Hill v Jennifer Patricia Murphy as beneficiary of the estate of Alec Kumar Sodhy
[2023] WASC 482
•21 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HILL -v- JENNIFER PATRICIA MURRAY as beneficiary of the estate of ALEC KUMAR SODHY [2023] WASC 482
CORAM: SEAWARD J
HEARD: 12 - 14 JUNE 2023
DELIVERED : 21 DECEMBER 2023
FILE NO/S: CIV 2255 of 2017
BETWEEN: CLAIRE ELIZABETH HILL
Plaintiff
AND
JENNIFER PATRICIA MURRAY as beneficiary of the estate of ALEC KUMAR SODHY
JENNIFER PATRICIA MURRAY as executor of the estate of ALEC KUMAR SODHY
Defendants
Catchwords:
Succession - Wills - Inheritance - Deceased left will in which no provision made for the plaintiff, adult daughter - Value of deceased's estate approximately $3 million - Application under s 6(1) of the Family Provision Act 1972 (WA) for adequate provision for the proper maintenance, support, education or advancement in life for the plaintiff - Impact of estrangement on application - Provision made out of will of deceased
Legislation:
Family Provision Act 1972 (WA) ss 6(1), 6(3), 7(1)(c)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | M Curwood SC |
| Defendants | : | A P Hershowitz |
Solicitors:
| Plaintiff | : | Eastwood Law |
| Defendants | : | Lawton Gillon |
Case(s) referred to in decision(s):
AB v FGH [2022] WASC 244
Blendell v Byrne [2019] NSWSC 583
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co [1938] AC 463
Butcher v Craig [2009] WASC 164
Chappell v Hewson [2013] WASCA 15
Christie v Manera [2006] WASC 287
Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Georgopoulos v Tsiokanis [2022] NSWSC 563
Goodman v Windeyer (1980) 144 CLR 490
Hawkins v Prestage (1989) 1 WAR 37
Hill v Sodhy [2003] FCWA 64
Hill v Zuda Pty Ltd [2021] WASCA 59
Hill v Zuda Pty Ltd [2022] HCA 21
Hill v Zuda Pty Ltd as trustee for Holly Superannuation Fund [2019] WASC 238
Hill v Zuda Pty Ltd as trustee for The Holly Superannuation Fund [2020] WASC 89
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the will of Frances Elizabeth Anne Cranston [No 2] [2019] WASC 410
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead (2017) 53 WAR 76
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) CLR 566
McGrath v Eves [2005] NSWSC 1006
Musasghi v Gebremariam [2022] WASCA 37
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Sodhy v Hill Family Court of Western Australia, No PT 2070 of 1984, 10 January 2003
Stone v Braun [2015] WASCA 103
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin (2005) 221 CLR 191
Zitman v Zitman [2023] WASC 135
SEAWARD J:
Introduction
By amended originating summons dated 2 June 2021, the plaintiff, Claire Hill, seeks an order pursuant to s 6 of the Family Provision Act 1972 (WA) (the Act) that provision be made for her from the estate of her father, Alec Kumar Sodhy. That application is opposed by the second defendant.
The issues to be determined in this matter are:
(a)whether the disposition of Alec's estate by his will did not make adequate provision for Claire for her proper maintenance, support, education or advancement in life; and
(b)if the answer to (a) is yes, what would be adequate provision for the proper maintenance, etc, of Claire, and should the court exercise its discretion to make an order for provision in her favour?
For clarity and intending no disrespect to the parties, I will follow the practice adopted at trial and in the documents and refer to the parties and family members by their first names.
Facts not in dispute
Alec and Jennifer
Alec Kumar Sodhy died on 22 November 2016 aged 64, leaving a will dated 14 December 2007 (Will). Probate was granted to the first defendant, Ms Jennifer Murray, on 3 February 2017. Jennifer was in a de facto relationship with the deceased for approximately 30 years prior to his death.
Jennifer met Alec in August 1976 when she was aged 20 and Alec was 24. They began dating shortly thereafter, and commenced living together in December 1983. Jennifer and Alec were committed to a shared life from shorty after they met, until Alec's death. Alec and Jennifer do not have any children together, and Jennifer does not have any children.
Alec completed a medical degree and began working as a resident in 1976. By November 1982, Alec had completed his fellowship in anaesthetics. Alec then commenced training in intensive care medicine and worked in both speciality fields up until the time of his diagnosis with a grade 4 glioblastoma (brain tumour) on 9 February 2015.
Jennifer studied speech and hearing science at university and graduated in 1979. She commenced full‑time work as a paediatric speech pathologist in 1980. Jennifer worked full‑time for approximately 14 years, and then worked part‑time for 22 years running her own practice and doing government locum work. Jennifer ceased working when Alec was diagnosed with his brain tumour in February 2015 and has not worked since that time. Jennifer cared for Alec by herself and nursed him at her home over the 23 month period from his diagnosis until his death.
During their life together, Jennifer (in addition to working as a paediatric speech pathologist) ran the house and did all domestic chores. Jennifer also took a six month break from work in 2002 to look after Alec's mother (then aged 84) when she came to live with them. In 2003, Alec's mother moved into a retirement home when it became clear that Alec and Jennifer could not provide the level of care she needed. Until her death at age 96, Alec and Jennifer continued to support Alec's mother, including Jennifer doing weekly shopping and laundry and cooking as and when needed.
During their life together, Alec and Jennifer purchased a house at Morgan Street, Shenton Park which they renovated and then lived in for approximately 10 years. Alec and Jennifer, who wished to remain living in Shenton Park, went on to purchase two other properties in Shenton Park. One property, at Evans Street, was built by Alec and Jennifer (following the sale of Morgan Street) and is Jennifer's current residence. That home is a double storey home and was built in anticipation of Alec's mother coming to live with them and has separate living accommodation with features to accommodate an elderly person.
The other property is located at Lake Avenue and prior to Alec's death it was intended that Alec and Jennifer would build an environmentally friendly single storey residence at this location for their retirement. Steps were taken by Alec and Jennifer to build this in July 2015, following Alec undergoing neurosurgery, radiotherapy and chemotherapy. Alec and Jennifer contacted their architect Salvatore (Sam) Butto to arrange an appointment to discuss their plans for Lake Avenue, and also to discuss any necessary renovations for Evans Street (which would need to be sold to pay for the new residence). However, those plans did not progress as in November 2015 Alec was informed that chemotherapy was not effective and was referred to palliative care.
Jennifer is sued in her capacity as both the executor of Alec's estate and as a beneficiary. Jennifer does not play an active role in her capacity as the executor and abides by the decision of the court.[1] Jennifer opposes Claire's application in her capacity as a beneficiary.
Claire
[1] ts 42.
The plaintiff, Claire Hill, is the daughter of Alec, and was born on 17 September 1983. Her mother is Kathleen Hill. Claire did not have a relationship with Alec and had not spoken to Alec during her lifetime. Claire and Alec had only been in the same room on one occasion prior to his death. Claire's circumstances and the reasons for that estrangement are discussed further below. Jennifer did not have any contact with Claire prior to the commencement of these proceedings.
The Will
In the Will, Alec gave his estate (after payment of his debts and funeral expenses) to Jennifer. The Will provided that if Jennifer pre‑deceased Alec (or died within 30 days of his death) Alec's estate would go to Victor Kumar Sodhy and Philip John Murray as tenants in common (or to their survivors). The Will made no provision for Claire.
Value of estate
In her affidavit sworn 18 October 2017, Jennifer detailed the assets and liabilities of Alec's estate as at the date of his death. I find that the net value of Alec's estate was approximately $2,584,234.29 compromised, broadly, as follows:
Description
Amount
Assets
26 A & B Lake Avenue, Shenton Park
$2,500,000.00
Shares:
7,511 shares in BHP
1,189 shares in Commonwealth Bank
3,903 shares in Cleanaway/Transpacific
968 shares in Rio Tinto
7,511 shares in South 32
2,100 shares in Woodside
57,000 shares in Talisman
$189,577.60
$92,016.70
$4,254.20
$56,792.50
$20,429.90
$64,050.00
$21,945.00
Receivable (Oz Minerals Limited shares)
$16,582.97
National Australia Bank account XXXX9335
$4,452.87
Motor vehicles:
1998 Mercedes A160
2010 Mercedes Veto
$3,000.00
$20,000.00
Personal possessions
$15,000.00
Art collection
$135,800.00
Total Assets
$3,143,901.74
Liabilities
Tax on taxable gain
$519,065.00
Other costs (including funerals expenses and Australian Tax Office liability)
$40,602.45
Total Liabilities
$559,667.45
Net Value
$2,584,234.29
Jennifer provided updated information regarding the assets and liabilities of Alec's estate in her affidavit dated 18 October 2017 and her affidavit dated 15 May 2023. Jennifer's evidence was that since Alec's death:
(a)the property in Shenton Park had increased in value;
(b) the value of the shares in the estate has fluctuated in line with share prices;
(c)dividends have been received from the shares held that have paid dividends;
(d)the original National Australia Bank account XXX9335 had been closed and a new estate account has been opened;
(e)the art collection had not been re-valued and Jennifer had been advised that it would likely need to be sold in the eastern states with a selling commission of between 20% - 25%; and
(f)the estate has a costs order in its favour in relation to Claire's unsuccessful High Court proceedings, the precise amount having not yet been determined.
