Estate Ameisen, Deceased

[2020] NSWSC 528

Supreme Court

New South Wales

Medium Neutral Citation:	Estate Ameisen, Deceased [2020] NSWSC 528
Hearing dates:	7, 8 and 11 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Equity - Family Provision List
Before:	Lindsay J
Decision:	ORDER that the plaintiff’s application for a family provision order (under Chapter 3 of the Succession Act 2006 NSW) against the estate of his late mother be dismissed.
Catchwords:	SUCCESSION – Family provision – Claim by adult son from deceased’s estate – substantial provision made for plaintiff in the deceased’s will and during her lifetime – Plaintiff not left without adequate provision for his proper maintenance, education and advancement in life – Claim for family provision order dismissed
Legislation Cited:	Succession Act 2006 NSW
Cases Cited:	Ameisen v Medical Council of NSW (2015) NSWCATOD 49 Andrew v Andrew (2012) 81 NSWLR 656 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Camemik v Reholc [2012] NSWSC 1537 Goodman v Windeyer (1980) 144 CLR 490 In re Allen [1922] NZLR 218 Medical Council of NSW v Ameisen [2020] NSWCATOD 18 Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 SGRO v Thomson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Paul Joseph Ameisen Defendant: Helena Ameisen
Representation:	Counsel: Plaintiff: K Morrissey Defendant: M Klooster   Solicitors: Plaintiff: GHS Legal Defendant: Wise Legal
File Number(s):	2019/00170630

Judgment

INTRODUCTION

1. In these proceedings the plaintiff, a mature aged adult son, with a well deserved reputation within his own family as a poor manager of his own affairs (a spendthrift of sorts), applies to the Court for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) against the estate of his late mother (Maria Ameisen, known as “Maya”, “the deceased”) at the expense of his only sibling, his sister (the defendant), a dutiful daughter. By her will, the deceased left the plaintiff property with a value in excess of $1.2 million. He wants more.

2. As a child of the deceased, the plaintiff is an “eligible person” within the meaning of section 57(1)(c) of the Succession Act 2006, with standing to apply for a family provision order: Succession Act, section 59(1)(a).

3. His application for family provision relief was made by a statement of claim filed on 31 May 2019, within the time limited by the Succession Act, section 58(2).

4. As a child of the deceased, he is not required by section 59(1)(b) of the Succession Act to prove that there are “factors warranting” the making of his application.

5. The questions for determination by the Court (viewed from a current day perspective) are:

1. whether the plaintiff was left without adequate provision for his proper maintenance, education or advancement in life out of the estate of the deceased (Succession Act, section 59(1)(c)); and

2. if so, what, if any, order for provision out of the estate of the deceased ought to be made for his maintenance, education or advancement in life (Succession Act, section 59(2)),

having regard to the provision made for the plaintiff in the will of the deceased; the other resources available to him; and the provision made for him by his parents (the deceased and her late husband) during the course of their lives.

THE LAW

6. To succeed on his claim for a family provision order the plaintiff must establish that, viewed from a current day perspective, he has been left without “adequate provision for his maintenance, education and advancement in life” from the deceased’s estate (section 59(1)(c)) and that further provision “ought” to be made for him from the estate (section 59(2)).

7. The concepts of “adequate” and “proper” embedded in section 59(1)(c) are relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19.

8. In the exercise of its statutory powers under section 59, the Court must endeavour to place itself in the position of the deceased, and to consider what she ought to have done in all the circumstances of the case, in light of facts now known, treating her as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 60 of the Succession Act so far as they may be material.

9. Whether the Court should make an order for family provision relief (and, if so, the nature and extent of any relief granted) are questions to be addressed in the context of the matters identified in section 60(2) of the Act as potentially material.

10. A deliberate scheme of testamentary dispositions by a capable testatrix is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thomson [2017] NSWCA 326 at [1]-[2] and [83]-[87].

11. In each case, the criteria for which the Succession Act provides must be applied to the facts of the particular case without resort to normative generalisations. The Court’s decision making upon an exercise of family provision jurisdiction is fact-sensitive.

12. Although, in particular circumstances, where an estate is large enough to accommodate it, provision (including security of tenure in a residence) might be made for an adult child in need of assistance, a deceased person is not generally obliged to provide an independent-living adult claimant on his or her bounty with a dwelling or the like: Camemik v Reholc [2012] NSWSC 1537 at [159].

