991, s 1061EL. Therefore deductions the Commonwealth had already made from her pension, should be repaid to her. These repayments have been occurring fortnightly with her pension but will soon be exhausted when her pension will revert to the standard fortnightly amount of $748.80.

The plaintiff's income is to be contrasted with her total quantifiable needs. I find that these are $786 per fortnight, as is set out below:-

(a) Accommodation provided by ERTU for $606 a fortnight.

(b) Health care needs not met by Robyn's pension entitlement are approximately $70 per fortnight.

(d) House with no steps fees are $30 per fortnight.

(e) Excursions and other personal items are $40 per fortnight.

Thus, once the passed over payments ordered to be returned to Robyn by the Social Security Appeals Tribunal are exhausted in the near future she will suffer a shortfall of $37.20 ($786 less $748.80) per fortnight between predictable outgoings and her income. This shortfall amounts to over $1900 per annum.

This shortfall exists even without taking into account the plaintiff's other unquantifiable needs. There are many benefits which, were they to be covered by a contingency fund and available to the NSW Trustee as a discretionary fund to be spent for the plaintiff's benefit, could improve her quality of life and add greater comfort to her day-to-day living. Examples of these that I accept from the evidence are plastic surgery to reduce her skin surface as a result of the weight she has lost, a holiday away from the local area and small items for her own use and entertainment. Creation of such a fund, in my view, is clearly necessary so Robyn is better able to face the financial contingencies which will no doubt confront her in the future. Sandra Arnold has estimated these contingencies at $5,000 per annum. Ms Arnold has worked closely with Robyn and understands her likely needs. I accept Ms Arnold's figure.

But both Graham and Ian dispute there is any continuous shortfall in Robyn's financial budgeting. And they dispute that any sum should be set aside for Robyn's unquantifiable needs. I do not find their arguments persuasive on either ground.

Graham submits that Robyn's income is greater than has been outlined above. Relying upon the current fortnightly income of $868.20 and a mobility allowance of $86 per fortnight and income from the Flagstaff Sheltered Workshop of $50 per fortnight, he submits that Robyn has access to a fortnightly income of $1,004.20 or a little over $500 per week, which he submits should be sufficient for her needs. Moreover, he submits that the plaintiff's medication expenses, clothing expenses and expenses associated with House with No Steps activities are not fully justified as required in her interests. Graham submits that if these are reduced to reasonable amounts, that a surplus of income over expenses of about $85 per week results. Proof of this surplus, so it is submitted, is the fact that since the plaintiff's expenditure has come under the control of financial management of the NSW Trustee that some savings have been able to be achieved. The factual basis for the last part of this submission is correct. Robyn has made some savings since her affairs have come under the NSW Trustee's administration. Although her liability to repay the NSW Trustee in respect of her Rosnel House accommodation still stands at $4,515.98, she has accumulated assets of $3,183.44, some $2,512.64 of which are available to meet the outstanding liability. The balance of $670.80 appears to be quarantined for her own use, specifically to meet her travel and mobility expenses.

There are several problems with Graham's submission. First, the small accumulation of savings since the appointment of the NSW Trustee is more to be attributed to conservative financial management in the face of an existing liability of $4515.98, than it is to any recurrent surplus of income over predictable expenditure. Second, Graham's argument overestimates Robyn's income. The true pension rate is $748.80 not $868.20. The income from Flagstaff should be disregarded as Robyn submits, because it cannot be assumed to continue throughout Robyn's life, as it depends upon her current levels of mobility and health. Moreover, the mobility allowance can be disregarded because it merely meets transport costs which have not been taken into account in the list of expenditure for which Robyn's calculation budgets.

Ian had quite a different response to Robyn's claimed financial needs. But it was a response that, in my view, was not realistic on the evidence. Ian's response to Robyn's described current financial needs was to say "Robyn can be returned home [to the Cordeaux Road property]". Ian said that he could provide for her as he always has done. This position does not face up to the present financial scenario that Robyn's counsel has painted, which is predicated upon Robyn remaining in permanent accommodation away from Cordeaux Road and with the NSW Trustee as her financial manager. In my view that is the only realistic scenario for the Court to entertain.