Jennifer was also cross examined on the precise value of the estate as at the date of trial. During cross examination, it became apparent that the updated figures provided by Jennifer in her the affidavit dated 15 May 2023 required further amendments to include: the total number of Talisman Mining Ltd shares; the value of shares previously held by the estate that had been sold, the value of dividends paid in relation to the shares held by the estate between the date of Alec's death until the date of trial, and the amount in both bank accounts. Jennifer's evidence was that some of the proceeds of the share sales (which had been placed in her personal account) had been used to pay the costs in the various legal matters involving the estate. Jennifer was not able to recall the precise value of all these matters. I do not consider that it is necessary to determine these amounts precisely (or the reason why past actions regarding the estate occurred) as the amount of the estate is, on any estimate, in excess of Claire's claim. On the basis of the evidence before me, I am satisfied that the value of the estate at the date of the trial is at least $2,874,985.00. If the approximate value of the share sales and dividends are included, the value is approximately $3,191,440.49 (excluding the High Court costs owing) comprised, broadly, as follows:
Description
Amount
Assets
26 A & B Lake Avenue, Shenton Park
$2,750,000.00
Shares (including dividends paid 2018-2023)
7,511 shares in BHP
Dividends on BHP shares (approx. $ value)
1,189 shares in Commonwealth Bank
Dividends on CBA shares (approx. $ value)
1,357 shares in Woodside
57,000 shares in Talisman
$330,859.55
$125,704.10
$114,298.57
$25,028.45
$44,916.70
$8,835.00
Proceeds from sale of shares (in Jennifer's account):
968 shares in Rio Tinto (sold in 2017)
2,100 shares in Woodside (sold, unclear when)
7,511 shares in South32 (sold, unclear when)
(an unknown amount having been used to pay for legal proceedings)
$67,760.00
$63,000.00
$27,039.60
National Australia Bank account XXX799
$5,198.52
Motor vehicle:
1998 Mercedes A160
$3,000.00
Personal possessions
$15,000.00
Art collection
$135,800.00
Costs order owing relating to High Court proceedings
Unknown amount
Total Assets
$3,716,440.49
Liabilities
Tax on taxable gain (estimate)
$525,000.00
Total Liabilities
$525,000.00
Net Value
$3,191,440.49
Kathleen
Claire relies on an affidavit from her mother, Kathleen Hill, in these proceedings. Kathleen also gave evidence at the trial. Details of Kathleen's evidence, in so far as it is relevant, is detailed in these reasons.
It is necessary to make some comments on the reliability of Kathleen's evidence. Kathleen is a lawyer and operates her own law firm, Hartrey Legal. During cross examination, Kathleen admitted that she had seen some of Claire's affidavits prior to these being sworn and finalised as the drafts were also emailed to her by way of copy.[2] Kathleen says she was not asked to provide comments but may have but she cannot recall any input to the affidavits. However, Kathleen's evidence was that she did not need to provide input as the affidavits were mainly about Claire's financial situation which Kathleen did not know about.[3] Kathleen also volunteered that she had reviewed one of Claire's affidavits in the morning before attending court to give evidence.[4]
[2] ts 210 - 211.
[3] ts 210 - 212.
[4] ts 211.
Jennifer's counsel submits that for this reason Kathleen's evidence should be treated with extreme caution. It is submitted that it is a cardinal rule of evidence that a witness should not read other people's affidavits or evidence so they do not tailor their evidence accordingly, and that as a solicitor Kathleen should have known this. Jennifer submits that in particular the court should not have regard to Kathleen's evidence about an incident at Shenton Park in 1998 and her evidence about renting a property in Inglewood.[5]
[5] ts 247.
The fact that Kathleen reviewed Claire's affidavits prior to them being sworn and reviewed Claire's affidavit prior to giving evidence in the trial is of concern, especially given Kathleen is a lawyer. This causes me to question Kathleen's reliability as a witness. However, much of Kathleen's evidence is either not disputed, not directly relevant to any facts I need to determine or is supported by documentary evidence. I have treated Kathleen's evidence in relation to the two key issues referred to by Jennifer's counsel with caution and each is discussed later in these reasons.
Claire
Childhood
Claire grew up with Kathleen in Shenton Park. Claire attended Swanbourne Senior High School between 1996 and 1998 where she participated in two specialist programmes, being the 'Academically talented Maths and Science programme' and the 'dance programme'. When the dance programme moved to Perth Modern School, Claire also moved to Perth Modern School, completing years 11 and 12 and continuing the dance programme. Claire completed her tertiary entrance examinations in 2000.
Claire was a talented dancer at school and wished to follow a career as a ballet dancer. This involved her undertaking further studies in Europe. Claire auditioned at several European schools and ultimately accepted a place at a school in Munich, Germany and completed her studies in September 2001.
Professional circumstances
Claire worked as a professional ballet dancer until 2015. Claire worked in Europe before returning to Perth in 2010 and worked as a dancer in the Western Australian Ballet Company. Claire retired as a ballet dancer in 2015 (at age 31) due to injuries she had suffered as a dancer, and since that time has worked as a ballet teacher.
Due to the time it has taken this matter to get to trial, Claire has sworn a number of affidavits in this matter between 2017 and 2023, each updating her income and assets and liabilities. During that period of time there have been a number of changes in Claire's circumstances. For the purposes of her application, what is of relevance is Claire's circumstances and position as at the date of Alec's death, and as at the date of the trial. The various changes and events that have happened in between these dates may be relevant in so far as they explain Claire's current position, or in so far as they are relied on by Jennifer to support submissions made about the prudence and purpose of Claire's decisions.
The nature of Claire's work as a ballet teacher is such that she has, at various times, taught at four different ballet schools.
As at the date of Alec's death, Claire was working in a number of casual teaching positions (without paid sick leave or annual leave) and with varying hours over the course of a year. Some of that work was paid to Claire in her capacity as an employee, and some of that work required an Australian Business Number and Claire was paid in the capacity of a contractor.
As at the date of Alec's death, Claire also operated a floristry and events business called Bits & Blooms with a colleague. This business was operated as a partnership (with equal 50% shares) and ceased operating in or about January 2021 due to the effects of the COVID‑19 pandemic.[6]
[6] Exhibit 1.4 [11] - [16].
As at the date of the trial, Claire was employed full‑time as a ballet teacher at the Graduate College of Dance (and had been so employed since January 2022), and also provides additional private classes on a casual contract basis to some students to supplement her income.[7] Claire's evidence was that these additional private lessons generally occur between January until the end of May in the lead up to a ballet competition held in June and the deadline for preparing videos for auditions for various ballet schools. After May, there are no consistent additional private lessons. Claire's evidence is that she is now working seven days a week in the first half of the year, and is very drained, including in the evenings.[8]
[7] Exhibit 1.6 [5] - [9]; Exhibit 1.4 [4] - [7], [10], [17] - [18].
[8] Exhibit 1.6 [7] - [9].
Both as at the date of Alec's death, and at the date of the trial, Claire also performed paid book‑keeping work for her mother's law firm (Hartrey Legal).[9]
Personal life
[9] Exhibit 1.6 [10].
Claire married Milos Mutavdzic in July 2013. Milos is also a retired professional dancer and teaches ballet. As at the date of Alec's death, Milos was teaching ballet at The West Australian School of Dance and the Graduate College of Dance.
As at the date of the trial, Milos was teaching ballet full‑time at the Graduate College of Dance and was also undertaking cleaning at the College on a causal basis two evenings a week to supplement their income.[10]
[10] Exhibit 1.6 [11] - [12] and CEH-24; Exhibit 1.4 [20].
Claire and Milos have two children, Theo (who was born in February 2016, and was 9 months old as at the date of Alec's death) and Mila (who was born in April 2018). As at the date of the trial, Theo was 7 years old and Mila was 5 years old.
As at the date of the trial, due to Claire and Milos working both during the day and on different evenings, they spent very little time together as a family.
In 2008, Milos was diagnosed with IgA Glomerulonephritis, an auto‑immune disease of the kidneys. Whilst some medical evidence was provided in support of this diagnosis,[11] no expert medical evidence was led as to the effect this may have on Milos's ability to continue to work in the future.
Estrangement
[11] Exhibit 1.1 [44] and CEH-3; Exhibit 1.4 [62], [66] - [68].
It is not in dispute that Alec and Claire did not have a relationship.
Kathleen's evidence on this issue, which I accept, is that she and Alec were casual platonic acquaintances between 1979 and 1982 seeing each other infrequently. They subsequently had sexual intercourse in December 1982 and Claire was conceived. When Kathleen advised Alec of her pregnancy on 31 January 1983, Alec was upset and did not want the pregnancy to continue. Aside from meeting with Alec the next morning, and an approach from a mutual friend, Kathleen did not have any further personal contact with Alec prior to Claire's birth.