13. A possibility that a plaintiff might squander provision made for him or her is not a ground for denial of provision, but a factor that goes to the form of any order made for provision: Carroll v Cowburn [2003] NSWSC 248 at [17]; West v France [2010] NSWSC 845 at [82]-[88]; Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116 at [97]-[102]; Leary v NSW Trustee and Guardian [2017] NSWSC 1113 at [89]-[103]; and Bowers v Bowers [2020] NSWSC 109 at [180]-[187].

14. The Court’s powers on a grant of family provision relief extend to imposition of conditions and the making of consequential orders affecting the manner in which provision is to be provided: Succession Act, sections 65-66. Those powers extend to an order that provision for a plaintiff be made in the form of a legacy to be held by a trustee on protective trusts for the plaintiff: McLean v Public Trustee [2001] NSWSC 970 at [20]-[21] and [24].

THE DECEASED, HER WILL, HER ESTATE

15. The deceased died on 17 June 2018, aged 97 years, leaving a will dated 18 July 2015, probate of which was granted to the defendant on 17 January 2019.

16. She left an estate with an estimated value, for probate purposes, of about $6.78 million.

17. The principal assets of the estate comprised four home units (with an agreed current net realisable value totalling $5,110,950), respectively located in:

1. Spring Street, Bondi Junction ($1,650,600);

2. Denham Street, Bondi Junction ($1,161,600);

3. Bondi Road, Bondi ($1,039,350); and

4. Lamrock Avenue, Bondi ($1,259,400).

18. Apart from watches, jewellery, and personal effects with an estimated value of about $10,000, the balance of the deceased’s estate comprised financial assets, including a nursing home deposit of about $540,000 and bank account balances totalling about $180,000.

19. By her will, viewed in broad perspective:

1. the deceased gave to the defendant the three properties respectively located in Spring Street, Denham Street and Bondi Road (with a total current net realisable value of $3,851,550), together with 50% of her principal cash assets; and

2. the deceased gave to the plaintiff the property at Lamrock Avenue (with a current net realisable value of $1,259,400), together with a sum of about $14,000 and an annuity of $66,000 payable in monthly instalments of $5,500, subject to annual Consumer Price Index adjustments, from a fund which is presently expected to be exhausted in or about October 2023; and

3. the deceased set aside a fund of $50,000 for a legacy payable to the plaintiff’s infant son (now aged eight years), with accrued interest, when he attains 25 years of age.

20. It is agreed between the parties that the real estate left to the defendant, and rentals received by her on it, is available (if required) to bear the burden of any family provision order made in favour of the plaintiff.

FAMILY RELATIONSHIPS

The Deceased’s Marriage and Family

21. The deceased was married once only, to Alexander. She and her husband married, in what was then part of Russia, in 1946. He died in November 2006, aged 92 years.

22. There were two children of the marriage, both of whom were born in Poland. The plaintiff, a son, was born in November 1948 and is now aged 71 years. The defendant, a daughter, was born in August 1954 and is now aged 65 years.

23. The deceased, her husband and their children emigrated to Australia from Poland in January 1960. The parents operated a pleating factory between 1965-1984 or thereabouts, building up wealth in the form of property investments which sustained them in retirement and, in due course, provided a means of providing for their children.

24. Theirs was a happy, loving family in which the parents, over time, endeavoured to treat the children with an equal measure of generosity, having regard to their individual needs.

25. As the children went their separate ways as adults, the plaintiff took a major part of his presumptive inheritance in the form of substantial parental assistance, from time to time, as he encountered crises in life (with a divorce, involvement in court proceedings, and subjection to disciplinary proceedings affecting his entitlement to practise his chosen profession); the defendant’s presumptive inheritance passed to her on her mother’s death (by virtue of the 2015 will), subject to any family provision order made in favour of the plaintiff in these proceedings.

26. Having received his inheritance, and (not for the first time) fallen on hard times, the plaintiff looks to his mother’s estate (more particularly, the defendant’s inheritance) for relief against pressing debts and for a larger share of the estate.

