Hodder v Australian Executor Trustees Limited as administrator of the estate of Reece William Hodder - [2021] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HODDER -v- AUSTRALIAN EXECUTOR TRUSTEES LIMITED as administrator of the estate of REECE WILLIAM HODDER [2021] WASC 156
CORAM:   HILL J
HEARD:   30 NOVEMBER - 2 DECEMBER 2020
DELIVERED          :   21 MAY 2021
FILE NO/S:   CIV 2718 of 2015
BETWEEN:   ELAINE GEORGINA HODDER
Plaintiff
AND
AUSTRALIAN EXECUTOR TRUSTEES LIMITED as administrator of the estate of REECE WILLIAM HODDER
First Defendant
DAVID INDICH beneficiary of the estate REECE WILLIAM HODDER
Second Defendant
TANIA MARIE CORBETT as universal beneficiary under the will of REECE WILLIAM HODDER
Third Defendant
TAMMY LEE NARRIER as universal beneficiary under the will of REECE WILLIAM HODDER
Fourth Defendant
TAMARA ROSE INDICH as universal beneficiary under the will of REECE WILLIAM HODDER
Seventh Defendant
JASMINE INDICH as universal beneficiary under the will of REECE WILLIAM HODDER
Eighth Defendant
TYRELL AUGUSTINE HODDER as universal beneficiary under the will of REECE WILLIAM HODDER
Ninth Defendant
MARLEE ROSE RYDER as universal beneficiary under the will of REECE WILLIAM HODDER
Tenth Defendant
CORY DESMOND HODDER as universal beneficiary under the will of REECE WILLIAM HODDER
Eleventh Defendant
THE ESTATE OF THE LATE DAVID NARRIER as universal beneficiary under the will of REECE WILLIAM HODDER
Twelfth Defendant

Catchwords:

Family provision and maintenance - Application made by mother against estate of adult son - Where deceased died intestate - Whether entitlement on intestacy makes adequate provision for the proper maintenance and support of plaintiff - Failure on intestacy for sufficient provision for applicant - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 14(1)
Family Provision Act 1972 (WA), s 6(1), s 7

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	G A Rabe
First Defendant	:	P J Tydde
Second Defendant	:	D Singh
Third Defendant	:	H Bendtsen
Fourth Defendant	:	G Papamihail & W B Macdonald
Seventh Defendant	:	G Papamihail & W B Macdonald
Eighth Defendant	:	No Appearance
Ninth Defendant	:	C V Eastwood
Tenth Defendant	:	T M Retallack
Eleventh Defendant	:	G D Maher
Twelfth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Corser & Corser
First Defendant	:	Gilbert + Tobin
Second Defendant	:	Friedman Lurie Singh & D'Angelo (Perth)
Third Defendant	:	HLB Lawyers
Fourth Defendant	:	George Papamihail Barristers & Solicitors
Seventh Defendant	:	George Papamihail Barristers & Solicitors
Eighth Defendant	:	In Person
Ninth Defendant	:	Eastwood Law
Tenth Defendant	:	Lawfield Legal Practice
Eleventh Defendant	:	Laird Lawyers
Twelfth Defendant	:	Roe Legal Services

Case(s) referred to in decision(s):

Anderson v Teboneras [1990] VR 527
Butcher v Craig [2010] WASCA 92
Chappell v Hewson (by his next friend Hewson) [2013] WASCA 15
Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Daniels v Hall [2014] WASC 152
Dean v Collins (No 2) [2015] WASCA 151
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
In the Estate of Bridges (1975) 12 SASR 1
Kitson v Franks [2001] WASCA 134
Kleinig v Neal [No 2] [1981] 2 NSWLR 532
Kossert v Ruggi as Executor of Will of Korps [No 2] [2012] WASC 191
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Lo Surdo v Public Trustee [2005] NSWSC 1186
Nicholls v Hall [2006] NSWSC 1377
Nicholls v Hall [2007] NSWCA 356; (2007) 2 ASTLR 419
Pontifical Society for the Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Town of Port Hedland v Hodder (by next friend Hodder) (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wheat v Wisbey [2013] NSWSC 537

HILL J:

Introduction

The plaintiff, Elaine Georgina Hodder, is the mother of the deceased, Mr Hodder (Deceased). He was born at only 26 weeks' gestation on 5 January 1983 and died on 16 November 2013. During most of his life, Mr Hodder had significant health problems, including cerebral palsy and spastic diplegia. He was profoundly deaf and communicated by sign language. From the time of his birth, the plaintiff had primary responsibility for his care and upbringing.
In 2006, when he was 23 years of age, Mr Hodder went to stay with relatives in South Hedland to provide the plaintiff with respite. While he was there, Mr Hodder suffered serious injuries following an accident at a swimming pool and became a quadriplegic. On 27 February 2012, following a decision of the West Australian Supreme Court of Appeal, Mr Hodder received an award of damages for negligence in the sum of $5,850,000.[1]
[1] Town of Port Hedland v Hodder (by next friend Hodder) (No 2) [2012] WASCA 212; (2012) 43 WAR 383 [5], [6].
After Mr Hodder's death, the first defendant was appointed as administrator of his estate on 27 November 2014.[2] Letters of administration were granted on 29 April 2015.[3]
[2] Orders of the Honourable Justice Heenan dated 27 November 2014.
[3] Exhibit 1.
Mr Hodder died without leaving a valid will. For this reason, his estate is to be distributed under the provisions of the Administration Act 1903 (WA). At the time of his death, Mr Hodder was not married or in a de facto relationship. He was survived by his mother (the plaintiff), his biological father (the second defendant), and a significant number of half-siblings. This meant that under item 6(b) of s 14(1) of the Administration Act, together with s 12B of the Administration Act, the plaintiff and the second defendant were, between them in equal shares, entitled to $6,000 and 50% of the estate, with each of Mr Hodder's half‑siblings entitled to an equal share of the remaining 50% of his estate. At the time of the hearing, eight of Mr Hodder's half-siblings (or their estates) remained as defendants in these proceedings.[4]
[4] While they remained as defendants, the eighth defendant and the twelfth defendant did not adduce any evidence or participate in the hearing.
Based on the value of Mr Hodder's estate at the date of his death, unless orders are made by the court adjusting these entitlements, each of the plaintiff and the second defendant would be entitled to $1,158,314.06 from the estate and each of the remaining defendants to $288,828.51.[5]
[5] First defendant's submissions, Table A.
By amended originating summons dated 11 February 2016, the plaintiff seeks orders for these entitlements to be modified so that she receives the property at 82 Hawker Avenue, Warwick (Warwick property), the Toyota Hi-Ace van and 70% of the residue of the Deceased's estate. In respect of the remaining 30% of the Deceased's estate, the plaintiff contends that 25% should be shared between the ninth, tenth, eleventh and twelfth defendants equally with the remaining 5% shared between the second, third, fourth, seventh and eighth defendants equally. If the estate was distributed as proposed by the plaintiff, and on the assumption that there are no further deductions from the estate (including for legal costs), this would result in the plaintiff receiving almost $3.5 million from Mr Hodder's estate, the ninth to twelfth defendants each receiving $248,102.88 and each of the remaining defendants receiving $39,696.46.
The plaintiff contends that her entitlement under the Administration Act does not make adequate provision for her proper maintenance, support, education and advancement and does not reflect the differing relationships that each of the parties had with Mr Hodder. This ranged from the close and loving relationship she had with her son over the entirety of his life to one of his half-siblings (the third defendant) who never met him.

