Hellwig v Carr - [2009] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HELLWIG & ANOR v CARR
[2009] SASC 117
Judgment of Judge Withers a Master of the Supreme Court
1 May 2009
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Testator left his estate to one of six children from two marriages. Four of the remaining children applied for provision under s 7 of the Inheritance (Family Provision) Act 1972.
Extensions of time sought and granted - some degree of estrangement - whether plaintiffs left with inadequate provision - situation of each claimant considered - judgment for the plaintiffs - provision made.
Inheritance (Family Provision) Act 1972 s 7, s 8(1), referred to.
Delisio & Ors v Santoro (2002) 218 LSJS 199; Bowyer v Wood & Ors (2007) 99 SASR 190; Vigolo v Bostin & Ors (2005) 221 CLR 191, applied.
Gorton v Parks (1989) 17 NSWLR 1, considered.

HELLWIG & ANOR v CARR
[2009] SASC 117

JUDGE WITHERS. William Brown Carr died on 23 August 2005. Probate in respect of his estate was granted to his son, Shane William Carr, on 9 January 2007.
During his life William was involved in two marriages. His first marriage was to Dorothy Docksey. That occurred some time in 1947. There were two children of that marriage, namely Anthony William Miller born on 18 December 1948 and Terri Lorraine Raudonikis born on 15 May 1951. Both of those children are claimants in this action under the Inheritance (Family Provision) Act 1972.
Shortly after the children were born William and Dorothy separated in about 1953 and were divorced in 1956.
William subsequently married Daphne May Carr in 1964. There were four children of that marriage, namely Lesley May Carr born on 6 September 1957, Shane William Carr born on 24 March 1960, the defendant in these proceedings, Tammy Lee Carr born on 29 February 1964, the second plaintiff, and Michelle Cecelia Hellwig born on 14 March 1966, the first plaintiff.
William and Daphne separated in 1991 but never divorced. Daphne died on 11 May 2001.
On 29 August 2007, some seven and a half months after the grant of probate, Michelle Hellwig instituted these proceedings claiming that adequate provision had not been made for her by her father’s will and that she was therefore entitled under s 7 of the Inheritance (Family Provision) Act for further provision to be ordered by the Court out of the estate of the deceased for her maintenance, education or advancement. That summons was supported by an affidavit of the first plaintiff filed on the same date. It appears that unsuccessful efforts were made to serve the defendant – see the affidavit of Franco Camatta – FDN 6 – filed 24 September 2007. This resulted in an application for presumptive service.
The plaintiff also sought interlocutory orders by way of injunction to restrain the defendant from any further distribution of the estate. A Master was not prepared to make such orders on an ex parte basis.
On 25 October 2007 it was recorded on the Court file that a Notice of Acting had been filed for the defendant and that the defendant had undertaken through his solicitor not to further distribute the estate without the consent of the plaintiff or the permission of the Court. Accordingly, service of the proceedings was effected on or about 25 October 2007, some three and a half to four months after the six month time limit prescribed for the institution of an application by s 8(1) of the Inheritance (Family Provision) Act.
On 25 October 2007 directions were given for the plaintiff to give notice of proceedings to all other potential claimants as soon as possible. It appears from the affidavit material filed that all potential claimants were forwarded notices between 7 and 27 November 2007 – see FDN 13.
On 31 March 2008 an affidavit advancing a claim was filed by an additional claimant Tammy Lee Dean. She too seeks an extension of time within which to bring the claim.
On 3 June 2008 a notice of address for service was filed on behalf of two additional claimants, namely Anthony William Carr (now Miller) and Terri Lorraine Raudonikis. These claimants are the children of the deceased’s first marriage. An affidavit putting forward a claim on behalf of Terri Raudonikis was filed on 12 August 2008 – FDN 18 – and an affidavit putting forward a claim on behalf of Anthony Miller was filed on 15 August 2008.
Extensions of Time
All four claimants sought an extension of time within which to bring their claim for adequate provision out of the estate of the deceased. For convenience I will now refer to parties by their first name. No disrespect is intended.
