Frank v Angell

[2024] NSWCA 264

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Frank v Angell [2024] NSWCA 264

Hearing dates:

27 September 2024

Date of orders:

6 November 2024

Decision date:

06 November 2024

Before:

Bell CJ at [1];
Gleeson JA at [2];
Stern JA at [5].

Decision:

(1)   To the extent necessary leave to appeal is granted.

(2)   The appeal is dismissed.

(3)   The appellants are to pay the respondents’ costs of the appeal.

Catchwords:

SUCCESSION – Family provision – where the deceased loaned significant sums of money on favourable terms and provided rent-free accommodation to enable the appellants to study in Australia – where the deceased made provision for the appellants in his will – where the appellants sought an order for provision in the sum of $300,000 to $450,000 out of the deceased’s estate – whether the primary judge erred in determining that the appellants had not demonstrated factors warranting under s 59(1)(b) of the Succession Act 2006 (NSW) – whether the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the deceased under his will pursuant to s 59(1)(c) of the Succession Act

CIVIL PROCEDURE – Appeals – appropriate standard of appellate review of a decision under ss 59(1)(b) and (c) of the Succession Act

Legislation Cited:

Family Provision Act 1982 (NSW), s 9

Succession Act 2006 (NSW), ss 3(4), 57, 59, 60

Supreme Court Act 1970 (NSW), s 101

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 3

Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)

Cases Cited:

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Chan v Chan [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23

Curtis v Curtis [2024] NSWCA 136

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Diver v Neal [2009] NSWCA 54

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Evans v Levy [2011] NSWCA 125

Foley v Ellis [2008] NSWCA 288

Gill v Garrett [2021] NSWCA 117

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Golosky v Golosky (Court of Appeal (NSW), 5 October 1993, unrep)

House v The King (1936) 55 CLR 499; [1936] HCA 40

J and E Vella Pty Ltd v Hobson [2023] NSWCA 234

Lodin v Lodin [2017] NSWCA 327

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Mulcahy v Weldon [2002] NSWCA 206

Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Sassoon v Rose [2013] NSWCA 220

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Yee v Yee [2017] NSWCA 305

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Sharon Frank (first appellant)
Kim Hagie (second appellant)

Catherine Angell (first respondent)
Joanne Loughlin (second respondent)

Representation:

Counsel:

J. Brown; C. Coventry; L. Sewell (appellants)
B. Rayment KC; R. Tregenza (respondents)

Solicitors:

Carroll & O’Dea Lawyers (appellants)
Lighthouse Law Group (respondents)

File Number(s):

2024/111733

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2024] NSWSC 158

Date of Decision:

01 March 2024

Before:

Rees J

File Number(s):

2022/243630

HEADNOTE

[This headnote is not to be read as part of the judgment]

This appeal arises out of an application pursuant to s 59(1) of the Succession Act 2006 (NSW) by Sharon Frank and Kim Hagie (the appellants). They sought an order that provision be made out of the estate and/or notional estate of the late Max Frederick Willis (the “Deceased”) in the sum of $300,000 to $450,000.

The Deceased had a history of providing support to people from abroad to obtain tertiary qualifications in Australia. Mr Hagie came to Australia pursuant to an arrangement between Mr Hagie and the Deceased in 2012 for the purpose of enabling Mr Hagie to study and obtain employment in Australia. This arrangement included the Deceased loaning significant sums of money to Mr Hagie on very favourable terms and Mr Hagie living at the Deceased’s house (the “Caringbah Residence”) and performing household tasks.

In 2015, after Mr Hagie did not complete his studies, the Deceased provided loans to enable Ms Frank (Mr Hagie’s wife) to come to, and undertake study in, Australia, with a view to her becoming a teacher qualified to Australian standards. The appellants’ three children moved to Australia between 2017 and 2019 and they also lived at the Caringbah Residence. The Deceased described his assistance to the appellants as “help but no charity or handouts.”

The Deceased died on 18 August 2021. In his last will, made on 3 December 2019 (the “Will”), he bequeathed $50,000 to Ms Frank “to be used by her for her education and the settlement of her and her immediate family in Australia at the time of my death”. He also forgave any debt owed to him by any person at the time of his death, which included debts owed by the appellants in the sum of approximately $80,000, and directed that any person residing at the Caringbah Residence could continue to reside there for a period not exceeding twelve months from the date of the Deceased’s death on a rent-free basis with his estate paying all statutory fees and utility service costs. The residue of the Deceased’s estate was left to his four children in equal shares.

The primary judge found that the appellants were not eligible persons within the meaning of either s 57(1)(e) or (f), that the appellants had failed to show that there were factors warranting the making of the application within the meaning of s 59(1)(b) as they were not a natural object of testamentary recognition, and in any event, that the Deceased had made adequate provision within the meaning of s 59(1)(c) in his Will for the proper maintenance, education or advancement in life of the appellants having regard to the matters listed in s 60(2) of the Succession Act.

The appellants appealed against this decision. The principal issues on appeal were:

1. Whether the primary judge erred in failing to give reasons, or adequate reasons for her Honour’s findings.

2. Whether the primary judge erred in determining that the appellants had not demonstrated factors warranting the making of the application within the meaning of s 59(1)(b), and the appropriate standard of appellate review of such a decision.

3. Whether the primary judge erred in finding that adequate and proper provision had been made for the appellants for the purposes of s 59(1)(c) of the Succession Act, and the appropriate standard of appellate review of such a decision.

The Court (Stern JA, Bell CJ agreeing, Gleeson JA agreeing with additional observations with which Bell CJ agreed) held, dismissing the appeal:

As to issue (1), per Stern JA (Bell CJ and Gleeson JA agreeing)

1. The reasons of the primary judge must be read as a whole. The primary judge dealt with all relevant controversies and the reasons for her Honour’s findings are readily explicable. The appellants’ complaints seek a level of detail that was not required of the primary judge: [61].

As to issue (2), per Stern JA (Bell CJ and Gleeson JA agreeing)

1. In an appropriate case, the fact of provision of a particular character having already been made for an applicant in the deceased’s will can be relevant to whether there are factors warranting the making of the application: [84]-[87].

   Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679, considered

2. Having regard to her Honour’s findings as to credibility, the contemporaneous documents and to the nature of the arrangement that the primary judge found to exist between the appellants and the Deceased, the primary judge was entitled to make the findings her Honour did: [88]-[91].

3. There is nothing in the arrangement or relationship between the Deceased and the appellants that made them natural objects of testamentary recognition by the Deceased, or which gave rise to any moral duty on the part of the Deceased to make any provision for the appellants in his Will. The fact that the Deceased made provision for the appellants in the Will does not alter this conclusion: [93]-[101].

Per Gleeson JA (Bell CJ agreeing)

1. The precondition in s 59(1)(b) of the Succession Act that there are factors warranting the making of the application for provision is subject to the deferential House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of appellate review. Although such a finding is not a discretionary decision like a sentencing decision, the factors warranting question in s 59(1)(b) involves an evaluative judgment, relevantly requiring consideration of community standards and expectations of those making testamentary dispositions having regard to “all the circumstances of the case (whether past or present)”. The nature of that task does not call for a unique outcome; it is a finding for which there is not one correct answer. This accords with the authorities in this Court applying the House v The King standard of appellate review to the factors warranting question in the now repealed s 9 of the Family Provision Act 1982 (NSW): [3]-[4].

   Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, applied.

   Mulcahy v Weldon [2002] NSWCA 206, Foley v Ellis [2008] NSWCA 288, Sassoon v Rose [2013] NSWCA 220; Yee v Yee [2017] NSWCA 305, considered.