Relevant legal principles

The legal principles which govern this application were not in dispute between the parties.
Section 6(1) of the Family Provision Act 1972 (WA) 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 of 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.
It was not in dispute that the plaintiff, as the mother of the Deceased, was an eligible applicant under s 7(1)(e) of the Family Provision Act.

Intestate estates

Section 6(2) of the Family Provision Act deals with intestate estates and provides:
The Court in considering for the purposes of subsection (1) whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
However, the scheme which applies under the Administration Act should only be interfered with so far as is necessary to make adequate provision for the proper maintenance, education and advancement of a claimant.[6]
[6] Kossert v Ruggi as Executor of Will of Korps [No 2] [2012] WASC 191 [37] citing with approval In the Estate of Bridges (1975) 12 SASR 1, 5 - 6.
As Sir John Bray CJ stated in In the Estate of Bridges:[7]
I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will.

The two‑stage test under s 6(1) of the Family Provision Act

[7] In the Estate of Bridges, 6.

It is well established that on an application under s 6(1) of the Family Provision Act, the court is required to carry out a two-stage process.[8]

First stage

[8] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [50] (Buss P); Dean v Collins (No 2) [2015] WASCA 151 [24] (Chaney J, Martin CJ & Buss JA agreeing); Daniels v Hall [2014] WASC 152 [127] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ, Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56]; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 - 209 (Mason CJ, Deane & McHugh JJ).

The first stage requires determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance and support of the claimant. This has previously been described as the 'jurisdictional question' and is to be determined as at the date of death of the testator.[9] This is a question of objective fact which must be determined by the court.
[9] Lemon v Mead [52] – [54] (Buss P).
This question must be determined by reference to all material facts that existed at the date of death of the testator, whether they knew them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.[10]
[10] Lemon v Mead [54] (Buss P) and the authorities cited there.
In considering an application under the Family Provision Act, there are no rigid rules - each case will depend on all of the factual circumstances.[11]
[11] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 - 148 (Gibbs J).
The court is required to take into account what is 'necessary or appropriate prospectively' from the date of death, including events which are certain, exceedingly likely to happen or contingent.[12]
[12] Lemon v Mead [55] (Buss P) referring to Dixon CJ in Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508.
In assessing whether the provision made was inadequate for the proper level of maintenance and support of the claimant, the court should have regard, amongst other things, to the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon the deceased’s estate.[13]
[13] Singer v Berghouse (No 2), 209 - 210 (Mason CJ, Deane and McHugh JJ).
Many of the older cases refer to the 'moral claim' of the applicant rather than an assessment of the totality of the relationship. Traditionally, the moral claim or duty was viewed as the duty of a 'man to make provision for his wife and children'.[14] More recently, it is considered to be the deceased's duty to make adequate provision for those within the statutory class of the Family Provision Act with the nature and extent of the duty determined 'by reference to the totality of the relationship between the claimant and the testator, and contemporary accepted standards'.[15]
[14] Vigolo v Bostin [12] (Gleeson CJ).
[15] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [86] (Buss JA).
A beneficiary without a moral claim or significant relationship with the testator is more likely to have their testamentary provision disturbed.[16]
[16] Vigolo v Bostin [13] (Gleeson CJ); Devereaux-Warnes v Hall [No 3] [102] (Buss JA).
Any assessment of the amount which comprises an adequate provision must be made by reference to the relative position of each of the other beneficiaries and the size of the deceased's estate.[17]
[17] Devereaux-Warnes v Hall [No 3] [24] (Pullin JA).
In assessing the totality of the relationship between the claimant and the deceased, it is relevant to consider any sacrifices made or services given by the claimant to or for the benefit of the deceased, any contributions made by the claimant to building up the deceased's estate, and the conduct of the claimant and the deceased towards each other.[18] While these matters are relevant, they are neither a necessary nor sufficient condition for the making of an order under the Family Provision Act.[19] This is because the power of the court is to make an order for the proper maintenance of a claimant and not to reward a claimant for past services.[20] This does not, however, mean that the conduct of the claimant is irrelevant; one of the circumstances that must be taken into account by the court is the way in which the claimant has conducted themselves toward the deceased.[21]

Second stage

[18] Lemon v Mead [63] (Buss P).

[19] Lemon v Mead [64] (Buss P).

[20] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 498 (Gibbs J).

[21] Goodman v Windeyer, 496 (Gibbs J).

If it is determined that the disposition of the deceased's estate did not make adequate provision for the proper maintenance and support of the claimant, the court must exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they existed at the time of making the order.[22] In determining that question, similar considerations arise to those in the first stage.[23] That is, it is necessary to consider the financial position of the claimant, the need and moral claim of the claimant to provision from the estate, the need and moral claims of other persons who have a legitimate claim on the testator's estate, and the size of the estate at the date of the testator's death.[24]
[22] Lemon v Mead [56] (Buss P).
[23] Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ).
[24] Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall (No 3) [9] (McLure JA); see also Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ); Kitson v Franks [35] (Parker J), [10] (Malcolm CJ agreeing), [20] (Kennedy J agreeing).
The decision at the second stage involves an exercise of discretion in the accepted sense.[25] However, the discretion must be exercised only upon evidence before the court or on facts about which the court can take judicial notice.[26]
[25] Lemon v Mead [52] - [53] (Buss P).
[26] Chappell v Hewson (by his next friend Hewson) [2013] WASCA 15 [31].
If an award is to be made, it must be no more than that which will make adequate provision for the proper maintenance and support of the claimant.[27] In exercising the jurisdiction conferred by the Family Provision Act, the court is interfering with the testator's disposition. Freedom of testamentary disposition is a relevant and important consideration in the exercise of the discretion. It should only be interfered with to the minimum extent which is necessary to make adequate provision for a claimant’s proper maintenance and support.[28]
[27] Lemon v Mead [267] (Mitchell and Beech JJA).
[28] Lemon v Mead [269] (Mitchell and Beech JJA).
At this second stage, in considering the claimant's application, regard must also be had to the 'moral claims' of the other beneficiaries of the deceased's estate.[29] If a beneficiary says nothing about their financial position or other claims on the deceased's estate, the court is entitled to assume that the beneficiary has no special claim and that they have adequate resources on which to live.[30]

Meaning of 'adequate' and 'proper'

[29] Devereaux-Warnes v Hall (No 3) [95].