Michelle
In Michelle’s case the evidence explaining the delay in bringing her claim is set out in paragraphs 43 to 48 of her affidavit – FDN 2. She attested that she had obtained advice about the deceased’s estate very shortly after his death in August 2005. She had received correspondence from her then solicitors about the prospect of making a claim. The last letter of advice from those solicitors – Exhibit “MCH 3” or document 2c – indicates that the present defendant had made contact with them advising of the estate property, advising that the will would be opened and read in the near future after a period of grieving and that a copy of the will could be made available after it had been read. The letter to Michelle finishes “Please let us know when you have a copy of the will”.
Nothing further was heard by the plaintiff. She eventually applied to the Probate Office for a copy of the will, which she received on or about 8 August 2007. She says she was not aware at that time that there were any time limits for making a claim on the estate. She then sought further advice and ascertained that a portion of the estate had not been distributed and instituted these proceedings. The proceedings were served within several months of their institution after some difficulty was experienced in effecting service.
Matters to be considered on an application for an extension of time include the length of the delay, the reasons for the delay and any prejudice to the defendant – see Delisio & Ors v Santoro (2002) 218 LSJS 199 at [60].
In my view the circumstances advanced by Michelle are such that the Court should grant her an extension of time within which to bring the proceedings. There is an adequate explanation for the delay and no prejudice will be suffered by the defendant if the time is extended. Accordingly, in relation to Michelle I extend the time within which she may institute these proceedings to 29 August 2007.
Tammy
As to Tammy’s claim, again an extension of time is sought. It would appear that Tammy received a notice as a potential claimant in late 2007. She filed an affidavit making a claim for provision pursuant to R 312(5) on 31 March 2008.
Tammy’s explanation for the delay in her making a claim is set out in paragraphs 36 to 43 of her affidavit – FDN 14. In essence she asserts that she asked the defendant if the deceased had left a will and that the defendant had advised her that “we would sort that out when he got over mourning”. She then waited for something to come from the defendant. She asserts that when she visited her father’s gravestone and found that the only child of the deceased named on it was the defendant she became suspicious about the estate. She spoke to her local council and was told she could get a copy of the will from the Probate Registry. She ordered a copy of the will.
Tammy asserts that she also spoke to the defendant about the matter. She says that the defendant told her that the deceased did not want their names on the tombstone. She asserts that he told her she had not been left anything. She asserts that she was told by the defendant that as she had not been left anything she did not need to know anything about her parents’ house and he then hung up the telephone. Tammy consulted a solicitor in mid-February 2008 and proceedings were taken on her behalf shortly thereafter.
No contradicting evidence is put forward by the defendant. In my view there is an adequate explanation for the delay in bringing her claim. No prejudice will be suffered by the defendant if an extension is granted and the delay in the circumstances is not great. There will therefore be an order extending the time within which Tammy may bring a claim under the Inheritance (Family Provision) Act to 31 March 2008.
Anthony and Terri
Anthony seeks an extension of time. He did not file any documents in the proceedings until 15 August 2008. There is nothing in his affidavit filed on that date – FDN 19 – that goes to explain the delay. The only affidavit that seeks to address that is one of his solicitor Raymond Gordon Frost filed 5 November 2008 – FDN 26. In paragraph 3 Mr Frost asserts as follows:
3.On the basis that the application had already commenced and that there is no additional prejudice suffered by the plaintiff the claimants are seeking an extension of time within which to bring their applications for provision out of the estate pursuant to the Inheritance (Family Provision) Act.
That affidavit was filed in support of an interlocutory application filed on 5 November 2008 – FDN 25 – seeking an extension of time for both Anthony and Terri.
Mr Frost first appeared for the potential claimants Anthony and Terri on the Court file on 8 May 2008. Leave was then given to them to file and serve affidavits by 19 June 2008. It appears from perusing the fiats of Court attendances that the matter had been referred for a settlement conference on 31 March 2008 and that on that date the parties were urged to continue their discussion with the matter being referred to a directions hearing on 8 May 2008.
Terri in her affidavit also provided no explanation for the delay but in view of the fact that there were proceedings current, that she was involved in negotiations from early 2008, and the lack of prejudice that flowed to the defendant, in my view it is appropriate in all the circumstances to extend the time within which Anthony and Terri can make their claims.
I note that the size of this estate for the purposes of residual distribution is in the order of $130,000.00. An amount of approximately $60,000.00 had been distributed to the defendant prior to the institution of these proceedings. It was appropriate for efforts to be made to resolve the matter without incurring the costs associated with further affidavits. In my view there is no additional prejudice demonstrated to the defendant by reason of the late filing of the claims by Anthony and Terri. There will therefore be orders that there be an extension of time in respect of Anthony to 15 August 2008 and an extension of time in respect of Terri to 12 August 2008.
