Frank v Angell - [2024] NSWSC 158

Supreme Court

New South Wales

Medium Neutral Citation: Frank v Angell [2024] NSWSC 158
Hearing dates: 15-16 November 2023, last submissions 20 November 2023
Date of orders: 1 March 2024
Decision date: 01 March 2024
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Rees J
Decision:
Summons dismissed with costs.

Catchwords:
SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands.
DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86].
CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care.
FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact.
ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.

Legislation Cited:
Succession Act 2006 (NSW) ss 3(4)(a), 57(1)(e), 57(1)(f), 59(1)(a) and 60(1),(2)

Cases Cited:
Ball v Newey (1988) 13 NSWLR 489
Barns v Barns (2003) 214 CLR 169
Bezjak v Wyatt [2018] NSWSC 199
Calokernos (Executor of Estate of Sclavos) v Yesilhat [2017] NSWSC 666
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646
Chisak v Presot [2022] NSWCA 100
Churton v Christian (1988) 13 NSWLR 241
Doshen v Pedisich [2013] NSWSC 1507
Evans v Levy [2011] NSWCA 125
Friend v Brien [2014] NSWSC 613
Fung v Yee [2007] NSWCA 115
Grey v Harrison [1997] 2 VR 359
Hayes v Marquis [2008] NSWCA 10
Karpin v Gough [2022] NSWSC 471
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177
Kingsland v McIndoe [1989] VR 273
Lodin v Lodin [2017] NSWCA 327
Megerditchian v Khatchadourian [2020] NSWCA 229
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Olsen v Olsen (2019) 101 NSWLR 225
Page v Hull-Moody [2020] NSWSC 411
Piras v Egan [2006] NSW 328
Re Filomena Rodi, Deceased [2016] NSWSC 1696
Re Fulop deceased (1987) 8 NSWLR 679
Re Harris [1936] 5 SASR 497
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sadiq v NSW Trustee & Guardian [2015] NSWSC 716
Saravinovski v Saravinovska [2017] NSWCA 85
Sgro v Thompson [2017] NSWCA 326
Skarica v Toska [2014] NSWSC 34
Slack v Rogan (2013) 85 NSWLR 253
Smith v Moore [2020] NSWSC 1446
Spata v Tumino [2018] NSWCA 17
Starr v Miller [2021] NSWSC 426
Tobin v Ezekiel (2012) 83 NSWLR 757
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin: (2005) 221 CLR 191
Weisbord v Rodny (No 4) [2022] NSWSC 1726
Worladge v Doddridge (1957) 97 CLR 1
Yee v Yee [2017] NSWCA 305
Yesilhat v Calokerinos [2021] NSWCA 110

Category: Principal judgment
Parties: Sharon Frank (First Plaintiff)
Kim Hagie (Second Plaintiff)
Catherine Angell (First Defendant)
Joanne Loughlin (Second Defendant)
Representation: Counsel:
Mr J Brown (Plaintiffs)
Mr RW Tregenza (Defendants)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiffs)
Paul A Brown & Co Solicitors (Defendants)

File Number(s): 2022/243630

JUDGMENT

HER HONOUR: This is a claim for family provision against the Estate of the Late Max Frederick Willis, a solicitor and member of New South Wales Parliament. Mr Willis was a member of the Legislative Council for almost 30 years, serving as President of the Legislative Council from 1991 to 1998.

Summary

Mr Willis had a keen interest in the development of the Solomon Islands, including raising funds for water tanks and enabling heart failure patients to receive surgery at St Vincent’s Hospital in Sydney. He was awarded The Cross of the Solomon Islands. Mr Willis also provided financial support to people from the Solomon Islands to gain tertiary qualifications in Australia. His daughter and executor, Catherine Angell, said her father had been providing support for people from less advantaged countries since she was a child, “assisting people for as long as I can recall.”
The plaintiffs, Sharon Frank and husband Kim Hagie, were the last in the line of people assisted by Mr Willis. They and their three children are from the Solomon Islands and were living in Mr Willis’ home when he died, aged 85. With the financial support of Mr Willis, and free accommodation in his home, Ms Frank completed a Bachelor of Arts and had almost finished a Master of Arts, with a view to getting a teaching job in the Northern Territory and permanent residence in Australia. Mr Willis left Ms Frank $50,000 in his Will to complete what he called “Project Sharon”. He also forgave a debt (some $80,000) and gave the family a further year’s accommodation in his home. Where Mr Willis’ wife had died some years earlier, he left the rest of his Estate to his four adult children: Catherine, Sarah, David and Joanne. (I will refer to David by his first name in what follows, to avoid confusion with his father.)
Unbeknown to Mr Willis, Ms Frank was no longer pursuing her Master of Arts at the time of his death, and has not resumed her studies since. The family did, however, avail themselves of a further year living in Mr Willis’ home. Their student visas having expired, and efforts to obtain alternate visas having failed, the family is likely to return to the Solomon Islands shortly, where they have a house. They seek $300,000 to $450,000 under s 57(1)(e) or (f) of the Succession Act 2006 (NSW), on the basis that they were Mr Willis’ dependents or had a close personal relationship with him.
As Mr Willis was a meticulous record keeper, the nature of his arrangements with the plaintiffs is clear. The plaintiffs were not dependent on Mr Willis in the relevant sense, where the funds provided by Mr Willis were loans, albeit on generous terms, and where the support provided by Mr Willis went beyond the plaintiffs’ needs, to create an opportunity to fundamentally change and improve their lives. Nor were they in a close personal relationship in the relevant sense. Although they lived together, it was not by reason of bonds of family or friendship, but because Mr Willis gave them rent-free accommodation as part of his financial assistance. Whilst Ms Frank did provide Mr Willis with domestic support and personal care when his children could not assist him due to COVID-19 restrictions, in particular, when David was stranded overseas for a protracted period, this was provided “for fee or reward”.
Nor do I consider that there are factors which warrant the making of a family provision order, where the plaintiffs would not generally be regarded as the natural object of Mr Willis’ testamentary recognition. In any event, the provision he made was considered and generous, such that no further provision ought be made. The claims are dismissed with costs.

Witnesses

The plaintiffs both gave evidence and were cross-examined. They also relied on the evidence of their son, Collin, and solicitor, Rebecca Tidswell, neither of whom were required for cross-examination.
Ms Frank was a softly spoken woman, who readily attributed comments to the deceased which would support her claim, when the opportunity arose. Ms Frank said that Mr Willis’ plan for the family was to “bring Kim over and then later bring me over and then the children later.” The contemporaneous documents describe a different arrangement. Ms Frank was reluctant to accept that she had agreed with Mr Willis to move out of his home on completion of her studies. Ms Frank did become tearful and said she was under a lot of stress; I rather inferred this was family-related rather than financial, albeit she readily agreed to a leading question from her counsel in re-examination that it was the latter.
The differences between Ms Frank’s version of events in her affidavit, and what the contemporaneous documents reveal, is material. As a consequence, I am reluctant to place much weight on Ms Frank’s evidence on other topics for which there is no contemporaneous record, for example, “Max and I shared meals every day. … Max treated us like his own children.” As such, I attach little weight to Ms Frank’s description of life in Mr Willis’ home.
Ms Frank’s affidavits were replete with over-statement, for example, saying that David made her leave Mr Willis’ home. Beyond David regularly enquiring as to when the family was moving out, there was nothing to this complaint; nor do I accept Ms Frank’s evidence that the way David behaved “scared us”. Similarly, Ms Frank said they were now living in a “small apartment”; in fact, they live in a house. Ms Frank said she was confused about what was an apartment or a house. Notwithstanding that she had a Bachelor of Arts degree in teaching from Western Sydney University and was part-way through a Master of Arts degree, Ms Frank maintained that she was not sufficiently capable in English to understand the difference. I did not accept this evidence. See also [66], [137], [140].
The same problems affected Mr Hagie’s affidavits and I have taken the same approach. Mr Hagie was a poor historian, having no recollection of significant events: see, for example, at [25]. There was an air of unreality to some of his evidence. Mr Hagie did not agree that, if he did not get permanent residency, it was likely that he would have to leave Australia. I have approached his evidence with caution.
The defendants relied on the evidence of Mr Willis’ four children, three of whom were cross-examined. Ms Angell was obviously not particularly happy about the plaintiffs’ claims on her father’s estate and made occasional unsolicited, ungenerous remarks. This did not detract, however, from the reliability of her evidence overall. Sarah Holl and David were also cross-examined. No issues of credit arose.

“Project Kim”

As mentioned, it was Mr Willis’ want to provide financial support to people from the Solomon Islands to enable them to gain tertiary qualifications, employment and residence in Australia. Mr Willis referred to these people as “projects”. One such “project” was Robert Anita. When providing assistance to Mr Anita, Mr Willis had a factory in Silverwater. Over some seven years, Mr Willis allowed Mr Anita to reside in residential accommodation on the factory premises whilst he studied in Sydney. On completing his teaching studies, Mr Anita worked as a teacher in the Northern Territory before gaining permanent residence in Australia. He later returned to the Solomon Islands to teach.
Mr Anita’s distant cousin is Mr Hagie, who was running his own piggery in the Solomon Islands. Ms Frank was then employed in the Solomon Islands as a high school teacher, and worked there as such for 15 years. The couple had three children: Collin, Roncycah and Grema. Ms Frank and her husband had built a house in their village.
On 6 May 2012, Mr Willis sent an email to Mr Anita in response to a request to provide assistance to Mr Hagie, as had been provided to Mr Anita. Whilst Mr Willis said he wanted to “take on this project for altruistic reasons”, he expressed reluctance given his age and reduced financial circumstances since when he had assisted Mr Anita. Mr Willis set out a large number of questions in respect of Mr Hagie’s motivation and objectives, and sought detailed information in respect of him and his family. Mr Willis proposed to meet Mr Hagie on a trip to the Solomon Islands in July 2012, “depending on all this we could plan to put things in train for 2013, nothing promised at this stage!!!”.
Mr Hagie provided further information in response to Mr Willis’ queries. On 23 May 2012, Mr Willis wrote to Mr Hagie, repeating that his ability to provide support was less than when Mr Anita had come to Australia. As Mr Willis was now 76 years old, “old people can get very sick and even die quite suddenly – if that happens then I can’t help you further.” Mr Willis advised that he was now retired and did not have the same income or resources. Nor could he give Mr Hagie a job in his factory, as he no longer had the factory. Indeed, Mr Willis advised Mr Hagie that he would give him nothing but “opportunity”, where any money advanced would have to be repaid. Nor would Mr Willis tolerate failure in the course of study undertaken by Mr Hagie in Australia; this would mean Mr Hagie’s return to the Solomon Islands.
Mr Willis outlined his proposed contribution, being accommodation in his home (for which Mr Hagie would have to do household chores) and initial payment of Mr Hagie’s visa fee, airfare, enrolment, train fares, first semester fees and incidentals, expected to total some $6,000. Mr Hagie would need to pay all other expenses from his earnings gained from employment in Australia “and you repay me the AUD$6,000”. Mr Willis stated that there was “no charity or handouts!!!”. That is, Mr Willis did not agree to fund the whole course of study, but initial expenses of some $6,000, to be repaid in due course.
Mr Hagie understood that, in exchange for free accommodation in Mr Willis’ house, he would have to do work around the house and in the garden. Mr Hagie also understood that he was initially to do a two-year course in the English language, followed by a business course.