Kathleen commenced a maintenance application against Alec in the Family Court of Western Australia in June 1984. Alec opposed the application on the basis that he denied paternity. Various court documents from these proceedings have been attached to the affidavits tendered at trial. These include affidavits in the Family Court proceedings sworn by Kathleen, Alec and Jennifer. It is not necessary to repeat the specifics of these documents, save to note that the application was opposed, paternity was denied, and Alec made what can objectively be described as a hurtful statement regarding Kathleen's capacity to be a mother to Claire. Whilst attempts at a settlement were made, the matter was never settled, and the trial was adjourned sine die.
In 2001, when Claire was 18 years old, Claire requested that Kathleen continue the maintenance application in the Family Court, so that Claire would have sufficient money to attend ballet school in Germany. Kathleen recommenced the maintenance proceedings in 2002. Various court documents from these proceedings are attached to affidavits tendered in this matter. Again, it is not necessary to recount in detail the contents of those documents. What is clear from those court documents is that Alec contested paternity and was ordered to undertake a paternity test. Alec appealed this decision, and the appeal was dismissed.[12] Alec refused to take the paternity test,[13] following which a formal declaration of paternity was made and Alec was ordered to pay $21,000 by way of maintenance plus $9,000 in costs.[14] Alec paid that amount promptly on 31 May 2003. Approximately $10,000 was used to pay Kathleen's costs and approximately $20,000 was used to support Claire in her studies in Germany. This was the only child support money paid by Alec for Claire. In those court documents, reference is also made to Kathleen being concerned about Claire revealing where she was living and studying as she was concerned for Claire's safety. Alec refuted this allegation at the time.[15]
[12] Sodhy v Hill Family Court of Western Australia, No PT 2070 of 1984, 10 January 2003 (Martin J).
[13] Sodhy v Hill Family Court of Western Australia, No PT 2070 of 1984, 10 January 2003 [5].
[14] Hill v Sodhy [2003] FCWA 64.
[15] Exhibit 1.8, Annexure C.
I find that any person reading these court documents, including Claire, would conclude that Alec did not desire a relationship with Claire.
It was during a hearing in the maintenance proceedings that Alec and Claire sat in the same room together for the only time. They did not speak to each other.
Claire's evidence is that as a child she was conscious of not having a father and would have liked to have known her father. Claire said that when she asked her mother why she did not have a father, Kathleen told her that she had a father, but he did not want to be involved in their life. Kathleen told Claire that if Alec knew her, she was sure that he would love Claire, but as Alec did not like Kathleen, he would not meet Claire.
Kathleen and Claire would occasionally encounter Alec during the period of time in which Kathleen and Claire lived in Shenton Park (1980 to 1998), in the form of occasionally being in the same vicinity as each other (eg when out shopping or walking). However, there was no actual contact between Alec and Kathleen and Claire.
Whilst Alec and Claire were only in a room together on that one occasion, Claire has given evidence of another occasion on which she says she tried to speak to Alec. That evidence is disputed. Claire's evidence is that when she was a child, she and Kathleen were living in Shenton Park. Claire believes that Kathleen must have told her where Alec lived. Claire says that in about 1998, when she was 14 years old, she and Kathleen were walking across Shenton Park Lake when she saw a man sitting on a deck chair out the front of the house that Claire believed was where Alec lived (being Evans Street). For this reason, Claire believes, but does not know, that the person on the deck chair was Alec.[16] Kathleen's evidence is that she saw Alec sitting on the chair, and then changed the direction she was walking in so as not to go past Alec. Kathleen does not know if Alec saw her.[17] However, Claire decided to keep walking towards this house with the intention of speaking to the person she thought was Alec. Claire's evidence was that she did not know what she was going to say. Claire says that as she approached the house, the person jumped to his feet, knocking over the deck chair, and ran around the side of the house. Claire then walked away.
[16] Exhibit 1.1 [10] - [12].
[17] ts 206 - 208.
In Kathleen's affidavit sworn 11 May 2003, filed in the Family Court proceedings, Kathleen deposed that this event occurred in or about March 1998. Alec's evidence in the Family Court proceedings was that he did not move into the Evans Street property until April 1998.[18] It is not controversial that Jennifer and Alec built the Evans Street property.
[18] Exhibit 1.8, Annexure C.
I am satisfied on the balance of probabilities that it was Alec who was sitting on the chair at the front of the Evans Street property. Kathleen's evidence is that she saw Alec, and given Jennifer and Alec built the Evans Street property, and given the close proximity in date to when Jennifer and Alec moved to Evans Street, the fact that they had not yet moved into that house does not mean that Alec was not at the property on that day. Kathleen and Claire each refer to this incident in their Family Court affidavits, not merely the affidavits in this proceeding. However, I am not able to draw any conclusions as to whether Alec saw Claire, whether he knew what Claire looked like, why Alec left the deck chair, and whether it was in any way related to Claire or not.
Claire did not take any steps to contact Alec after the maintenance hearing in 2002 and 2003. Claire accepted in cross examination that she could have looked up his contact details in the telephone directory, but said that she did not attempt to make any contact because based on her past experience she understood that Alec did not want a relationship with her. Claire's evidence is that she felt that she needed to take her cues from Alec and that it was up to Alec to contact her, and Alec knew where to find her.[19] Claire's evidence (which I accept) was that she would always have responded to Alec if he had ever reached out to her. Claire also said that she was very sad when Alec died as she knew she would never get to know him.
[19] ts 79 - 82.
Kathleen gave evidence that she did not attempt to contact Alec's family after Claire was born as she thought his family might not believe her without proof that Claire was Alec's daughter. Kathleen did, however, take steps to make contact with Alec's family in August 2003, after the maintenance application and after Claire had indicated that she would like to try to find her grandparents. The evidence reveals that Kathleen made the initial steps to attempt to locate family members and Kathleen and Claire were ultimately successful in locating and making contact with several members of Alec's family. Kathleen[20] and Claire's[21] affidavits contain details of the steps taken to contact those family members and the contact that they then had. That contact included meeting relatives in Adelaide and Washington, and two relatives attending Claire's wedding in Fremantle in 2013. The affidavits contain emails and photographs in support of their evidence.
[20] Exhibit 1.3 [27] - [88], KPH-10 ‑ KPH-24.
[21] Exhibit 1.1 [16] - [40]; Exhibit 1.2 [17] - [20], CEH-3 ‑ CEH-6.
Claire also met her grandmother, Moi Cheng Sodhy (known as Cheng). Claire met with Cheng in 2007 when Cheng was living in a retirement home in City Beach, and the documents filed with the affidavits include a photograph of Claire and Cheng.[22] Claire visited Cheng on other occasions when she returned to Perth for holidays. Kathleen's evidence is that she stopped meeting regularly with Cheng in early 2009 as Kathleen thought that her visits were making things difficult for Cheng.[23]
[22] Exhibit 1.2, CEH-5.
[23] Exhibit 1.3 [64] - [70].
Claire and Kathleen were invited to meet Cheng's adopted daughter Shelia at Cheng's home in January 2010 over dinner, which they attended. However, Claire stopped meeting regularly with Cheng in February 2010. Claire's evidence is that she was telephoned by Shelia in February 2010 and Shelia told Claire that she could not come and watch her dance at a performance as planned, as Alec had taken away the car. Claire understood this to mean that Alec had taken away the spare car he allowed Shelia to use when she was visiting Perth.[24] Kathleen's evidence is that she received an email from another relative (sent to both herself and Claire) who she was in contact with advising her that Alec had denounced Shelia for meeting with Kathleen and Claire.[25] Claire did not make any further contact with Shelia or Cheng after this point, as she was concerned about putting Shelia and Cheng in a difficult position going forward.
[24] Exhibit 1.1 [31] - [35].
[25] Exhibit 1.3 [72] - [75], KPH-22.
Jennifer's evidence is that the family members that Kathleen and Claire made contact with (other than Cheng and possibly Shelia) were not close to Alec. Victor (Alec's brother) confirmed in his affidavit that these relatives were not close to Alec or himself. Jennifer also gave evidence that at no time did Cheng tell her that Cheng had met with Claire and Kathleen, and as far as she was aware, at no time did Alec tell Shelia she could not use the vehicle nor was the vehicle withdrawn from Shelia's use.
Claire's evidence is that she wanted to meet with those family members to get to know them, particularly her grandparents, and to fill in missing information about herself.[26] Claire did not ask those family members to put her in contact with Alec.[27]
[26] ts 82.
[27] ts 82.
I accept Claire and Kathleen's evidence as to their interactions with the various family members, including with Cheng and Alec's adopted sister, Shelia. Their evidence is supported by documentary evidence, including emails and photographs. Jennifer's evidence only goes so far as to say she was not aware of any of the matters referred to by Claire and Kathleen. The fact that the family members were not close to Alec is not relevant.