Per Stern JA (Bell CJ and Gleeson JA agreeing)

1. Given the obvious overlap between the questions whether there are factors warranting the making of the application and whether provision (if any) made for an applicant was inadequate, there would be unfortunate artificiality if the correctness standard of review applied to one rather than the other. Moreover, there will likely be overlap between the matters considered by the Court and those considered under the clearly discretionary determination under s 59(2) as to what provision should be ordered. Having regard to these matters, the preferable position is that the House v The King standard of appellate review applies as regards a determination under s 59(1)(b): [62]-[66].

   Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, White v Barron (1980) 144 CLR 431; [1980] HCA 14, considered.

As to issue (3), per Stern JA (Bell CJ and Gleeson JA agreeing)

1. There was no appealable error in the primary judge’s conclusion that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the Deceased under his Will, within the meaning of s 59(1)(c): [105]-[106].

2. The standard of appellate review of a decision under s 59(1)(c) remains that applicable to discretionary decisions, having regard to the decision of the High Court in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 which was considered without disapproval by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30: [107]-[108].

JUDGMENT

1. BELL CJ: I agree with the reasons of Stern JA and the orders her Honour proposes.  I also agree with the additional observations of Gleeson JA.

2. GLEESON JA: I agree with Stern JA.

3. I add the following brief comment concerning the standard of appellate review of a finding under s 59(1)(b) of the Succession Act 2006 (NSW). As Stern JA explains at [62]-[66]f, contrary to the appellants’ submission, the precondition in s 59(1)(b) of the Succession Act that there are factors warranting the making of the application for provision is subject to the deferential House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of appellate review.

4. Although such a finding is not a discretionary decision like a sentencing decision, the factors warranting question in s 59(1)(b) involves an evaluative judgment, relevantly requiring consideration of community standards and expectations of those making testamentary dispositions having regard to “all the circumstances of the case (whether past or present)”. The nature of that task does not call for a unique outcome; it is a finding for which there is not one correct answer, adopting the language of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [49] (“SZVFW”). This accords with the authorities in this Court applying the House v The King standard of appellate review to the factors warranting question in the now repealed s 9 of the Family Provision Act 1982 (NSW) (see, for example, Mulcahy v Weldon [2002] NSWCA 206 at [24]; Foley v Ellis [2008] NSWCA 288 at [5], [83]), and in s 59(1)(b) of the Succession Act (see, for example, Sassoon v Rose [2013] NSWCA 220 at [12]; Yee v Yee [2017] NSWCA 305 at [108]-[109]).

5. STERN JA: This appeal, brought under s 101 of the Supreme Court Act 1970 (NSW), arises out of an application pursuant to s 59(1) of the Succession Act by Sharon Frank and Kim Hagie (the first and second appellants respectively). They sought an order that provision be made out of the estate and/or notional estate of the late Max Frederick Willis (the “Deceased”) in the sum of $300,000 to $450,000 for their maintenance and advancement in life. The primary judge dismissed their application with costs, finding that the appellants were not eligible persons within the meaning of s 57(1)(e) or (f) of the Succession Act, that in any event the appellants had not demonstrated factors warranting the making of the application and adequate and proper provision had been made in the Deceased’s will for them. The appellants challenge each of those findings on appeal and contend further that the primary judge erred in not making appropriate findings and in failing to give reasons or adequate reasons for her findings.

6. The Deceased, who was a solicitor and member of NSW Parliament, died on 18 August 2021. His wife pre-deceased him and he had four children, including the respondents. In his last will, made on 3 December 2019 (the “Will”), the Deceased appointed the respondents as executors. The agreed net value of the Deceased’s estate before the primary judge, was $3,190,285.

7. The Deceased made some provision for the appellants in the Will. He bequeathed $50,000 to Ms Frank “to be used by her for her education and the settlement of her and her immediate family in Australia at the time of my death”. He also forgave any debt owed to him by any person at the time of his death, which included debts owed by the appellants in the sum of approximately $80,000 (and also a debt owed by his son, David Willis, of $20,000), and directed that any person residing at the Deceased’s principal place of residence (the “Caringbah Residence”) as their permanent place of residence at the time of his death (which included the appellants and their children, and also the Deceased’s son David Willis) could continue to reside there for a period not exceeding twelve months from the date of the Deceased’s death on a rent-free basis with his estate paying all statutory fees and utility service costs. The residue of the Deceased’s estate was left to his four children in equal shares.

8. The Deceased had a keen interest in the development of the Solomon Islands and had a history of providing support to people from abroad to obtain tertiary qualifications in Australia. The appellants, who are citizens of the Solomon Islands, were the last in a line of people assisted by the Deceased. Mr Hagie came to Australia pursuant to an arrangement between Mr Hagie and the Deceased in 2012. Broadly, this arrangement was for the purpose of enabling Mr Hagie to study and obtain employment in Australia. The Deceased was clear that there was to be “no charity or handouts” but the arrangement included the Deceased loaning significant sums of money to Mr Hagie on very favourable terms and Mr Hagie living at the Caringbah Residence and performing household tasks.

9. In 2015, after Mr Hagie did not complete his studies, the Deceased provided financial support by way of loans to enable Ms Frank (Mr Hagie’s wife) to come to, and undertake study in, Australia, with a view to her becoming a teacher qualified to Australian standards. It was proposed that the appellants would reside with the Deceased “in the early stages.” In fact, the appellants remained living at the Caringbah Residence until the Deceased’s death. The appellants’ three children moved to Australia between 2017 and 2019 and they also lived at the Caringbah Residence and continued to do so up until the Deceased’s death.

10. Against this background, the appellants contend that the primary judge erred in rejecting their application for provision.

11. The appellants’ position is that leave to appeal is not required. They contend that the appeal involves a matter at issue amounting to more than $100,000, given the extent of the provision they claim. Ultimately, the appellants’ position on appeal was, however, that to the extent necessary, they seek leave to appeal and the respondents did not oppose the grant of leave. The respondent agreed that in these circumstances, it was unnecessary for the Court to deal with an application they had filed that the appeal be dismissed as incompetent.

12. In these circumstances, and for the reasons set out below, to the extent necessary leave to appeal should be granted but the appeal should be dismissed.

13. Unless otherwise indicated, in this judgment all references to parts, divisions or sections of a statute are to parts, divisions or sections of the Succession Act.

Factual background

14. It is convenient at this juncture to set out some additional detail of the factual background by reference to the findings of the primary judge and the contemporaneous documents. This excludes those factual findings which the appellants challenge on appeal.

15. The Deceased referred to the people he supported to come to Australia as “projects”.

16. The Deceased was put in touch with Mr Hagie in 2012. Some indication of the Deceased’s motivation in providing support to Mr Hagie can be gleaned from an email the Deceased sent on 6 May 2012 to Robert Anita, a former “project” of the Deceased and a distant cousin of Mr Hagie. In this email, the Deceased said that he was “wanting to take on this project for altruistic reasons” but was somewhat reluctant because of his age and his more limited and less flexible financial resources.

17. On 23 May 2012 the Deceased sent an email to Mr Hagie. The Deceased told Mr Hagie that he was getting older and that if he died “then I can’t help you further”. The Deceased offered him “[n]othing but “opportunity””, said that any money he advanced to Mr Hagie would have to be repaid, and offered to provide Mr Hagie with free accommodation in his home. He outlined what “Project Kim” would involve, including what courses Mr Hagie would undertake and that the Deceased would loan him $6,000 which would cover education, travel and visa expenses. The Deceased described his assistance as “help but no charity or handouts”. The Deceased explained that he would provide Mr Hagie with accommodation but “for this you would do house things such as cleaning/garden etc”.

18. Mr Hagie moved to Australia in December 2012 and moved into the Caringbah Residence, where David Willis was also living. The Deceased paid for Mr Hagie’s airfares to Sydney, clothing, train fares and also made some cash advances to him. The Deceased’s children gave evidence of the Deceased telling Mr Hagie that “[t]o live under this roo[f] nothing is free. I would like you to maintain the house when I ask for it” and “[n]o work, no tucker.”