The Law
Section 7 of the Inheritance (Family Provision) Act 1972 provides as follows:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
(2)…
(3)The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) – (6) …
Besanko J in the matter of Delisio & Ors v Santoro (supra) considered at length the application of Section 7 of the Inheritance (Family Provision) Act. In [80] of his judgment, his Honour sets out the relevant principles:
[80] Relevant Legal Principles
1.The Act requires the Court to carry out a two stage process. First, the Court must decide if the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life. This question must be decided by having regard to circumstances at the date of the testator’s death whether known by the testator or not, and by what could reasonably have been foreseen by the testator at that time. The second stage, involves the determination by the Court of what provision ought to be made out of the testator’s estate for the applicant. At the second stage, the Court may have regard to circumstances existing at the time it is proposed to make the order.
2.It is doubtful whether it is appropriate or useful to analyse the issues in terms of a moral duty or obligation on the testator. It is well established by the authorities that the use of the word “proper” in the subsection connotes something different from the word “adequate”, and requires the Court to have regard to all the circumstances including amongst other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
3.The Act does not give the Court a general power to rewrite the testator’s will in accordance with its own ideas of fairness or justice.
4.The relevance of the relationship between the testator and the applicant seems to be that it may be taken into account in a general way as part of “the totality of the relationship between the applicant and the deceased”.
5.At one time it was considered that to succeed an adult son had to overcome a prima facie rule that he was able to maintain and support himself. He had to point to some special need or some special claim. There has been much debate about the effect on this proposition of the subsequent High Court decision in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [(1979) 143 CLR 134 per Gibbs CJ at 147]. I do not think that Gibbs J (who wrote the leading majority judgment) in Hughes is to be taken to have disapproved of what Dixon CJ said in Scales, and of course it is for the High Court to indicate that a previous decision of that Court is not to be followed.
Although I am not aware of any High Court authority expressly disapproving of a test which requires an adult son to prove a special need or special claim, the matters identified by Gibbs J in Hughes as giving rise to a special need or special claim are so broad as to suggest that the approach in the case of an able bodied adult son is not that much different from that taken in the case of any other claimant.
…
6.An adult daughter is not required to show a special need or special claim.
An applicant under the Act need not show that he or she is in necessitous circumstances in order to succeed. An applicant’s need may be for a little of the cheese and jam rather than the bread and butter of life. [Citations largely omitted.]
In the matter of Bowyer v Wood & Ors (2007) 99 SASR 190, the Full Court had cause to consider the current law in relation to Inheritance (Family Provision) claims. Debelle J, with whom the other members of the Court agreed, at [39] to [42] said:
[39] When determining whether the testatrix has failed to make adequate provision out of her estate for the proper maintenance of the plaintiff, it is necessary to consider what is meant by the words “adequate” and “proper”. This meaning has been considered on many occasions. The words “adequate” and “proper” are always relative: Goodman v Windeyer (at 502) per Gibbs J applying Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19. They must be applied in a relative sense to all the circumstances of the case: Re McCaffrey; Hay v Elder’s Trustee & Executor Co Ltd (1982) 29 SASR 582 at 585. There are no fixed standards and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards: Goodman v Windeyer.
[40] The word “proper” connotes something different from the word “adequate”: Goodman v Windeyer (at 497). The word “proper” connotes an ethical position as to what allowance should be made: Re Harris [1936] SASR 497 at 500 applying Allardice v Allardice (1910) 29 NZLR 959. Adequate provision for the proper maintenance of a child is not limited to providing what is sufficient for a basic subsistence or satisfying the mere needs of that child. As Salmond J said in Welsh v Mulcock [1924] NZLR 673 at 685:
[T]he testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation – that officium pietatis, as the Roman lawyers called it – which he owes to his family in respect of the testamentary disposition of his estate, and which is recognized and enforced by the Family Protection Act.
The Privy Council commented on the distinction between the words “adequate” and “proper” in Bosch v Perpetual Trustee Co Ltd … [1938] AC 463 at 476 in these terms:
The use of the word “proper” in this connection is of considerable importance. It connotes something different from the word “adequate”. A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance. So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his “adequate” maintenance. Nevertheless, such sum cannot be described as not providing for his “proper” maintenance, taking into consideration “all the circumstances of the case” as the subsection requires shall be done.