On the basis of all of the evidence before me, I am satisfied that responsibility for the estrangement between Alec and Claire lay with Alec alone. In closing submissions, Jennifer accepted that Alec made a choice not to have any involvement in Claire's life. This concession is properly made. The evidence reveals that over an extended period of time Alec made it clear that he did not want a relationship with Claire. This was evidenced by his behaviour towards Kathleen prior to Claire being born; his lack of involvement in Claire's birth and subsequent life and his response to and conduct in the Family Court proceedings (both the initial and the revived proceedings).
However, Jennifer seeks to draw a distinction between the period when Claire was a child, and when she was an adult. In closing submissions, Jennifer's counsel submitted that once she was an adult, Claire chose not to take steps to contact Alec or to share milestones with him, and had made a decision not to try and repair the situation. Jennifer submits that upon reading Claire and Kathleen's affidavits in the revived Family Court proceedings, Alec would not unreasonably have concluded that he should not try to contact Claire. Jennifer submits that responsibility for this aspect also lay with Kathleen and the information she had told Claire about Alec.
I do not consider that responsibility for the estrangement altered when Claire became an adult. Claire remained open to a relationship but given all the events which had occurred to that date (including the maintenance proceedings and Alec's response when Kathleen and Claire made contact with some family members) Claire understandably felt that it was not for her to make the first move. As the parent, and given his past actions, the responsibility for the lack of a relationship once Claire became an adult continued to lie with Alec. Even if I were to accept that Kathleen also played a role (which I do not) that would not result in Claire being responsible for the estrangement.
Claire's financial position
As at Alec's death
Claire's financial position as at the date of Alec's death is principally set out in her affidavit sworn 26 July 2017. I find that Claire's estimated net monthly income as at the trial date was as set out in the below table:
Income source
Estimated net average amount (per month)
Claire's income from the Charlesworth Ballet Institute
$1,818.00
Bits & Blooms Floristry and Events Business
$800.00
Claire's income from the West Australian Ballet Company
$300.00
Claire's income from Edith Cowan University - payment of $205 for year
$13.56
Hartrey Legal for bookkeeping work
$233.25
Milos's income
3,670.00
Family Tax Benefit
$106.46
TOTAL
$6,941.27
The above table is derived from information in Claire's affidavit sworn 26 July 2017 and the matters raised by Claire in both her evidence in chief and in cross examination.
Claire was cross examined extensively about her financial position as at Alec's death. As part of that cross examination, Claire accepted that:
(a)she had forgotten to include the Family Tax Benefit she was receiving, as she did not receive this monthly into her account and it was calculated as part of her tax return. There was no evidence as to precisely how much Family Tax Benefit Claire was receiving as at Alec's death, but in her affidavit sworn 22 October 2019, Claire estimates the monthly amount to be $106.46, so I have used this amount as an estimation;
(b)she had forgotten about teaching two casual classes at Edith Cowan University for which she was paid $205 (gross). This amount is included in Claire's 2017 tax return, but Claire could not recall when in that financial year she taught those two classes;[28] and
(c)Claire had estimated her net monthly income from Hartrey Legal was $210. However, a review of her 2017 tax return reveals that this amount is higher, being $233.25 net per month.
[28] ts 108 - 109.
I have included these three amounts in the above table.
In the 2016/2017 financial year, in addition to the above income, Claire also commenced teaching work for the West Australian School of Dance. Claire's evidence (which I accept) is that she did not commence that work until term 1 of 2017, which is after Alec's death.[29] Claire did refer to this teaching work in her 26 July 2017 affidavit, where she referred to her income from the West Australian School of Dance increasing by about $700 per month since Alec's death.[30] In examination in chief, Claire clarified that the relevant paragraph was not quite accurate, and it should instead read that since Alec's death, she began working at the West Australian School of Dance and was earning about $700 per month.[31] I accept Claire's evidence in this regard, and therefore have not included this income in Claire's estimated net monthly income.
[29] ts 61 - 62 and 110 - 112.
[30] Exhibit 1.1 [51].
[31] ts 61 - 62.
Claire's estimated monthly expenses as at the time of Alec's death were also set out in detail in her affidavit dated 26 July 2017,[32] with one amendment, and I accept Claire's estimation. Claire's key expense was the mortgage repayments on the Inglewood property. When all of her other day to day living expenses are included (rates, utilities, insurance, transportation, medical expenses, groceries, clothes, nappies and other baby expenses and household items) the total amounts to approximately $6,088.43.
[32] Exhibit 1.1 [47].
The one amendment I have made relates to the internet and mobile telephone expenses. In Claire's 2017 tax return, Claire has claimed a tax deduction on 20% of her internet expenses and 90% of her mobile telephone expenses. Claire accepted that these deductions were made in her tax return, which was completed after the date of swearing her July 2017 affidavit.[33] I have therefore deducted these amounts from Claire's monthly estimated expenses when calculating the above total.
[33] 1 November 2017, Exhibit 2.
The result is that Claire and Milos had an estimated monthly surplus of approximately $852.84.
Jennifer's counsel submitted in closing that the financial information provided in Claire's affidavit sworn 26 July 2017 was inaccurate and not reliable in various respects. Jennifer's counsel also submitted that Claire had deliberately underestimated her financial position as at the date of Alec's death. I do not accept those submissions. The matters requiring amendment were minor matters and were each readily and appropriately conceded by Claire during cross examination. None of these matters are of significance in terms of Claire's estimated net monthly income and/or monthly expenses, and in each case Claire's explanation for each oversight was not unreasonable. Claire's 2017 tax return (which was prepared after the affidavit sworn 26 July 2017) is also broadly consistent with Claire's estimation of income. No other matters were raised in cross examination which cause me to form a negative view of Claire's truthfulness on this issue or in any other way lead to the conclusion that Claire's evidence as to her financial position as at November 2016 (as amended) cannot be relied on. I formed the view that Claire answered all questions on this issue in cross examination in a responsive manner and appeared to me to be attempting to answer questions about financial matters which existed over six years ago to the best of her ability.
I find that Claire's assets and liabilities as at Alec's death were as set out in the below table:
Description
Estimated Value
ASSETS
Property:
Inglewood property
$535,000.00 -$565,000.00
Chattels:
House contents
$5,000.00 - $6,000.00
Bank Accounts
Claire’s personal bank account
$5,670.00
Joint bank account
$12,095.00
Vehicles:
2006 Honda CRV
$7,000.00
2000 Toyota Corolla
$500.00
1984 Ford Fairlane
$1,000.00
Superannuation:
Claire's superannuation
$36,224.68
Milos's superannuation
Unknown amount – but possibly ‑ $70,000
TOTAL ASSETS
$672,489.68 - $703,489.68
LIABILITIES
Mortgage Inglewood property
$513,352.42
Student Financial Supplement Scheme
$221.65
TOTAL LIABILITIES
$513,574.07
TOTAL
$158,915.61 - $190,137.26
The above table has been taken from Claire's affidavit sworn 26 July 2017, but has been modified to include superannuation. Claire did not include any reference to superannuation in her original affidavit, however, in her affidavit sworn 23 September 2022, information about Claire's superannuation was included. Claire explained in cross examination that she was not aware at the time she swore her first affidavit that she needed to include superannuation, and it did not occur to her.[34] It was put to Claire in cross examination that she had deliberately decided not to disclose her full financial position as at the date of Alec's death, to keep her assets and liabilities low. Claire denied this.[35]
[34] ts 93 - 94.
[35] ts 94 - 95.
I observe, however, Claire and Milos will not be able to access their superannuation until they are at least 60 years old, which is some time away. If these amounts are deducted, their estimated surplus of assets over liabilities as at the trial date is reduced to approximately $52,690.93 - $83,912.58.
Milos's uncle died on 25 September 2016 and Milos ultimately received his share of an inheritance in the amount of $112,500 at some point after November 2019.[36] The inheritance is not referred to in Claire's first affidavit, but is referred to in her affidavit sworn 22 October 2019. Claire could not recall if she and Milos were aware as at the date of swearing her first affidavit that Milos would be getting an inheritance or the possible quantum, as there were many issues with the will and it took some time.[37] Given the inheritance had not been received as at the date of Alec's death, and there is no evidence Milos knew the amount he would receive as at Alec's death, I consider that it does not form part of Milos's assets at this date, and at best he had a hope of receiving an unknown amount.
As at the trial
[36] Exhibit 1.2 [47].
[37] ts 112 - 113.