19. The primary judge (at J[5], [19]) described the Deceased as a “meticulous record keeper” and “meticulous bookkeeper”, and there was no dispute on appeal as to this or as to the accuracy of the records of the loans that the Deceased made to the appellant. Notably, the primary judge found that as a result of the Deceased’s record keeping, “the nature of his arrangements with the [appellants] is clear.”

14. The Deceased maintained a folder which was entitled ““Max Bank” Records” and maintained a handwritten ledger entitled “Kim Hagie A/C with “Max Bank””. Consistent with the nature of the arrangement, I will refer to amounts paid to and from the Deceased as payments made to or from “Max Bank”. These ledgers provide a valuable contemporaneous record of some of the events relevant to this appeal.

15. As the primary judge observed (at J[24]), “Project Kim” was not without incident. After one incident, where Mr Hagie was said to have become drunk and engaged in conduct that “disappointed” the Deceased, the Deceased imposed a “total alcohol ban” on Mr Hagie as a condition of the Deceased’s continuing support. This is recorded in a letter from the Deceased to Mr Hagie on 26 April 2013. The Deceased wrote that if Mr Hagie did not comply Mr Hagie would be “dismissed from my house and lose my financial support” and “have my sponsorship withdrawn”. Mr Hagie co-signed this letter and on the same day paid $8,000 to “Max Bank”, effectively repaying the moneys that had been lent to that point in time.

16. In 2014 Mr Hagie ceased studying without completing his course. Having failed on “Project Kim”, and with Mr Hagie having arranged for his wife to come to Australia, the Deceased sent an email to Ms Frank on 25 October 2014, copied to Mr Hagie, with the subject “Project Sharon”. In this email, the Deceased said that he accepted that if the appellants were to achieve what they wanted for their family, Ms Frank, and not Mr Hagie, would “be the driving force of achievement”. The Deceased then set out an “outline plan” which included the undergraduate and postgraduate study that Ms Frank would undertake and the visa she required. The Deceased wrote:

“I have examined the finances of this project which you and Kim failed to consider and there is no way it can be achieved with you and Kim living independently and paying your way and your uni fees!!!- At least not in the early stages.

Therefore I have proposed to Kim that you both start off living with me in the early stages. This way it can be achieved financially.

There is risk in this because I am an old man and death, bad health and/or financial problems can easily arise. But I am prepared to give it a try!”

23. The Deceased also suggested that Mr Hagie should be put on Ms Frank’s visa “so he can work full time to support “Project Sharon””.

24. On 3 March 2015 the Deceased sent a further email to Ms Frank, copying Mr Hagie, with the subject “Sharon study in Australia – progress and arrangements for children”. In this email he detailed advice as to the arrangements that should be made for the housing, care and education of the appellants’ three children in the Solomon Islands in their parents’ absence. As found by the primary judge (at J[30]), this shows that it was not at that time envisaged that the appellants’ children would travel to Australia as part of “Project Sharon”. Ms Frank came to Australia in 2015 and, consistent with the plan proposed by the Deceased, in July 2015 enrolled in a Bachelor of Arts degree at Western Sydney University.

25. In August 2015 when the debt owed to the Deceased was repaid in full by Mr Hagie, the Deceased closed Mr Hagie’s account with “Max Bank”. The Deceased then opened a second ledger with “Max Bank”, called “Kim/Sharon Max Bank A/C”. This ledger covers the period from August 2015 until April 2021. There was an unsigned document stapled to the “Max Bank” records folder, which the primary judge found (at J[33]) to set out the Deceased’s own understanding (and likely also that of the appellants) of the arrangement that was put in place between him and the appellants. It said:

“1- “Max Bank” is a financial assistance arrangement agreed between, Max Frederick Willis (Lender) Kim Hagie & Sharon Frank jointly and [severally] (Borrower) where by the Lender from time to time advances money to the Borrower which money is repayable on demand and otherwise is repaid to the Lender by the Borrower by [instalments] at such times and in such amounts as the Borrower is able.

2- The progressive transactions involved in this arrangement are evidenced by the documents to which this [explanatory] memorandum is attached.

3- This arrangement shall terminate when all the monies owed by the Borrower are repaid to the Lender or upon the death of the Lender [whichever] is the sooner.”

26. Meanwhile Mr Hagie worked for Tynan Motors, supporting “Project Sharon” through his wages. On a number of occasions, Ms Frank returned to the Solomon Islands for periods of time, presumably to care for their children. The appellants’ son, Colin Hagie, arrived in Australia in late 2017 or early 2018. Fees for immigration visas, health insurance and school fees associated with Colin were entered in the “Kim/Sharon Max Bank A/C” ledger, as were cash transfers to the Solomon Islands at around this time. On 23 July 2019 Ms Frank met the requirements for her Bachelor of Arts degree. In July 2019 she was accepted into a two year Master of Arts programme (which was one of the courses that the Deceased had proposed that she undertake in the email of 25 October 2014). The appellants were granted a student visa until the conclusion of Ms Frank’s studies in August 2021. By the end of 2019, despite regular repayments which were made from Mr Hagie’s earnings, the “Kim/Sharon Max Bank A/C” ledger showed a total loan to the appellants of around $81,000.

27. In April 2019 the Deceased, then aged 84, was diagnosed with cancer. He began receiving treatment. At this time David Willis was living at home and provided assistance to his father. Sarah Holl, one of the Deceased’s daughters who was living in Sydney, described herself as the Deceased’s “main helper and caretaker” when he became ill. Catherine Angell, another of the Deceased’s daughters, also provided assistance and care.

28. On 3 December 2019 when the Deceased made his last Will, Ms Frank’s studies had proceeded “without incident since 2015” and she was expected to complete her Master of Arts degree in July 2021. The primary judge found (at J[49]) that:

“As such, [the Deceased] would then have expected Ms Franks to complete her studies in 18 months, followed by a teaching position in the Northern Territory and an application for permanent residence.”

29. The primary judge also found (at J[50]) that at that time there was $42,100 worth of course fees payable by Ms Frank for her Master of Arts degree, such that the $50,000 bequeathed to Ms Frank in the Will “might be thought an amount sufficient to cover the remaining university fees and a further $8,000 to assist the family to relocate, either to the Northern Territory or to move out of his home.” The primary judge also found (at J[50]) that:

“By also forgiving the amount owed to “Max Bank” (which then stood at some $80,000) and providing the family with one year’s further free accommodation in his home, [the Deceased] does appear to have tried to give the family the best chance of completing “Project Sharon” and ultimately making a life in Australia.”

30. The primary judge found (at J[51]) that:

“A key assumption in [the Deceased’s] thinking at the time – where there was no reason to think otherwise – was that Ms Frank would continue to complete her course of study, qualifying her to teach in Australia and thereby attain permanent residence.”

31. The appellants’ two daughters arrived in Australia in December 2019 and moved into the Caringbah Residence. The Deceased advanced funds to bring the children to Australia but made entries in the “Kim/Sharon Max Bank A/C” ledger indicating that he expected these amounts to be repaid. The appellants ultimately accepted that the only offer the Deceased made was to allow Mr Hagie to stay in the Caringbah Residence “until after [Ms Frank] got [her] teaching qualifications, employment in the Northern Territory and was looking forward to permanent residency.”

32. During the restrictions imposed during the COVID-19 pandemic, the appellants and their children were the only people living with the Deceased and the ability of the Deceased’s children to visit him was limited. According to the “Kim/Sharon Max Bank A/C” ledger, during 2020 and 2021, Mr Hagie drove the Deceased on six occasions, and was given a credit on each occasion reducing the amount owing on the ledger. Ms Frank also provided some assistance to the Deceased over this period.