[30] Devereaux-Warnes v Hall (No 3) [97] citing with approval Anderson v Teboneras [1990] VR 527, 535.

The discretionary power which is conferred by the Family Provision Act at the second stage empowers the court to award an 'adequate' provision for the 'proper' maintenance, support, education or advancement in life, but no more.[31]
[31] Lemon v Mead [58] (Buss P).
'Proper' and 'adequate' mean different things. The term 'proper' prescribes the standard of maintenance, support, education or advancement in life, whereas the term 'adequate' is concerned with the quantum of the award.[32]
[32] Lemon v Mead [65] (Buss P).
In considering whether the provision made for a claimant is proper, the assessment must take into account all of the circumstances, including contemporary accepted community standards.[33]
[33] Daniels v Hall [132] (EM Heenan J).
The determination of the quantum of an award which would be adequate for the proper maintenance, support, education or advancement of a claimant is a relative question which requires consideration to be given to the nature, extent and character of the estate as well as the other claims to it.[34]
[34] Pontifical Society for the Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).
In determining whether the provision made for the claimant is 'adequate', it is necessary to consider not only the requirements of the claimant but also the totality of the relationship between the claimant and the deceased. As Buss P stated in Lemon v Mead, this assessment takes into account:[35]
(a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b)any contributions by the claimant to building up the deceased's estate; and
(c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.
[35] Lemon v Mead [63] (Buss P).
In many cases, the inability of a claimant to satisfy their financial requirements from their own resources will co-exist with a claim arising from the totality of the relationship between the claimant and deceased and contemporary community standards. However, this will not always be the case. As was noted by Buss JA (as he then was) in Devereaux-Warnes v Hall [No 3]:[36]
Sometimes there may be a strong 'moral claim' but no 'need'. Sometimes the 'moral claim' may be slight but the 'need' dire.
[36] Devereaux-Warnes v Hall [No 3] [85].

While the sacrifices, services or contributions made by a claimant are a relevant consideration as part of considering the totality of the relationship between the claimant and the deceased, they are neither a necessary nor sufficient condition for the making of an order under the Family Provision Act.[37]
[37] Lemon v Mead [64] (Buss P).
Adequate provision is not limited to provision being made for the supply of life's necessities; it enables provision to be made over and above a mere sufficiency of means upon which to live.[38] It takes account how the claimant lived and might reasonably expect to have lived in the future[39] and whether the claimant can satisfy their requirements from their own resources.[40]
[38] Vigolo v Bostin [115] (Callinan & Heydon JJ).
[39] Vigolo v Bostin [114] (Callinan & Heydon JJ).
[40] Lemon v Mead [70] (Buss P); Singer v Berghouse (No 2), 227 (Gaudron J).
In considering whether a party has a need for provision for their own maintenance, education and advancement in life, it is relevant to consider the family circumstances of that party. However, the Act does not permit orders to be made to provide for the support of third persons where there was no obligation on the deceased to support the third party.[41]
[41] Wheat v Wisbey [2013] NSWSC 537 [128]; Kleinig v Neal [No 2] [1981] 2 NSWLR 532, 537.
In Vigolo v Bostin, Callinan and Heydon JJ considered the meaning of the words 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provision Act and held that:[42]
'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life.

Relevance of biological family

[42] Vigolo v Bostin [115].

One of the issues at trial was the extent to which the court should take into account the basis for the entitlement of the 'Indich group' (the second, third, fourth, seventh, eighth and twelfth defendants) on intestacy. The second defendant was the father of the Deceased, which founded the claim of his other children, the remaining members of this group.
The rights of a biological child in respect of an estate of a deceased parent have been considered by courts on a number of occasions. From those decisions, the following principles can be discerned:
(a)the fact of paternity is a matter to be taken into account, together with all of the other facts and circumstances of the case;[43]
(b)even if a deceased did not know of the existence of the biological child, if the applicant has a strong case on the other relevant matters (needs, size of estate, and lack of competing claims), the applicant may succeed;[44] and
(c)quite long periods of no contact are not necessarily fatal to an application under the Family Provision Act.[45]
[43] Lo Surdo v Public Trustee [2005] NSWSC 1186 [63].
[44] Nicholls v Hall [2007] NSWCA 356; (2007) 2 ASTLR 419 [43].
[45] Nicholls v Hall [2006] NSWSC 1377 [40].
It must be emphasised that these decisions concern an application by a biological child for whom no provision is made. This is a very different factual situation to the dispute in this case of a claim by a mother from the estate of her son where a number of the other beneficiaries of the statutory will are his biological father, with whom the Deceased had only limited contact over his lifetime, and half‑siblings with whom the Deceased had little or no contact or relationship.

Estrangement

In assessing the claims of the Indich group, these defendants submitted that the court should have regard to what they contended was the cause of their limited relationship with the Deceased, namely the alleged hostility of the plaintiff towards them.
Section 6(3) of the Family Provision 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.
In Lathwell v Lathwell, the Court of Appeal summarised the relevance of an estrangement between the testator and an applicant in the following terms:[46]
Section 6(3) of the Act empowers the court to refuse to make an order in favour of any person on the ground that that person's conduct is such 'as in the opinion of the court' to disentitle that person to the benefit of an order. In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 156, Gibbs J said that the question whether conduct is sufficient to disentitle an applicant to relief, must depend not only on the nature of the conduct itself, but also to some extent, on the strength of his need or claim to the provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been that person's conduct to disentitle them to the benefit of any provision. Conduct amounting to disentitling conduct must refer to character or conduct 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. See Delacour v Waddington (1953) 89 CLR 117, 127. In Goodchild v James (1994) 13 WAR 229, 239, Ipp J said that an estrangement between testator and child may reduce the moral claim the child might have to maintenance or support or advancement. The word 'estrangement' does not in fact describe the conduct of either party. 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.
[46] Lathwell v Lathwell [2008] WASCA 256 [33].