Claire's financial position as at the date of the trial is set out in Claire's affidavit sworn 16 May 2023. Claire estimated that her assets and liabilities as at the trial date were as set out in the below table, which I accept as an accurate estimation:
Description
Estimated Value
ASSETS
Property
Inglewood property (jointly owned)
$650,000.00
Bassendean property (jointly owned)
$625,000.00
Chattels
House contents (jointly owned)
$10,000.00
Bank Accounts
Claire's personal bank account
$4,420.00
Joint bank account ($14,550.98 being from Milos's inheritance)
$27,967.96
Vehicles
2006 Honda CRV (owned by Claire)
$5,000.00
2009 BMW
$16,000.00
1971 Ford Fairmont (owned by Milos)
$20,000.00
Superannuation
Claire's superannuation (as at December 2022)
$74,336.09
Milos's superannuation (as at December 2022)
$148,578.32
TOTAL ASSETS
$1,581,302.37
LIABILITIES
Mortgage on Inglewood property
$419,201.67
Mortgage on Bassendean property
$649,171.13
Credit card
$28.73
High Court costs order
$164,903.61
TOTAL LIABILITIES
$1,233,305.14
NET TOTAL
$347,997.23
Again, I observe that the above surplus is calculated having regard to Claire and Milos's superannuation accounts. If these amounts are deducted, their surplus of assets over liabilities as at the trial date is reduced to approximately $125,082.82.
The most significant change since Alec's death was that Claire and Milos purchased a property in Bassendean in July 2022 and currently live there.
Claire was cross examined extensively on her decision to purchase the Bassendean property and to retain and rent out the Inglewood property to Kathleen.
Claire's evidence is that the Inglewood property had become too small for their family, in particular it had no real backyard for the children to play in. Accordingly, in or about early 2021, she and Milos commenced looking for a more suitable property within the Inglewood Primary School and Mount Lawley Senior High School catchment areas. Whilst Claire and Milos found several suitable properties, they were outbid on these properties.[38] Claire and Milos eventually purchased the Bassendean property. This property has a large outdoor space, but internally was relatively small with only one bedroom (the lounge room has been converted to the children's shared bedroom) and will require renovations to make it suitable for the size of their family.[39] The Bassendean property is also outside of the school catchments zones, but they could not afford a larger property within those school catchment zones.[40]
[38] Exhibit 1.4 [34] - [38].
[39] Exhibit 1.4 [40] - [44], [53] - [56].
[40] ts 165.
Claire's evidence is that she and Milos originally intended to sell the Inglewood property and to use the profits to fund the renovations to the Bassendean property necessary to make it suitable for the size of their family. However, they were unable to obtain a purchase price they were seeking (and had thought they could receive) which would be sufficient to pay for the Bassendean renovations, and so decided to rent the property instead.[41] Claire and Milos also decided to retain the Inglewood property as it is in the catchment area for Mount Lawley Senior High School, and the Bassendean property is not.[42]
[41] Exhibit 1.4 [45] - [51], [57] - [58]; Exhibit 1.6 [14] - [15]; ts 143 - 145.
[42] ts 144.
Claire's evidence is that they put the Inglewood property on the rental market but did not get any applications at the monthly rental amount they were seeking (being $480 - $520 per week).[43] Claire then offered the property to Kathleen to rent privately for $450 per week, which Claire said was a price reflecting the lack of any management fee and Claire and Milos keeping the garage for storage. Kathleen has a monthly rental with Claire. Due to the increasing interest rates, the amount paid by Kathleen increased to $500 per week in May 2023.[44] I accept that Kathleen is paying rent for the Inglewood property, as absent that income Claire and Milos would be unable to afford to pay the mortgage on the Inglewood property.
[43] ts 146.
[44] Exhibit 1.6 [13] - [15].
Claire's evidence is that she purchased the Bassendean property when she did because the Inglewood property was too small and she was sick of waiting for a resolution of the court proceedings to see where they stood. Claire's evidence was that at the time she put the offer in, she felt that they could afford the Bassendean property, with the larger block size, and use the proceeds from the sale of the Inglewood property to renovate the internal space to make it suitable.[45] Claire accepted that the property was outside the relevant school catchment.
[45] ts 165 - 166.
In terms of the proposed renovations, Claire's evidence is that she would like the Bassendean property to be renovated so that each of her children could have a bedroom of their own (they are currently sharing) and for there to be a second bathroom. Claire has obtained an estimate for the renovations from Summit Homes. Claire's evidence is that she and the designer discussed the children taking the two existing front rooms of the house as their bedrooms, adding space to the current living room to make it larger and adding a main bedroom, ensuite and robe. Claire obtained estimates for these works, being between $200,000 ‑ $250,000 if the additional adult rooms are placed on the ground floor, or between $300,000 ‑ $350,000 if the additional adult rooms added in a newly created second story. The former option is cheaper but results in a loss of some of the backyard, whilst the latter is more expensive, but the larger backyard is preserved.[46]
[46] Exhibit 1.6 [43] - [45]; CEH-46.
Claire was cross examined in relation to this written estimate, and the use of the words 'master wing' (in relation to the ground floor extension) and 'adult retreat' (in relation to the second-floor extension). It was put to Claire that she did not need either a 'master wing' or an 'adult retreat'. Claire's evidence is that these were the words used by the designer, and all that was being added was an additional bedroom, robe and ensuite.[47] It was also put to Claire that the only reason she obtained the estimate was to enhance her prospects in the litigation and she had no intention of spending this amount on the renovations. Claire denied this and said that she did not set the price and would need to spend what the price was. Claire's evidence was also that she obtained the quote as she understood she needed evidence of the costs in support of her affidavit evidence.[48] Claire accepted that with the benefit of hindsight, the purchase of the Bassendean property may have been a bad choice, but that she did the best she could at the time.[49]
[47] ts 174 - 175.
[48] ts 174 - 175.
[49] ts 146.
Claire was also cross examined extensively on Milos's inheritance, and what it had been spent on. Claire's evidence was that $8,000 was spent on repairs at the Inglewood property, $3,000 was given to Milos's mother, $57,317.16 was used to pay various court disbursements and some had been spent on his hobby of restoring classic cars.[50] It is not necessary to go into detail as to the various cars purchased since Alec's death. It is sufficient to observe that Milos has spent $32,020 on purchasing and restoring these cars, although Claire's evidence is that each of the cars has increased in value as a result of Milos's restoration such that they have not lost money.[51] It is also relevant to observe that Claire agreed these classic cars are not reliable family cars, [52] and in her affidavit dated 16 May 2023, Claire states that she would like to be able to afford a near-new reliable car, but they cannot.
[50] Exhibit 1.4 [30].
[51] ts 127.
[52] ts 126 - 127.
Claire estimated that her net monthly income was as set out in the below table, which I accept as an accurate estimation:
Income source
Estimated average amount (per month)
Claire's net monthly income from Graduate College of Dance after income tax.
$4,937.00
Private lessons at The Graduate College of Dance (Earned over a 15-week period but averaged out over 12 months).
$250.00
Hartrey Legal for bookkeeping work
$195.00
Milos's net monthly income from the Graduate College of Dance after income tax and superannuation contribution
$4,937.00
Milos's cleaning contract at the ballet school
$727.00
Rental for Inglewood property
$1,950.00
TOTAL
$12,996.00
As at the date of the trial, Claire was no longer working in causal ballet teaching positions, but rather was working in a full‑time capacity and as an employee receiving sick leave and annual leave. Claire's income had also increased since Alec's death, as had Milos's income.
Claire's estimated monthly expenses as at the time of the trial are also set out in detail in her affidavit dated 16 May 2023, and I accept Claire's estimation. Claire's key expenses are the mortgage repayments on the two houses. When all of her other day to day living expenses are included (rates, utilities, insurance, transportation, medical expenses, groceries, clothes, household items, after school care, children sporting activities, subscriptions, family activities, school expenses) the total amounts to approximately $12,360.19.
The result is that Claire and Milos have an estimated monthly surplus of approximately $636.
In her affidavit dated 16 May 2023, Claire also details other unforeseen expenses she has incurred over and above the recurring budgeted monthly expenses referred to above. Incurred between December 2022 and May 2023, these include expenses such as dental work for Claire, car repairs, new school shoes for her son, glasses for Claire, and total $4,025.10. Claire says that with interest rates rising, they have little income left over to meet these unexpected expenses.
Claire's evidence is that there are other necessary items which they cannot afford, totalling $2,617.82 per month, including gym membership for Milos, Pilates classes for Claire, an increase in their food budget to meet the rising price of groceries (Claire compensates by buying cheaper and often less healthy food), additional sport and dances classes for the children and family hospital insurance. Claire's evidence is that there are other necessary non‑recurring expenses that she cannot afford totalling $9,080, including installing a heating system for the Bassendean property to replace the current system which is too small, and other household repairs. Claire has also identified three other items of expense for which she does not have a quote, being installing a security system in the Bassendean property, repairing her car, and family holidays (they do not currently go on holidays and would like to).
Claire would like her children to attend Inglewood Primary School and Mount Lawley Senior High School, but if they are not able to do so, then she would like her children to attend Guildford Grammar School. Claire relies on the expert report of Corey Plover from Cumpston Sarjeant, Consulting Actuaries dated 1 November 2022, for an estimate of the present value of allowing for payment of the school fees of Guildford Grammar for her children, over various periods of time.[53]
[53] Exhibit 1.5.
I accept that some of these additional expenses referred to by Claire can be described as day‑to‑day living expenses which are not extravagant or reckless (eg. car repairs, school shoes, increased cost of groceries, dental work and glasses). Some of the other expenses, however, cannot in my view be described as essential expenses, but rather are desirable (eg. private school fees, gym and Pilates fees and family holidays). However, I accept that these additional expenses are nonetheless not extravagant or reckless.