33. The Deceased continued to maintain the “Kim/Sharon Max Bank A/C” ledger. The primary judge found (at J[60]) that by the end of the 2020 financial year the amount owing had reduced to $71,000. Around this time the Deceased performed an audit. The primary judge found (at J[61]) that this showed that the Deceased was concerned to ensure that serious attempts were being made by the appellants to reduce the amount owing. On 29 July 2020 Mr Hagie and the Deceased signed a letter authorising Mr Hagie’s wages to be paid to the Deceased’s bank account, which then happened. Thereafter, the Deceased managed the advances to ensure that they were covered by Mr Hagie’s wages.

34. In May 2021 the Deceased was admitted to Sutherland Hospital and was given a terminal diagnosis. Ms Holl returned from the United States and stayed at the Deceased’s home until October 2021. David Willis returned from the Philippines (having been stuck there by reason of restrictions associated with the COVID-19 pandemic) in June 2021. In June 2021 the Deceased was admitted to St Vincent’s Hospital where he remained until his death on 18 August 2021. His children visited him in hospital to the extent they were permitted consistent with COVID-19 restrictions, and it is apparent that on at least 28 May 2021 and 22 and 28 July 2021 Ms Frank visited the Deceased in hospital (she contends on appeal that she visited on one further occasion in July 2021 but nothing turns on this). On the last visit, the Deceased told the appellants about a gift being made in the Will, but not the monetary amount of the gift.

35. Ms Frank’s university fees were paid up until the end of the second semester of 2021 and at around the time of his death, the Deceased told his daughter that he expected Ms Frank to complete her master’s course imminently and was confident that she would then begin work as a teacher in the Northern Territory: J[72]. Ms Frank did not, however, complete her course as expected, and still has five units of study to complete. Ms Frank’s oral evidence was that she last completed a subject in her course in the first semester of 2021. She said that she did not tell the Deceased that she was missing classes in 2021 because of the Deceased’s health situation and because she believed that he would become “very angry” with her if he was aware she was missing classes.

The primary judge’s credibility findings

36. Both of the appellants were cross-examined.

37. The primary judge found (at J[9]) that there were “material” differences between Ms Frank’s version of events and the contemporaneous documents. Thus, the primary judge was “reluctant to place much weight on [her] evidence on other topics for which there is no contemporaneous record”, and as such, attached “little weight to Ms Frank’s description of life in [the Deceased’s] home.” The primary judge also found (at J[8], [10]) that Ms Frank’s affidavits of 15 September 2022 and 17 November 2022, were “replete with overstatement”, that Ms Frank “readily attributed comments to the Deceased which would support her claim”, that Ms Frank gave an account of the arrangements with the Deceased which was inconsistent with the arrangement described in the contemporaneous documents and that Ms Frank was “reluctant to accept” that she agreed with the Deceased to move out of the Caringbah Residence on completion of her studies.

38. The primary judge similarly made adverse credibility findings about Mr Hagie (at J[11]) whom she described as a “poor historian” who had no recollection of significant events. The primary judge said there was “an air of unreality” about some of his evidence. By way of illustration, the primary judge referred to the fact that Mr Hagie did not agree that if he did not get permanent residency, it was likely that he would have to leave Australia. The primary judge approached Mr Hagie’s evidence “with caution.”

39. The appellants accepted that these findings as to credibility and reliability were likely affected by impressions formed as a result of watching the appellants in the witness box, such that this Court is placed in a position of real disadvantage compared to the trial judge: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-480; [1993] HCA 78 (Deane and Dawson JJ). Nonetheless, the appellants submit that the primary judge palpably misused her advantage for three reasons. First, English is not the appellants’ first language and giving evidence would have been daunting for them. Second, the primary judge made unfair criticisms of the appellants. Third, the primary judge incorrectly said that no issues of credit arose as regards the respondents’ witnesses.

40. These contentions should be rejected.

41. The process of assessing the credibility of witnesses at trial is multi-faceted. As I said in J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214]-[215] (Mitchelmore JA agreeing):

“It is well recognised that where the credibility of witnesses is involved, the trial judge enjoys advantages over an appellate court by reason of having seen the witnesses and having been immersed in the milieu of the trial. In such a case, the trial judge’s findings are “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (“Lee”) at [55]. Even if the Court does not expressly rely upon demeanour, as Tobias AJA held in Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 at [84]-[85], where findings of credit are clearly in issue “it is unlikely that…presentation in the witness box was not keenly observed and taken into account” and in making such findings a trial judge “enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript.”

As stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (“Fox v Percy”), and as summarised in Lee at [55], in order to succeed in appealing findings influenced by the credibility of witnesses it is necessary to establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”…”.

42. In these circumstances, an appeal court should be cautious about singling out one or two integers which formed part of the complex synthesis involved in a primary judge’s assessment of credibility. Due recognition must be given to the process as a whole.

43. As to this, the primary judge found (at J[9]) that there were material differences between Ms Frank’s evidence and the situation apparent from contemporaneous documents. As the primary judge observed (at J[8]), Ms Frank’s oral evidence that the Deceased’s plan, starting in 2011, was for Mr Hagie to come to Australia and then later to bring Ms Frank and the children to Australia, was inconsistent with the contemporaneous documents. Similarly, as the primary judge recorded (at J[8]), Ms Frank was reluctant in her oral evidence to accept that she had only ever agreed with the Deceased that she would move out of his home on completion of her studies. Both of these inconsistencies went to key matters in dispute. The primary judge also identified (at J[40], [69]) inconsistencies between the inferences to be drawn from the documentary evidence and the appellants’ evidence as to whether the Deceased expected repayment for the cost of Colin Hagie’s flight to Australia, and Ms Frank’s evidence as to whether the initial agreement made with the Deceased changed over time.

44. The appellants contend that the primary judge erred, when assessing Ms Frank’s credibility (at J[140]), in relying upon Ms Frank’s oral evidence that there was no prospect of her obtaining permanent residency in Australia given her age. The significance of this evidence, however, is that it disclosed that Ms Frank’s evidence in her first affidavit, that “Australia is now our home and we have worked so hard … to build a life and future here”, was an overstatement.

45. Whilst there are obvious limitations on what would appear from the transcript, it does not, on its face, suggest that the inconsistencies relied upon by the primary judge were influenced by a lack of proficiency in English. Of greater significance, however, is that the primary judge, who observed Ms Frank give evidence, and noted that she had completed a Bachelor of Arts degree at Western Sydney University and was part-way through a Master of Arts degree, clearly did not consider that Ms Frank’s evidence was inconsistent by reason of a limited facility in English. The primary judge was clearly alive to this issue.

46. Having regard to the matters set out above, there was no error in the primary judge also attaching significance to Ms Frank having overstated David Willis’ conduct in suggesting that he had made them leave the Caringbah Residence and that he scared them, to Ms Frank overstating the family’s living arrangements at the time of the trial and to Ms Frank, in her first affidavit, overstating the extent to which she visited the Deceased in hospital in 2021 (“Kim and I would visit Max every night.”) Contrary to the appellants’ contention, that Ms Frank conceded error under cross-examination does not undermine the significance of the initial overstatements.

47. The primary judge was also entitled to rely upon the fact that Ms Frank was shown to have a superannuation fund of approximately AU$18,000 in the Solomon Islands but had said, in her first affidavit, that she had no savings or superannuation. That discrepancy was readily apparent from the documents produced by the appellants and before the Court and was referred to, but not explained, by Ms Frank in her second affidavit. In these circumstances, it did not have to be put to Ms Frank in cross-examination.

48. The primary judge explained her credibility findings at some length and was not required to identify all material differences she had identified as between Ms Frank’s affidavit evidence and contemporaneous documents.

49. The primary judge was also entitled to find (at J[11]) that similar problems affected Mr Hagie’s affidavit evidence and that his evidence should also be treated with caution if not corroborated by contemporaneous documents, for the reasons her Honour gave. Contrary to the appellants’ submissions, there is nothing in the primary judge’s reasons that suggests that she “had imported her own value judgments into Mr Hagie’s struggles”. The sentence relied upon from the primary judgment in support of this submission, that the Deceased “persisted with “project Kim” in the face of drunken episodes and a lack of academic commitment”, is an accurate factual description of uncontroversial events.