Onus and general observations on credibility

The plaintiff bears the onus of proving that the Deceased failed to make adequate provision for her. This needs to be proved to the reasonable satisfaction of the court.[47]
[47] Family Provision Act 1972 (WA), s 4(2).
In this case, evidence was adduced by affidavits and there was very limited cross-examination of witnesses apart from the plaintiff. There are very few contemporaneous documents. Apart from the evidence of Ryan John Eaton, the administrator of the Deceased's estate (first defendant), all of the witnesses have a self-interest in the proceedings in advancing their own claim or preserving their entitlements.
I also recognise that: [48]
Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.
[48] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).
At trial, the plaintiff, Mr Indich (second defendant), Ms Corbett (third defendant), Ms Ryder (Marlee) (tenth defendant) and Mr Hodder (Cory) (eleventh defendant) were called to give evidence. Affidavits of Ms Narrier (fourth defendant) and Ms Indich (seventh defendant) were tendered and they were not required to attend for cross-examination.
The witnesses generally presented as doing their best to give an accurate account of their relationship with the Deceased and the matters on which they were asked to give evidence.
The plaintiff was cross-examined at relative length about when the second defendant first saw the Deceased and the extent of the relationship between the Deceased and the second defendant. To the extent that it is relevant, on these matters, I prefer the evidence of Mr Indich. His evidence, that he was unaware of the Deceased's birth until a significant time after his birth,[49] is more consistent with the contemporaneous evidence, including the birth certificate of the Deceased, and the fact that the plaintiff and second defendant were not in a relationship at the time of the Deceased's conception or his birth. I also accept Mr Indich's evidence that he saw the Deceased more than three times over his lifetime, which was the evidence-in-chief of the plaintiff.[50]
[49] Exhibit 11 [11], [19] - [20], [22], [28].
[50] ts 109.
Ultimately, for the reasons which follow, the differences in their evidence are not material to the outcome of this matter. Even on Mr Indich's evidence, he had only limited contact with the Deceased over his lifetime and spent time with him on relatively few occasions. This is to be contrasted to the very significant role that the plaintiff had in the Deceased's life as his primary carer.
In addition, both the plaintiff and Ms Ryder were cross-examined about bank account entries which evidence withdrawals at Crown casino and whether these entries were for gambling.[51] In respect of this evidence, I accept that both the plaintiff and Ms Ryder had a card to operate the plaintiff's account and that, on occasions, both the plaintiff and Ms Ryder used money from the account for meals at the casino as well as gambling. I do not consider the evidence supports a finding being made that either the plaintiff or Ms Ryder have a gambling habit and do not make a finding to that effect.
[51] ts 131 - 133, 140 - 144, 196 - 197, 202, 204 - 207.