“Max Bank”

In evidence is a manilla folder entitled “Max Bank records”. Within this folder is a collection of material documenting the financial support provided to the plaintiffs, and the extent to which it was repaid. Mr Willis was quite the meticulous bookkeeper. Noteworthy, Mr Willis did not keep a similar ledger in respect of money lent to his son David. That is, Mr Willis differentiated between his “projects” and his children.
Mr Willis maintained a handwritten ledger entitled “Kim Hagie A/C with ‘Max bank’”. The ledger is populated with the following details in respect of each entry: item number, date, purpose, amount, whether the entry was a credit or debit, the balance of the account, and a place for the signatures of Mr Willis and Mr Hagie. The ledger comprised six pages and included 146 items, albeit none of the items were co-signed by Mr Hagie.
Accompanying the ledger is a document supporting each and every item in the ledger, for example, a cash receipt, records of a bank cheque, a handwritten note with a space for Mr Hagie’s signature (not provided), international money transfer documents, credit card receipts, flight bookings, retail and supermarket receipts, deposit slips, train tickets, bills for telephone calls to the Solomon Islands, notes of cash advances to Mr Hagie, tax invoices, emails from immigration agents and Western Sydney University, mobile phone bills and the like. (Ms Angell said “substantial” telephone bills incurred by the plaintiffs when they were living with her father were “considered a bit of a problem and something that my father spoke about often” and tried to put an end to.) The items range from $10 to over $10,000 each. Mr Willis also recorded funds transferred to Ms Frank in the Solomon Islands from time to time. The ledger also recorded payments made by Mr Hagie to Mr Willis from time to time, being cash earned from gardening work or larger sums transferred from Mr Hagie’s bank account.

Mr Hagie comes to Australia

According to the ledger and supporting documentation, in June 2012, Mr Willis outlaid some $4,000 for Mr Hagie’s course of study at Lloyd International College. In July 2012, Mr Willis met Mr Hagie in Honiara and gave him a cash advance. In October 2012, Mr Willis paid Mr Hagie’s airfare. By December 2012, Mr Hagie had arrived in Sydney; Mr Willis paid for clothing, train fares, cash advances and the like.
Mr Willis’ waterfront home had four bedrooms and an office. When Mr Hagie came to live with Mr Willis, David was living there too. According to David, his father told Mr Hagie (and later Ms Frank), “To live under this roo[f] nothing is free. I would like you to maintain the house when I ask for it. To help me in the kitchen and to keep the house clean and tidy. No work, no tucker.” As Mr Willis described the living arrangement to Ms Angell, Mr Hagie stayed there rent free, “I feed him and that way he can afford to have a place to stay in whilst studying in Australia. In return, Kim helps me out around the house doing gardening, taking the garbage out and doing odd jobs. I have asked him to get a job and apply the money he earns to his education and immigration costs and that all other costs like health and education and lifestyle costs are borne by him.”
Mr Hagie moved in; he helped in the garden and mowed the lawn. “Project Kim” was not without incident. On 26 April 2013, Mr Willis wrote to Mr Hagie, expressing disappointment following a drunken incident, apparently similar to other incidents over the previous six months. Mr Willis required Mr Hagie to agree to an alcohol ban which, if broken, would likely lead to his dismissal from Mr Willis’ home, the loss of Mr Willis’ financial support and Mr Hagie’s return to the Solomon Islands. Mr Hagie co-signed the letter. The same day, Mr Hagie also paid $8,000 to “Max Bank”, effectively repaying the moneys that had been advanced to that point in time. What these events reveal, I think, is how close Mr Hagie came to being ‘sent home’ and, further, Mr Hagie’s appreciation of an obligation to repay Mr Willis for funds advanced in “Project Kim”. Also noteworthy was Mr Hagie’s ability to draw on his own funds when needed, presumably from his employment in Australia.
According to the ledger, Mr Willis then outlaid fees for the second half of the year at Lloyds College. Mr Hagie continued with his studies. By October 2014, however, Mr Hagie’s studies were again imperilled. A student services officer at Access Language Centre advised Mr Hagie that the college was due to report him to the Department of Immigration and Citizenship (DIAC) for low attendance and advised him of his right to appeal that decision. Mr Hagie provided the email to Mr Willis. Mr Hagie did not recall whether he appealed or “what was happened there”. Mr Hagie did agree, however, that Mr Willis had given him what he had promised, being a place to stay as long as he worked hard and finished his studies, but Mr Hagie dropped out of his course. Mr Hagie agreed that he had no further expectations from Mr Willis at that point.
At this time, Mr Willis, David and Mr Hagie were joined at the family home by Ms Loughlin, who moved back with her husband from October 2014 to July 2015 so that they could save up for a home deposit. Ms Loughlin and her husband contributed $150 a week to expenses. During that time, Ms Loughlin gave birth to her first child and was on maternity leave.

“Project Sharon” instead

Mr Willis accepted defeat in seeing Mr Hagie through to the end of “Project Kim”. Mr Hagie arranged for his wife to come across instead, and Mr Willis agreed, with some reluctance. On 25 October 2014, Mr Willis emailed Ms Frank and Mr Hagie:

“When I returned to Sydney last June Kim informed me of the plan you and he had made for you to come to Australia to study – needless to say it was very short on details!!
At first this displeased me because it was based on the failure of ‘Project Kim’ in which I had invested a lot of time and effort … However my disappointment has turned to reality and I accept now that if you and Kim are to achieve what you want for you[r] family then you and not Kim will be the driving force of achievement.”

Mr Willis noted, “The path that must be followed is very like that of Robert Anita”; the objective would be to get Ms Frank trained “like Robert” to be an Australian-qualified teacher, noting that this “does not automatically get you permanent residency such as Robert now has.” Mr Willis pointed out that Mr Anita had obtained permanent residence after working as a teacher in remote areas for five years, and suggested that this should be the same path to which Ms Frank should aspire. Mr Willis suggested that the pathway for Ms Frank was five and a half years study at the University of Western Sydney, being a ten-week course in English for academic purposes, an undergraduate degree (three years) and a post-graduate degree (two years), being “A hard road [with] no room for failure.”
Further, Mr Willis advised that he had examined the finances for this project “and there is no way it can be achieved with you and Kim living independently and paying your way and your university 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. … 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!” Mr Willis also suggested that Ms Frank put her husband on her student visa “so he can work full time to support ‘Project Sharon’”. That is, it was not envisaged that the couple would live at Mr Willis’ home for the whole of the course of study. Nor would Mr Willis be the sole provider of financial support for “Project Sharon”, but also her husband.

Ms Frank comes to Australia

Ms Frank agreed that Mr Willis’ plan for her was to bring her to Australia to achieve a teaching qualification, to then teach in the Northern Territory and thereby gain Australian permanent residence. Mr Willis’ proposal obviously met with the couple’s approval. The ledger records outlays in December 2014 for a student visa application. In March 2015, Mr Willis emailed the couple again, pressing them to “make arrangements for the housing, care and education of your three children in the absence of you both in Australia.” That is, it was not envisaged that the children would come to Australia as part of “Project Sharon”. Ms Frank arranged to leave the children in the care of her mother.
In May 2015, the ledger records outlays on airfares and visas. In June 2015, the Department of Immigration and Border Protection granted a student visa to Ms Frank. In July 2015, Ms Frank enrolled in a Bachelor of Arts degree at Western Sydney University.
Mr Hagie’s account with “Max Bank” was closed after receipt of a bank transfer and cash from Mr Hagie. That is, Mr Willis did not forgive the debt owed by Mr Hagie but was repaid in full. In August 2015, Mr Willis commenced a second ledger with “Max Bank” entitled “Kim/Sharon Max bank a/c”. The second ledger spans six years, from August 2015 until April 2021, being shortly before Mr Willis passed away. The second ledger comprises 17 pages and 308 items. Beyond this, the format and supporting documentation is similar to the first ledger.
Also stapled to the inside of the manilla “Max Bank records” folder is an unsigned document, setting out an agreement between Mr Willis, Mr Hagie and Ms Frank as follows:

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 which ever is the sooner.