50. There is also no substance to the appellants’ criticism of the primary judge’s failure to make adverse credibility findings in respect of the respondents’ witnesses. None of the matters relied upon by the appellants suggest that the primary judge’s credibility assessments were not properly available.

Family provision claims under the Succession Act

51. Given their centrality to the issues in the proceedings, it is convenient at this point to set out the relevant statutory provisions. Applications for family provision orders are dealt with in Pt 3.2. The first question which arises for determination is whether a person is an “eligible person”, as defined in s 57:

57   Eligible persons

(1)   The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a)   a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b)   a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c)   a child of the deceased person,

(d)   a former spouse of the deceased person,

(e)   a person—

(i)   who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)   who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f)   a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

52. Division 2 of Pt 3.2 deals with the determination of family provision applications. Within Div 2, ss 59-60 provide:

59   When family provision order may be made

(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

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

(b)   in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

…    

60   Matters to be considered by Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The primary judge’s findings

53. As to the key matters in issue on the appellants’ claims, the primary judge’s key findings were as follows.

54. First, the appellants were not “at any particular time, wholly or partly dependent on the deceased” in the relevant sense under s 57(1)(e)(i): J[87]-[90]. This was because the essential feature of the arrangement was the provision of rent-free accommodation and interest-free loans which the appellants were expected to repay, and the Deceased was not providing for the appellants’ needs, but was creating an “opportunity to change their lives” such that the support provided was for a defined timeframe and special purpose which did not amount to dependency. Thus, and notwithstanding that the appellants and the Deceased met the description of a “quasi-family unit” for the purposes of s 57(1)(e)(ii) between the period of March 2020 and May 2021, they were not “eligible persons” within the meaning of s 57(1)(e): J[94]-[102].

55. Second, whilst the primary judge found that during the period of COVID-19 lockdowns, between March 2020 and May 2021, the relationship between Ms Frank and the Deceased met the description of a “close personal relationship” within s 57(1)(f), that was not so at the time of the Deceased’s death: J[112]-[113]. In any event, her Honour found that the domestic support provided by Ms Frank during the period of COVID-19 lockdowns was part of the financial arrangement between Ms Frank and the Deceased and thus, the exclusion in s 3(4)(a) applied: J[114]-[115].

56. Third, the appellants failed “decisively” at the hurdle of showing that there were factors warranting the making of the application within the meaning of s 59(1)(b) as they were not a natural object of testamentary recognition in the sense described in Churton v Christian (1988) 13 NSWLR 241 at 252; [1988] NSWCA 23 (“Churton”), citing Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (“Fulop”). The Deceased had issued various disclaimers that he may become ill or die, he made plain that his ability to help the appellants and their family ceased upon his death, and his generosity did not give rise to any social, domestic or moral obligation to make provision for the appellants in his Will. The appellants had been the “object” of the Deceased’s sustained charitable generosity and whilst the appellants may have been the object of his affections, this did not make the appellants a natural object of testamentary recognition: J[122]-[124].

57. Fourth, in any event, the Deceased had made adequate provision within the meaning of s 59(1)(c) in his Will for the proper maintenance, education or advancement in life of the appellants having regard to the matters listed in s 60(2): J[133]-[155].

Notice of appeal

58. By amended notice of appeal filed on 27 June 2024, the appellants advance six grounds of appeal:

1. The primary judge erred in determining (at J[4] and [90]) that the appellants were not wholly or partially dependent on the Deceased and thus not “eligible persons” within the meaning of s 57(1)(e) (“ground 1”).

2. The primary judge erred in determining (at J[6] and [122]-[124]) that the appellants had not demonstrated factors warranting the making of the application within the meaning of s 59(1)(b) (“ground 2”).

3. The primary judge erred in finding (at J[6] and [155]) that adequate and proper provision had been made for the appellants (“ground 3”).

4. In the alternative to ground 2 (which should be a reference to ground 1) above, the primary judge erred in determining (at J[5] and [113]-[115]) that the appellants were not in a close personal relationship with the Deceased at the date of his death and thus, were not eligible persons within the meaning of s 57(1)(f) (“ground 4”).

5. In the alternative to ground 3 above, the primary judge erred in not making appropriate findings in order to determine whether adequate and proper provision had been made for the appellants (“ground 5”).

6. In the alternative to grounds 1, 2 and 3 above, the primary judge erred in failing to give reasons, or adequate reasons for her Honour’s findings (“ground 6”).

59. It is convenient to deal with ground 6 first, and then grounds 2 and 3 (and my conclusions on these grounds make it unnecessary to consider the remaining grounds). The appropriate standard of appellate review and any relevant factual challenges will be addressed when considering the respective grounds of appeal.

Ground 6: did the primary judge fail to give adequate reasons for her findings?

60. This ground can be dealt with briefly. The appellants’ contention that the primary judge’s reasons were deficient should be rejected. In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33], Kiefel CJ, Keane and Edelman JJ stated the following in discussing the duty of a judge to give reasons in a judge-alone criminal trial:

“… Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.” (Footnotes omitted).

61. The reasons of the primary judge must be read as a whole. The primary judge dealt with all relevant controversies and the reasons for her Honour’s findings are readily explicable. The appellants’ complaints seek a level of detail that was not required of the primary judge. Ground 6 should be rejected.

Ground 2: did the primary judge err in finding that there were no factors warranting the making of the application?

Standard of appellate review

62. The first issue to address under ground 2 is the standard of appellate review applicable to review of a finding as to whether there are factors warranting the making of a family provision application under s 59(1)(b). The appellant contends that Leeming JA (Mitchelmore JA and Basten AJA agreeing) held in Curtis v Curtis [2024] NSWCA 136 at [88] that it was settled that as regards the question whether there are factors warranting the making of the application within the meaning of s 59(1)(b), appellate review is “governed by the correctness standard, rather than an approach governing discretionary decisions.” That paragraph is, however, dealing with the issue of dependency and thus does not go to the standard of appellate review of a conclusion under s 59(1)(b). The respondents’ submissions did not address the appropriate standard of appellate review of such a finding.

63. As discussed further below, Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201 at 210-212; [1994] HCA 40 held that “the jurisdictional question”, albeit one of fact, attracted the standard of appellate review set out in House v The King, rather than the correctness standard of appellate review (and as discussed at [107] below, Singer v Berghouse has neither been overruled nor disapproved). However, as is clear from the joint judgment (at 208-210), the “jurisdictional question” in this regard was the enquiry (then under s 9(2)(a) of the Family Provision Act, now under s 59(1)(c) of the Succession Act) as to whether provision (if any) made for an applicant was inadequate: see also White v Barron (1980) 144 CLR 431 at 441-444; [1980] HCA 14 (Mason J) as regards the earlier, analogous, s 3 of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW).

64. Given the obvious overlap between the questions whether there are factors warranting the making of the application and whether provision (if any) made for an applicant was inadequate, there would be unfortunate artificiality if the correctness standard of review applied to one rather than the other.

65. As regards both questions, moreover, there will likely be overlap between the matters considered by the Court and those considered under the clearly discretionary determination under s 59(2) as to what provision should be ordered. In this respect, the observations of Mason J in White v Barron (at 443), relied upon in Singer v Berghouse (at 210-211), that the “twin tasks which face the primary judge are similar” to some extent, still applies. Also, the concern about “diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged”: Kirby J in Golosky v Golosky (Court of Appeal (NSW), 5 October 1993, unrep) at pp 13-14, with which Mason CJ, Deane and McHugh JJ agreed in Singer v Berghouse (at 212), would in my judgment apply both to the determination whether there are factors warranting an application for provision and the determination of whether inadequate provision has been made for the applicant.