Plaintiff's claim for provision

The plaintiff, Miss Hodder, is the biological mother of the Deceased. She was born in 1962[52] and is currently 59 years old.
[52] ts 124.
Miss Hodder was only 20 years old when she had the Deceased.[53] Subsequently, the plaintiff had three other children: the ninth defendant, Marlee and Cory.
[53] Exhibit 2a [10].
Miss Hodder was not in a relationship with Mr Indich when she fell pregnant with the Deceased.[54] From the time of his birth, the Deceased had very significant health problems and spent lengthy periods in hospital.[55] The plaintiff's evidence is that, apart from approximately one year in about 1996, she was the primary carer of Mr Hodder for the entirety of his life. In about 1996, Mr Hodder lived with the plaintiff's brother and his wife,[56] and the plaintiff visited Mr Hodder at least once a week.[57]
[54] Exhibit 2a [12].
[55] Exhibit 2a [16] - [84].
[56] Exhibit 2a [103] - [104].
[57] Exhibit 2a [106].
The Deceased grew up with the plaintiff's other children and, for a period of time, the twelfth defendant.[58]
[58] ts 47 - 48.
The plaintiff was employed in various roles in a variety of locations throughout Western Australia over the Deceased's lifetime.[59] However, from the time of his accident in January 2006, she ceased work in Karratha to move back to Perth to be with Mr Hodder where he was hospitalised following his accident.[60] The move from Karratha back to Perth resulted in the breakdown of the plaintiff's long term relationship.[61] From that time until Mr Hodder's death, the plaintiff's sole employment was as one of Mr Hodder's permanent part-time carers.[62]
[59] Exhibit 2a [87].
[60] Exhibit 2a [118].
[61] Exhibit 2a [120].
[62] Exhibit 2a [217].
Immediately prior to the Deceased's death, Miss Hodder lived with Mr Hodder at the Warwick property. She did not pay rent to live at the Warwick property and the costs of utilities were paid for by the Deceased.[63] At that time, her income was $3,992.10 per fortnight. This comprised $1,980 per fortnight in wages from Reece Care Pty Ltd (a private company established for the payment of wages to Mr Hodder's carers following receipt of the judgment sum), a weekly household allowance of $600 from the Reece Hodder Trust (which was managed by National Australia Trustees Ltd), and a carer's pension of $812.10 per fortnight from Centrelink.[64]
[63] ts 202.
[64] Exhibit 2a [220] - [221].
Following the Deceased's death, all payments to the plaintiff ceased.[65]
[65] Exhibit 2a [222].
Miss Hodder's evidence is that at the time of the Deceased's death, she had no significant assets or savings, apart from personal and household items, which she valued at approximately $5,000.[66]
[66] Exhibit 2a [253].
The plaintiff's evidence is that between 18 November 2013 and mid‑2014, she had no income.[67] In late 2014, the plaintiff received two interim payments from the Deceased's estate (as an advance on her entitlement) totalling $90,000.[68] She used these funds to repay debts and applied the balance to her general living expenses.[69]
[67] Exhibit 2a [228].
[68] Exhibit 2a [230] - [231].
[69] Exhibit 2a [232].
From 27 June 2015 until June 2018, the plaintiff worked as a patient support assistant at Graylands Hospital. Over this period, the plaintiff's weekly income varied from $585.92 to $937.22 (after tax).[70]
[70] Exhibit 2a [237] - [241].
At the time these proceedings were commenced in October 2015, the plaintiff was living at the Warwick property with her adult daughter, Ms Ryder. At that time, the plaintiff estimated her weekly living expenses were $234.25.[71] This estimate was prepared on the basis that:
(a)the plaintiff was not required to pay rent for living at the Warwick property and that if she was required to pay rent, her living expenses would increase by between $500 - $600 per week;[72]
(b)Ms Ryder paid for food and the plaintiff paid the bills for the house;[73]
(c)Ms Ryder paid the gas and electricity accounts, to which the plaintiff contributed;[74] and
(d)the plaintiff did not own a vehicle and used the van which forms part of the Deceased's estate. The insurance and registration on this vehicle were paid by the first defendant.[75]
[71] Exhibit 2a [250].
[72] Exhibit 2a [262] - [263].
[73] ts 159.
[74] Exhibit 2a [248] - [249].
[75] Exhibit 2a [251] - [252].
In addition to these expenses, the plaintiff's evidence is that she gave $100 to $300 to Ms Ryder each week when she could, to assist in the payment of gas and electricity bills.[76] At that time, the plaintiff owed almost $7,000 to various entities.
[76] Exhibit 2a [249].
The plaintiff deposed to what she considered her future costs would be. These costs included:
(a)the purchase of a small vehicle (which she estimated would cost between $15,000 - $20,000);[77]
(b)the renovation of the Warwick Property (estimated to be $60,000);[78]
(c)reimbursement of her brother for the financial support he provided during the Deceased's lifetime (estimated to be between $50,000 and $100,000);[79]
(d)the costs of a holiday of $10,000;[80]
(e)further study, estimated to be approximately $40,000;[81] and
(f)future legal costs.
[77] Exhibit 2a [277].
[78] Exhibit 2a [278] - [279].
[79] Exhibit 2a [280].
[80] Exhibit 2a [281].
[81] Exhibit 2a [283] - [289].
At the time of the hearing, the plaintiff had ceased work, no longer had a monthly income (apart from the advances she received from the Deceased's estate) and her expenses had increased. At present, the plaintiff lives at the Warwick property with the eleventh defendant's two young daughters and the ninth defendant's daughter, Luvata. By order of the Family Court, the plaintiff has shared parental responsibility for Cory's daughters with Cory's stepmother.[82] Luvata (who is currently 13 years old) moved in with the plaintiff in mid‑August 2020 and attends the local high school.[83] When Cory is in Perth, he also lives at the Warwick property.
[82] Exhibit 2b [13] 'EGH1'; Exhibit 2c [17].
[83] Exhibit 2c [17].
There was a dispute on the evidence as to whether Ms Ryder continued to reside with the plaintiff or had moved out. To the extent that it is relevant, I prefer the evidence of Ms Ryder that she still resides with the plaintiff but stays with her partner on a regular basis.[84]
[84] ts 199 - 200.
Since the plaintiff has become the primary carer of Cory's daughters, she has ceased work. Her only income is the advance she receives from the first defendant of $1,300 per fortnight, which has been paid to her as an advance of her entitlement from the Deceased's estate.[85] Initially, the plaintiff received $1,000 per fortnight but this was increased to $1,300 per fortnight in September 2019. From January 2014 until the date of the hearing, the plaintiff has been advanced $393,241.87 from the Deceased's estate.[86] This amount will need to be deducted from any amount the plaintiff receives.
[85] Exhibit 2b [22].
[86] Exhibit 4.
In addition to the regular fortnightly advance she receives, the first defendant has also paid certain of the plaintiff's medical expenses, as well as expenses associated with the Warwick property (including rates and insurance) and the vehicle previously used by the Deceased (registration, insurance and servicing costs). The plaintiff has used some of the lump sum payments she received from the first defendant to repay a $28,000 debt to Centrelink.[87] In addition to the Centrelink debt, the plaintiff currently has debts of about $20,000 which are subject to payment plans.[88]
[87] ts 145.
[88] Exhibit 2b [24].
Both Ms Ryder and Mr Hodder gave evidence that they contribute to the costs of the plaintiff's household; Ms Ryder by paying for groceries and Mr Hodder by paying $200 - $300 to the plaintiff a fortnight.[89] I accept Ms Ryder's evidence that she contributes to the costs of the household by paying for groceries. The plaintiff agreed that Ms Ryder made this contribution, which is consistent with the arrangement that existed at the time of the Deceased's death. In relation to Mr Hodder, I accept the evidence of the plaintiff that he contributes to the costs when he can but not on a regular basis.[90] I consider that this is more consistent with the plaintiff's evidence that Mr Hodder does not live with her on a full-time basis, but only when he is in Perth, and that he has previously worked in the north-west of Western Australia. This is also consistent with Mr Hodder's own evidence-in-chief.[91]
[89] ts 200 - 202, 211; Exhibit 6 [56].
[90] Exhibit 7 [42].
[91] See Exhibit 7 [39].
As at February 2020, the plaintiff estimated her general living expenses were $904.50 per fortnight.[92] These costs included the costs of providing for Mr Hodder's daughters. Again, this estimate was prepared on the basis that the plaintiff does not pay rent for living at the Warwick property or for the costs of a vehicle. The plaintiff's evidence is that she wishes to undertake further study, if this can be accommodated with her responsibility for Mr Hodder's daughters.[93]
[92] Exhibit 2b [23].
[93] Exhibit 2b [18] - [19].
The plaintiff has been diagnosed with clinical depression since at least October 2015.[94] Miss Hodder is currently seeing a psychologist, Dr Wigley, twice a week for counselling.[95] Each one hour session costs $100.[96]
[94] Exhibit 2a [269].
[95] Exhibit 2c [18].
[96] ts 145.
Dr Wigley gave evidence at the hearing before me. His opinion is that the plaintiff is currently experiencing an episode of major depressive disorder.[97] He considered that this can be treated by medication and talking therapy. He estimated that it would be necessary for counselling to continue for at least 5½ months.[98]
[97] Exhibit 5.
[98] ts 188 - 189.

Financial circumstances of each of the defendants and their relationship with the deceased

David Indich (Second defendant)

The second defendant is the biological father of the deceased. He was born on 16 April 1948[99] and is currently 73 years old. The second defendant's evidence is that he was not aware that the Deceased was his child until many years after his birth.
[99] Exhibit 11 [2].

Mr Indich agrees that he was never in a relationship with the plaintiff and that Mr Hodder was born following brief contact between them when he was in Mingenew in Western Australia.[100] Shortly after this, he returned to Alice Springs where he lived and worked for seven years.[101] Mr Indich's evidence is that the plaintiff did not tell him she was pregnant with the Deceased and that he was not aware until a much later date that Mr Hodder was his son.[102]
[100] Exhibit 11 [4] - [6].
[101] Exhibit 11 [7].
[102] Exhibit 11 [11], [20].
I accept Mr Indich's evidence that he was not aware that the Deceased was his son until well after his birth. This is more consistent with the limited objective evidence at the time, such as the Deceased's birth certificate, which does not record him as the father, and the fact that the plaintiff and Mr Indich were never in a relationship.
Mr Indich says that after he became aware that the Deceased was his son, he attempted to develop a relationship with him. His evidence is that he first met the Deceased at the plaintiff's home in Perth.[103] The next time that Mr Indich saw the plaintiff was when the plaintiff and the Deceased were living in Geraldton. Mr Indich's evidence is that the Deceased spent five or six weekends with him.[104] He also says that when the Deceased was hospitalised in Geraldton, he visited him daily.[105] After Mr Hodder left hospital in Geraldton, Mr Indich never saw him again.[106] It was not clear how old the Deceased was at this time.
[103] Exhibit 11 [27] - [32].
[104] Exhibit 11 [37] - [45].
[105] Exhibit 11 [51].
[106] Exhibit 11 [52].
Mr Indich was not informed by the plaintiff of the Deceased's death and did not attend his funeral.[107]
[107] Exhibit 11 [54] - [55].
Mr Indich's evidence is that his financial position has not changed significantly from the time of the Deceased's death until the date of trial. Mr Indich receives a fortnightly pension of $575.[108] He resides in HomesWest accommodation with his cousin for which he pays $280 a fortnight.[109] At the hearing, Mr Indich's evidence was that his cousin is moving to Albany and that, as a result, he may become homeless.[110]
[108] Exhibit 11 [60].
[109] Exhibit 11 [58].
[110] ts 155 - 156.
He has no assets and has personal possessions of only negligible value.[111] His evidence is that he is reliant on assistance from agencies and charitable organisations to supplement his income.[112]