The Plaintiff’s Marriages and Family

27. The plaintiff graduated in medicine from the University of New South Wales in 1977. He has had a chequered career as a general practitioner, characterised by disciplinary proceedings of one sort or another, culminating (after the death of the deceased) in a period of suspension from practice which remains current and could, in practical terms, put an end to his medical career. An application for restoration to the Registrar of Medical Practitioners (if made) could take some time to be determined and, if successful, the plaintiff would still be left with a need to find employment. At the age of 71 years, his prospects of further employment as a medical practitioner are poor.

28. He obtained his registration as a medical practitioner in 1976. His name was first removed from the Register of Medical Practitioners by order of the NSW Medical Tribunal in January 2009, with a prohibition on any application for restoration of his name to the Register for a period of 18 months.

29. Only in June 2014 did he apply for a reinstatement order, which was made by the NSW Civil and Administrative Tribunal (NCAT) in May 2015: Ameisen v Medical Council of NSW [2015] NSWCATOD 49.

30. In August 2019 the Medical Council of NSW suspended his registration as a medical practitioner, and (on a reconsideration of the matter) reaffirmed the suspension in December 2019.

31. In January 2020 NCAT cancelled his registration as a medical practitioner for a second time and, in February 2020, it precluded him from making an application for his restoration to the Register for a period of three months; he will be at liberty to make such an application on 25 May 2020: Medical Council of NSW v Ameisen [2020] NSWCATOD 18.

32. His registration was most recently cancelled because of a failure on his part to comply with a condition imposed upon his restoration to the Register in 2015. The Medical Council informed the Tribunal that “it was not [its] case that [the plaintiff] deliberately and/or intentionally breached the condition” but that he had failed to comply with “a clear, unambiguous obligation”. The Tribunal for its part took into account in favour of the plaintiff that there was no evidence that he had placed the safety of any patient treated by him at risk or that a drug he had prescribed was inappropriate for treatment of the illness/condition which the patient presented with to him.

33. The plaintiff has been married twice:

1. He and his first wife (Annette) were divorced in about 1996. They had two adopted daughters (Belinda and Abbey), now in their thirties.

2. He and his current wife (Tenercy) commenced their relationship in about 2004 and were married in November 2014. They have one child (a son, Alex) born in February 2012 and now aged about eight years.

34. The plaintiff and his wife (Tenercy) are on good terms (she routinely manages their finances and is principal carer of their son, and he helps her with her Chinese medicine clinic); but they have never regularly lived under the same roof as a married couple. The plaintiff has long lived in the Lamrock Avenue property of his parents (gifted to him in the deceased’s will) and his wife, their son and her parents live at a house in Alpha Road, Willoughby, which was purchased in the names of the wife and her sister in 2013 using funds from the sale of a property in Wallis Parade, North Bondi, which the plaintiff acquired in about 1980 with assistance from his parents. The opinion of the plaintiff’s wife is that the Lamrock Avenue property (a small home unit in a built up area) is not a suitable location for their son to be raised.

The Defendant’s Marriage and Family

35. The defendant graduated from Cumberland College of Health Sciences as a speech pathologist in 1975. Before her marriage in 1985 she worked in speech pathology, travelled (in 1981-1982), returned to work as a speech pathologist and did some work in broadcasting.

36. In 1985 she married her husband (Moustafa) and moved with him to Alexandria, Egypt. There she had two children (a daughter, Aliyah, born in April 1986) and Nabil (a son, born in December 1988) and managed to do some work in speech pathology, as well as teaching English part time and assisting her husband, but her career as a speech pathologist was put on hold. When Moustafa died in January 2002, she returned to live in Australia with her children. Since her return she has not engaged in paid employment but pursued the vocation of a writer.

THE DECEASED’S TESTAMENTARY SCHEME

37. The deceased’s last will (dated 18 July 2015) has antecedents which cast light on her testamentary intentions. The evidence includes an unsigned, draft will prepared for the deceased by a solicitor in April 2006, as well as professionally drawn wills executed by the deceased on 3 October 2007, 2 February 2010 and 18 July 2015.

38. The 2007 will was made in the wake of the death of the deceased’s husband, the father of the plaintiff and the defendant. The 2010 will was made in contemplation of the plaintiff’s deregistration as a medical practitioner the year before. The 2015 will was made in contemplation of his reregistration as a medical practitioner that year, the birth of his son in 2012 and his marriage in 2014.