66. Having regard to these matters, it seems to me that the preferable position is that the House v The King standard of appellate review applies as regards a determination under s 59(1)(b). As explained by Gleeson JA at [3]-[4], that accords with the jurisprudence of this Court. However, as the matter was not fully argued, I have approached the appellants’ contentions on the broader correctness standard, noting that if, as I have found, those contentions should be rejected applying that standard, they would also have been rejected applying the narrower House v The King standard.

The respective contentions

67. As to the substance of ground 2, the appellants contend that the primary judge’s conclusion failed to reflect the changed nature of the circumstances in which the appellants and their children were living with, and receiving financial assistance from, the Deceased. The appellants say that both the fact of provision having been made for them in the Will, and the Deceased having told Ms Frank, in July 2021, that he had made provision for her in the Will, are strong evidence in support of a finding that the Deceased considered that he had a moral obligation to make provision for the appellants in the Will and that there are factors warranting the making of the application so as to satisfy the requirements of s 59(1)(b). The appellants also say that the Deceased’s ongoing support of the family meant that they had “uprooted their lives” in the Solomon Islands and moved to Australia with a view to settling there, and that that is also sufficient to establish a moral obligation on the Deceased to make provision for the appellants in the Will.

68. The appellants say further that the primary judge erred (at J[122]) in “essentially” accepting the respondents’ contention (which her Honour reproduced at J[117]) that s 59(1)(b) is a means by which family provision “is ensured as being for family or family-like relationships”, in having regard (at J[124]) to the fact that the provision sought in the application was “further” to provision already made for the appellants under the Will and that the primary judge thereby merged the requirements of s 59(1)(b) with those under s 59(1)(c). Both these further contentions can be rejected at the outset. The primary judge had regard to the correct legal principles in determining whether there were factors warranting the making of the application. Moreover, in context, it is clear that the primary judge’s reference (at J[124]) to “further” provision was to provision in the Deceased’s Will being further to that provided to the appellants during his lifetime. In any event, for the reasons set out below, the primary judge would not have erred had her Honour considered whether the duty on the Deceased was to make provision over and above that in fact made in the Will.

69. The respondents’ primary contention is that a key circumstance of relevance on the question whether there are factors warranting the making of the application, on the facts of this particular case, is the provision that has already been made for the appellants in the Will. For the reasons set out below, I agree.

Relevant principles

70. Provision in similar terms to s 59(1)(b) was first introduced into the legislation governing family provision claims in New South Wales under s 9(1) of the Family Provision Act. That legislation expanded the definition of “eligible person” beyond a widow, husband or child of the testator to include persons living in a domestic relationship at the time of the deceased’s death, former spouses or someone “wholly or partly dependent” on the deceased and was a grandchild or member of the deceased’s household. As has frequently been observed, this suggests that the inclusion of the requirement to show factors warranting the making of the application was for the purpose of limiting the ambit of eligible persons who were able to make successful claims for family provision: see e.g., Churton at 242-243 (Hope JA) and Lodin v Lodin [2017] NSWCA 327 at [75]-[77] (Sackville AJA) (“Lodin”).

71. The leading authority on the proper interpretation of s 59(1)(b) is Fulop at 680-681, where McLelland J considered s 9(1) of the Family Provision Act which is in relevantly similar terms to s 59(1)(b). In Fulop, neither plaintiff received anything under the deceased’s will. McLelland J described the question under s 9(1) of the Family Provision Act as the “preliminary question” but held that it would normally be inappropriate for the Court to proceed to determine that question until after the close of all the evidence in the case. As to the substance of the subsection, his Honour, having said that the effect and utility of the subsection were obscure, held:

“ … the subsection appears to be premised upon a distinction between “factors which warrant the making of the application” on the one hand, and circumstances which would justify the making of an order granting the application, on the other: otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are “factors which warrant the making of the application” within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and [sometime] dependent grandchildren or household members) are as such not generally so regarded. This suggests that “factors” referred to in the subsection are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.”

72. In Churton (at 252), Priestley JA (with whom Hope and Mahoney JJA agreed) “agree[d] substantially” with the analysis of McLelland J set out above. Again, that was in a case where no provision had been made for the three applicants in the deceased’s will. Hope JA said (at 242-243) that “the existence or non-existence of a duty by the testator to a person falling within the provisions of [the relevant paragraphs of the definition of eligible person] … is a factor which may, and may possibly always be, relevant in determining whether the making of an application was warranted.”

73. With a similar focus upon duty, Mahoney JA (at 243-244) identified the purpose of the legislature having extended the ambit of persons who could apply for provision as being “not simply because the persons who may apply under the Act are without proper means: the justification is that the deceased owed a duty to the applicant, that that duty involved that the deceased should have dealt with his property differently, and the failure of the duty is to be rectified.” Mahoney JA said (at 244) that under the Family Provision Act it was necessary for the court “to determine what, for the purposes of the new Act, is the nature of the duty in question.” This analysis suggests that the nature of the duty owed by a testator to an applicant for provision may be relevant to the question whether there are factors warranting the making of the application.

74. Subsequently, in Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 (“Dijkhuijs”), another case in which the applicant for provision had not been left anything in the deceased’s will (and in which the issue was as to the procedure for determining whether there were factors warranting the making of an application for provision), Kirby P (with whom Hope JA agreed) observed (at 652) that:

“The circumstances which may give rise to a claim for provision will vary in accordance with the circumstances of the case. Where the statute is expressed in such broad terms, there are dangers in attempting to limit the cases which may “warrant the making of the application” under s 9(1) of the Act to preconceived classes or categories.”

75. Kirby P held (at 653) that the fact that an ex-wife of a long marriage found herself with insufficient financial resources “is clearly one of the circumstances which could be considered to be a factor to warrant the making of an application for provision.” That is consistent with the inquiry as to whether there are factors warranting the making of the application overlapping with the inquiry under s 59(1)(c) as to whether adequate provision has been made. It also illustrates the breadth of the inquiry. Kirby P held:

“The duty of the court to have regard to “all the circumstances” of the case signifies the potential width of the court’s inquiry.”

76. In Dijkhuijs, Mahoney JA (at 657 and 659) held that the distinction on the face of s 9(1) between factors which warrant the making of the application, and factors which warrant the making of an order:

“accords with the principle which, in my opinion, is inherent in the legislation, viz, that special cases apart, an order is to be made only if the deceased has made default in the performance of a duty which he owed to the particular plaintiff.”

77. His Honour did not, in this regard, distinguish between discharge of such duty during the deceased’s life and by his or her will.

78. The approach of McLelland J in Fulop has been affirmed by Young JA (Campbell JA and Sackville AJA agreeing) in Evans v Levy [2011] NSWCA 125 at [63]-[64]; by Basten JA (Allsop P and Ipp JA agreeing) in Diver v Neal [2009] NSWCA 54 at [8]; by Basten JA (Gleeson JA agreeing) in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [5]; and by Sackville AJA (Basten and White JJA agreeing) in Lodin at [106]-[108], [114]. Other than Diver v Neal, these were cases, in which no provision had been made in the testator’s will, or under the intestacy rules, for the applicant.

79. In Diver v Neal, the applicant for provision, the deceased’s stepdaughter, had been left some money under the deceased’s will, but sought greater provision. Basten JA found (at [31], [33]), on the facts of that case, that the legacy left to the applicant provided “acknowledgement of an ongoing relationship by which the Appellant had a claim on the deceased’s bounty” and that the applicant was in a position “analogous to a child of the deceased and a natural subject of testamentary recognition, thus warranting the making of the application.” Basten JA did not take into account the provision for the applicant in fact made under the will in reaching that conclusion (albeit that it informed his Honour’s consideration whether adequate provision had been made).