For the Court to assess Robyn's future needs on the basis that she will go back to the Cordeaux Road property is unrealistic for several reasons. The Guardianship Tribunal has appointed the Public Guardian as her guardian. Ian Davis has not appealed from that decision which was made almost six months ago on 26 September 2011. Appeals from the Guardianship Tribunal are in any event of limited scope: on questions of law, and questions of fact, only by leave: Guardianship Act , s 67(1). Ian Davis said that he thought he had 12 months to appeal. The law is clearly otherwise; he had only 28 days to appeal subject to leave being granted for an extended time: Guardianship Act , s 67(2). This only confirms that Ian Davis is quite prepared to act upon his own suppositions about the law rather than take legal advice. In any event the evidence in this case about Ian Davis' management of Robyn Davis' financial affairs and the evidence about her current medical condition is a basis to infer that there would be good reason in the future to continue the existing Guardianship orders were they to be contested. Ian Davis did not advance a persuasive case that there was a realistic prospect that the orders of the Guardianship Tribunal being reversed in the future. In those circumstances the only reasonable hypothesis for assessing Robyn's future needs is on the basis of her current accommodation and that is the course which the Court will take.

The provision for Robyn under the will is inadequate for her proper maintenance, education and advancement of life. The failure of Robyn to live with Jeffrey means that effectively the mechanism provided for in the will for Robyn's benefit has failed. I accept Sandra Arnold's evidence and find that Robyn has continuing needs of approximately $5,000 per year ($100 per week). This sum will provide her with a weekly income over and above meeting expenditure on necessities. It will give her some discretionary spending capacity to provide for her a higher quality of life in any exceptional contingencies.

What Kind of Provision Should be Made out of the Estate?

Robyn submits that an appropriate provision for her out of the estate is a sum that will provide her with an annuity of $5,000 per annum for the balance of her expected life span of 24 years. I accept this is the correct approach to provide for Robyn's needs. But there are, as the Court of Appeal has pointed out, insurmountable difficulties in carrying out a precisely accurate mathematical calculation of the amount that will make proper provision for the needs of a person for the rest of their life: Tchadovitch v Tchadovitch [2010] NSWCA 316 at [54] per Campbell JA. Nevertheless, the use of the 3 percent actuarial tables is warranted when attempting to ascertain a lump sum which will provide such an annuity for the balance of a person's life: Tchadovitch v Tchadovitch [2010] NSWCA 316 at [56] - [60] per Campbell JA. To calculate an annuity of $5,000 per annum reducing to zero after 24 years infers a capital sum of $89,600. The plaintiff submits, and I accept, a sum of $100,000 will provide that weekly income and a modest fund to meet any exceptional contingencies. I reach this conclusion taking into account the evidence of other claims on the deceased's bounty as to which, see below.

Robyn should not be worse off than she was under the terms of the will in which the deceased provided one third of the estate for her. Robyn does not submit that she should retain her share of residue. Instead she submits that provision for her should be structured on the basis that she should have $100,000, or one third of the estate, whichever turns out to be the greater. Ian contends that the Cordeaux Road property is worth $350,000. Structuring the provision this way therefore gives Robyn some prospect of enjoying a provision of more than $100,000. Although, that prospect is probably slight for several reasons. Ian Davis' estimate of $350,000 was not supported by any real estate agent's appraisal of the Cordeaux Road property. The only current expert valuation evidence suggested the property was worth $300,000. In the event of Robyn's success, the Legal Aid Commission's claim for legal fees against the estate would be approximately $20,000. Graham's claim for legal fees against the estate are unquantified.

Graham submits that an appropriate estimate of the net value of the estate after the transaction costs of selling the property and the legal costs are deducted is a figure of $250,000. In my view, that is a reasonably reliable rough assessment of the probable net value of the estate. But Graham submits that Robyn should only receive the lesser of $100,000 or 40 per cent of the estate. Thus, if the net estate is worth less than $250,000, on Graham's submission Robyn would receive less than $100,000.