Being unsigned, it was not suggested that the agreement was legally binding. It does indicate, however, Mr Willis’ understanding of the arrangement with the plaintiffs, and likely their understanding as well. Mr Willis’ concern that he might die before the completion of “Project Sharon” finds expression in clause 3.
It is apparent from Mr Hagie’s bank statements that, while Ms Frank commenced her Bachelor of Arts degree, Mr Hagie was working for Tynan Motors and in receipt of a weekly wage. That is, Mr Hagie adhered to the arrangement set out in Mr Willis’ email of 25 October 2024 by getting a job to support “Project Sharon”.
I do not accept that Mr Willis refrained from sending Mr Hagie back to the Solomon Islands out of fondness. The contemporaneous documents confirm that Mr Willis somewhat reluctantly acceded to the couple’s proposal to switch his financial assistance to Ms Frank; Mr Hagie stayed on in Australia as Ms Frank’s husband and to support “Project Sharon” through his wages. Mr Hagie agreed that, because Ms Frank was studying, Mr Willis allowed him to continue to stay in the house.
It also appears from these bank statements that, by November 2015, Mr Hagie had something of a gambling problem; Mr Hagie frankly acknowledged that this was the case. In December 2015, Ms Frank returned to the Solomon Islands and returned to Australia in February 2016. Ms Frank returned to the Solomon Islands again in June 2016 and November 2016. Presumably, Ms Frank returned to the Solomon Islands to care for her children during university breaks.

Son joins his parents in Australia

In January 2017, Ms Frank returned to Australia. In July 2017, the ledger and supporting documents record that Ms Frank paid school fees to the Department of Education for her son Collin. Mr Willis paid an immigration agent, apparently to bring Collin to Australia. The plaintiffs said that their son fell in with a ‘bad crowd’ in the Solomon Islands at this time and it was decided that he should join them in Australia. In November 2017, Ms Frank returned to the Solomon Islands. As best can be told from the receipts accompanying the ledger, Collin arrived in Australia in January 2018.
It appears that Mr Willis’ bookkeeping fell behind in early 2018. (Perhaps this was because Mr Willis went on holidays to Sri Lanka with Ms Angell and her family). The first entry for that calendar year was 8 June 2018, where Mr Willis completed a reconciliation of payments made, including in respect of an application for a visa for the couple’s son, Collin. The amounts outlaid for the first six months of that year totalled $11,987, bringing the balance of the couple’s “Max bank a/c” to $16,174.
The plaintiffs note that the ledger does not indicate that Mr Willis paid Collins’ airfare to Australia, for which it was suggested that Mr Willis paid the airfare without expecting to be repaid. I do not so infer. Mr Willis’ ledger recorded the smallest outlay of $10 for toothpaste and toothbrush. While there is no specific reference to an airfare for Collin, there are a number of cash transfers to the Solomon Islands at this time, recorded as loans to Ms Frank, with which an airfare could have been paid. Perhaps Mr Hagie or Ms Frank paid their son’s airfare themselves, where Mr Hagie was then earning a wage. The ledger does records that Mr Willis advanced thousands of dollars in respect of the immigration visas, health insurance and school fees associated with Collin joining his parents in Australia, all of which were recorded in the ledger and thus expected to be repaid.
By the end of 2018, the ledger balance had risen to some $26,000. Ms Frank returned to the Solomon Islands. By early 2019, Mr Hagie’s bank statements suggest that he was again experiencing problems with gambling and may not have been observing the alcohol ban. In February 2019, Ms Frank returned to Australia.

Cancer diagnosis

In April 2019, Mr Willis (now aged 84) was diagnosed with cancer and began receiving treatment. David continued to live at home while Mr Willis underwent chemotherapy and radiotherapy from April 2019 to August 2019. When needed, David helped his father to get out of bed and shower, and washed his clothes. David said his father sometimes also needed help to get out of bed anyway, due to an intermittent bad back. David accompanied his father and Ms Holl to medical check-ups.
Ms Holl was then living near Sydney with her family. Ms Holl said that, when her father became ill, she was his main helper and caretaker and drove him to his medical appointments multiple times a week. She also visited him frequently at his home to help organise his office and paperwork. Ms Angell also said her father insisted that she take him to doctor and specialist appointments and be his “medical confidante” by being present whenever he was given information or a diagnosis. Mr Willis was clearly well supported by his children at this time.
In June 2019, Ms Frank completed her Bachelor of Arts degree. In July 2019, Ms Frank was accepted into the Master of Arts program at Western Sydney University, being a two-year program due to be completed by July 2021. The Department of Home Affairs granted Ms Frank a student visa until the conclusion of her studies in 2021. A like visa was granted to Mr Hagie.
In August 2019, David went to the Philippines for work for one month. Ms Holl looked after their father while David was away. Mr Willis then needed assistance shaving and, on occasion, feeding himself. Mr Willis was hospitalised at St Vincent’s Private Hospital in August 2019 for two weeks and then transferred to President Private Hospital Kirrawee for a further six weeks before returning home. During this time, Ms Angell collected her father’s clothes from home and took them to him in hospital; she took his clothes home from hospital to wash. Mr Willis’ children shared the task of taking him to medical appointments; Ms Holl picked her father up from his home two or three times a week for such appointments. Ms Holl and her family relocated back to the United States at the end of 2019.
By August 2019, it would appear from Ms Frank’s bank statement that she was managing her husband’s money: his pay was deposited to her bank account, from which she made payments to her husband from time to time, as well as repayments to Mr Willis. The repayments to Mr Willis were made weekly, ranging from $20 to $2,000. Despite these repayments, the balance of the ledger account continued to increase, exceeding $81,000 by the end of 2019.

The Will

On 3 December 2019, Mr Willis made his last Will. He appointed his daughters, Ms Angell and Ms Loughlin, as executors or, if need be, his son David and his daughter, Ms Holl. Mr Willis gave his son various personal items and any motor vehicle which he may own at the time of his death.
As for Ms Frank, Mr Willis bequeathed $50,000, “such moneys to be used by her for her education and the settlement of her and her immediate family at the time of my death.” The residue of his estate was bequeathed to his four children in equal shares. Further, clause 7 of the will provided:

NOTWITHSTANDING any other provision in this my Will I direct the following:
(a) I hereby forgive any debt owed to me by any person at the time of my death and declare that such debt is forever forgiven and shall not form part of the assets of my estate.
(b) If at the date of my death any person shall be residing at my principal place of residence as their permanent place of residence in Australia then they may continue to reside in my principal place of residence for a period not exceeding Twelve (12) months from the date of my death on a rent free basis and I also direct that my estate shall be responsible to pay all statutory fees and utility service costs.

At the time when Mr Willis made his last Will, Ms Frank’s studies had proceeded without incident since July 2015 and were expected to be completed in July 2021. Based on events to that point in time, there was no reason for Mr Willis to think that Ms Frank would deviate from that path. As such, he 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.
Where the total course fees for the Master of Arts degree were $55,500, of which $13,400 was paid on acceptance of the offer of a place (leaving $42,100), the selection of $50,000 by Mr Willis as the amount of a gift to Ms Frank 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. This figure was not chosen by a person ‘out of touch’ with the family’s expenses, where Mr Willis was intimately involved in paying such expenses. 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, Mr Willis does appear to have tried to give the family the best chance possible of completing “Project Sharon” and ultimately making a life in Australia.
A key assumption in Mr Willis’ thinking at the time – where there was then 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. As Ms Angell put it, she understood that it was her father’s intention that Ms Frank and her family could live in Australia “[p]rovided they earned it. … He wanted [Ms Frank] to complete her education for an opportunity to gain permanent residency … he would have liked to have seen … that happen but it was entirely dependent on her completing her education.”

Daughters join their family in Australia

It appears from the ledger that, in September 2019, funds were outlaid with the Department of Education for the couple’s daughters to attend school in Australia. The plaintiffs said they were concerned for their daughters’ safety if left in the Solomon Islands any longer. The daughters arrived in Australia in December 2019. David said his father expressed no particular wishes in respect of where the plaintiffs’ children would live; the children were only in Australia at the request of Ms Frank and her husband. Mr Hagie agreed that Mr Willis permitted their children to come across and gave them financial assistance to do so. Mr Willis’ ledger confirms that he advanced funds to bring the children to Australia, but expected these loans to be repaid.
The plaintiffs said that Mr Willis offered for Mr Hagie and the children to continue to live with him as long as he was alive, after Ms Frank completed her studies and moved to the Northern Territory. Ultimately, both plaintiffs agreed that the only offer Mr Willis made was to allow Mr Hagie and the children to stay in the home for a short time, until after she got her teaching qualifications, employment in the Northern Territory and was looking forward to permanent residency.
Mr Willis’ interest in the Solomon Islands continued. He was the President of the Australian Youth Trust. On 9 March 2020, Mr Willis attended an event on Commonwealth Day and gave a speech about the provision of water tanks in the Solomon Islands for clean water. Ms Frank and Mr Hagie also gave a first-person account of living in the Solomon Islands. Mr Hagie borrowed a tie from Mr Willis for the occasion.

COVID-19 restrictions

The impact of COVID-19 restrictions on Mr Willis’ home life was significant. In particular, David travelled to the Philippines for a short business trip in March 2020 but was “stuck there” for more than a year, until June 2021, as there were no international flights out. The ability of Mr Willis’ remaining children to visit him in the Shire was affected by lockdowns.
Ms Frank and her family were the only people living with Mr Willis at this time. Ms Angell did speak to her father almost every day on the phone, “he gave me the impression that he was able to take care of himself mostly.” Mr Willis never told his daughter that he needed help getting out of bed. However, Ms Angell said that her father did not have the agility of a younger person and it was not uncommon, if he had someone around, to ask them to put socks on or do something for him.
Ms Frank said that she and her family put his socks on “all the time”. Ms Frank said that she also shaved Mr Willis and gave him his medicine every day. (David said he once saw Ms Frank assist his father to shave, but did not otherwise see the plaintiffs attending to such tasks.)
In March 2020, Mr Willis had an emergency visit to Sutherland Hospital following a severe depressive episode and, in April 2020, recovered at Waratah Private Hospital. Ms Angell continued to take her father to most of his medical appointments.
Mr Hagie maintained that he took Mr Willis to medical appointments, rather than Mr Willis’ daughters. Mr Hagie reluctantly accepted that Mr Willis gave a credit against the moneys advanced to the couple, to recognise Mr Hagie’s driving time. (According to the ledger, Mr Hagie drove Mr Willis a total of six times in 2020 and 2021 and was given a credit on each occasion, reducing the amount owing to Mr Willis.)