80. Basten JA, in Chapple v Wilcox, held (at [14]) that the community values relevant to the question under s 59(1)(b) would be affected by the nature of the estate, as particular values might operate with respect to farming properties, and that the relevant community values would also be affected by the capacity of the estate to support those owning or managing it, if broken up and part disposed of. That shows, consistent with the language of s 59(1)(b), that the evaluation of whether there was any social, domestic or moral obligation on the part of the testator to provide for an applicant (as Basten JA framed the inquiry in Chapple v Wilcox at [15]), will be influenced by “all the circumstances of the case”.

81. In Lodin, Sackville AJA (with whom White JA agreed, Basten JA doubting the correctness of this analysis) held (at [112]) that the Court could take into account the matters listed in s 60(2) in deciding whether there are factors warranting pursuant to s 59(1)(b), provided that they were relevant to the issue to be determined. That, in turn, would depend upon the particular circumstances of the case. The matters listed in s 60(2) include at (i) any provision made for the applicant by the deceased from his or her estate.

82. The situation of an applicant for family provision who has already been the recipient of generous provision by a deceased during his lifetime, and provision in the deceased’s will, was considered in Gill v Garrett [2021] NSWCA 117 (Emmett AJA, Macfarlan and Leeming JJA agreeing). Emmett AJA held (at [128]-[130]) that it was permissible for the primary judge to have taken into account the financial benefits that the applicant had received during the deceased’s lifetime, including the provision of rent-free accommodation for some years, when considering, under s 59(1)(b), whether there were factors warranting the making of the application for provision. It does not appear to have been contended that, on this question (as opposed to whether adequate provision had been made for the applicant), regard should also have been had to provision made for the applicant in the deceased’s will.

83. As is apparent, the overarching question under s 59(1)(b) is whether, in all the circumstances, there are factors which, in addition to the applicant being an eligible person, give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by a deceased. A relevant factor will be whether there was any moral duty owed by the testator in the circumstances, the nature of any such duty, and whether it was a duty which the deceased did not discharge: see Mahoney JA in Dijkhuijs. Financial provision made to an applicant during the deceased’s lifetime will be relevant to this inquiry and might point either towards or against there being factors warranting. Much will depend upon the nature of the relationship between the deceased and the applicant. It is also clear, in particular from the judgment of Basten JA in Chapple v Wilcox, that factors separate to the relationship between the deceased and the applicant (in that case, the nature of the property that comprised the estate) may well be relevant to the inquiry under s 59(1)(b).

84. On one view, the analysis in Fulop is binary: either an applicant is or is not a natural object of testamentary recognition by the deceased. I have concluded, however, that having regard to the language used by Parliament in s 59(1)(b), the caselaw set out above which focuses upon the importance of having regard to all of the circumstances of the case, and the basal question (derived from Fulop) whether there was a moral duty upon the deceased to make testamentary provision for the applicant which was not satisfied, that in an appropriate case, the fact of provision of a particular character having already been made for an applicant in the deceased’s will can be relevant to whether there are factors warranting the making of the application. I do not regard this conclusion as being inconsistent with the authority set out above. The contention that provision actually made in a will may be relevant to whether there are factors warranting does not appear to have been made in any of those cases (and other than in Diver v Neal and Gill v Garrett, the cases involve applicants for whom no provision was made in the deceased’s will).

85. In my view any other conclusion would be inconsistent with the statutory instruction in s 59(1)(b) to “have regard to all the circumstances of the case (whether past or present)” and to consider whether “there are factors which warrant the making of the application”. There is an air of unreality in making that determination without having any regard to the nature of any testamentary provision already made for an applicant. Moreover, as in this case, it may be an inherent part of the “application for a family provision order” that it is an application for provision to supplement that already made by the deceased in their will.

86. The construction of s 59(1)(b) that I prefer still maintains a meaningful, practical distinction between ss 59(1)(b) and (c). The former is not looking to the needs of the applicant but to whether, in all the circumstances, they would have the status of being a natural object of (further) testamentary recognition. And it is no part of the former to look at the needs or circumstances of the applicant as at the time of the Court’s decision. It thus remains, as explained in Fulop, that there may be those who satisfy the requirement that there be factors warranting the making of the application, but who do not satisfy the requirements of s 59(1)(c).

87. Thus, in my view, in a case where some testamentary provision has already been made for an applicant, and where the making of that testamentary provision is of a character which might satisfy any moral duty of the deceased, the question under s 59(1)(b) is whether the applicant has the status of a person who would be generally regarded as a natural object of further testamentary recognition by a deceased.

Factual challenges

88. The appellants’ challenges to the primary judge’s findings of fact (as set out in a table provided pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)) should be rejected. Having regard to her Honour’s findings as to credibility, the contemporaneous documents (including the ledgers kept by the Deceased) and to the nature of the arrangement that the primary judge found to exist between the appellants and the Deceased, the primary judge was entitled to find: that the Deceased did not refrain from sending Mr Hagie back to the Solomon Islands when Ms Frank came to Australia out of fondness: J[36]; that one or other appellant only visited the Deceased in hospital on three occasions: J[67]; from 2012 to 2015 Mr Hagie, and from 2015 to 2018 Ms Frank, were akin to boarders at the Caringbah Residence: J[95], [97] and not to have found that the they were living together with the Deceased “as a unit”; that David said (and it would be inferred the primary judge accepted) from June 2015 the appellants “almost always” ate their meals in their room: J[96]; that the close personal relationship between Ms Frank (and possibly Mr Hagie) and the Deceased ended in May 2021: J[112] and any personal care that they provided to the Deceased was because of “plain necessity and humanity”: J[115]. These were all matters for the primary judge to assess on the written and oral evidence before her Honour, and no appealable error has been demonstrated in any of these findings.

89. Something more should be said of a key plank of the appellants’ challenges to the primary judge’s factual findings, namely their contention that the primary judge should have found the nature of the relationship between the Deceased and the appellants had changed by the time of the Deceased’s death. As to this, the appellants contended first, that the relationship had moved beyond one in which the appellants were essentially boarders in the Deceased’s home, because “one doesn’t leave a gift to boarders in your home.” In the circumstances of this case I would reject that contention. The fact that the Deceased left a bequest to the appellants is explicable in the context of the project undertaken by the Deceased, namely to take steps to assist Ms Frank to complete her studies on the understanding, held by the Deceased, that Ms Frank was still enrolled in courses for her Master of Arts degree. That is entirely consistent with the relationship as it was from 2014 onwards.

90. Further, the fact that the Deceased did not send Mr Hagie back in 2014 is explicable not by a change in the relationship, but by the Deceased thereafter focussing upon the project involving Ms Frank. It also appears that the appellants’ children moved to Australia because the appellants had concerns that Colin was falling into the wrong crowd in the Solomon Islands and was struggling at school and that their daughters might be sexually assaulted if they stayed in the Solomon Islands. The mere fact that money was used from “Max Bank” to assist with this and that the children then lived at the Caringbah Residence, does not demonstrate any change in the relationship between the Deceased and the appellants (nor, I would add, does it give rise to an ongoing moral duty of the Deceased to provide financial support to the appellants after his death). Moreover, as counsel for the appellants accepted in oral submissions, there was never any conveyed intention that the Deceased would assume any responsibility for the appellants’ settlement in Australia after completion of the contemplated course of study.

91. Second, the appellants contended that, by the time of the Deceased’s death, the ultimate purpose of the arrangement had become “to allow [the appellants] to be able to stay in Australia.” Again, this contention should be rejected. There is nothing in the evidence (beyond uncorroborated assertions by the appellants) to support the purpose of the Deceased’s financial assistance to the appellants having so altered. The terms of the bequest to the appellants in the Will, whilst undoubtedly generous, do not support the conclusion that the purpose of the arrangement had changed from that originally set out in the email of 25 October 2014. In that email, the “objective” was said to be for Ms Frank (like Robert Anita) to be trained to be a teacher qualified to Australian standards. In that email, the Deceased told the appellants that “being a qualified teacher to Australian standards does not automatically get you permanent residency such as Robert now has.” In that regard the Deceased also referred to the how the appellants might achieve “your long term objective” of obtaining permanent residency by working in the Northern Territory, but did not include this within his outline plan for the project.