39. In each of the 2007, 2010 and 2015 wills the defendant was given the deceased’s properties in Spring Street, Denham Street and Bondi Road, underscoring her evidence that those properties had long been earmarked for her by the deceased.

40. In each of the 2007, 2010 and 2015 wills the plaintiff was given a gift referable to the deceased’s Lamrock Avenue property and a gift referable to an investment property owned, or once owned, by the deceased in Diamond Bay Road, Vaucluse.

41. Throughout the time the wills were made, the plaintiff was living in the Lamrock Avenue property on terms, effectively, rent free. The Diamond Bay Road property was sold by the deceased in 2009 as a means of providing immediate financial assistance to the plaintiff. Part of the proceeds of sale of that property were maintained by the deceased in a separate account which, in the 2015 will, funded the legacy of $50,000 for the plaintiff’s son and the legacy of about $14,000 given to the plaintiff.

42. Across the spectrum of those instruments, one sees a pattern of concern on the part of the deceased to treat her two children fairly, coupled with a concern about the plaintiff’s management of his affairs.

43. Although, on the face of each of the 2007, 2010 and 2015 wills, the defendant was given a greater share of the deceased’s estate than was the plaintiff, the terms of each will reflect the deceased’s consciousness that her children should be treated with equal regard and that the plaintiff had already received much of his inheritance when in need of assistance.

44. Clause 5 of the 2007 will was in the following terms:

“5.   IN MAKING this Will I have had particular regard to the following:

A.   I and my late husband ALEXANDER AMEISEN have assisted our son [the plaintiff] during his life by providing a deposit towards the purchase of property being …… Wallis Parade, Bondi … [,] paying legal costs and providing monetary assistance to him for his divorce settlement.

B.   My said son PAUL AMEISEN lived rent free at … Lamrock Avenue Bondi … for approximately ten (10) years thereafter paying only nominal rent.

C.   My said son PAUL AMEISEN is a qualified working medical practitioner earning an income.

D.   My said son PAUL AMEISEN owns three (3) properties one (1) in the Eastern Suburbs of Sydney and two (2) in Mudgee one being in the township and the other consisting of approximately 2,300 acres consisting of land and a cottage.

E.   My said daughter HELENA AMEISEN [the defendant] lived overseas for a period of twenty one (21) years prior to the death of her husband and neither myself or [sic] my husband provided her with an [sic] monetary support during that time.

F.   My said daughter HELENA AMEISEN has been unemployed for eighteen (18) years and does not own any property in [NSW].

G.   My said daughter HELENA AMEISEN has been providing assistance to me on a daily basis and continues to provide such assistance to me in relation to maintaining and organising personal affairs as and when required including but not limited to my financial affairs and personal matters I require and continue to require.

H.   My said daughter HELENA AMEISEN provided assistance to my late husband ALEXANDER AMEISEN for four (4) years prior to his death on a daily basis in relation to maintaining and organising personal affairs as and when required including but not limited to financial affairs and personal matters he required.”

45. Clause 15 of the deceased’s 2010 will recited (under the heading “Reasons for my bequests to my son”) the following: “I have considered very carefully the bequests made under this my last Will and Testament for my son and I have set out my reasons in a separate memorandum which is to be shown to my son by my trustee [the defendant] should he request a copy”.

46. Omitting the formal parts, that memorandum was in the following terms (with emphasis added):

“… In making my Will and this memorandum, I express my deepest love for Paul [the plaintiff]. He has been a wonderful, caring and loving son. I have always loved him dearly.

I say:

1.   I did not wish to include my reasons for making the bequests I have made in my Will as I am aware that upon my death my Will can become a public document and I wish to avoid, to the maximum possible extent, any embarrassment to my beloved son, Paul.

2.   Should my son Paul contest my Will, then it is my desire that this memorandum be brought to the attention of any court dealing with the matter.