Finally, Claire's evidence is that her future needs are also dependent upon whether Milos's kidney condition worsens.[54] However, absent any expert evidence regarding the likely effect Milos's kidney condition will have on his future ability to work, it is not possible to quantify the impact of Milos's condition on Claire's future needs.
Prior legal proceedings and legal costs
[54] Exhibit 1.4 [62].
Following Alec's death, Claire commenced other legal proceedings in relation to Alec's estate. These proceedings are relevant in so far as they explain aspects of the Claire's financial circumstances and those of the estate.
These other legal proceedings concern the Holly Superannuation Fund, which is a self‑managed superannuation fund, the trustee of which is Zuda Pty Ltd. Jennifer is the sole director of Zuda. From its establishment, the members of the Holly Superannuation Fund were Alec and Jennifer. Jennifer is the only current member.
First, Claire made an application to amend her originating summons in the present proceedings to include an application for a declaration that the binding death nomination was invalid. That application was refused by Curthoys J on 24 January 2019.
Secondly, Claire commenced an action seeking orders for pre‑action discovery of various documents regarding the Holly Superannuation Fund. That application was made on two grounds: the first being that the documents were relevant to these family provision proceedings, and the second being associated with the (then) potential separate proceedings to challenge the validity of the binding death nomination. That application was dismissed by Master Sanderson.[55]
[55] Hill v Zuda Pty Ltd as trustee for Holly Superannuation Fund [2019] WASC 238.
Thirdly, Claire also commenced an action against Zuda and Jennifer (both in her capacity as executor of Alec's estate and in her personal capacity) alleging that a binding death benefit nomination under the amended deed for the Holly Superannuation Fund (which required Zuda to pay any benefit owing to Alec as at the date of his death to Jennifer) was invalid. Zuda applied for summary judgment and was successful before Master Sanderson.[56] Claire appealed to the Court of Appeal,[57] and sought and obtained special leave to appeal to the High Court,[58] and was unsuccessful before both. Claire was also ordered to pay $17,500 in security for costs in the Court of Appeal.
[56] Hill v Zuda Pty Ltd as trustee forThe Holly SuperannuationFund[2020] WASC 89.
[57] Hill v Zuda Pty Ltd [2021] WASCA 59.
[58] Hill v Zuda Pty Ltd [2022] HCA 21.
Claire was ordered to pay the costs of the various defendants/respondents in relation to each of the above applications. The amount of costs was ultimately set at $10,116 for the amendment application; $10,816 for the pre-action discovery application; $8,771.44 for the summary judgment application before Master Sanderson and $19,460 for the appeal in the Court of Appeal. These costs orders have been paid. The amount of costs for the High Court appeal has not yet been determined, but in her affidavit dated 16 May 2023 Claire has estimated this to be $164,903.61, which Claire says is the amount her lawyers have told her that the respondents to the High Court proceedings are seeking for their costs.
In relation to her own legal costs, Claire's evidence (which I accept) was that she has a 'no win no fee' arrangement with her instructing solicitors in relation to the superannuation litigation and these family provision proceedings, which Claire understands means that if she loses any of these proceedings, she is not required to pay her instructing solicitors' fees. However, if she is successful, she will be required to pay her instructing solicitors' fees. Claire is, however, required to pay for disbursements. Claire's estimate of the amount of disbursements she has paid to her lawyers (or has been paid on her behalf) for all legal matters is $15,000, which includes $9,000 for the High Court proceedings.
The costs orders paid to date have been met from Milos's inheritance and Claire's savings. In relation to the High Court proceedings Kathleen paid for the filing fee and Claire paid for the hearing fee.[59] Claire's evidence is that if she is ordered to pay High Court costs in the amount currently estimated, she will likely need to sell the Inglewood property to do so.
Claire's overall financial position at the date of the trial
[59] ts 71, 157.
Jennifer submits that when Claire's overall financial position as at the date of the trial is considered, Claire and Milos are talented ballet dancers, with full time teaching positions whose income has increased to a substantial and good net income and earning capacity.[60]
[60] ts 258.
I accept that Claire and Milos have increased their income since Alec's death, and I also accept that Claire's income is no longer uncertain. Milos and Claire each earn an annal salary of $76,000 (gross) from the Graduate School of Dance (excluding additional classes and cleaning).[61] Whilst this is a good salary, it cannot be described as large, and both Milos and Claire undertake additional work to supplement this income.
[61] Exhibit 1.6 CEH-23 and CEH-24.
Jennifer also submits that the evidence establishes that Claire and Milos have, since the date of Alec's death, conducted themselves and managed their financial affairs in an unreasonable manner which has increased their indebtedness and liabilities in a significant way.[62]
[62] Defendant's opening written submissions [56].
Jennifer submits that from the time of Alec's death to the date of trial, Claire and Milos have acted either imprudently, naively or perhaps by design such that their current financial position is not one of falling on hard times, but rather is self‑orchestrated and that the court should infer that these actions were taken to 'gild the lily' and improve their claim for provision in this litigation.[63] Jennifer relies on the purchase of the Bassendean property, the retention of the Inglewood property (and renting it out to Kathleen instead of at a commercial rate), the prosecution and incurring of legal fees in the failed superannuation litigation and Milos's use of his inheritance to buy classic cars. Jennifer submits that if the Inglewood property was sold, Claire would be in a significantly better financial position.[64]
[63] ts 257.
[64] Defendant's opening written submissions [57] - [64]; ts 258 -259.
I accept that the decisions made by Claire and Milos since 2016 have been made by them as adults, in the exercise of their free will and that they have not fallen on hard times in the last seven years.
However, I do not accept the submission that Claire and Milos have acted in a way which was designed to 'gild the lily' in some way or to deliberately increase their level of debt so as to improve Claire's prospects in this litigation.
Claire was cross examined extensively in relation to the decision to purchase the Bassendean property. Claire struck me as a witness answering honestly, including by accepting that with the benefit of hindsight, the purchase of the Bassendean property may have been a bad choice.[65] The explanation provided by Claire surrounding the reason for the purchase was not, in my view, unreasonable and involved Claire and Milos making a compromise in their choice of home, given they were unable to afford the size of property they wanted in the school catchment they wanted. The need to make compromises when purchasing a property is not unusual.
[65] ts 146.
Claire's evidence was that the original proposal was to sell the Inglewood property. Given steps were taken to attempt to sell the property, I have no reason to doubt the truthfulness of that evidence. Claire's evidence that she was not able to achieve the price she wanted is not an unreasonable explanation for retaining the property, especially in circumstances where she was able to rent the property for an amount which covered the mortgage repayments. Claire, properly, accepted that the amount of rent no longer covers the mortgage, and that is due to the many interest rate increases which have occurred since that date, and which she says she was not aware were going to occur at the time she made the offer to purchase the Bassendean property.[66]
[66] ts 144, 149 - 150; Exhibit 1.6 [15].
I also accept that Claire pursued litigation regarding the superannuation that was unsuccessful at each stage. Whilst the wisdom of that decision may be questioned, I note that special leave was granted for the appeal to the High Court, which supports an inference that there may have been some merit or importance in the litigation.
The fact that Milos spent $32,020 restoring classic cars as part of his hobby does not, in my view, support an inference that steps were being taken to deliberately incur debts. Milos also spent part of his inheritance on repairs at the Inglewood property and assisting his mother.
I accept that the decision to retain the Inglewood property, and the decision to pursue the superannuation litigation, has increased Claire's overall level of debt. I also accept that Claire could sell the Inglewood property to help pay down her debts and increase the amount of her monthly surplus. Claire has indicated this is what she will need to do to pay the estimated High Court costs order.[67] That Claire has not sold the Inglewood property to date is a relevant matter for me to weigh in the exercise of my discretion at the second stage of the test for an application under s 6(1) of the Act, if I consider the jurisdictional threshold to be met. However, I do not accept that Claire's failure to sell the Inglewood property to date is itself evidence of a deliberate attempt to obtain a higher level of provision in this litigation.
[67] ts 70 - 72.
Legal principles
The legal principles relevant to a claim under s 6 of the Act are not in dispute. Section 6(1) of the Act provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Section 7(1) of the Act specifies those applicants who are eligible under s 6(1) and s 7(1)(c) includes a child of the deceased living at the date of the death of the deceased. Accordingly, Claire is eligible to make a claim.
The two-stage test
The legal principles relevant to an application under s 6(1) of the Act have been considered previously by this court on numerous occasions. The key legal principles were not in dispute.
The authorities establish that in considering an application made under s 6 of the Act, the court undertakes a two‑stage process:[68] the jurisdictional stage and the discretionary stage. However, the questions posed at each stage are not independent of each other, and the relevant considerations and facts applicable to each stage may overlap.
[68] Lemon v Mead (2017) 53 WAR 76 [50].