The ledger continues

Ms Frank continued to receive her husband’s pay into her bank account and to make regular repayments to Mr Willis, faithfully recorded in the “Max Bank” ledger. By these means, the balance of the “Kim/Sharon Max bank a/c” ledger account was reduced to some $71,000 by the end of the 2020 financial year.
Mr Willis completed an audit of his and Ms Frank’s bank statements for the financial year, noting that Ms Frank had received her husband’s wages totalling some $47,000, of which some $22,000 had been paid to reduce the “Kim/Sharon Max bank a/c” ledger account. It appears from these documents that Mr Willis was concerned to ensure that serious efforts were being made by the couple to reduce the amount owed to “Max Bank”.
It also appears that Mr Willis was not satisfied with the extent to which the couple were making repayments. On 29 July 2020, Mr Hagie and Mr Willis signed a letter to Mr Hagie’s employer, obviously drafted by Mr Willis, directing that his wages be paid to Mr Willis’ bank account. According to the ledger, the amount owed by the couple to Mr Willis at this time was some $78,000.
From August 2020 on, Mr Hagie’s wages were paid by his employer to Mr Willis and recorded in the ledger. Mr Willis then paid Mr Hagie a weekly allowance and transferred various funds to Ms Frank’s bank account. That is, it appears that the management of Mr Hagie’s wages passed from Ms Frank to Mr Willis. By and large, the amounts being outlaid by Mr Willis from “Max Bank” for university fees, the school fees and the like broadly equated to funds received from Mr Hagie’s wages. That is, Mr Willis was no longer advancing further funds of any substance but carefully managing Mr Hagie’s wages to meet ongoing expenses in respect of “Project Sharon”. The balance of the ledger account was some $79,500 by the end of 2020.
In November 2020, Mr Willis fractured his shoulder and was admitted at Sutherland Hospital, recovering at Waratah Private Hospital. He then needed assistance to get out of bed. Mr Willis could not write at this time and told Ms Angell that Roncycah was helping him to write entries in the Max Bank records. Ms Angell pointed to various handwritten entries which were not in her father’s handwriting, and were presumably those of Roncycah.

Deterioration

In May 2021, Mr Willis was admitted to Sutherland Hospital for gastric pain; he was given a terminal diagnosis. Ms Holl returned from the United States and stayed in Mr Willis’ house until October 2021. Ms Holl visited her father on most days possible in accordance with COVID-19 restrictions and hospital rules. Ms Frank agreed that, during that time, everyone assisted Mr Willis. In June 2021, Mr Willis was admitted to St Vincent’s Private, where he stayed until his death.
Ms Frank said that she and her family visited Mr Willis in hospital every evening. However, it became apparent that, as a consequence of COVID-19 restrictions, even immediate family members had to obtain permission from the hospital to visit their father. Ms Angell said that she and her siblings organised visits so they were each able to visit their father without exhausting his entitlement to visitors, “We had to get permission from the hospital for even direct family members.” Eventually, Ms Angell obtained an exemption from the rules on the grounds that Mr Willis was then terminally ill and expected to die within weeks.
Ms Frank did visit Mr Willis in hospital on 28 May 2021. The photograph taken is somewhat odd, being of herself and the back of Mr Willis’ head. Ms Frank also visited Mr Willis in hospital on 22 and 28 July 2021, and took photos of each visit. In the latter photo, Ms Frank can be seen adjusting Mr Willis’ sock, albeit Mr Willis’ torso and head are ‘out of frame’. Why one would take such photo is not obvious, other than to prove that one was there and attended to that task. On their last visit, Mr Willis told the plaintiffs of the gift left in his Will.

Handing over ‘Max Bank’

Mr Willis continued to maintain the ledger in 2021. His handwriting had become frail. Mr Willis continued to receive Mr Hagie’s wages, from which Mr Hagie was paid various allowances and school and university fees. The last entry was made on 19 April 2021. The balance was $77,718. Supported as it is by business records, and being the product of a simple and transparent accounting method, I do not doubt that this figure reflected the amount owing by the couple to Mr Willis. Noteworthy, with Mr Willis’ management of Mr Hagie’s wages, the balance of the account had been reduced.
What the “Max Bank” records also indicate is that the arrangement proposed by Mr Willis at the outset, in terms of providing financial assistance to Mr Hagie, and later to Ms Frank, was maintained to the very end. I do not accept Ms Frank’s evidence that the initial agreement changed as she and her family became, it was said, Mr Willis’ family. The conscientiousness with which Mr Willis continued to record every outlay and receipt, even whilst dealing with significant health issues, confirms that, from his perspective, the financial assistance arrangement agreed at the outset never changed.
The same day as Mr Willis made the last entry in his “Max bank” ledger, Ms Angell and Ms Loughlin opened a joint bank account with him. Ms Angell said her father told her “to take over the arrangement that he’d had with Kim. He was very concerned that he may pass away suddenly” and, as Mr Hagie’s wages were being paid into Mr Willis’ bank account, Mr Hagie would not be able to access his wages. Mr Willis asked his daughter to speak to Mr Hagie and Ms Frank about an alternative arrangement. Ms Angell thereby became aware that Mr Hagie’s wages were being paid to her father, which she considered “peculiar”.
On 15 June 2021, Mr Hagie signed a new direction to his employer, to pay his wages to the new joint bank account. Mr Hagie’s wages continued to be paid into the joint account until Mr Willis passed away. (Ms Angell and Ms Loughlin then refunded Mr Hagie’s wages to him).
Ms Angell said that, on the instructions of her father, she also paid Ms Frank’s university fees for the second semester of 2021. Mr Willis told his daughter that Ms Frank would complete her studies imminently. Mr Willis also said he was confident that Ms Frank would complete her studies and then begin work as a teacher, moving to the Northern Territory with sufficient income to look after family finances. Ms Frank did not tell Mr Willis that she was then missing classes; she believed that he would get very angry with her. Ms Frank did not embark on any study in the second semester of 2021. On 18 August 2021, Mr Willis passed away.

Events since

Ms Angell said that Ms Frank and her family “stopped talking to us all altogether shortly after my father passed.” Ms Angell was not informed of the academic results of Ms Frank’s studies that year. Ms Frank did not enrol in any subjects in 2022, 2023, nor for this year, although said “I really want to complete my course. … I have a lot of stress: I don’t know how to complete it [because of] my wellbeing. … I don’t feel like doing any ... uni … I want to settle my family issues first.” (As such, it was not correct for Ms Frank to state in her first affidavit that she was a full-time student at the Western Sydney University, where she stopped studying in 2021.) Ms Frank still has five subjects to complete.
Ms Angell was not aware that Ms Frank did not complete her masters degree, only becoming aware of this on reading Ms Frank’s affidavit in these proceedings. Ms Angell said “it would be great if they could finish their education and be qualified for permanent residency … His intention was to give them the opportunity for a life in Australia.”
Ms Frank and her family left Mr Willis’ home in July 2023. The couple’s student visas expired on 30 August 2021. In December 2022, the Department of Home Affairs granted the couple a further student visa, which also expired on 1 March 2023. On 17 April 2023, Temporary Activity (sub class 408) visas were issued to the family, which expire on 17 April 2024.
Mr Hagie applied for a Temporary Skill Shortage medium term visa. On 1 May 2023, the Department of Home Affairs advised Mr Hagie that his application had been refused, as was the associated application on behalf of his wife and children. Where the skill shortage identified was that of a bricklayer, the Department was not satisfied that Mr Hagie was sufficiently qualified for that occupation. The family was informed that they must depart Australia by the date that their bridging visa ceased. The couple paid further fees to an immigration agent for a review of the visa refusal; there was no evidence of the outcome of that review. Whilst the plaintiffs’ counsel pointed to various immigration regulations which may enable the plaintiffs to apply for other visas, so far as the evidence reveals, the family is obliged to return to the Solomon Islands in April 2024.

ELIGIBILITY

The plaintiffs’ claim was made within the required timeframe. The first question is whether they are “eligible persons”: s 59(1)(a), Succession Act. Section 57(1)(e) and (f) provides that “eligible persons” include: (emphasis added)

(e)   a person—
(i)   who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii)   … 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.

In determining whether a person is an eligible person, the Court may have regard to the matters set out in s 60(2): s 60(1), Succession Act.

“wholly or partly dependent on the deceased”

The first question is whether the plaintiffs were “at any particular time, wholly or partly dependent on the deceased.” The plaintiffs submitted that Mr Hagie’s eligibility began in 2012, when Mr Willis supported his move to Australia. In the next nine years until Mr Willis’ death in August 2021, Mr Hagie was dependent on Mr Willis for accommodation. In 2015, Mr Willis supported Ms Frank to come to Australia. In 2017 and 2019, Mr Willis sponsored the plaintiffs’ three children as well. The suggestion that Mr Willis provided financial support by way of loans to the plaintiffs should be rejected. The ledger was, however, relied on as documenting the plaintiffs’ dependency.
The defendants submitted that the plaintiffs received the benefit of accommodation in Mr Willis’ home and financial accommodation under, effectively, a private charitable aid scheme, to assist them to attain teaching qualifications followed by permanent residence in Australia. Mr Willis’ assistance was not open ended. It had a clearly anticipated end, an identified purpose, and was conducted with careful record keeping to ensure that the plaintiffs contributed to their expenses. Mr Willis reserved the right to withdraw his support if the conditions were not complied with. The deceased was under no legal obligation to the plaintiffs; his beneficence would not be regarded in the community as a moral duty but an act of charity which he could have terminated at any time and which the community would not expect him to continue. The provision of residential and financial accommodation was a kindness to the plaintiffs to give them the opportunity to gain qualifications and possibly permanent residents visas for Australia, not one of dependency. The plaintiffs looked to Mr Willis to improve their circumstances in life by submitting to his private aid program, not for their needs. They appeared to be capable of meeting their own needs in the Solomon Islands, where they have a house. Nor was there a family connection between the plaintiffs and Mr Willis.