3.   I have provided less for Paul than my daughter Helena [the defendant] for many reasons, including the following:

a)   In 1984 my late husband, Alexander and I purchased the Lamrock Avenue property. For over 10 years Paul has resided there substantially free of rent with my husband and I paying the rates and levies. Only in recent times, since the death of Alexander in November 2006, has Paul paid a nominal amount which does not even cover the rates and levies for the property. I believe that this free or cheap accommodation over many years has been the equivalent of a substantial financial contribution to Paul.

b)   Alexander and I provided moneys to Paul towards the purchase of his properties at ………. Wallis Parade, North Bondi and a farm in the Mudgee district.

c)   In addition, Alexander and I have substantially assisted Paul financially throughout his adult life and I estimate that he has received many hundreds of thousands of dollars from my late husband and me including considerable contributions towards a number of court cases, legal issues and settlements.

d)   Further and more recently, in 2009 I sold a property at …….. Diamond Bay Road, Vaucluse and provided my son with $200,000 from the proceeds in order for him to meet his expenses and pay his debts.

4.   As a financial manager, Paul’s affairs are and always have been a shambles. Although he has been a general medical practitioner from the early 1970s [sic] until January 2009, he has very little to show for it and has consistently squandered nearly all the money he has every earned. This is at odds with the value system that Alexander and I always adopted of saving and investing our money and never relying on handouts from family in order to make ends meet.

5.   I am concerned that if Paul receives a lump sum from me, it will similarly be squandered and he will not have me to rely upon any more to assist him. Therefore, I have decided to give him an annuity of $5,000 per month (adjusted annually by the CPI) so that he can cover a good portion of his living expenses, particularly as he is being given a life estate of the Lamrock Avenue property in which he presently resides.

6.   Paul has two adopted daughters, Belinda and Abigail. Throughout the time that they have been with Paul the best behaviour either of them has had towards me and Alexander has been indifferent. Generally, they have been simply rude in varying degrees.

7.   I have given Paul the life estate in the Lamrock Avenue property because I have no desire for Belinda and Abigail to ultimately inherit my estate.”

47. On the same day the deceased made her 2010 will, the solicitor who drafted the will (the defendant’s then partner) sent to the defendant an email which provides an informal “report” on the circumstances in which the deceased’s will and memorandum were executed. Omitting the formal parts, it reads as follows (with emphasis added):

“I went through the memorandum and Will with [the deceased]. She read the memorandum in full and we paused in places where I asked her – does she understand, does she agree, etc. Yes. She also read parts of the Will and I explained each paragraph to her although only in general terms as to the trustee powers. She repeated that she and her husband had given Paul so much in the past – including helping him with Wallis Parade, paying $65,000 goodwill for the Mudgee practice, etc. She agreed that if Paul has $5,000 per month with inflation (CPI) increase, that would ensure that he would have money to live on. Agreed that Paul would just spend all the money quickly and lose it if it were given to him in one go. Said all this hurts her very much. But it was the best way. Said she understood that if Paul bought a new place for me [sic], he would have to contribute the difference. Also read and discussed the section that balance of money would go to Helen [the defendant]. Ditto with interest on the money. She did express her desire that if needed, you give him assistance from the moneys left for him. Understood that he could lease out the unit and keep the rent. Understood that if Paul sold Lamrock and bought cheaper property, the difference would go to her estate and not Paul.

Also said that in previous wills she and her husband had wanted the Bondi Road and Denham Street units to go to Nabil and Aliyah but was now happy for them to go to Helen and then when Helen dies she can leave to her kids.

We also spoke about Belinda and Abbey and she does not want to leave them anything.

In summary, Maya [the deceased] appeared to know what she wanted and agreed that the Will and Memorandum reflected her wishes. It hurt her that she had to do this to Paul but said it was for the best and she repeated that she really did not want her money and assets to be passed down to Belinda and Abbey.

She did express a desire that Paul have anything from the Spring Street unit that he wanted even though there was nothing in the Will about this. I said that Helena [the defendant] would give Paul anything he wished.

Also, she asked that Helen look after her brother as he will need help. …”

48. The concerns expressed here find resonance in the deceased’s 2015 will. By that will, the plaintiff was given the Lamrock Avenue property (his long term residence), a small capital sum (approximately $14,000) and an annuity of $66,000 ($5,500 per month), indexed, likely to last until he reaches 75 years of age or thereabouts; separate provision was made for the plaintiff’s son.

49. The scheme of the will is predicated upon an assumption that the plaintiff cannot confidently be relied upon to look after his own affairs in a competent manner – in contrast with the deceased’s treatment of the defendant, given property unconditionally and named in the will as the deceased’s executrix and trustee. By virtue of her office under the will, the defendant is entrusted with the task of administering the plaintiff’s annuity and holding the legacy for the plaintiff’s son on trust for him.