Determination of ground 2

92. I would reject ground 2 for the following reasons.

93. First, as was apparent from the email of 23 May 2012, the arrangement by the Deceased to provide financial assistance by way of interest-free loans and rent-free accommodation to Mr Hagie was in the context of a particular project of the Deceased’s, namely to provide an opportunity to Mr Hagie to study and obtain employment in Australia. It was made crystal clear that after Mr Hagie completed the proposed education, he was to pay for everything himself and repay the Deceased. That project expired when Mr Hagie ceased his study.

94. Second, as was apparent from the email of 25 October 2014 to the appellants, the ongoing financial assistance that the Deceased went on to provide to the appellants from 2015 was similarly linked to a project, this time that Ms Frank would become a teacher qualified to Australian standards.

95. Third, as the primary judge found (at J[122]-[123]) the Deceased made it clear that if he died he could not help the appellants any further and this (or sickness or financial capacity) was a risk to the project. This gave the provision of financial assistance by way of loans and the provision of rent-free accommodation the quality of being necessarily temporary, and liable to termination, potentially suddenly, should circumstances change.

96. Fourth, the primary judge found (at J[102]) that the living arrangements, pursuant to which the appellants lived rent-free with their children at the Caringbah Residence, in any event lacked permanence and even if the Deceased remained living and able to provide accommodation, it would not continue with any permanence after Ms Frank completed her studies.

97. Fifth, her Honour found (at J[102]) that the appellants and the Deceased only met the description of a “quasi-family unit” between March 2020 and May 2021, during the COVID-19 pandemic and whilst there were difficulties in the Deceased’s own children visiting or caring for him, and that any “close personal relationship” that arose during this period was only during this period and not, relevantly, in existence at the time of the Deceased’s death: at J[113].

98. Sixth, the arrangement between the Deceased and the appellants remained an essentially benevolent arrangement, pursuant to which the Deceased made financial arrangements and provided rent-free accommodation, within particular parameters and for particular purposes, always subject to the Deceased remaining alive and remaining able (physically and financially) to continue the arrangement.

99. Seventh, there can be no question but that the provision made by the Deceased, during his lifetime, to the appellants was markedly generous.

100. Having regard to these matters, there is nothing in the arrangement or relationship between the Deceased and the appellants that made them natural objects of testamentary recognition by the Deceased, or which gave rise to any moral duty on the part of the Deceased to make any provision for the appellants in his Will. Whilst it is true that, on a practical level, the appellants would be in a difficult situation if the arrangement, including the provision of rent-free accommodation, terminated suddenly on the Deceased’s death, on the primary judge’s findings it should have been clear to the appellants at all times that this was a risk that the appellants were taking. Further, at the time Mr Hagie, was working and thus in a position to provide some financial support for the family. The arrangement the appellants had willingly entered into placed them at risk of a period of financial instability, and potentially having to make the difficult decision whether to return to the Solomon Islands in the event the Deceased fell ill or died. But that was a risk that was always inherent in the arrangement. It is not something that gave them the status of natural objects of the Deceased’s testamentary recognition.

101. Nor, contrary to the appellants’ contention, does the fact that the Deceased made provision for the appellants in the Will alter this conclusion. I do not consider, in the very unusual circumstances of this case, that that suggests that the Deceased considered himself to be under a moral obligation to the appellants to make financial provision for them in the Will, nor do I consider that this otherwise supports a conclusion that they were natural objects of testamentary recognition. Rather, this should be seen as the Deceased, at the time of the Will, continuing with his generous benevolence to the appellants and their family. Whilst the Deceased did not revoke this bequest at any time between making the Will and his death, I would not infer from that that the Deceased considered that he was under a moral duty to make financial provision for the appellants to enable them to settle in Australia. I would simply infer that the Deceased did not consider it appropriate to revoke the legacy and this was another example of his generosity and kindness.

92. It should also be observed that there is some uncertainty as to whether, at the time of his death, the Deceased would have understood Ms Frank’s tuition costs to have been fully paid. The Deceased had instructed Ms Angell to pay Ms Frank’s university fees for the second semester of 2021, though it is not clear whether, at that time, the Deceased would have expected Ms Frank to have completed her Master of Arts degree by the end of the second semester of 2021.

93. Thus, I would conclude that the requirements of s 59(1)(b) were not satisfied without adopting the approach, which I have held (at [87] above) to be available, of asking whether there was any moral duty on the Deceased to make provision further to that already made in the will. Had it been necessary to do so, however, I would have concluded that the provision of a period of 12 months of rent-free accommodation at the Caringbah Residence, together with the forgiveness of some $80,000 in loans and the additional sum of $50,000 left to Ms Frank, unquestionably satisfied any possible moral duty that might have been owed in the circumstances. In my judgment, that provision went well beyond anything that could possibly have been understood to have been morally required of the Deceased by way of testamentary recognition of the appellants.

Further matters

104. It necessarily follows that the appeal should be dismissed. In these circumstances, it is unnecessary to consider the further grounds of appeal: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ).

105. It suffices to observe that the matters that I have relied upon under ground 2 would equally have led me to find that there was no appealable error in the primary judge’s conclusion that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the Deceased under his Will, within the meaning of s 59(1)(c) (ground 3). On this basis, I would, in any event have dismissed the appeal: for the relevant principles see e.g., Chan v Chan [2016] NSWCA 222 at [21] (Basten JA, Simpson and Payne JJA agreeing).

106. I would not have found that adequate provision required that all of the appellants’ costs associated with Ms Frank completing the five units of study that she did not complete within the originally anticipated timeframe be met out of the Deceased’s estate, nor that provision should thereby be made for the costs associated with the appellants being able to settle permanently in Australia. Moreover, contrary to the appellants’ contentions on appeal, it is clear from the primary judge’s reasons that her Honour considered the matters relevant to the determination under s 59(1)(c) as at the time she was making her decision and not as at the time that the Deceased made his Will.

107. Given that considerable argument was directed to the issue, it is appropriate to say something more of the appropriate standard of appellate review of a finding under s 59(1)(c). As referred to briefly above, the standard remains that applicable to discretionary decisions, having regard to the decision of the High Court in Singer v Berghouse which was considered without disapproval by Gageler J (as his Honour then was) in SZVFW at [45]. Whilst in SZVFW Gageler J identified (at [48]) a principled basis for the line between cases which attract the correctness standard of appellate review and those cases where the House v The King standard applies, his Honour was careful not to exclude the potential for other considerations to affect the standard of review in a particular category of case.

108. In these circumstances, neither SZVFW, nor the subsequent High Court cases of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 nor Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119, which rely upon the principled basis for identifying between those cases where a correctness standard of appellate review applies, suggest that Singer v Berghouse is no longer binding authority that the House v The King standard of appellate review applies as regards a finding that adequate provision has been made for the proper maintenance, education and advancement in life of the applicant, under s 59(1)(c) (which is relevantly indistinguishable from s 9(2) of the Family Provision Act, being the provision considered in Singer v Berghouse).

109. For completeness, I would add that I would have rejected ground 3 even if a correctness standard had applied.

Conclusion

110. Neither party made any submissions as to costs and there are no circumstances to warrant a departure from the ordinary rule that costs follow the event.

111. The orders I propose are:

1. To the extent necessary leave to appeal is granted.

2. The appeal is dismissed.

3. The appellants are to pay the respondents’ costs of the appeal.

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Amendments

24 June 2025 - Minor typographical amendments made to [58(4)], [63], [65] and [88].

Decision last updated: 24 June 2025