Tania Marie Corbett (Third defendant)

[111] Exhibit 11 [59].

[112] Exhibit 11 [61].

The third defendant is the half-sister of the Deceased. She was born on 29 March 1970[113] and is currently 51 years old. She is single and has no children.[114]
[113] Exhibit 12 [5].
[114] Exhibit 12 [6].
Ms Corbett lives with her maternal grandparents and has been their carer since her early 20s. Ms Corbett has had only limited interaction with her father, the second defendant, over her life. Ms Corbett's evidence is that she only learnt about the Deceased when the plaintiff moved to Doubleview.[115] She acknowledges that she never knew or met the Deceased and did not over his lifetime attempt to contact Mr Hodder or the plaintiff.[116] She did not attend his funeral.[117] Ms Corbett's evidence is that she was discouraged from attempting to contact the Deceased or his family by Mr Indich, her father.[118]
[115] Exhibit 12 [13].
[116] Exhibit 12 [30] - [32].
[117] Exhibit 12 [38].
[118] Exhibit 12 [37].
Ms Corbett is currently employed at Murdoch University and earns $63,700 per year.[119] She estimates her annual expenses to be $15,000.[120]

Tammy Lee Narrier (Fourth defendant)

[119] Exhibit 12, 'Annexure B'.

[120] Exhibit 12 [25], 'Annexure B'.

The fourth defendant is the half-sister of the Deceased. She was born on 23 September 1976[121] and is currently 44 years old. She has four dependent children ranging in age from 6 to 17 years old.[122]
[121] Exhibit 8 [4].
[122] Exhibit 8 [6].
Ms Narrier acknowledges that she had minimal contact with Mr Hodder over his lifetime but says this was due to the plaintiff refusing to allow her to build a relationship with him.[123]
[123] Exhibit 8 [13], [16] - [18].
Ms Narrier is entirely dependent on the benefits she receives from Centrelink. Her monthly income is approximately $1,500.[124] Ms Narrier gave no evidence as to her monthly expenses.

Tamara Rose Indich (Seventh defendant)

[124] Exhibit 8 [11].

The seventh defendant is the half-sister of the Deceased. She was born on 27 April 1985[125] and is currently 36 years old. She has three dependent children ranging in age from 9 to 16 years old.[126]
[125] Exhibit 9 [4].
[126] Exhibit 9 [7].
Ms Indich acknowledges that she had minimal contact with the Deceased over his lifetime but says this was due to the plaintiff refusing to allow her to build a relationship with him.[127]
[127] Exhibit 9 [12].
Ms Indich is entirely dependent on the benefits she receives from Centrelink.[128] Her monthly income is approximately $1,200. Ms Indich gave no evidence as to her monthly expenses.

Marlee Rose Ryder (Tenth defendant)

[128] Exhibit [9].

The tenth defendant is the plaintiff's daughter and the half-sister of the Deceased. She was born on 1 September 1988[129] and is currently 32 years old. She does not have any children of her own although she is the carer for one of her cousin's children and intends to adopt the child.[130]
[129] Exhibit 6 [3].
[130] Exhibit 6 [49] - [50].
Marlee says that she had a close relationship with Mr Hodder over his lifetime and was one of his carers after his accident.[131] Her evidence was that both before and after his accident, she gave Mr Hodder money on occasions.[132] She estimated that this amounted to 'thousands of dollars' over the years.[133]
[131] Exhibit 6 [13], [29] - [30].
[132] Exhibit 6 [34] - [35].
[133] Exhibit 6 [36].
Marlee is dependent on the benefits she receives from Centrelink. Her monthly income is approximately $2,000.[134] Her evidence is that her living expenses are about the same amount.[135] These expenses do not include rent, as Ms Ryder lives with the plaintiff at the Warwick property.
[134] Exhibit 6 [53].
[135] Exhibit 6 [54] - [56].
Marlee has also received a number of advances from the Deceased's estate which she has used to pay outstanding bills and to travel to a funeral.[136]

Cory Desmond Hodder (Eleventh defendant)

[136] Exhibit 6 [62].

The eleventh defendant is the plaintiff's son and the half-brother of the Deceased. He was born on 31 December 1991[137] and is currently 29 years old. He has two daughters aged 2 and 3 who live with the plaintiff on a full-time basis.[138]
[137] Exhibit 7 [4].
[138] Exhibit 7 [7] - [8].
Cory is the youngest child of the plaintiff and grew up with the Deceased until he was approximately 14 years of age.[139] From this time until the death of the Deceased, he saw the Deceased regularly.
[139] Exhibit 7 [9] - [16].
Cory is dependent on the benefits he receives from Centrelink. His income is approximately $675 per week and his living expenses are of a similar amount.[140] He has debts of approximately $15,000.[141] While Cory is in Perth, he lives with the plaintiff at the Warwick property.
[140] Exhibit 7 [40] - [43].
[141] Exhibit 7 [48].

Plaintiff's submissions

Counsel for the plaintiff submitted that the plaintiff's contribution to the Deceased's life was 'overwhelming in its extent and quality'[142] and that a wise and just testator would have made provision for almost the entirety of their estate to go to the plaintiff.[143]
[142] Plaintiff's submissions [19e].
[143] Plaintiff's submissions [19f].
The plaintiff contended on the facts of this case, the law of intestacy operated 'irrationally'.[144] The plaintiff's counsel emphasised that the effect of the Administration Act was that Miss Hodder, who cared and supported the Deceased over the entirety of his life received the same provision from his estate as his father 'who had almost nothing to do with [the Deceased] during his entire life'.[145] Further, that siblings the Deceased lived with received the same provision as those whom he had not met and 'may not have even known about'.[146] Counsel for the plaintiff submitted that:[147]
If the operation of the intestacy provisions are interpreted to include total strangers to the deceased as part of the testator's family, its operation becomes irrational. Courts can't be expected to apply principles involving moral duties and moral claims to complete strangers to the deceased.
[144] ts 41.
[145] ts 39.
[146] ts 39.
[147] ts 46.
The plaintiff contended that the court needed to make a 'value judgment' in relation to the second to eighth defendants and that this would require a significant adjustment to the statutory will arising out of the intestacy provisions.[148]
[148] ts 40 - 41, 47.