Graham's submission is not persuasive. In my view, the whole purpose of providing even a modest fund for Robyn is to provide her some real discretionary spending power for the anticipated remainder of her life. She should not be required to bear the risk of realisation of the estate at an undervalue, thereby exposing her to a reduced financial security and reduced quality of life throughout the rest of her life. This judgment can be more confidently made because of the lack of opposition to her claim from any siblings (or their families) other than Ian or Graham.

The effect on Robyn's pension of the additional income of $100 per week ($200 per fortnight) will be negligible: some pension discount is incurred in respect of her receipt of income in excess of $150 per fortnight on current Commonwealth statutory provisions relating to her disability pension.

The parties debated issues of whether Ian Davis should pay an occupation fee for his occupation of Cordeaux Road property after the death of the deceased. There was evidence, which I accept, that the average rental value of the property during that period has been $250 per week. This issue overlaps both proceedings and it will be dealt with in relation to the administration proceedings.

Other Claims on the Deceased's Bounty

There was very little evidence of the other claims upon the deceased's bounty. Mr Ian Davis was unfamiliar with his obligations as executor to provide such evidence to the Court. He had not taken legal advice. Consequently, he had not gathered this evidence. Nor indeed had he given notice of these proceedings to other potential claimants in accordance with the Court's rules.

Robyn's legal representatives cured both those deficiencies in the executor's evidence. Satisfactory evidence was adduced by Angela Melouney (in an affidavit dated 21 February 2012), the solicitor for the plaintiff, that she has written to the other eligible persons under the Family Provision Act and I am satisfied that they have been notified.

Graham Davis has provided some evidence of the asset position of other family members. The evidence is spare but amounts to the following: Helen owns her own home but it is subject to a mortgage; Jeffrey owns his own home and it is unclear whether it is mortgaged; Peter's wife Iris owns her own home at Farmborough Heights, a suburb of Wollongong, and Ian presently occupies the Cordeaux Road property. Ian did not adduce any evidence that he had any assets of substantial value himself and I infer that he has none. His evidence is that his only income is his carer's pension. It is unlikely given his dealings with his and Robyn's funds that he has been able to accumulate any assets. Graham did not assert Ian had substantial property either. Graham is a truck driver earning $700 net per week after tax. He must spend all his income to meet his domestic expenses. He supports his partner and her two children. He has assets including superannuation of $21,600.

The benefit that Jeff Davis receives under the will is potentially the most effected by Robyn's present Family Provision Act application. But he offers no opposition to Robyn's application. Prior to the commencement of proceedings Ms Melouney wrote to Jeffrey Davis on 3 May 2011 informing him that Robyn may be making a claim under the Family Provision Act 1982 and pointing out to Jeffrey that as an eligible person he may have an interest adverse to her as his share in particular may be reduced. It was suggested in this correspondence that Ms Sandra Arnold of the Illawarra disability service be her tutor and this is indeed what happened. Ms Melouney sought his views generally in relation to Robyn's claim and sought his consent to the appointment of Ms Arnold as tutor. Jeffrey's response was clear: he supported Graham's claims. He points out in his response that he paid for the deceased's funeral expenses and probate fees. Then he continues:-

"Ian Davis has at no time indicated his intention to execute my father's wishes.

I do not wish to be Robyn's guardian or financial guardian.

I support Robyn's claim under the Family Provision Act 1982(NSW) to provide adequate provision for Robyn's education, maintenance and advancement in life.

I agree with an independent tutor and I will be happy with the appointment of Ms Sandra Arnold of the Illawarra Disability Advocacy Service.

I also support Grahame's [sic] indication of his preparedness to engage in mediation."

Ms Melouney sent further correspondence as recently as 20 February 2012, referring to this matter being listed for hearing in the Supreme Court on Monday, 27 February 2012 at 10am to Mrs Iris Tait, Ms Helen Davis and Mr Jeff Davis. None of them have responded.