The first stage of the process is what is usually referred to as the 'jurisdictional question'. At this stage, the court is required to determine whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of the claimant.[69] The court's power to make an order in the claimant's favour is conditioned upon the court being satisfied of this state of affairs.[70]
[69] Lemon v Mead (2017) 53 WAR 76 [51].
[70] Lemon v Mead (2017) 53 WAR 76 [51]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [67].
The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for their 'proper' maintenance, support, education and advancement in life.[71]
[71] Lemon v Mead (2017) 53 WAR 76 [52]; Musasghi v Gebremariam [2022] WASCA 37 [107].
The jurisdictional question must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death (whether the deceased knew of them or not) and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.[72] The court is to look at what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen. Further, advantage may be taken of hindsight if the subsequent occurrences are within the range of reasonable foresight.[73]
[72] Lemon v Mead (2017) 53 WAR 76 [54].
[73] Lemon v Mead (2017) 53 WAR 76 [55]; Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ).
The word 'proper' connotes something different from the word 'adequate'.[74] 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard of maintenance, support, education or advancement.[75]
[74] Lemon v Mead (2017) 53 WAR 76 [60] - [61].
[75] Lemon v Mead (2017) 53 WAR 76 [65].
The determination of whether the provision, if any, is 'adequate' for the claimant's 'proper' maintenance, support, education or advancement, involves not only a scrutiny of the requirements of the claimant that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. The totality of the relationship will include factors such as any sacrifices made or services given by the claimant to or for the benefit of the deceased; any contributions by the claimant to building up the deceased's estate; and the conduct of the claimant towards the deceased and of the deceased towards the claimant.[76]
[76] Lemon v Mead (2017) 53 WAR 76 [62] - [64].
The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.[77] The term 'proper' supports an assessment that more may be required than that which is sufficient as a matter of bare necessity to avoid penury.[78]
[77] Lemon v Mead (2017) 53 WAR 76 [65].
[78] Goodman v Windeyer (1980) 144 CLR 490, 496 ‑ 497 citing Bosch v Perpetual Trustee Co [1938] AC 463, 476.
In many authorities, the term 'moral duty' is used as a shorthand expression referring to a deceased's duty to make adequate provision for the proper maintenance, support, education and advancement in life of persons within the statutory class, with the precise nature and extent of that duty being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards. In Vigolo v Bostin,[79] Gleeson CJ held that the concept of the 'moral duty' of a deceased was useful as part of an exposition of the legislative purpose embodied in s 6(1) of the Act, and in the understanding and application of the statutory text.[80]
[79] Vigolo v Bostin (2005) 221 CLR 191 [21].
[80] See also Vigolo v Bostin (2005) 221 CLR 191 [121] (Callinan & Heydon JJ). However, Gummow and Hayne JJ at [73] considered the term 'moral duty' may mislead, and therefore adhered to the statutory language.
The second stage of the test only arises if the 'jurisdictional question' is determined in the claimant's favour. At this stage, the court exercises a discretion and may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, support, education and advancement in life of the claimant by reference to the circumstances as they exist as at the date of the order.[81]
[81] Lemon v Mead (2017) 53 WAR 76 [53], [56].
How that discretionary exercise is undertaken has been variously described in the authorities.[82] In Stone v Braun,[83] Beech J (with whom Buss and Mazza JJA agreed) held:
[T]he court's task in undertaking the second stage must be taken into account. That task has been described as 'instinctive synthesis' or 'intuitive assessment', in respect of which reasons for the appropriate provision need not be fully articulated.
[82] See AB v FGH [2022] WASC 244 [103] - [108].
[83] Stone v Braun [2015] WASCA 103 [92].
Whilst the court's discretionary power at the second stage is very broad, it is qualified by the text and purpose of s 6(1) of the Act, and the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, support, education and advancement in life.[84] Further, the power must be exercised by reference to the evidence before the court or, in appropriate circumstances, facts of which the court can take judicial notice.[85]
[84] Lemon v Mead (2017) 53 WAR 76 [58].
[85] Chappell v Hewson [2013] WASCA 15 [31].
Factors which may be relevant to the exercise of that discretion include a claimant's circumstances (including financial circumstances; level of education; employment history and other personal circumstances); their need for, and moral claim to, provision from the estate; the need and moral claims of other persons who have a legitimate claim upon the testator's bounty; the nature of the relationship between the deceased and the claimant; contingencies; and the size of the estate as at the date of the testator's death.[86]
Adult children and estrangement
[86] Lemon v Mead (2017) 53 WAR 76 [245]; Zitman v Zitman [2023] WASC 135 [49].
The present case involves a claim by an adult child who has been completely estranged from her father for her entire life.
The legal principles regarding claims by adult children were summarised by Hallen J in Blendell v Byrne:[87]
(a)The relationship between parent and child changes when the child attains adulthood . However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, 'ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life ‑ such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation'.[88]
(c)Generally, also, 'the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute'.[89]
(d)There is no need for an applicant adult child to show some special need or some special claim.[90]
(e)The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration.[91] Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant.[92] In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.[93]
(f)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.[94]
[87] Blendell v Byrne [2019] NSWSC 583 [629].
[88] Taylor v Farrugia [2009] NSWSC 801 [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 [121]; Salmon v Osmond [2015] NSWCA 42 [109].
[89] Taylor v Farrugia [2009] NSWSC 801 [58].
[90] McCosker v McCosker (1957) CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, 45; Taylor v Farrugia [2009] NSWSC 801 [58].
[91] MacGregor v MacGregor [2003] WASC 169 [179] ‑ [182]; Crossman v Riedel [2004] ACTSC 127 [49].
[92] Marks v Marks [2003] WASCA 297 [43].
[93] Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 [17].
[94] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, 149.
In Lemon v Mead,[95] Mitchell and Beech JJA held:
It is impossible to describe, in terms of universal application, what adequate provision for proper maintenance etc will entail for a parent in respect of an adult child. In many cases adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his or her life. However, each case will depend on its own circumstances. As the decisions of the High Court in Coates, McCosker and Buckland v Trustees Executors and Agency Co Ltd illustrate, in certain circumstances an award in favour of a capable adult child will be justified.
[95] Lemon v Mead (2017) 53 WAR 76 [273] (citations omitted).
The word 'estrangement' does not describe the conduct of either party. Rather, as emphasised by Pullin JA (Buss JA and Le Miere AJA agreeing) in Lathwell v Lathwell:[96]
It is merely the condition which results from the attitudes or conduct of one or other or both of the parties. If the estrangement is entirely caused by the unreasonable conduct or attitudes of the testator and sustained by the unreasonable conduct of the testator, then the estrangement alone could not amount to disentitling conduct on the part of the applicant.
[96] Lathwell v Lathwell [2008] WASCA 256 [33].
The legal principles applicable in circumstances of estrangement have been considered by a number of cases of this court, including Zitman v Zitman[97] and AB v FGH.[98] The key legal principles relevant for present purposes are:
[97] Zitman v Zitman [2023] WASC 135 [51] - [52], referring to Underwood v Gaudron [2014] NSWSC 1055 [231].
[98] AB v FGH [2022] WASC 244 [111] - [113], referring to Georgopoulos v Tsiokanis [2022] NSWSC 563 [313].
(a)The nature of the estrangement, and the underlying reason for it, is relevant to both stages of the court's task.
(b)The mere fact of estrangement between a parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.
(c)There is no rule that, irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, the claimant is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The facts of the particular case must be considered.
(d)The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.'
(e) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration.
(f) A long-standing severance of a relationship with a parent, or even a clearly established termination of all communication, is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle.
(g)Legislation of this kind has consistently contained provisions that the court may take into account the character or conduct of an applicant if it has been such as would disentitle that applicant to provision from the estate. However, this is but a reflection of the fact that a principal determinant of proper maintenance or support is what the testator in all conscience should have felt bound to provide, and the plaintiff's behaviour is not the essential determinant. It is primarily to the testator's moral obligations that the court has been required to look, rather than the virtues and vices of those who seek provision.
Disentitling conduct
Section 6(3) of the Act provides that:
The Court may attach such conditions to the order as it thinks fit, or 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 an order, or on any other ground which the Court thinks sufficient.
The onus of proving disentitling conduct rest with the party alleging it.[99] The character or conduct required to disentitle an applicant to provision under s 6(3) of the Act must be of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator.[100] Whether an applicant is disentitled depends not only on the nature of the conduct itself, but also, to some extent, on the strength of the applicant's need or claim to provision from the estate of the deceased.[101]
[99] Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the will of Frances Elizabeth Anne Cranston [No 2] [2019] WASC 410 [283].
[100] Lathwell v Lathwell [2008] WASCA 256 [33].
[101] Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the will of Frances Elizabeth Anne Cranston [No 2] [2019] WASC 410 [285].
Disposition
Stage 1 - jurisdictional question
I am satisfied in all the circumstances that the Will does not make adequate provision for the proper maintenance, etc, of Claire. The reasons for my conclusion are as follows.
First, I accept that, as at the date of Alec's death, based on her estimated net monthly income and expenses Claire had a surplus of income over expenses. Claire and Milos also owned the Inglewood property (subject to a significant mortgage). To that extent, I accept that Claire's position at this time could not be described as 'dire'.