Principles

The principles are set out in Spata v Tumino [2018] NSWCA 17 and Chisak v Presot [2022] NSWCA 100. In short, an expansive construction of s 57(1)(e)(i) should be taken, where a finding that a person is “wholly or partly dependent” does not give rise to a statutory obligation to make provision from the deceased’s estate; it is the “first step” or “merely a gateway” for the Court to consider whether there are factors warranting the making of provision for the claimant and, if so, whether provision ought be ordered: Sparta v Tumino at [72]; Chisak v Presot at [57]. To construe the criteria as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate distinct preconditions for the making of a family provision order: Spata v Tumino at [139]; Chisak v Presot at [44], [49].
Whether a person is wholly or partly dependent on another is a complex question of fact. “Dependent”, in the ordinary sense of the word, means the condition of depending on someone for what is needed; in deciding whether there is dependency, the whole relationship between the claimant and the deceased must be examined “in order to exclude situations which might present the simulacrum but not the substance of dependency”: Ball v Newey (1988) 13 NSWLR 489 at 491 (per Samuels JA , Hope and Mahoney JJA agreeing). Need is not restricted to the requirements of basic necessity or sustenance: Ball v Newey at 492. The standard of support may be set by the parties themselves: Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 190; Spata v Tumino at [81].
Reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]-[100]; Spata v Tumino at [82]. Oft cited in this line of discourse, including recently in Spata v Tumino, is Sugerman P, Jacobs and Mason JJA’s statement in Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138: (emphasis added)

“Dependency is … not necessarily correlative with a legal duty to maintain. … On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. … Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. …”

Inherent in the notion of dependency is relying on another to fulfil your needs, with no expectation or requirement that the person meeting your needs must be repaid or compensated for so doing. Using Chisak v Presot as an example, the claimant granddaughter stayed with her grandmother from time to time; it is implicit in that relationship of partial dependency that the grandparent had no expectation that the grandchild would compensate her in due course, nor would the granddaughter have felt the burden of any social or moral obligation to do so. Presumably for this reason, the fact that funds provided by the deceased to a claimant were loans rather than gifts points away from a conclusion of dependency.
For example, in Karpin v Gough [2022] NSWSC 471, the deceased provided for his former de facto until he died but by way of loans, albeit he may not have expected the loans to be recoverable: at [161]. Ward CJ in Eq observed that they remained friends, in the course of which the deceased made moneys available by way of loans to assist her, “but she was not dependent on him”: at [195]. Nor was the provision of cash when the former de facto said she was in need, or for dental expenses and the like, considered to amount to dependence, particularly when it was apparent that the deceased regarded some or all of these amounts as loans: at [222].
Loans on a more significant scale were considered in Yesilhat v Calokerinos [2021] NSWCA 110, where the claimant said he had a long standing secret same-sex de facto relationship with the deceased. A first instance, in Calokernos (Executor of Estate of Sclavos) v Yesilhat [2017] NSWSC 666, Slattery J accepted that there was a high degree of financial interdependence between them, but found that this was explained by an informal commercial arrangement where the older man allowed his younger friend to use and then repay funds; whilst the advances provided some financial support for the claimant, the support was “really limited to giving Mr Yesilhat loans on less than fully commercial terms”: at [753]-[754]. His Honour held that dependency had not been established, where the financial relations between them were “ultimately commercial, although less rigorous than most commercial relations. The proper analysis here is that George provided to Mr Yesilhat fairly relaxed but nonetheless commercial loan support … for special purposes associated with [the claimant’s business]. But this did not amount to … dependency”: at [770]. Slattery J concluded that the moneys advanced by the deceased were loans: at [789]. The suggestion that the trial judge erred in reaching this conclusion was dismissed on appeal.

Conclusion

Looking at the whole of the relationship between Mr Willis and the plaintiffs, from when “Project Kim” was first mooted in May 2012 until Mr Willis passed away nine years’ later in August 2021, I do not consider that the plaintiffs were “at any particular time, wholly or partly dependent on the deceased” in the relevant sense under s 57(1)(e)(i) of the Succession Act, for essentially two reasons.
First, I am satisfied that the funds provided by Mr Willis to the plaintiffs were loans, albeit on generous terms, being interest-free, unsecured and with no specific timeframe for repayment. Each of these uncommercial attributes are explicable by reference to Mr Willis’ generosity or “altruistic reasons”. None of these attributes detract from the essential feature of the arrangement. Mr Willis provided financial accommodation in the form of rent-free accommodation (subject to an obligation to do household chores) and interest-free loans, which the plaintiffs were expected to repay; “no charity or handouts!!!”. Mr Willis went to some lengths to ensure that regular repayments were made, going so far as to take over the management of Mr Hagie’s wages. The plaintiffs obviously understood and accepted the obligation to repay these loans, where the ledgers record numerous repayments. I accept that, absent an obligation to repay, the accommodation and funds provided to Mr Willis may result in “dependency” for the purposes of the Succession Act, but one cannot overlook this core feature of the arrangement.
The second difficulty I have with the suggestion that the plaintiffs were dependent on Mr Willis is that the support provided went well beyond the plaintiffs’ needs, to endeavour to fundamentally change and improve their lives by supporting their efforts to complete tertiary education and immigrate to live in another country. Mr Willis was not providing the plaintiffs’ needs but creating an opportunity to change their lives. Put another way, absent any legal duty to maintain the plaintiffs, Mr Willis provided financial support for a defined timeframe and “some special purpose” which did not amount to dependency: Middleton v Kiama District Hospital at 138.
Given these key features of the arrangements between Mr Willis and the plaintiffs, it is not easy to reconcile their status with the statutory criteria. I do not consider that the plaintiffs meet the description in s 57(1)(e)(i) and thus they are not “eligible persons” under s 57(1)(e).

“member of the household”

If I am wrong about this, then the second question is whether the plaintiffs were “a member of the household of which the deceased person was a member”. The plaintiffs submitted that they and their children became part of Mr Willis family. After Mr Willis was diagnosed with cancer in 2019, and given the restrictions imposed by the COVID-19 pandemic in 2020 and 2021, Ms Frank took on the responsibility of caring for Mr Willis, included changing him, bathing him, shaving him, cleaning his bed and ensuring that he was well kept. A member of the household is not restricted to a familial relationship: Doshen v Pedisich [2013] NSWSC 1507 at [53]-[67] (per Hallen J). The plaintiffs and the deceased lived full time in the same home together from 2012 and 2015, respectively, until his death in 2021. They lived with the deceased, collectively and as a unit. They cooked and ate meals together, they attended events together, the deceased assisted the plaintiffs and their children with studying. The notion that their occupation lacked ‘permanency’ ought be rejected; they had to live there permanently as they couldn’t afford to rent somewhere else.
The defendants submitted that s 57(1)(e)(ii) required living together with the deceased with a degree of continuity and permanency of living arrangements with a special familial or quasi-family relationship: Yesilhat v Calokerinos [2021] NSWCA 110 at [104] (per Macfarlan JA, Bathurst CJ and Brereton JA agreeing) and [133] (Brereton JA, with whom Bathurst CJ also agreed). The concept of a household carried with it a notion of family. The plaintiffs were not in this position but Mr Willis’ “project”. Whilst the plaintiffs lived in Mr Willis’ house with continuity, this was because they could not afford anywhere else and was with a view to them going to the Northern Territory. They maintained their own lifestyle apart from the deceased. They lived parallel to the deceased and not as part of his household, effectively as non-paying boarders, not in a familial or quasi-family relationship. Sharing meals once or even several times a week did not make this a household in the relevant sense.

Principles

The meaning of “household” was considered by Hallen J in Russell v NSW Trustee and Guardian [2013] NSWSC 370, where his Honour noted, “It is the characteristics and dimension of the domestic relationship that make it a household … The concept … connotes a degree of continuity and permanence of mutual living arrangements”: at [39], [42]; citing Kingsland v McIndoe [1989] VR 273 (Gobbo J); see likewise Yesilhat v Calokerinos at [104] (per Macfarlan JA, Bathurst CJ agreeing). As Brereton JA (with whom Bathurst CJ also agreed) observed in Yesilhat v Calokerinos at [133]: (citations omitted)

“… The notion of membership of a household involves a common residence in which two or more persons not only share the facilities but also live together. Membership of (as distinct from presence in) a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree, and there are no hard and fast rules, at least generally, the minimum requirements include at least some element of residing (as distinct from visiting), and mutual living so that there is a quasi-family unit (as distinct from boarding). …”