As to the other siblings whose financial positions are not the subject of evidence the principles that apply were stated by Ormiston J in Anderson v Teboneras [1990] VR 527 at 535, "it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than that relationship and that, in particular, he or she has adequate resources upon which to live."

The limited evidence in the circumstances is such that the Court can make this assumption about Helen, Jeffrey and Peter's family. As to Graham and Ian, nothing as to their circumstances or relationship with the deceased displaces the need to make the provision for Robyn identifies above. There are some additional special considerations in relation to Ian's benefits under the will that are considered below in relation to the administration action.

Graham's Administration Action

Nothing has been done to administer the estate. Graham therefore seeks orders: that the estate be administered principally by sale of the Cordeaux Road property; that Ian reimburse the estate an occupation fee for a period from about 12 months after the death of the testator until the date of the sale of the Cordeaux Road property; that Ian give an account of his administration of the estate. This section of these reasons considers the evidence that would support the making of the orders that Graham seeks. An incidental issue which evidence about these issues raises, is whether it is in the best interests of the estate for Ian to continue as the executor.

The Summons in the administration proceedings seeks in summary: a declaration the power to postpone sale of the Cordeaux Road property only be exercised in the best interest of the estate; that Ian pay the estate an occupation fee in respect of his occupation of the property for the period since 6 December 2008 in respect of one half of its rental value; that Ian Davis take steps to sell the Cordeaux Road property for the best price reasonably attainable; that Ian Davis pay the debts, funeral and testamentary expenses of the estate; that the defendant give an account of his administration of the estate within 6 months; and other consequential orders. The Summons did not seek Ian Davis' removal as executor of the deceased's will. But in opening his case in the administration proceedings, Graham's counsel foreshadowed the bringing of amended relief for the removal of Ian Davis as executor. As the plaintiff was unrepresented the Court made directions requiring Graham to give notice to Ian Davis of a proposed amendment and the grounds for the alleged removal.

The Court has inherent jurisdiction to remove an executor where it is necessary for the due and proper administration of the estate : Pogorzelska v Kazas - Rogaris [2010] NSWSC 1436 at [7] - [8] per Tamberlin AJ; Sullivan v Craig [2008] NSWSC 1189 at [2] per White J; and In the Goods of Loveday (1900) P 154 at 156, Bates v Messner (1967) 67 SR (NSW) 187 and Mavriderdos v Mack (1998) 45 NSWLR 80. Even where as here a concern arises as to whether this inherent power should be exercised, with an unrepresented litigant as executor, I have decided it is not appropriate to exercise the power without proper advance notice of the application being given to the plaintiff. For that reason the Court made the directions that it did. This question can be considered after the Court gives this judgment. It does appear, on my findings, that there is an arguable case for the revocation of the grant of probate and the removal of Ian Davis as executor. But Ian Davis has not had a full opportunity to answer that case. He will have that opportunity, once judgment has been given. It is undesirable for the Court to press any other views upon the issue of his removal at this stage other than that the case appears on the Court's other findings to be responsibly arguable. Some of the material that raises concern about Ian's continued role as the executor of the estate is identified below under the heading "Ian's Role as Executor".

It is necessary now to deal with the issues raised in the administration proceedings on the Summons as it now stands. Whereas once the Court was required to make orders for the general administration of an estate, now the Court has jurisdiction to make specific orders to aid its administration. Pursuant to that jurisdiction, the Summons asks the Court to consider four principal matters of the estate's administration: (1) meeting the estate's liabilities, specifically funeral and testamentary expenses; (2) accounting for the whereabouts of the deceased's car at the time of his death; (3) the failure to sell the Cordeaux Road property in a timely way; and, (4) the payment of an occupation fee by Ian Davis. Each of these matters is considered below.

(1) Funeral and Testamentary Expenses. There is no evidence of any current demand by any service provider against the estate for the payment of outstanding funeral and testamentary expenses. The only direct evidence on the matter comes from Jeffrey's letter dated 16 May 2011 to the solicitor for Robyn, Angela Melouney, in which he says that he is the "person who paid for my father's funeral expenses and probate fees". Probate was undoubtedly obtained and Court fees paid. On this evidence I infer that there are no outstanding funeral and testamentary expenses and that there has been no failure in the defendant's administration by reason of their non payment. This issue is not a basis for the Court to make orders in relation to the administration of the estate.