Defendants' submissions

Mr Indich submitted that the plaintiff had not discharged her onus of establishing that the sum provided to the plaintiff on the Deceased's intestacy was insufficient to make adequate provision for her (the jurisdictional question) and that, on this basis, the application should be dismissed.[149]
[149] Second defendant's submissions [8].
Counsel for Mr Indich submitted that, in the event that the court answered the jurisdictional question in favour of the plaintiff, that the plaintiff had prevented Mr Indich from having more regular contact with the Deceased.[150] Mr Indich emphasised his precarious financial situation both at the time of Mr Hodder's death and the date of the hearing. He contended that this did not justify adjusting the respective entitlements of the plaintiff and the second defendant.[151]
[150] Second defendant's submissions [14] - [16].
[151] Second defendant's submissions [22].
All of the other defendants conceded that the jurisdictional question had been met.
Counsel for each of the third, fourth and seventh defendants submitted that in considering the claim of the plaintiff, the court should take into account the animosity between the plaintiff and the second defendant and his children which prevented them from establishing an ongoing relationship with the Deceased.[152] Counsel for each of these parties addressed the needs of each of the defendants and emphasised that their statutory entitlements should be maintained.[153]
[152] Third defendant's submissions [6]; Fourth and seventh defendants' submissions [16] - [17]; Exhibit 8 [16] - [18]; Exhibit 9 [12] - [13].
[153] Third defendant's submissions [10]; Fourth and seventh defendants' submissions [14].
The ninth, tenth and eleventh defendants submitted that in exercising its discretion at the second stage, the court should take into account the nature and strength of the relationship that each of these defendants had with the Deceased in contrast to his relationship with the remaining defendants.[154] In their submissions, further provision could be made for the plaintiff from the statutory entitlements of the second to fourth, seventh, eighth and twelfth defendants without disturbing their own entitlement.[155]
[154] Ninth defendant's submissions [11]; Tenth defendant's submissions [4] - [6]; Eleventh defendant's submissions [7].
[155] Ninth defendant's submissions [12]; Tenth defendant's submissions [12]; Eleventh defendant's submissions [7].

Disposition

Jurisdictional question

At trial, all defendants apart from the second defendant and the eighth and twelfth defendants (who did not participate in the hearing) conceded that the jurisdictional question was met and that the provision for the plaintiff under the laws of intestacy did not provide for her proper maintenance, support, education or advancement of life. In my view, for the reasons that follow, that concession was properly made.
First, it was accepted by all parties that over the 30 years of the Deceased's life, the plaintiff was his primary carer. While the plaintiff was employed in various roles over the Deceased's lifetime, from the date of his accident, she was unable to work in any paid employment apart from her work as one of his carers. Her move back to Perth following Mr Hodder's accident resulted in the breakdown of her long‑term relationship. I accept that the plaintiff was the primary and a dedicated carer to Mr Hodder over his life who made significant sacrifices in her own life for the benefit of the Deceased.
Second, on the evidence before me, I find that the plaintiff had a close and loving relationship with Mr Hodder. The totality of the plaintiff's relationship with the Deceased was a substantially and significantly closer relationship than Mr Hodder's relationship with any of the other defendants.
Third, at the time of her son's death, the entirety of the plaintiff's income, as well as her residence, was a result of her role as his carer. I find that at the time of the Deceased's death, the plaintiff was financially dependent on her son as all of her income was derived from her status as carer for her son. I find that her net asset position was essentially nil and her life expectancy at that time was that she would live for approximately another 26 years.[156] On this basis, I find that as at the date of Mr Hodder's death, the plaintiff could not maintain herself out of her own resources.
[156] Exhibit 3.
As at November 2013, the plaintiff's needs could not be predicted with complete certainty but included the need for a home, a motor vehicle, sufficient funds to repay her debts and funds for payment of her living expenses. She required capital or income to be able to meet these needs and to satisfy contingencies (including remote contingencies) that may arise in the future.
Fourth, the Deceased's estate was substantial.
Having regard to the totality of the plaintiff's relationship with the Deceased and her needs, I find that the plaintiff has an extremely strong moral claim on the Deceased's estate for her proper support and maintenance. I find that the plaintiff's claim is significantly stronger than any of the other defendants.
I find that the ninth, tenth, eleventh and twelfth defendants have a significantly stronger claim than the other defendants. This is on the basis that each of them grew up with the Deceased, had an ongoing relationship with him and assisted in caring for him, both before and after his accident. On this basis, I accept that a wise and just testator would have made provision for these defendants in their will.
In respect of the second to eighth defendants, I find that these beneficiaries have no moral claim on the Deceased's estate other than the claim which arises because of their statutory entitlement under the Administration Act. The evidence before me, which I accept, is that none of these defendants had a close or regular ongoing relationship with the Deceased during his lifetime.
For the following reasons, I am satisfied that the provision of $1.158 million in the statutory will of the Deceased to the plaintiff is not adequate for her proper maintenance, support, education or advancement of life.
At the time of the Deceased's death, the plaintiff's income was $3,900 per fortnight and her expenses were approximately $18,000 per annum (excluding any costs associated with housing including the purchase price of a house or rent). Allowing for costs associated with home ownership (including rates, insurance, utilities and maintenance) of $11,300 per annum[157] and a motor vehicle (including insurance, registration and servicing) of $4,000 together with contingencies,[158] I consider that at the time of the Deceased's death, the adequate maintenance of the plaintiff required an amount of not less than $40,000 per annum. For the purpose of assessing the adequacy of the plaintiff's claim as at the date of the Deceased's death, I have assumed a life expectancy of 76,[159] or for another 26 years. This would require the sum of $1,040,000, excluding the costs of an appropriate home and motor vehicle.
[157] Based on the average annual costs of the Warwick property set out in Exhibit 4.
[158] Based on the average annual costs of the motor vehicle set out in Exhibit 4.
[159] Exhibit 3.
At the time Mr Hodder died, the plaintiff was residing with him and Marlee at the Warwick property. It was reasonably foreseeable that after his death, at least one or more of the plaintiff's other children would reside with her. For that reason, I find that at the time of the Deceased's death, the plaintiff required a three to four bedroom house to accommodate her and her family. However, I do not consider that it was reasonably foreseeable that at the date of Mr Hodder's death, the plaintiff would be primary carer for two young children. At that time, neither of Cory's children were born.
No evidence was adduced by any party as to rental payments or the purchase price of houses in the Perth market, in particular whether there is any significant difference in the cost of a three bedroom house or a four bedroom house. In reaching my decision, I have had regard to the agreed value of the Warwick property of $660,000.
It is clear when the cost of an appropriate house and a motor vehicle is taken into account, together with the sum referred to in [114], that the amount of $1.158 million that the plaintiff received from the statutory will of the Deceased was not adequate for her proper maintenance, support, education or advancement.
I consider that in all the circumstances, including contemporary accepted community standards, the Deceased did not discharge his moral duty to the plaintiff by providing for her proper maintenance, support, education and advancement in life under his statutory will.