Conclusion

The domestic arrangements at Mr Willis’ home changed over the years, from when Mr Hagie arrived in late 2012, then joined by his wife in July 2015, then progressively by their children in 2018 and 2019. One constant over these years was that Mr Willis’ daughters visited their father every two to four weeks for a family meal, or to help with paperwork and administrative tasks. Mr Willis also spoke on the telephone to his daughters several times a week.
I have described Mr Hagie’s living arrangements at Mr Willis’ home at [22]-[26]. It is not known whether Mr Hagie returned to the Solomon Islands from December 2012 until his wife joined him in Australia in June 2015. But, where Mr Hagie was living in the home with Mr Willis, David and, later, Ms Loughlin, her husband and their baby, I expect that Mr Hagie’s presence in the home was akin to a boarder who helped around the house and garden in return for accommodation and meals prepared by Mr Willis, who appears to have been quite the chef: see [99].
From June 2015, Ms Frank also stayed at the home during university semesters but returned to the Solomon Islands during university breaks, presumably looking after her children. David said the plaintiffs shared the same kitchen as David and his father. Although there was no objection to the plaintiffs using the living areas in the house, they usually remained in their bedroom, which had a large television. (Ms Frank accepted that she largely kept to herself, as she was studying in her room.) David said the plaintiffs almost always ate their meals in their room; the meals were either prepared in the kitchen or takeaway. The plaintiffs did not join Mr Willis in the lounge after dinner; he usually ate his dinner watching TV. When David was in the house, he usually took his meals with his father sitting in front of the TV. Mr Willis also liked to entertain, and the plaintiffs were invited to join gatherings with other guests. David agreed that the plaintiffs prepared the food for some of these gatherings.
David and Ms Frank did not get on. Likely, this limited the extent to which the plaintiffs interacted with Mr Willis and his son. Ms Frank was also returning to the Solomon Islands each year for several months. Overall, I consider that the living arrangements from June 2015 remained similar to the living arrangements when Mr Hagie was living there without his wife, save that the arrival of Ms Frank had the consequence that the couple were making more use of the kitchen to prepare their own meals. The couple were still, effectively, boarders who made (more) use of the facilities but largely kept to themselves.
As the couple’s children progressively joined them at Mr Willis’ home, Ms Frank’s need to return to the Solomon Islands reduced accordingly. As to the living arrangements when the whole family was in residence, David said the plaintiffs had a bedroom, Collin had another, and the daughters shared a bedroom. The plaintiffs and their children shared the kitchen and living areas as earlier described and usually ate their meals in their rooms. His father ate a meal with the Frank family maybe once a week.
Ms Frank maintained that her family shared a lot of meals with Mr Willis, which she prepared. Ms Angell did not accept this, “my dad loved cooking meals, he was probably the main chef in the house. … He spoke about it often and we’d often compare recipes that we found in the Good Weekend magazine and wanted to try next.” The plaintiffs tendered five photographs, apparently taken on four separate occasions, of Mr Willis and their family sharing a meal. These photographs included the daughters and so, presumably, were taken in the last 18 months of Mr Willis’ life. I have to say that it is not a lot of photographs to show for 18 months of close family relations, if Mr Willis was as close to the plaintiffs as they suggest, being, essentially, a father to them and a grandfather to their children.
David and Ms Frank still did not get on. Nor does it appear that the plaintiffs and their children felt comfortable around Mr Willis’ children; social interaction between them appears to have been limited. One exception was on 30 December 2019. It was the Willis’ family custom, since Mrs Willis had passed away, to gather at the same beach around Christmas for a meal. Mr Hagie would help carry “the stuff” down to the beach, but Ms Frank did not attend. On this occasion, however, Ms Angell recalled, “When … the girls arrived, [Mr Willis] was keen for them to come along and experience the Australian beach. They … had only just arrived at that time.”
As earlier mentioned, the living arrangements at Mr Willis’ home were impacted by COVID-19, as David was unexpectedly absent from the home for over a year. Ms Holl was now living in the United States. Ms Angell and Ms Loughlin continued to visit their father, but subject to COVID-19 lockdown restrictions. Mr Willis was aged 84, having received significant treatment for cancer and, from all accounts, needed help from time to time getting out of bed and putting his socks on. On a day to day basis, there was no one but Ms Frank and her family to assist him. It is likely that they did.
I agree that the living arrangements lacked permanence, where the arrangements were only in place until Ms Frank completed her studies and the family moved to the Northern Territory. I will, however, take an expansive construction of s 57(1)(e)(ii), where it is a “first step” or “gateway” criteria. Where the statute only requires that the plaintiffs were a member of the defendant’s household at any particular time, I find that at some point between March 2020 and May 2021, that the plaintiffs and Mr Willis met the description of a quasi-family unit. Where the plaintiffs did not, however, meet the requirements of s 57(1)(e)(i), they remain ineligible under s 57(1)(e).

“close personal relationship”

The plaintiffs also rely on eligibility under s 57(1)(f) of the Succession Act. Thus, it is necessary to consider whether the plaintiffs were living in a close personal relationship with Mr Willis at the time of his death. The plaintiffs relied on Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [237]-[249] (per Hallen J). Where it was not in dispute that the plaintiffs and the deceased lived together and the plaintiffs provided care and domestic support to the deceased (albeit the extent of the support was disputed), the definitional requirements were said to satisfied.
The defendants submitted that the exclusionary provision applied, where the plaintiffs provided domestic services as part of the quid pro quo for rent free accommodation, where a contractual arrangement was not necessary: Saravinovski v Saravinovska [2017] NSWCA 85 at [41]-[42] (Leeming JA) and [155] (Emmett AJA). A close personal relationship looks to an emotional commitment and not solely to the provision of care or even friendship: Sadiq at [245]. Here, the provision of domestic services was not a manifestation of a close personal relationship.

Principles

“Close personal relationship” is defined in s 3(3) and (4) of the Succession Act as follows:

(3)   For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
(4)   For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care—
(a)   for fee or reward …

Where the definition distinguishes a “close personal relationship” from marriage or a de facto relationship, a close personal relationship does not necessarily involve the concept of living together as a couple: Piras v Egan [2006] NSW 328 at [43] (per Macready AsJ). What is also required, however, is that one or both provides the other “with domestic support and personal care”, where one alone will not suffice. At [45]-[47]:

“The second requirement is cumulative. There must be both domestic support and personal care. It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:
(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.
(b) Of or pertaining to one's person body or figure; bodily.
Accordingly, personal care connotes care taken in connection with such matters.”

In Hayes v Marquis [2008] NSWCA 10, McColl JA (Beazley JA agreeing) observed at [84]:

“The question of whether or not one adult provides the other with domestic support and personal care sufficient to satisfy s 5(1)(b) will also turn on the nature and extent of that assistance. Thus if two adults lived together fulltime and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established.”

That is, “living together” has a dimension that focuses on the quality of the relationship rather than mere physical proximity: Skarica v Toska [2014] NSWSC 34 at [43] (per Lindsay J). A good example is Re Filomena Rodi, Deceased [2016] NSWSC 1696, where an adult grandson lived with his grandmother for about a decade before she died. Lindsay J found that the two were “living together” in circumstances where each of them provided the other with domestic support and personal care. They lived as a family, notwithstanding that the grandson’s partner also lived with them for a time and other family members actively assisted the grandmother in daily living: at [52].
As to whether domestic support and personal care is provided “for fee or reward”, Leeming JA considered the “nearly identical” provisions in the Property (Relationships) Act 1984 (NSW) in Saravinovski v Saravinovska and observed that, if the purpose of living together is primarily based on bonds of family or friendship, then it is likely that the provision of domestic support and personal care will not be “for fee or reward”: at [39]. At [41]:

“It may be helpful to ask whether a relationship is properly characterised as ‘commercial’ or ‘contractual’. If the relationship be ‘commercial’ then it is likely that the domestic support and personal care will be provided for fee or reward. But ultimately the statutory language requires an examination of a question of fact: why did the person provide domestic support and personal care? … Here, … the board and lodging which [the daughter-in-law] received were an incident of her close personal relationship with her father-in-law … but were not the reason for her caring for him. …”

In Saravinovski, free accommodation enjoyed by the daughter-in-law was found not to have been provided in consideration for domestic support and personal care but constituted an incident of the ongoing close personal relationship between herself and her father-in-law. Further, board, lodging and accommodation were necessary for the continuation of the relationship and for the daughter-in-law to undertake the tasks that she performed, such as cooking, cleaning, washing and shopping. In these circumstances, the domestic support and personal care provided by the daughter-in-law was not provided for fee or reward: at [167]-[168] (per Emmett AJA, Leeming JA agreeing).
Likewise, in Re Filomena Rodi, the fact that the grandson received rent-free accommodation did not detract from Lindsay J’s finding of a “close personal relationship”, where his residency with his grandmother “lacked any commercial flavour; and … was quintessentially, a family arrangement unattended by calculations about financial benefits or detriments. In context, the expression “for fee or reward” implies a commercial arrangement”: at [53].

Conclusion

Taking an expansive approach to this “gateway” provision, I accept – with some hesitation – that the relationship between Ms Frank and Mr Willis meets the description of a “close personal relationship” from March 2020 to May 2021, where Ms Frank and her family were the only people available to assist Mr Willis with domestic support and personal care day-to-day. This would have included putting on his socks, or helping him get out of bed, shower and attend to laundry. My hesitation is that this situation arose, not by the choice of Mr Willis or his children, but as a practical consequence of local and international restrictions on travellers as a consequence of the COVID-19 pandemic. But I suppose this is no different from a number of circumstances which may compel one person to look to another for domestic support and personal care.
But I do not accept that this “close personal relationship” continued to be in existence “at the time of the deceased person’s death”. Once Ms Holl arrived from the United States to look after her father in May 2021, and after David returned from the Philippines in June 2021, the circumstances which necessitated the “close personal relationship” between Mr Willis and Ms Frank no longer pertained; any personal care provided by Ms Frank after this was probably minor.
In any event, I consider that the exclusion in s 3(4)(a) applies. The only reason Ms Frank and her family were living in Mr Willis’ home was that Mr Willis had agreed to provide them with financial assistance to better their lives. Part of this package was rent-free accommodation in his home, in return for which the plaintiffs were to do chores in the house and garden. That is why the plaintiffs provided domestic support to Mr Willis, as it was part of the financial arrangement.
I accept that the assistance which Ms Frank gave Mr Willis over a period from March 2020 to May 2021 was more than just household chores or domestic support, and extended to personal care. Here, Leeming JA’s observations in Saravinovski are apposite: the purpose of living together was not primarily based on bonds of family or friendship, but on the well-documented financial arrangement underpinning “Project Sharon”. The plaintiffs’ accommodation in Mr Willis’ home was not an incident of their close personal relationship with Mr Willis. They were not living there so that they could look after him. Nor was it why Ms Franks provided personal care to Mr Willis. Rather, it came down to plain necessity and humanity, where David was stuck overseas and Mr Willis’ daughters could not be there all the time. Thus, I am not satisfied that the plaintiffs are eligible persons under s 57(1)(f).