50. According to the defendant, in about May 2009 (shortly after the plaintiff had been deregistered as a medical practitioner) the deceased expressed despair about the plaintiff’s unreliability in financial matters and the amount of money she had felt compelled over the years to provide to him to address his recurrent problems. The deceased said words to the following effect:

“What can I do? He is my son. I can’t leave him without money and I want to help him. ….

When a mother has an ‘utomny dziecko’ ([a Polish expression] which translates as ‘disabled, lame, crippled or defective child) what can she do? She must help him.”

51. The deceased’s assessment of her son, his strengths and his weaknesses finds reflection in the evidence adduced in these proceedings.

52. He presents as an amiable, caring person, loved by the deceased and, despite the vexation of these proceedings, by the defendant. He is chronically inattentive to detail; incompetent in management of his finances and property generally; dependent on others to manage his affairs and, whatever property and income he may have available to him, habitually in need of financial assistance. When in employment (between 2015-2019) his income appears routinely to have been managed by his wife via transfers from his bank account to a bank account controlled by her.

53. Although the deceased helped each of her children, from time to time, with small monetary gifts (as well as earmarking real estate for them), a singular feature of the plaintiff’s relationship with his mother is that, as I find is more likely than not, he encouraged her, when out and about with her in her final years, to provide him with cash gifts (commonly $1,000) drawn on her bank account via automatic teller machines.

54. Throughout the plaintiff’s adult life the deceased accommodated his claims of necessity on her generosity; but she remained mindful of her desire, by her will, to even up the scales as between the plaintiff and the defendant.

55. The provision made by the deceased for the plaintiff in her 2015 will represented a deliberate scheme of distribution which gave to the plaintiff (subject to a gift to his son contingent upon attainment of the age of 25 years) the balance of the property earmarked by her for him, and gave to the defendant the property earmarked for her, with a rational appreciation of each child’s circumstances.

56. The deceased knew of the plaintiff’s tendency to dissipate any wealth that came his way. That is why she gave him a residence and an annuity, and set aside a trust fund for his son. She could not have known of the debts presently bearing upon him: a $120,000 credit card debt, a debt of about $10,700 owed to the Medical Council for legal costs, about $7,000 owed to his accountant and (as foreshadowed by his accountant) a prospective tax debt of about $220,000 referable to unpaid tax for the 2016-2019 tax years. However, the fact that he has substantial, pressing debts was consistent with her experience of him and well within her contemplation. She gave him a residence and an annuity in the hope that it would provide him with some stability and minimise the risk of dissipation.

57. What the deceased did not know was that, having been restored to the Register of Medical Practitioners in 2015, he would be suspended in 2019 and deregistered for a second time in 2020. However, what was known to her was that he was deregistered in 2009; although employed as a medical practitioner after he was restored to the Register in 2015, and in receipt of a reasonable income, he never seemed to have any money; and, despite his empathy for patients, unless micro managed his conduct of a medical practice was dysfunctional.

58. It was to cater for what she knew, and did not know, that the deceased gave him a residence and an annuity, not property more readily disposable.

59. Had she lived until today, the deceased may have been tempted to make further provision for the plaintiff: “What can I do? He is my son. I can’t leave him without money and I want to help him.” Upon on application of the statutory tests for which sections 59(1)(c) and 59(2) of the Succession Act provide, the Court must be mindful of this.

60. Equally, however, one must respect the considered testamentary intentions of the deceased, and the reasonable expectations of the defendant as an object of the deceased’s bounty, a dutiful daughter. The deceased’s generosity to the plaintiff during her life, and in her will, was granted to him within the bounds of what she regarded as his presumptive inheritance. What he seeks in these proceedings is a court order that goes beyond his presumptive inheritance, and impinges on that of the defendant, despite the fact that the deceased left him property with a value in excess of $1.2 million.

THE PLAINTIFF’S PRESENT CIRCUMSTANCES

61. Cross examination of the plaintiff on his evidence about his income and expenses demonstrated the unreliability of that evidence and his unfamiliarity with management of his finances. He was unable to explain his financial affairs in any but a superficial way, and he was confounded by manifest inconsistencies or improbabilities in the evidence.