However, whilst Claire and Milos had a monthly surplus, it was not a large surplus and they had limited cash in their bank accounts. Their income appears to have been spent on the day‑to‑day necessities of life for themselves and their son. None of the expenses could be described as outrageous or unreasonable items and expenses. With a young son (and a desire for another child if possible), it is reasonable to infer that their day‑to‑day expenses may increase in the future as their child (or children) grow older and their needs change. Therefore, I am satisfied that Claire and Milos were left exposed to the vicissitudes of life and the financial exigencies of life with only a small contingency.
It is also relevant that whilst Claire and Milos may have had a surplus, their actual income was modest. Claire's 2017 tax return reveals a net income of $29,466.29, whilst Milos's 2017 tax return reveals a net income of $48,247. Again, this left Claire exposed to the financial exigencies of life. Whilst Claire and Milos had superannuation, they are not in a position to access this for a significant period of time.
Jennifer submits that Claire and Milos were a young, talented and skilled adult couple with many years of work ahead of them. However, in addition to their relatively modest income Claire was at that time working as a casual ballet teacher, where she was not guaranteed any particular hours or income and had been told that her hours may reduce. As a causal ballet teacher, Claire also did not receive sick leave or annual leave. Claire also operated her floristry business, which generated uncertain and inconsistent monthly income. Therefore, as at Alec's death, Claire's ability to obtain continuing work at the same (or any) level was uncertain.
Jennifer submits that Claire had made a conscious decision to work flexibly at this period of her life and was working part time prior to Alec's death. Claire was cross examined about an interview she gave to an ABC journalist in 2017 (and the corresponding article published on 20 September 2017), where Claire is described as being someone who had, 'joined a growing number of Australians opting for less stability and more freedom through casual labour' and that she 'could not see herself ever returning to permanent employment'.[102]
[102] Exhibit 1.8, 547 - 551.
Jennifer submits that had Claire decided to remain working full time, her earning capacity would have been greater and she could comfortably set aside money as a buffer for contingencies and/or reduce the mortgage on the Inglewood property.
Claire's evidence was that she was working casually at this period because she had just had a baby.[103] I consider I am able to take judicial notice of the fact that many parents work reduced hours whilst their children are young to provide care. I consider that modern community standards are such that this can be an ordinary part of life involving young children. I do not consider that working either part time or on a casual basis whilst caring for her young son constitutes disentitling behaviour on Claire's behalf. However, I do accept that it was reasonably foreseeable as at the date of Alec's death that Claire may increase her working hours and/or cease working on a causal basis when her son was older, and therefore Claire's income may increase and become more certain in the future.
[103] ts 84 ‑ 85.
Secondly, Claire, as the daughter of Alec, has a moral claim to the estate based on their filial relationship. It is consistent with modern accepted community standards that a parent will ordinarily (if funds permit) provide their child with a start in life (eg. a deposit on a home) and may expect the parent to provide the child with a buffer against the financial exigencies of life.
Thirdly, it is also relevant to Claire's claim that she and Alec were estranged and did not have (and never had) a relationship of any sort and Claire was not dependent on Alec. I have previously found that the estrangement was not Claire's fault, and therefore this is not a case of any disentitling conduct on Claire's part. I also do not accept, given the history, that this was a case of a renunciation by Claire of any ties with Alec. However, the estrangement is relevant in that Claire did not provide Alec with love and support during his lifetime and/or whilst he was ill. Claire also did not play any role in the building up of Alec's estate (although as a child that is less likely in any event).
Fourthly, I have had regard to Jennifer's moral claim on the estate. Jennifer's moral claim on the estate is greater than Claire's moral claim and is derived from a number of sources. Jennifer was Alec's de facto partner (and therefore has a claim as a statutory beneficiary) and was also named in the Will. Most significantly, Jennifer was Alec's de facto partner for 30 years and during that time provided Alec love and support, including whilst he was sick, and played a significant role in building Alec's estate by undertaking all household and domestic tasks which enabled Alec to work. Jennifer also made sacrifices in the form of taking 6 months leave from her work to care of Alec's mother.
Fifthly, it is also relevant that Jennifer does not advance a claim for financial need. Therefore, there is no other beneficiary with a greater financial claim than Claire.
Sixthly, the Will does not make any provision for Claire at all. That is, this is not a case where some provision has been made and there are other competing claims to have regard to and balance. Further, Alec made only one financial contribution to Claire's maintenance during her life, being the single payment of $21,000 (excluding costs) following the revived Family Court proceedings.
Finally, I have had regard to the size of Alec's estate. It is substantial and is able to bear dispositions to both Claire and Jennifer.
For these reasons, notwithstanding the estrangement, given the filial relationship and accepted modern community standards I am satisfied that in failing to make any provision for Claire in the Will, Alec has failed to make adequate provision for the proper maintenance, etc, of Claire, and the jurisdictional question is resolved in Claire's favour.
Stage 2 - exercise of the discretion
Having found that the Will did not make adequate provision for Claire's proper maintenance, etc, I am now required to exercise the discretion, taking into account the facts as they currently exist.
In doing so, I am guided by the considerations that would inform a just and wise testator,[104] and the various findings I have made in these reasons, including as to Claire's financial and personal position; Claire's moral claim on the estate; the totality of the relationship between Claire and Alec (including the fact of and circumstances surrounding their estrangement); the strength of Jennifer's moral claim on the estate; the lack of any competing financial claim on the estate, and the value of the estate.
[104] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 20.
I observe that the discretion is not to be exercised for the purpose of making what may appear to the court to be a fair distribution of Alec's estate,[105] and a relevant and important consideration in the exercise of my discretion is freedom of testamentary disposition.[106]
[105] Lemon v Mead (2017) 53 WAR 76 [244].
[106] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [91].
My findings as to Claire's financial position as at the date of the trial and the value of the estate are set out earlier in these reasons.
Counsel for Claire submitted that adequate provision for Claire's proper maintenance, etc, requires that Claire be provided with a capital sum to ensure her financial stability and a sum for contingencies. Further, that this capital sum should be an amount which is sufficient to enable Claire and Milos to discharge their debts and liabilities and allow them to renovate their family home. This would provide them with suitable permanent accommodation for their family, together with an asset from which they can derive income to supplement their incomes as ballet teachers. Claire submits that this capital sum should be $1.583 million, calculated by reference to the amounts required to discharge their two mortgages, pay for renovation costs in the sum of $350,000 and enable payment of the anticipated High Court costs order.[107] In paying off both mortgages, that will then leave Claire and Milos with the Inglewood property as an asset that can generate rental income and therefore provide a buffer for contingencies (whether that be school fees or any reduction in Milos's ability to work). It is also submitted that this approach will ensure there are no wasted costs associated with selling property.[108]
[107] ts 41.
[108] ts 303.
Counsel for Jennifer submitted that the capital sum of $1.583 million is excessive and submitted that a sum in the vicinity of $250,000 is more appropriate. Jennifer submitted that it was not appropriate for Claire to have increased her debt in the significant way she has done, including by purchasing the Bassendean property and incurring the High Court costs, and then come to court seeking to have all those debts paid. Jennifer submits that it is not appropriate to make any allowance for the High Court costs, and instead submits that an appropriate provision would be to allow an amount to make modest changes to the Bassendean property (in the amount of $50,000 ‑ $100,000) and an amount to contribute to the reduction in the Inglewood mortgage.[109]
[109] ts 270 - 271.
In my view, an order that Claire receive $1.5 million is more than what is required to provide adequate provision for her proper maintenance, etc, and does not reflect Claire's age; current financial position and future earning capacity; the extent of Claire's moral claim to the estate; Jennifer's superior moral claim to the estate; Claire's financial needs, and Alec's freedom to dispose of his estate as he saw fit.
The authorities to which I have been referred do not provide that in all circumstances a just and wise testator is expected to make provision for an adult child so as to not only provide for housing but also to remove all their debts and to allow for any and all desired future expenses.
I consider that in all the circumstances adequate provision for Claire's proper maintenance, etc, requires that provision be made for Claire which is sufficient to provide for a suitable family home and to provide a further lump sum to assist Claire in navigating the vicissitudes of life. I do not consider in all the circumstances that adequate provision for Claire's proper maintenance, etc, requires that Claire also receive a lump sum which pays all of Claire's debts in circumstances where they were voluntarily incurred by her as an adult (and were not incurred as a result of falling on hard times), where Claire could take some steps to partly pay down those debts immediately.
I consider that adequate provision for Claire's proper maintenance, etc, requires that provision be made for Claire from the estate in the amount of $1.1 million. This amount will be sufficient to enable Claire to discharge the mortgage on the Bassendean property (which is their home), to renovate it to bring it up to a standard suitable for a young family, and to provide Claire with a sum as a buffer to assist Claire to dealing with the vicissitudes of life.
I will hear from the parties in relation to the form of the orders required to give effect to the conclusion I have reached and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
21 DECEMBER 2023
32
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