(2) The Ford Fairmont XY Motor Vehicle . Graham claims that at the time of his death the deceased had a 1971 Ford Fairmont XY V8 motor vehicle with a value of approximately $25,000. Graham's evidence is that the vehicle was given to Peter Davis and it was not, but should have been, included in the inventory of the estate. Graham seeks that the value of the motor vehicle be taken into account when distribution is made to Peter's children. Graham tendered evidence of the value of the motor vehicle at $25,000.

There are several problems with this aspect of the administration case. On this issue I accept Ian's oral evidence that the motor vehicle was "a wreck" and that it had been given to Peter "to fix it" because it was undriveable. Although it was registered at the time the deceased died, the registration ran out shortly afterwards. If the vehicle was in "A1" condition, as Ian described it, the vehicle might have been valuable. But I find in fact it was of inconsequential value. An unmaintained vehicle of that age is likely to rapidly lose value. Accordingly, its non inclusion in the inventory was not a significant breach of duty on the part of the executor.

(3) Failure to Sell the Cordeaux Road Property . Ian has failed to sell the Cordeaux Road property since the deceased's death. Ian Davis admitted that it had not been sold. But he says that between December 2007 and May 2011 it remained unsold because Robyn was living in the house.

Ian's obligation is to administer the estate within 12 months of the death: McCathie v Taxation (1944) 69 CLR 1. He may postpone realization without the need for the Court's intervention: Trustee Act 1925 (NSW), s 27B(1). But such a power must be exercised in good faith, with reference to relevant considerations including the rights of beneficiaries inter se: Perpetual Trustee Co Ltd v Noyes (1925) 42 WN (NSW) 56.

Whilst it is true that Robin was living in the house for this period (apart from about six months in 2009) the difficulty with the defendant's argument in delaying the sale on this ground is that that is not what was authorised by the will. The will merely authorised that Jeffrey would care for Robyn as her testamentary guardian, with Jeffrey being given one third of the estate. The will did not authorise Ian caring for Robyn at the Cordeaux Road property. If Ian was seeking as executor to delay the sale of the Cordeaux Road property for a period, to permit Robyn to reside there when she returned from Adelaide in mid 2009, whilst her future was determined, that should have been at the least the subject of some formal communication with the other beneficiaries or indeed some application to the Court. But that did not happen. Rather, Ian seems merely to have decided on his own that he would live at the Cordeaux Road property indefinitely, taking care of Robyn. The provisions of clause 5 of the will did not authorise a complete departure from the scheme of the will. Ian Davis has not offered an adequate reason why he did not put the Cordeaux Road property up for sale or explain to the beneficiaries why a temporary delay on sale was being sought pending the making of appropriate arrangements for Robyn's future. There has been no communication between Ian as executor and any beneficiary about the reasons for delay and sale of the property. I do not accept Ian's evidence that there was a family conference that decided all this in his favour. His case might have been assisted if he had formalised the outcome of such a conference in writing. Rather, Ian appears merely to have decided for himself that the sale would be delayed. As he explained the reasons in evidence, this was because he formed the view that he could decide for himself what would or would not happen under the will in Robyn's interests.

This situation has continued for almost three years since mid 2009. I have no confidence it will not continue unless the Court makes orders for the sale of the Cordeaux Road property. In the meantime Ian enjoys the property at the expense of all other benefirciaries. There is no basis to defer sale of the Cordeaux Road property any longer, upon the hypothesis that Robyn might return to live there with Ian. That is now a wholly unrealistic scenario. So the Court will make such orders.