Those passages highlight how what might be considered to be an adequate provision for proper maintenance of a child will vary according to all relevant circumstances. The needs of the plaintiff are not considered in a vacuum. The size of the estate is relevant when considering what is an adequate provision for the proper maintenance of a child.
[41] It is well established that the word “proper” is not intended to give the court power to rewrite the will in accordance with its own ideas of justice and fairness. Instead, the use of the word “proper” is intended to require the adequacy of the provision which has been made to be determined by reference to all relevant circumstances including the size of the estate: Worladge v Doddridge (1957) 97 CLR 1 at 16-17 per Kitto J who added, relying on Bosch v Perpetual Trustee Co Ltd:
In Bosch’s case the Privy Council corrected this misconception by insisting that proper maintenance is not to be translated as adequate maintenance, and that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of his case is necessarily a judgment as to what maintenance the applicant ought to have in those circumstances, and not what he or she needs. It is only in that sense that it is correct to say that Bosch’s case adopted an “ethical” rather than an “economic’ view. The hypothesis of a just but not loving testator is resorted to, not for the purpose of determining what would have been the ideally fair manner of disposing of the testator’s estate, but only for the purpose of determining what was sufficient for the maintenance and support which the circumstances make it right that the applicant should have, as distinguished from what was sufficient for the maintenance and support which the applicant may be considered to need. [Citations omitted.]
In McCosker v McCosker (1957) 97 CLR 566 at 571-572 Dixon CJ and Williams J identified the relevant considerations in these terms:
The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent. [Citations omitted.]
As will have been noticed, there is continued reference to the size of the estate as a relevant factor. In the case of large estates, provision can be made for the well-to-do but that consideration is subordinated to the dominant purpose of determining what provision would be made by a just testator making proper provision for the maintenance, education and advancement of his family: Lieberman v Morris (1944) 69 CLR 69 at 91-92 per Williams J.
[42] In Singer v Berghouse, Mason CJ, Deane and McHugh JJ reiterated the above principles in these terms (at 209):
The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
Considerations relevant to the determination of an adequate provision were explained by Callinan and Heydon JJ in Vigolo v Bostin (at [122]):
Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
With respect, that passage is entirely consistent with the relevant considerations identified in earlier decisions.

The High Court has considered the concept of moral duty in the matter of Vigolo v Bostin & Ors (2005) 221 CLR 191. That case dealt with a matter where the appellant was an adult son who was financially very secure and who had received benefits reflecting his contribution to the family business as a result of a Deed of Family Arrangement involving the deceased. In the end analysis the Court rejected the appeal and the claim of the adult son was dismissed. Gleeson CJ noted that in the Hughes case, Gibbs J, with whom Mason and Aickin JJ agreed, approved the words of Fullagar J in the Supreme Court of Victoria in In re Sinnott [1948] VLR 279 (at 280):
No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to “maintain and support” himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.
Fullagar J went on to say (at 281):
The discretion given by the Act is obviously intended to be very wide. The size of the estate is always important, and there will commonly be needs and claims other than those of the applicant to be considered. But it is always, I think, primarily a matter of estimating need and moral claim. Often need and moral claim will co-exist …
In the case of an adult son, who has received an education and is well able to earn his living, the father’s moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) “to do what he likes with his own”.
Gummow and Hayne JJ in their decision in that matter noted that the correct approach to the construction of the first “jurisdictional” limb of the provisions was that indicated in the joint judgment in Singer v Berghouse (1994) 181 CLR 201 where (at 209-210) it was said:
… The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
Bryson J in Gorton v Parks (1989) 17 NSWLR 1 commented on the approach to be taken where the plaintiff and deceased were strongly estranged. In that matter the deceased was a “disconnected” father who contributed little either in a money sense or in encouragement or resources towards (see 5, paragraph C):
…launching any of his children into a career. He saw little of his children and his exercise of parental authority was limited to giving some of them music lessons, and delivering occasional blows and rebukes. It is not surprising that some of his children had nothing or next to nothing to do with him in adult life; it is a surprising testimony to the human potential for generosity of spirit that some of them did. Those who did not should not be regarded as having failed their father in any filial duty. There were interruptions, sometimes of many years, in the contact maintained with the testator by some of his children during their adult lives.