FACTORS WARRANTING

If I am wrong about this, then it is necessary to consider whether in the circumstances of the case there are “factors warranting”. The plaintiffs submitted that this undefined term denotes whether, after the factors of the relationships between the deceased and the plaintiffs are considered, they would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian (1988) 13 NSWLR 241 at 252; Re Fulop deceased (1987) 8 NSWLR 679 at 681. Mr Willis’ last Will was said to contain an admission that this was the case, given the gift to Ms Frank, the forgiveness of debt and the provision of a year’s accommodation. The plaintiffs submitted that, as they were like family, this was hardly surprising. The deceased was a mentor to their children and had love and affection for the family as a whole. The fact that he did not send Mr Hagie back to the Solomon Islands after his failures was said to demonstrate that they were more than just “projects”.
The defendants submitted that s 59(1)(b) is the means by which the purpose of “Chapter 3 Family Provision” is ensured as being for family or family-like relationships; family provision orders may be made in favour of spouses and children without having to satisfy this criteria (s 59(1)). These are, ordinarily, factors which, in addition to the factors which make a person eligible, make a claimant the natural object of testamentary recognition: McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679; Evans v Levy [2011] NSWCA 125 (per Young JA with whom Campbell JA and Sackville AJA agreed). The various testator’s family maintenance legislation over the past 130 years takes “the family” as its focus of attention and the social and legal institution within which these rights and obligations are worked out: Barns v Barns (2003) 214 CLR 169 (per Gleeson CJ) at [2]. The familial relationship is the central focus: Weisbord v Rodny (No 4) [2022] NSWSC 1726 at [56] (per Robb J). It does not ordinarily extend to adult stepchildren (Spata v Tumino at [97]) or grandchildren (Chapple v Wilcox (2014) 87 NSWLR 646).
The defendants submitted that, while the plaintiffs lived with Mr Willis at the time of his death, the term of his support for them was rapidly expiring. There was no relationship between the plaintiffs and the deceased by which an analogy could be drawn with children, or even stepchildren. The plaintiffs were the objects of a charitable intention from which multiple people had benefited. Nor did the fact that Mr Willis had made provision in his Will mean that the beneficiary was the natural object of testamentary recognition. That a person is the actual object of testamentary beneficence does not make it naturally so; that is, because a person receives a legacy under a will does not of itself warrant something more be provided. Mr Willis made provision for the plaintiffs to help achieve his goal for them; this was not made in recognition of any particular duty to Ms Frank or her family. Nor was it not appropriate to expand that which the deceased intended.

Principles

When an applicant is eligible by virtue of s 57(1)(e) or (f), the Court may only make a family provision order if “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”: s 59(1)(b), Succession Act. While applicants falling within s 57(1)(a)-(c) are persons generally regarded as natural objects of testamentary recognition – spouses, de facto spouses and children – those falling within s 57(1)(e)-(f) are not. Rather, such applicants are “potentially appropriate objects” of testamentary recognition but, in order to qualify as such objects in fact, they must establish factors warranting their application, this being “a jurisdictional question”: Yee v Yee [2017] NSWCA 305 at [111]-[112].
“Factors warranting” 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 generally be regarded as a natural object of testamentary recognition by the deceased”: Re Fulop Deceased v Public Trustee Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (per McLelland J); Lodin v Lodin [2017] NSWCA 327 at [106]-[107] (per Sackville AJA, Basten and White JJA agreeing). The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make provision for the claimant: Lodin at [114] .
Whilst Lodin concerned an application for provision by a former spouse, it has been said that the propositions there stated have general application: Bezjak v Wyatt [2018] NSWSC 199 at [99] (per Hallen J). In particular, Sackville JA emphasised in Lodin that “care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting”: at [126]. What an applicant must demonstrate “cannot be defined within precision … all the circumstances have to be taken into account”; some cases will be relatively straightforward while others may require a “considerably more difficult evaluative judgment”: at [127]. A significant matter is likely to be the nature of the relationship between the deceased and the claimant: at [129]. The factors enumerated by s 60(2) may also be considered by a Court in determining whether there are factors warranting the making of a family provision application: at [112].

Conclusion

The plaintiffs decisively fail at this hurdle, essentially for the reasons advanced by the defendants. The plaintiffs had been the object of Mr Willis’ sustained, charitable generosity, at a time in his life when he was reluctant to embark on this “project” given his age, reduced financial circumstances and the risk that “old people can get very sick and even die quite suddenly – if that happens then I can’t help you further.” Where Mr Willis no longer had the factory, he allowed Mr Hagie to live in his home. He persisted with “Project Kim” in the face of drunken episodes and a lack of academic commitment.
When Mr Willis re-directed his charitable assistance to Ms Frank, he reiterated “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!” He not only outlaid funds, but allowed the couple to live in his home. Mr Willis then acceded to the couple’s requests to have their children join them and extended further funds to enable this to happen.
Presumably, Mr Willis liked, and cared about, the plaintiffs and their children. They may have been a natural object of his affections, but I do not consider that this made the plaintiffs a natural object of testamentary recognition. Mr Willis made no promises that he would provide financial assistance until the “projects” were completed and, in fact, issued various ‘disclaimers’ that he may become ill or die before then. He made plain that his ability to assist the family ceased on his death. These factors do not point to any obligation on Mr Willis to make further provision for the plaintiffs in his Will. I do not consider that Mr Willis’ generosity gave rise to any social, domestic or moral obligation to do so. Having regard to all of the circumstances, the only obligations which arose were on the plaintiffs, to repay “Max Bank” as soon as they were able and to move out of Mr Willis’ home once “Project Sharon” came to an end on his passing.

ADEQUATE PROVISION

If I am wrong about this, then it is necessary to consider whether adequate provision has been made for the plaintiffs and, if not, what provision ought be made.
The plaintiffs submitted that the deceased took on the responsibility and obligations to the plaintiffs and it was ultimately his testamentary intention for them to be able to reside, be educated and work in Australia. What was proper provision required the Court to consider what the deceased wanted to achieve for the plaintiffs and the financial needs realistically required to enable the deceased’s intentions to be completed: Chan v Chan [2016] NSWCA 222; Fung v Ye [2007] NSWCA 115; Re Harris [1936] 5 SASR 497 at 501; Worladge v Doddridge (1957) 97 CLR 1 at 12. The plaintiffs’ current financial need for the proper maintenance, education and advancement in life was greater than $50,000. They owe some $12,000 for school fees and electricity. They need $30,000 to obtain a visa for Mr Hagie. They continue to pay school fees for each daughter of $3,300 per child and to pay for their son’s TAFE course ($20,000). They need $50,000 for further visas and $25,000 for a new car. In addition, they need $40,000 to $50,000 to supplement their income so that Ms Frank can complete her studies. There is also the costs of the course. A further amount of $100,000 should be allowed for contingencies. In addition, the Estate should provide them with $300,000 to contribute to the purchase of a property. In sum, an appropriate combined sum to allow the family to fulfil the testator’s intentions to complete their education and settle in Australia was said to be between $300,000 and $450,000.
As to the competing financial needs of the other beneficiaries, the plaintiffs submitted that the evidence of Mr Willis’ children was deficient and vague. The plaintiffs accepted that David appeared to be in a poor financial position. Overall, it was submitted that the Estate was sufficiently large to enable a provision of between $300,000 and $450,000 to the plaintiffs and still leave enough remaining to satisfy the needs of the residuary beneficiaries.
The defendants submitted that the provision made in the Will was sufficient to complete “Project Sharon” as it stood at the time when the Will was made. Adequate provision would not cover the plaintiffs and their family indefinitely and in ways never anticipated by the deceased. What was proper is based upon the idea of a moral obligation arising from a familial relationship: Vigolo v Bostin (2005) 221 CLR 191 at 199-200 (per Gleeson CJ). Community expectation would not consider that there should be provision for them after the death of the deceased.
The defendants submitted that the basis on which the deceased provided support for the plaintiffs was of great importance in this case: s 60(2)(k). Respect should be given to the judgment of a competent testator as to what provision is adequate for a person’s proper maintenance and advancement in life if the testator has given due consideration to the claims on his or her estate. This recognises that the testator is better placed to make such a judgment: Sgro v Thompson.

Principles

There was no dispute as to the law. The general principles applicable to family provision claims are set out in Page v Hull-Moody [2020] NSWSC 411 at [120]-[159] (per Hallen J) and Smith v Moore [2020] NSWSC 1446 at [24]-[37] (per Williams J), which summaries I gratefully adopt.
As to the intersection between freedom of testamentary disposition and the Succession Act, the power to make an order for provision is not to be exercised on the footing that great caution must be exercised before interfering with the freedom of testamentary disposition: Steinmetz v Shannon at [95]-[97] per Brereton JA (White JA and Simpson AJA relevantly agreeing); see also White JA’s concurring remarks at [49]-[56], which White JA (with whom Meagher JA and Emmett AJA agreed) adhered to in Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [78]. However, in considering what is “proper”, considerable weight may be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate: Megerditchian v Khatchadourian [2020] NSWCA 229 at [33] (citing Sgro v Thompson [2017] NSWCA 326 at [6]) and [43] per Payne JA, Macfarlan and Emmett AJA agreeing). As White JA explained in Olsen v Olsen at [75]:

“… where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the testator was placed. …”

Most recently, in Starr v Miller [2021] NSWSC 426, Hallen J reviewed the authorities in respect of freedom of testation and the Succession Act at [603]-[609], including the following observation of Callaway JA (Tadgell and Charles JJA agreeing) in Grey v Harrison [1997] 2 VR 359; [1996] VSC 74, which bears reproduction (at 366 [29]):

“… it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. [59, Succession Act] the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. …”

Conclusion

Noting that attention remains centrally focused on s 59 of the Succession Act (Verzar v Verzar [2012] NSWSC 1380 at [125]), of the matters listed in s 60(2) which the Court may consider on an application such as this, it appears that the following considerations are particularly relevant here.

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

The plaintiffs were not members of the deceased’s family. They lived in his home for varying periods, as earlier described, in accordance with the financial assistance arrangement reached between them and Mr Willis in 2012 and 2015 respectively.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the deceased person’s estate

The support given to the plaintiffs was on a charitable basis and imported no continuing obligation. Also to be considered, all of Mr Willis’ children had a good relationship with their father, albeit, “vigorous arguments” on a range of topics were a longstanding feature of the relationship between Mr Willis and David.