(4) The payment of an Occupation Fee . Graham contends that Ian is obliged to pay an occupation fee for his occupation of the Cordeaux Road property from December 2007. Whilst it is strictly true that Ian may be liable to the estate for his occupation of the Cordeaux Road property, it must be recognised that such occupation was always accompanied by his role as Robyn's carer. Although the Court has found that his role as carer fell short of appropriate standards in a number of respects, it must be recognised that it would be difficult to fulfil that role and do what he did in Robyn's interests without him occupying the same property that Robyn did and in very close proximity to her. If he had not fulfilled this role, the estate would have been put to the expense of finding care and accommodation for Robyn pending final administration of the estate. His taking that voluntary role has financially benefited the estate, although quantification of the benefit is difficult. It seems now to be quite unfair to recognise a liability of Ian to the estate for his occupation of the Cordeaux Road property without giving him credit for the benefit he has conferred on the estate. Also, no-one contends Robyn should be charged with any obligation to the estate for her occupation of the property. All parties seem to be appropriately anxious to ensure that Robyn does not suffer that liability. It seems equally inappropriate that her carer should suffer that liability.

Thus whilst it is strictly correct, as Graham says that Ian could be charged an occupation fee for his occupation of the Cordeaux Road property since December 2007, making an order that this be allowed for in the administration of the estate, would only generate in Ian an arguable counter claim against the estate in respect of his services to Robyn, over and above his carer's allowance. In a small estate such as this, the generation of such a dispute is undesirable. The better course is to not make any order in the estate's administration in respect of Ian's occupation of the Cordeaux Road property since December 2007.

The Court has broad powers under Family Provision Act , s 15(1)(b) to make consequential and ancillary orders to give effect to an order for provision out of the estate of the deceased. The same result may be achieved in the exercise of those powers. In this case, those orders should include making an order in Ian's favour sufficient to compensate him from the estate for his support of Robyn in the last four years, to neutralise any claim that the estate may have against him.

Ian's Role as Executor

There is material in the evidence from which it may be inferred that Ian has failed to discharge the ordinary functions expected of an executor who has taken probate. There is also material suggesting he has expressed an attitude as executor that is incompatible with the orderly future administration of the estate. Subject to such submissions as Ian may wish to put, this material may provide grounds for the making of an order for the revocation of the grant of probate to Ian and his removal as executor. The matters for such concern are his failures to account, his intermingling of his own assets and those of others to whom he is a fiduciary, and his refusal to accept that he may need legal advice.

Failure to Account. By his own admission the defendant has not prepared any accounts for the estate for any period between the deceased's death and the hearing. This is so notwithstanding probate was granted on 24 March 2009, about 15 months after the deceased died. Mr Davis did not advance any accounts in evidence. He did not say he had filed any accounts. No other party tendered any accounts. He gave no explanation for not having filed any accounts. Accounts should be ordered in the administration proceedings.

But upon closer analysis of Ian's attitude in relation to his sister Robyn's affairs, it can be seen that he does not seem to believe he has any obligation to account to anyone for his expenditure of money, which comes into his hands to be applied on behalf of others. His handling of Robyn's money is an example of this apparently entrenched attitude. Ian Davis regards the money that Centrelink pays to Robyn as his to deal with in consultation with Robyn, and for which dealings he should be accountable to no-one. When Ian was confronted with the accounts showing his expenditure from the CBA bank account from which Robyn's pension was paid, he explained that he did not keep an account of how he spent the money that had come in for his sister. When asked why this was so he said, "Oh, I'm illiterate, for one. I don't write nothing down. I just hand it from week to week. She got paid Thursday and I got paid Thursday. And I just pushed it between".

It can be accepted that Mr Davis has limited literacy skills. He was asked whether he sought to overcome this disadvantage in administering Robyn's affairs by engaging assistance to write a summary of his expenditure. He explained that he did not do this for reasons that emerged in a remarkable series of answers to questions.

"Q. Mr Davis, although you might be illiterate, because of that, was there anyone that you, in effect to make sure that there was a record spent of expenditure for your sister to, in effect, give them the receipts, so that some nice friend of yours could, in effect, write up a little summary each week?

A. What for?

Q. Well, so that your family and your sister might know where the money had gone?

A. I dealt with me sister on me own. There was none of my family around me.

Q. But did it occur to you that someone other than you might want to legitimately inquire where the money had gone?

A. I wasn't worried.

Q. You weren't

A. Robyn wasn't worried.

Q. Anyway, it has never occurred to you to, despite your difficulties in writing it all down, to ask someone else to do so?