In that matter Bryson J spoke of “the moral obligations of a parent” in commenting on the decision of Dixon CJ in the matter of Pontifical Society for the Propagation of the Faith v Scales (at 9, paragraph G). His Honour said:
Dixon CJ seems to have regarded a relationship consisting of the bare fact of paternity and no other mutual relation as capable of supporting an order for provision. Dixon CJ did not accept what appear to have been groundless assertions by the testator in that case that the applicant Mr Scales was not his son.
The observations which I last cited seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age.
Further (at 12, paragraph B), his Honour said:
The testator’s best opportunities to help them are past and cannot be recovered; those were his opportunities during their years of education and trade training. It cannot really be known what benefits they would have obtained from a few more years of schooling or more support during apprenticeship; but it is obvious ordinary human experience that even small assistance at early stages in life can transform a person’s economic opportunities later. None of the testator’s children had such assistance and none of them tormented himself with hopes or futile attempts to embark on academic study or anything but the most practical of training; as a result none of them can point to any specific schemes or hopes defeated by penury; it would have been pointless even to form such hopes. Although the best opportunities to help them in a fatherly way have long passed, each stands in need of provision which can serve to augment incomes and in a modest way to advance them in life, in three cases in their positions as social welfare recipients.
I turn now to each of the claims which must be considered in light of the above principles. These include a consideration of competing claims for the testator’s bounty, the size of the estate, any moral duty, and the financial position of the claimant.
The Competing Claims
Michelle
Michelle is the youngest of the six children of the deceased and the fourth and last child of the second marriage. She was born on 14 March 1966. Her parents separated in 1991. She attests to a somewhat unsettled early life but during that period maintained a relationship with both her mother and the deceased. After her parents separated in 1991 her relationship with the deceased became a little tense but that settled relatively quickly. She attests that she then had ongoing interaction with him asserting that she had regular contact with him up until February 2005.
Michelle describes an event in February 2005 which led to her relationship with her father becoming very strained. She confronted the deceased about allegations of misconduct by him.
The deceased subsequently made a will on 16 July 2005 and died on 23 August 2005.
In that will, which is part of Exhibit “MCH 1” to her affidavit – FDN 2 – the deceased in relation to Michelle (and all other claimants) said:
I MAKE the following specific bequests:
…
To my daughter, MICHELLE CECILLIA CARR, born 14 March 1966, I leave nothing in this Will.
The same wording is used in respect of all other claimants.
The evidence provided as to Michelle’s assets, income and liabilities and those of her husband is quite unsatisfactory.
It appears from oral evidence given at the hearing that they had recently sold their house resulting in a net payment to them of approximately $80,000, which had been used to pay “some debts”. Her affidavit – FDN 2 – sworn 24 August 2007 suggests that they had recently sold the house hoping to upgrade to a nicer house. No detail about monetary amounts was given. That affidavit also suggests that her husband had been in receipt of Workcover payments for the past three years as a result of a back injury. In oral evidence she said that he had received a lump sum payment of $117,000 some time ago. No explanation was given as to the disposition of those monies.
Michelle described herself in paragraph 41 of her affidavit – FDN 2 – as being self-employed as a cleaner earning $21,000 during the year ended 30 June 2007. For the same year her husband had earned $37,000. His capacity to work was affected by a back injury. There is no clarification as to how much of his earnings come from Workcover payments and how much was from his own efforts.
No more recent or fulsome evidence was put before the Court as to their income and earnings save that in her oral evidence she attested that two weeks before the hearing her husband had lost his licence for six months so that he was unable to work as a carpet cleaner during that period because he would be unable to drive his van.
The evidence as to her financial position is to say the least scant and incomplete. There is no satisfactory account of current assets, income and outgoings. There is no explanation of the use of any lump sum payments received or, indeed, as to when and how much was received by way of lump sum. Notwithstanding that it appears that Michelle is a person of modest means who had a reasonably lengthy satisfactory relationship with her father that fractured some six months before his death and five months before his last will as a result of the allegations of misconduct.
In my view she has been left with inadequate provision from his estate and is entitled to an award. It was put to the Court by counsel for Michelle that she should be awarded an amount of $55,000 or greater. In my view bearing in mind the awards I propose to make in respect of other claimants and the unsatisfactory nature of her evidence as to her financial position it is appropriate to make an award of $30,000 by way of provision for Michelle.