62. His evidence about his financial affairs and that of his family and related entities cannot be relied upon in matters of detail, rising little higher than evidence that:

1. his current regular income stream is limited to the annuity, payable monthly, he receives from the deceased’s estate ($5,500 or thereabouts, as indexed, per month), together with rental of about $800 per month he receives from an investment property he owns in Court Street, Mudgee (in total, about $6,300 per month);

2. his currently pressing debts total about $137,700 (comprising a credit card debt of about $120,000, a debt of about $10,700 owed to the Medical Council for legal costs, and a debt of about $7,000 owed to his accountant); and

3. on advice from his accountant, he anticipates that he will in due course receive a notice of assessment for income tax payable by him (in the estimated sum of about $220,000) for the 2016-2019 tax years.

63. The plaintiff’s wife gave evidence and was cross examined about the financial affairs of herself, her family and related entities; but her evidence provided no greater clarity about the plaintiff’s financial circumstances.

64. What can be known is that, in addition to the provision made for the plaintiff in the will of the deceased, he has:

1. an investment property (valued at between $525,000 - $600,000) in Court Street, Mudgee, subject to a substantial mortgage; and

2. an interest in a “bush block” (upon which is erected a roughly constructed hut) near Mudgee (with an estimated value of about $200,000); and

3. nominal superannuation.

65. It should also be noted that it is agreed between the parties that the total amount of the annuity thus far paid to the plaintiff, from the estate of the deceased, is of the order of $122,000.

66. It is unclear whether (and, if so, to what extent) the plaintiff can depend upon his wife and her family for financial support.

67. It may be accepted that (at the age of 71 years, unable presently to practise as a medical practitioner, contemplating that he may not be able to be restored to the register in order to practise in the future, and with pressing debts) the plaintiff suffers from anxiety and depression.

CONCLUSION

68. Having consulted the criteria for which section 60(2) of the Succession Act provides, I make the following observations about the context in which decisions have to be made under sections 59(1)(c) and 59(2) in disposition of the plaintiff’s application for family provision relief:

1. The plaintiff is a 71 year old man who, throughout his adult life, has lived independently of his birth family, but with generous financial assistance from his parents and, in particular (after the death of his father), the deceased.

2. The plaintiff had a loving and happy relationship with his parents, as he has had (but for these proceedings) with the defendant.

3. The deceased recognised that she had, and acted upon, a familial obligation to make provision for each of the plaintiff and the defendant so far as she was able – conscious of the plaintiff’s tendency to mismanage his affairs and of a need to cater for each child’s reasonable expectations by earmarking real estate for each child’s presumptive inheritance.

4. During the course of the deceased’s life the plaintiff received substantial financial assistance from his parents, just as he has received substantial provision courtesy of the deceased’s will.

5. Under the will, the plaintiff has received a home unit with a net realisable value of about $1.2 million and an indexed annuity of $66,000 (which has thus far yielded him about $122,000) with approximately three years to run. A trust fund of $50,000 (plus accrued interest) has been set aside for his son.

6. Although the plaintiff appears to have a happy marriage, his wife and son have never routinely cohabitated with him. His wife is settled, with security of tenure, in a residence shared with her parents, in an environment considered best suited for raising the son.

7. Although the plaintiff has presently lost (and may, in a practical sense, have permanently lost) his entitlement to pursue his chosen profession as a medical practitioner, he is not without assets or income. In addition to the home unit devised to him in the deceased’s will, he has an investment property in Mudgee and an interest in a bush paddock near Mudgee. In addition to the annuity he receives under the deceased’s will, he receives about $800 per month from his Mudgee investment. I discount, as de minumus, the income he from time to time receives from assisting his wife in the conduct of her Chinese medicine business.

8. The deceased’s estate is large enough to accommodate an order that further provision be made for the plaintiff, but only at the expense of the defendant’s reasonable expectations and in disregard of the deceased’s deliberate estate planning.

9. The plaintiff cannot be said to have contributed in any significant way to the acquisition, conservation or improvement of the deceased’s estate. He was, on the contrary, a beneficiary of the deceased’s maternal concerns for his welfare, driven by her insightful appreciation that he lacks discipline in management of his affairs.