(c) the nature and extent of the deceased person’s estate

The net value of the Estate is $3,190,285.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant … or of any beneficiary of the deceased person’s estate

Ms Frank presently works in homecare. Ms Frank has a superannuation fund in the Solomon Islands with some SBD $100,000 (some AUD$18,000), albeit she produced no statement of account. (This is contrary to Ms Frank’s first affidavit, “I have no savings or superannuation”.)
Mr Hagie presently works as a builder’s labourer and machine operator, earning some $1,300 a week. He is 37 years old. He has some $49,000 in superannuation.
They rent a house in Sydney. Collin is also working for a plumber, earning some $630 a week. They are finding it difficult to make ends meet; I accept this.
As earlier mentioned, so far as the evidence reveals, the family is obliged to return to the Solomon Islands in April 2024. Both Ms Frank and Mr Hagie understand that, once Ms Frank attains the age of 45, she will not be able to obtain a permanent resident’s visa. Ms Frank acknowledged that there was no prospect of her obtaining permanent residency, where she will not finish her course before she turns 45 this year. The plaintiffs’ counsel submitted that the couple’s understanding of immigration regulations was incorrect. Whether that be the case, the couple had no application for a visa on foot. Their previous efforts to obtain a visa have failed. Most likely, they will return to the Solomon Islands shortly. As earlier mentioned, the couple have a house in the Solomon Islands, presently occupied by Ms Frank’s sister but available to the family should they return.
Ms Frank did not know whether she would be able to resume her teaching career in the Solomon Islands and did not accept that the teaching qualifications obtained in Australia would assist in this regard, where corruption was said to abound in the Solomon Islands, “they don’t look at your papers, they just know who you are.” Ms Frank has taken steps to complete her Master of Arts degree in the Solomon Islands, albeit she has not received a response to her request. I consider it likely that, if Ms Frank returns to the Solomon Islands, she will manage to complete her Master of Arts on her return. I also consider it likely that Ms Frank will be a highly sought after teacher, given her years of teaching experience and the further qualifications since obtained at Western Sydney University.
As to Mr Willis’ children, Ms Angell is a communications manager who lives in an Inner West suburb of Sydney with her husband and child. Until shortly before the hearing, Ms Angell’s husband had been unemployed for one year, during which time their savings had been reduced to meet family expenses. Her husband gained employment shortly before the hearing. Ms Angell would like to use her share of the inheritance to put a deposit on a family home.
Ms Holl lives in the United States and is financially comfortable. She is married with two children. Her oldest son will commence college in the next year or so, and, given the exorbitant costs of tertiary education in the United States, Ms Holl was hoping that her share of her father’s estate would alleviate a lot of financial pressure from herself and her husband.
Mr Willis is an art director presently employed on a casual basis by a tennis court and recreation builder. David co-owns a 300 square metre lot in the Philippines, with a small house which he would like to improve; his share of the property is worth $50,000. He does not intend to live in the Philippines. David has had financial problems in the past and is of limited personal means.
Ms Loughlin is a graphic designer, married with two young children and living in rental accommodation. They own an investment property in Brisbane, which is subject to a hefty mortgage. They have some superannuation. Ms Loughlin has saved up some $400,000 with her husband, which they would like to use to buy a home. Ms Loughlin would like to use her inheritance to help buy a family home.

(f) any physical, intellectual or mental disability of the applicant …

All members of the plaintiffs’ family appeared fit and well; none reported any medical problems.

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

Ms Frank is aged 44. Mr Hagie is 37 years old. The couple’s children are now aged between 14 and 19 years of age.

(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 … for which adequate consideration … was not received, by the applicant

The plaintiffs did not contribute to the acquisition or improvement of the Estate. They did contribute to the conservation of the Estate, in the sense that they did household and gardening chores. However, this had always been part of the quid pro quo by which they stayed in the house rent-free. Where a family of five was living in Mr Willis’ home, it was also only fair that they keep it clean and tidy. From March 2020 to May 2021, Ms Frank did contribute to the welfare of Mr Willis, where his children were unable to do so as a consequence of COVID-19 restrictions. I expect that Ms Frank and her family assisted Mr Willis as needed, when Mr Willis’ daughters were not there.
Given the arrangement between Mr Willis and the plaintiffs from the outset, however, I consider that the plaintiffs did receive adequate consideration for whatever they did for Mr Willis, in the form of rent-free accommodation in his home both before he passed away and a further year’s accommodation after he died. Put another way, it was the least they could in the circumstances, given everything that Mr Willis had done for them.

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,

I repeat my observations at [49]-[51]. Contrary to the plaintiffs’ submission, Chan v Chan does not appear to have any particular application, where the amount of the bequest was adequate to realise its purpose, being the completion of “Project Sharon” in accordance with its conditions, not being an open-ended, blank cheque to support the plaintiffs’ family to gain immigration status in Australia on any terms and without completing further education.

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

Mr Willis’ intentions were clear, as described in his Will, and as told to the plaintiffs at the hospital shortly before his death.

(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

The plaintiffs did receive financial support from Mr Willis on the basis already outlined, being rent-free accommodation and interest-free loans to be repaid when able to do so.

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

The defendants submitted that the conduct of the plaintiffs was relevant, where Ms Frank ceased to attend her classes before the death of the deceased and, despite course fees having been paid to the end of 2021, did not attend after his death.
Ms Frank attributed her non-attendance before Mr Willis’ death to the fact that she was looking after him. I suppose that is possible, but it does not explain why Ms Frank did not resume attendance after Ms Holl arrived from the United States in May 2021 and where Mr Willis was being looked after by others, or at hospital, from then on. The fact that Ms Frank has not completed her studies, notwithstanding the significant support which she received from Mr Willis during his lifetime and by the provisions made in his Will is obviously disappointing, but I will otherwise put this factor to one side.
Having considered these matters, I conclude that Mr Willis did make adequate provision for the proper maintenance, education or advancement in life of the plaintiffs. Mr Willis did not abuse his power as testator, nor breach his moral duty, if any, to the plaintiffs in making the provision which he did. Unlike Mr Willis’ children, the plaintiffs have their own home in the Solomon Islands where, most likely, they will return shortly. Mr Willis' children, by and large, are older than the plaintiffs and have yet to buy their first home in Sydney. In these circumstances, their rightful expectation of an inheritance from their father should not be diminished by any further provision for the plaintiffs.

ORDERS

For these reasons, I make the following orders:

Dismiss the Summons filed on 17 August 2022.

Order the plaintiffs to pay the defendants’ costs of the proceedings.

In the event that any party seeks to vary Order 2:

direct the party to file and serve any affidavits and submissions (limited to 3 pages) within 7 days; and

direct the opposing party to file and serve any affidavits and submissions in reply (limited to 3 pages);

such application to be determined on the papers.

Parties to notify any errors or omissions within 7 days.

**********

Decision last updated: 01 March 2024

Medium Neutral Citation:	Frank v Angell [2024] NSWSC 158
Hearing dates:	15-16 November 2023, last submissions 20 November 2023
Date of orders:	1 March 2024
Decision date:	01 March 2024
Jurisdiction:	Equity - Succession & Probate List - Family Provision
Before:	Rees J
Decision:	Summons dismissed with costs.
Catchwords:	SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands. DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86]. CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care. FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact. ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.
Legislation Cited:	Succession Act 2006 (NSW) ss 3(4)(a), 57(1)(e), 57(1)(f), 59(1)(a) and 60(1),(2)
Cases Cited:	Ball v Newey (1988) 13 NSWLR 489 Barns v Barns (2003) 214 CLR 169 Bezjak v Wyatt [2018] NSWSC 199 Calokernos (Executor of Estate of Sclavos) v Yesilhat [2017] NSWSC 666 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646 Chisak v Presot [2022] NSWCA 100 Churton v Christian (1988) 13 NSWLR 241 Doshen v Pedisich [2013] NSWSC 1507 Evans v Levy [2011] NSWCA 125 Friend v Brien [2014] NSWSC 613 Fung v Yee [2007] NSWCA 115 Grey v Harrison [1997] 2 VR 359 Hayes v Marquis [2008] NSWCA 10 Karpin v Gough [2022] NSWSC 471 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 Kingsland v McIndoe [1989] VR 273 Lodin v Lodin [2017] NSWCA 327 Megerditchian v Khatchadourian [2020] NSWCA 229 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Olsen v Olsen (2019) 101 NSWLR 225 Page v Hull-Moody [2020] NSWSC 411 Piras v Egan [2006] NSW 328 Re Filomena Rodi, Deceased [2016] NSWSC 1696 Re Fulop deceased (1987) 8 NSWLR 679 Re Harris [1936] 5 SASR 497 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Saravinovski v Saravinovska [2017] NSWCA 85 Sgro v Thompson [2017] NSWCA 326 Skarica v Toska [2014] NSWSC 34 Slack v Rogan (2013) 85 NSWLR 253 Smith v Moore [2020] NSWSC 1446 Spata v Tumino [2018] NSWCA 17 Starr v Miller [2021] NSWSC 426 Tobin v Ezekiel (2012) 83 NSWLR 757 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin: (2005) 221 CLR 191 Weisbord v Rodny (No 4) [2022] NSWSC 1726 Worladge v Doddridge (1957) 97 CLR 1 Yee v Yee [2017] NSWCA 305 Yesilhat v Calokerinos [2021] NSWCA 110
Category:	Principal judgment
Parties:	Sharon Frank (First Plaintiff) Kim Hagie (Second Plaintiff) Catherine Angell (First Defendant) Joanne Loughlin (Second Defendant)
Representation:	Counsel: Mr J Brown (Plaintiffs) Mr RW Tregenza (Defendants) Solicitors: Carroll & O’Dea Lawyers (Plaintiffs) Paul A Brown & Co Solicitors (Defendants)
File Number(s):	2022/243630