Tammy
Tammy in her affidavit – FDN 14 – agrees with paragraphs 4 to 14 of Michelle’s affidavit.
It is worth noting that Tammy’s affidavit is singularly deficient in providing the time or approximate time when the various events occurred. By consent a schedule was tendered by her marked “Exhibit P3”, which sets out approximate times of the events that she refers to in various paragraphs of her affidavit.
Tammy attests that she lived with her mother and the deceased until she was 14 years of age. She is the third child of the second marriage. She was born on 29 February 1964. Tammy attests that she left home at age 14 to live with the father of her daughter which she did for some 5 years. Tammy then moved to Quorn where after a short period she lived with a Mr Drummond until he died of cancer in 1985. She attests that she continued to live in Quorn with her daughter for approximately three years.
Tammy then became pregnant giving birth to her second daughter Tahra on 4 June 1988. She attests that she did not live with the father of that child at the time until they bought a property at Napperby in about 1991. She and the father then lived together but separated some eighteen months thereafter. Tammy continued to live at Napperby and worked to support herself and her two daughters.
Tammy attests to an ongoing relationship with her parents while she was at Quorn and then at Napperby. Her parents separated during this period and she had to arrange to see them separately. She attests that she used to take the deceased to the Repatriation Hospital in Adelaide for medical appointments. Tammy then shifted to Adelaide and obtained work.
There was a confrontation in or about 1997 between Tammy and the deceased over certain alleged misbehaviours by the deceased which led to a significant falling out between him and Tammy.
Tammy then returned to Napperby in about 2003. She asserts that when Tahra was 11, which would be approximately 1999, she went to Western Australia and worked there for five years. The various dates do not correlate. She attests that she met her husband Paul Dean in Western Australia in about 2001 and that they then decided to move back to Napperby. They moved back to Napperby in about 2001 where she has not worked since the birth of her youngest child some two years ago.
Tammy and her husband are supporting her daughter Tahra, who is shortly due to give birth to her first child. They own a property at Napperby subject to a mortgage of $103,000. No evidence is provided as to the value of the property. She asserts that any loans made to her by the deceased were repaid in full. She asserts that she resumed contact with the deceased after her return to Napperby (some time in the early 2000’s) but that she had to have psychiatric assistance for two years to help her cope with the “situation”.
In a subsequent affidavit sworn on 6 November 2008, which does not appear to have been filed on the Court file but which was tendered as “Exhibit P4”, she exhibits a number of financial statements. Those financial statements are of little use. They show a taxable income on the part of Mr Dean for the financial year ended 30 June 2005 of $13,211, for the financial year ended 30 June 2006 of $47,746, and for the financial year ended 30 June 2007 of $48,091. No more current information is provided. The rest of the documents mainly relate to bank account statements from 2004 to 2005. There is evidence that her Homestart loan amount as at 30 June 2008 was $103,793.82.
As in the case of Michelle, the evidence of Tammy’s assets, income and liabilities is scant and incomplete and quite unsatisfactory. It appears that she and her husband have as an asset a house property subject to a mortgage. There is no evidence as to the value of the home or their equity in it. There is quite unsatisfactory evidence as to their incomes and outgoings. At best from her point of view it appears that she has only modest assets. She appears to have enjoyed a good relationship with the deceased until the dispute in 1997, which led to an estrangement until 2003.
Tammy has been left with inadequate provision from the estate of the deceased. In my view it is difficult to distinguish her situation from that of Michelle and I would similarly award her an amount of $30,000 by way of further provision.
Anthony
Anthony is the 60-year-old son of the deceased from his first marriage. Anthony was born on 18 December 1948. His parents separated some four or five years after his birth and he was raised solely by his mother, who died in 2002. His mother worked as a seamstress and provided his sole support, although she did remarry for a period of some four years in the early 1960’s to a Mr Miller, who died of cancer in 1965. This led to Anthony changing his surname to Miller.
Anthony describes the consequences of being a child of a separated couple and the difficulties that this occasioned for him in his early life. He was first married in 1969 or 1970. There were two children of that marriage. He injured his lower back at work in the late 1980’s and again in 1994. As a result of these injuries he is unable to perform physical labour. Anthony’s marriage broke down and he left Sydney to live in Copmanhurst in 2002. He has been on sickness benefits for a number of years and certainly since 2002.