A. I never thought it was necessary. I done it for five years. It wasn't any different. I had three of the cards in me pocket at one stage for me dad.

Q. What do you mean by that?

A. I had his bank card there too, so I could do his as well. And me dad is the one that handed me Robyn's card in the first place, his and Robyn's, and told me the numbers and that's when I carried it on. I never changed it. I could have changed hers into my account at any time, into my carer's account, but I'd rather it in the two separate ones.

Q. But are you saying to the court the idea of you providing an account of how you spent this money is something that you don't think you should be required to do?

A. What do you mean "required to do" what?

Q. Are you saying to the court that you don't think you should ever have to account for how you spent this money?

A. Yeah, I didn't think I should have to.

Q. To anyone?

A. No. It's mine and Robyn's private business.

Q. Does Robyn ever ask you where the money went?

A. No. She's never worried about it in that sort of a way, just as long as you can give her money.

Q. Just so long as?

A. She can get some when she wants it."

Ian Davis' attitude seemed to become even clearer in a further passage of evidence about whether he should be called upon to give any account for the way he dealt with Robyn's money in the future:-

"Q. Mr Davis, you've said in your submission earlier today, that you want Robyn to come back and live with you?

A. Yeah.

Q. And you want the court to deal with this estate on that basis, but you are also saying, as I understand it, that there is no way that you will account for, even in the future, for Robyn's pension or how her money is spent?

A. Just spend it as it comes.

Q. Don't you see any difficulty with asking the court for Robyn to come back into your care, in effect, either here or asking through the Guardianship Tribunal, and then saying that you don't feel that you should give an account, even with the assistance of a literate friend, of how you spend the money that comes through her pension?

A. Oh, it's really up to me. I'm her carer.

Q. You say it is solely up to you and you shouldn't have to answer to anybody; is that what you're saying?

A. Yeah.

Q. Y our attitude is that noone else has any right, once you are in control of this money, to question where it goes; is that what you're saying?

A. Yeah, but in a way where it's between me and Robyn. "

It is arguable that there is no prospect that Mr Ian Davis would give an account in the future of how he dealt with Robyn's money unless ordered by the Court to do so. Equally it is open to infer that if the Cordeaux Road property is sold and its proceeds come into Ian's hands, that he may treat estate funds the same way, as beyond any obligation on his part to give an account. Ian Davis has refused so far to obtain any legal advice about the estate. He says he cannot afford it. This is probably right.

Ian Davis did not keep his own assets and income separate from those of Robyn, when he was caring for her at Cordeaux Road, prior to her departure in May 2011. Nor did he see any need to keep them separate. This does raise a serious question as to whether, were he to continue as executor of the estate, that he is capable of understanding the need to separate his own financial affairs from those of the estate. The evidence on this subject paints a potentially concerning picture.

It became clear that Ian would take Robyn out to local yacht clubs and leagues clubs for dinner and to play the poker machines. Leaving aside the fact that substantial monies appeared to have been leaving Robyn's account for this kind of expenditure, the evidence raised, in the absence of any other record of account keeping on Robyn's behalf, the issue of how Robyn's money was kept separate from Ian's money. The potentially concerning conclusion that may be drawn from the following evidence is that in Ian Davis' mind there was no self imposed rule upon which any money would be left in Robyn's account for her benefit at the conclusion of each fortnightly pension period. Ian was asked by what rule of separation he operated his own ATM card and Robyn's ATM card when both were in receipt of pension payments:-

"Q. Is there any rule as to how you use these cards? Robyn's card is available for your private expenditure, is that your attitude to it?

A. No.

Q. What is the rule in your mind? What can't you take out of her account, let me put it that way. I want to understand your system. What can't you take out of her account, just tell me?