10. Although a precise understanding of the financial circumstances of the plaintiff and his wife cannot be obtained from their evidence, the fact that the plaintiff has pressing debts is tolerably clear, as is the fact that he has property available to him which could be applied in payment of them.

11. The plaintiff was treated generously by the deceased during her lifetime, and generously in her will.

69. In presentation of the plaintiff’s case, his counsel (correctly) expressly disclaimed the proposition that the deceased was bound to treat the plaintiff and the defendant equally in her will. Nevertheless, a recurrent submission made on behalf of the plaintiff was to the effect that: (a) the deceased and her late husband consistently exhibited a predisposition towards treating their children equally; and (b) the defendant received more under the deceased’s will than did the plaintiff.

70. The plaintiff invites the Court to assess his application for family provision relief upon the footing that, in her will, the deceased treated him “less equally” than the defendant. That is too narrow a view of the case. Although the defendant has received more than the plaintiff, on the face of the will, the plaintiff cannot characterise his testamentary benefits as wanting in generosity. Neither can one overlook that, throughout his parents’ lives, he drew down on his presumptive inheritance whereas the defendant did not. On balance, viewed in this broader perspective, the deceased appears indeed to have endeavoured, with success, to treat her children “equally”, if that be a material consideration.

71. In my assessment, the plaintiff’s application for family provision relief fails at the threshold. I am not satisfied that the dictates of wisdom or justice, or contemporary community standards, warrant anything other than a determination that the application be dismissed. Having regard to his benefits under the will of the deceased, the benefits conferred on him by his parents during their lives, and the resources available to him, it cannot be said that he has been left without adequate provision for his proper maintenance, education or advancement in life out of the estate of the deceased.

72. In making this finding, I do not hold against the plaintiff that he is a poor manager of his own affairs or a spendthrift of sorts. Testamentary provision with an estimated value in excess of $1.2 million (coupled with several years’ annuity of $66,000) is, of itself, an impediment to a finding that the plaintiff has been left without adequate provision.

73. If (contrary to my finding) the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life out of the estate of the deceased, a substantial question remains as to whether any order for further provision out of the estate “ought” to be made for his maintenance, education or advancement in life.

74. The factors which tell against a finding in favour of the plaintiff under section 59(1)(c) of the Succession Act also tell against him upon a consideration of section 59(2).

75. If an order for further provision were to be made in favour of the plaintiff (contrary to my section 59(1)(c) finding), no more than an order for modest provision (limited to assisting him to meet his current pressing debts, $140,000 or thereabouts) could be justified without unduly impinging upon the defendant’s reasonable expectations as a dutiful daughter, a widow and mother of her own two (now adult) children.

76. The plaintiff’s ambit claim (for provision out of the estate in the lump sum of about $1 - $1.5 million in addition to the Lamrock Avenue property) contemplated that a sum of about $140,000 might be paid to his solicitor charged with payment of his pressing debts.

69. The plaintiff’s ambit claim suggests that he has a misplaced sense of entitlement. It is far beyond anything that could reasonably be allowed to him if (contrary to my determination) a grant of family provision relief were to be made.

70. My determination is that (the plaintiff having failed to establish that he has been left without adequate provision for his proper maintenance, education and advancement in life out of the estate of the deceased), his application for a family provision order must be dismissed.

71. The parties have yet to address the Court on questions of costs beyond foreshadowed controversies. On the one hand, I anticipate that the plaintiff will invite the Court to make an order, exceptionally, that at least part of his costs be paid out of the estate of the deceased, charged against properties left by the deceased to the defendant or, at least, rent received by her on those properties since the death of the deceased. On the other hand, I anticipate the defendant will invite the Court to make an order that the plaintiff pay her costs, at least some of them on the indemnity basis. A middle course may be for each party to pay or bear his or her own costs.

72. A complicating factor for the plaintiff is that, apart from any offers of settlement that might have been exchanged in the course of the proceedings, by his statement of claim he initially contested the validity of each of the deceased’s known three wills; on 9 September 2019 he submitted to an order for dismissal of that part of his case.

73. In these circumstances, I make the following orders:

1. ORDER that the amended statement of claim filed on 9 July 2019 be dismissed.

2. ORDER that the proceedings be listed before Lindsay J at 9.00am on 22 May 2020 for consideration of questions of costs.

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Decision last updated: 15 May 2020