Anthony had no contact or relationship with his father until 1988. He says at that time his father initiated contact and that there was a relationship between him and his father from 1988 until his father’s death in 2005. He asserts that his father stayed with him for some time about two months or so before he died. That is denied by the defendant. He says that there was a conversation between him and his father about his father loaning him $130,000 to buy a townhouse in Coffs Harbour in which they would jointly live. However, that suggestion did not get realised because his father died. In fact the estate of the deceased was such that it seems unlikely he would have been able to implement this suggestion.
Anthony owns a house property worth $170,000, which is freehold, he has approximately $200 in the bank and he receives Centrelink benefits.
Again very little information is provided in relation to the extent and depth of the resumed relationship and the degree of contact. Anthony has modest assets and a low income.
I particularly note in relation to Anthony’s case the comments of Bryson J in Gorton v Parks (supra). In my view Anthony has been left without adequate provision for his proper maintenance. However the provision that ought to be given to him is, in my view, significantly less than that appropriate for Michelle and Tammy. There has been a long break in the relationship and his contact with the deceased was significantly less than that of Michelle and Tammy. It was fortunate that some relationship did occur.
Anthony is in a relatively modest financial position. Provision of some monies will enable him to live more comfortably and to provide a reserve for any unexpected expenses. I would award Anthony the sum of $20,000 by way of further provision from the estate.
Terri
The final claimant is Terri. Her circumstances are set out in her affidavit – FDN 18. Terri is the daughter of the deceased and the second child from his first marriage. She was born on 15 May 1951. Her parents separated in 1953 and divorced in 1956. She had virtually no contact with her father until approximately 1991. She describes her mother as having been in a dire financial position because she received no financial support or contribution from the deceased.
Terri married Kenneth Bartlett in 1969 and there were two children of that marriage. The marriage finished in 1984. She married Tom Raudonikis in 1999. She worked on a full-time or part-time basis up until 2007.
Terri attests that she started a relationship with the deceased in 1991. The way that happened is that the deceased telephoned her in 1991. Later that year he unexpectedly visited her and stayed for a week with his then partner Daphne. During the course of that week the relationship deteriorated when the deceased was critical of Terri’s mother. Terri was not prepared to accept that criticism and a dispute occurred. The deceased and his partner left. She never saw him again. She did, however, get birthday and Christmas cards from him thereafter.
Terri is in a much better financial position than all other claimants. She is a joint tenant with her husband of a property with a net value of approximately $697,000. She is involved in a superannuation fund which has real estate valued at approximately $440,000. She attests that her husband was earning approximately $35,000 per annum. She attests that she has rheumatoid arthritis and that she was therefore unlikely to be able to return to work. Her husband also suffers health problems, including diabetes, a quadruple bypass and testicular cancer.
In an affidavit filed on 12 March 2009 Terri attested that she and her husband had separated but were still living under the same roof. He was expected to leave the property within the next week. She was now earning $200 per week from part-time employment at the post office.
Terri’s relationship with the deceased seems to be the most distant of all. She is financially in a much better position than all other claimants. The fact that she and her husband have now separated does not affect that assessment. Terri will have rights under the Family Law Act arising out of the separation. It is questionable whether in all the circumstances the failure to leave any amount to Terri amounts to inadequate provision under the Inheritance (Family Provision) Act such as to found jurisdiction. However, in my view, having regard to the relationship, to the deceased’s moral duty, and having regard to the size of the estate and the other claims it is appropriate that Terri should be given some provision. It will provide a small fund for any unexpected contingency. I would award her an amount of $7,500 by way of further provision.

For the foregoing reasons, the order of the Court will be:
1.That the time within which these proceedings may be brought be extended as follows:
Michelle to 29 August 2007
Tammy to 31 March 2008
Anthony to 15 August 2008
Terri to 12 August 2008
2.In relation to the claim by Michelle Cecilia Hellwig that she receive provision in an amount of $30,000.
3.In relation to the claim by Tammy Lee Dean that she receive provision in an amount of $30,000.
4.In relation to the claim by Anthony William Miller that he receive provision in the amount of $20,000.
5.In relation to the claim by Terri Lorraine Raudonikis that she receive provision in the amount of $7,500.
6.I will hear the parties as to costs and as to the terms of any formal order that should be made in light of these reasons.