A. Nothing really.

Q. So everything can be taken out?

A. Yeah, same as my account."

In answer to a question from counsel for Graham, Ian then summarised concisely just how he perceived his own dealings with Robyn's and his money, "Used everything to pay for everything". There was a complete and unconstrained intermingling of their funds. It is open for the Court to infer that if Ian continues as the executor of the estate that he will administer the estate's funds in much the same way, as he has administered Robyn's funds.

Conclusions and Orders

In the result the Court has found in the Family Provision Act proceedings that Robyn Davis, the plaintiff should receive a legacy from the estate in the sum of $100,000 or should one third of the net value of the estate realise more than $100,000 the plaintiff should receive one third of the estate. Ordinarily, Robyn's costs of the Family Provision Act proceedings would be payable out of the estate and I will so order. The executor, Ian Davis, has no current legal representation. He seems to have had legal advisors for a period in the past. Unless he makes special application, in respect of his past legal costs, if any, I see no basis for any order for the payment of his costs of the Family Provision Act proceedings out of the estate.

In relation to the administration proceedings, the Court has found there has been unexplained delay in effecting the sale of the Cordeaux Road property. As a result the Court will order that that property be sold. No orders will be made in respect of Ian Davis' occupation of the Cordeaux Road property nor in respect of the 1971 Ford Fairmont XY motor vehicle.

Graham should have his costs of the administration proceedings against the estate. Unless he brought those proceedings, the estate would have remained unadministered. Whether those costs, or some portion of them, should be borne by Ian can be determined when the quantum of those costs is made clear.

The Court will hear further submissions on whether a further accounting by Ian is necessary. There may be little to be the subject of such an account, now Ian will not be paying an occupation fee.

The Court's findings raise questions as to whether Ian Davis should continue as the executor of the estate. The Court calls for further submissions from both sides about that question. It is desirable that those submissions be presented to the Court as quickly as possible, in a way that does not involve any further unnecessary expense to the estate.

I direct the parties to bring in short minutes of order to give effect to these reasons.

**********

Decision last updated: 08 March 2012

Medium Neutral Citation:	Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201
Hearing dates:	27 February 2012, 1 March 2012
Decision date:	07 March 2012
Before:	Slattery J
Decision:	In the Family Provision Act proceedings, order for provision from the estate of the deceased of a legacy of $100,000 (or a third of the deceased's estate, whichever is the greater) made. In the administration proceedings, orders made for the sale of the real estate, the sole asset of the estate. Directions given for the further determination of whether the probate granted to the defendant, the executor of the estate, should be revoked.
Catchwords:	EQUITY - Succession - Family Provision - deceased makes provision for intellectually disabled daughter - Whether provision made is adequate for the daughter's proper maintenance, education and advancement in life. PROBATE AND ADMINISTRATION - whether estate has been properly administered - delay in selling estate property - whether orders should be made for the sale of the single asset in the estate, a residential property.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW) Social Security Act 1991 (Cth) Trustee Act 1925 (NSW)
Cases Cited:	Anderson v Teboneras [1990] VR 527 Bar-Mordecai v Hillston [2004] NSWCA 65 Bates v Messner (1967) 67 SR (NSW) 187 In the Goods of Loveday (1900) P 154 Lewis v Lewis [2001] NSWSC 321 Mavriderdos v Mack (1998) 45 NSWLR 80 McCathie v Taxation (1944) 69 CLR 1 Perpetual Trustee Co Ltd v Noyes (1925) 42 WN (NSW) 56 Pogorzelska v Kazas - Rogaris [2010] NSWSC 1436 Sullivan v Craig [2008] NSWSC 1189 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316
Category:	Principal judgment
Parties:	Plaintiff:- Graham Davis Defendant:- Ian Andrew Davis Plaintff:- Robyn Davis by Her Tutor Sandra Arnold Defendant:- Ian Andrew Davis as the executor of the estate of the late John Joseph Davis
Representation:	For Robyn Davis:- P. Lane For Graham Davis:- D. Alexander For Ian Davis:- in person For Robyn Davis:- Brian Sandlands For Graham Davis:- Peter Williamson
File Number(s):	2011/00048414; 2011/00229648
Publication restriction:	No