Discretionary question

Having found that the provision for the plaintiff on the intestacy of the Deceased did not make adequate provision for her proper maintenance, support, education and advancement in life, the court is required to exercise its discretion, taking into account the facts as they currently exist. In doing so, I take into account the considerations that would inform a just and wise testator.
While the second stage requires the court to exercise a discretion, it must be done judicially. This means 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 the Deceased's estate but must be exercised within the confines of the statutory regime and on the evidence before the court.
In this regard, I reject the submission of the plaintiff that the court should effectively rewrite the Deceased's will by increasing not only the entitlement of the plaintiff but also the ninth, tenth and eleventh defendants and reducing the entitlements of all other defendants. The court on an application under the Family Provision Act does not have unlimited liberty to rewrite the Deceased's will.
In this case, the other people besides the plaintiff who have legitimate claims on the Deceased's estate, are his father and each of his half‑siblings.
Under the Administration Act, the legislature has provided that an estate of an individual who dies without a will is to be divided in accordance with the statutory provisions. The division is, with the exception of spouses or de facto spouses, on the basis of the biological relationship that exists between the deceased and the beneficiary and specifically defines siblings as including siblings of 'half blood'.[160] For this reason, I reject the submission by the plaintiff that the result of the statutory will under the Administration Act, in extending the beneficiaries to half siblings, is irrational and could not have been intended by the legislature.
[160] Administration Act 1903 (WA), s 12B.
I turn then to the question of estrangement. The question of whether the testator and an applicant were estranged is relevant, at the second stage, to the consideration as to whether there has been disentitling conduct on the part of the applicant. The more an applicant has a significant need, the more 'reprehensible' their conduct has to be to disentitle them from any claim.

In this case, I do not consider that the question of estrangement or who caused or contributed to the estrangement between the plaintiff and the Indich group is relevant to the determination of the plaintiff's claim. This is because the estrangement relied upon by the Indich group is not the estrangement between them and the Deceased but between the plaintiff and each of them. The question as to whether the plaintiff's conduct was a factor in the relationship between the Deceased and the Indich group is not a matter that the legislature has considered to be relevant to the determination of this claim.
In relation to the financial position of the parties at the date of the hearing, I accept and find that the financial position of each of the defendants had not changed in any significant way since the date of the Deceased's death. All of the defendants have and continue to have a significant financial need. In contrast, since the date of the Deceased's death, the plaintiff's expenses have increased significantly.

Size of Deceased's estate

As at the date of the Deceased's death, I find that the value of his estate was $4,627,256.23.
As at 8 September 2020, the value of the Deceased's estate was $4,644,246.[161] His estate comprises the following assets:
(a)the Warwick property which as at 7 June 2016 was valued at $660,000;
(b)a Toyota Hi-Ace van valued at $14,600;
(c)debts due to the estate (of advances made to the plaintiff, the ninth defendant, Tammy Narrier, Marlee Ryder and Cory Ryder) of $399,396.12; and
(d)investments of $3,695,516.33 less liabilities of $125,265.68, being $3,570,250.65.

Conclusion

[161] Exhibit 10, ‘RJE1’.

I have considered all of the evidence before me and have taken into account all relevant circumstances including:
(a)the size of the Deceased's estate;
(b)the nature of the relationship between the plaintiff and the Deceased, in that the plaintiff was the long-term primary carer of her disabled son for all of this life;
(c)the plaintiff's age as at the date on which judgment is to be delivered;
(d)the plaintiff's financial and other circumstances;
(e)contingencies (including remote contingencies) which may arise in the future having regard to the plaintiff's circumstances and the vicissitudes of life generally;
(f)the nature of the relationship between the Deceased and the other persons with legitimate claims on his estate, namely his father, and half-siblings;
(g)the financial and other circumstances of these claimants; and
(h)what the statutory will provided in relation to the Deceased's estate.
As set out above at [117], in my view, adequate provision for the plaintiff's maintenance, support, education and advancement should include the transfer of the Warwick property to the plaintiff, together with a sufficient capital sum to provide for a motor vehicle, repayment of her debts and sufficient capital to meet her living expenses for the remainder of her life, together with a sufficient contingency. While I accept the plaintiff has an emotional attachment to the vehicle that forms part of the Deceased's estate, I do not consider that an allowance should be made for both the transfer of this vehicle and the purchase of a new motor vehicle for her use. On the evidence before me, I do not consider the plaintiff requires a vehicle of the size of the Toyota Hi-Ace and accordingly, have allowed an amount for the purchase of a small vehicle. If the plaintiff wishes to retain the Toyota Hi-Ace van, this can be the subject of a commercial agreement with the first defendant.
On the evidence before me, I find that the plaintiff's expenses are $1,300 per fortnight (based on the fortnightly advances she has received from the first defendant) or $33,800 per annum. In addition to this sum, I consider that an allowance should be made for:
(a)costs associated with home ownership (including rates, insurance, utilities and maintenance) of $11,300 per annum;[162]
(b)costs associated with the maintenance of a motor vehicle (including insurance, registration, and servicing) of $4,000 per annum;[163]
(c)the purchase of a motor vehicle of $20,000;
(d)ongoing counselling for a period of six months at a cost of $200 per week;
(e)repayment of the plaintiff's debts; and
(f)contingencies.
[162] Based on the average annual costs of the Warwick property set out in Exhibit 4.
[163] Based on the average annual costs of the motor vehicle set out in Exhibit 4.
I consider that at the time of the Deceased's death, the adequate maintenance of the plaintiff required the Warwick property be transferred to the plaintiff together with a capital sum of $2,100,000. This amount comprises three amounts. First, the sum of $1,300,000 to provide the plaintiff with an income of approximately $50,000 per annum, on the assumption of the plaintiff's life expectancy of 76 years.[164] Second, an additional amount of $250,000 to cover the purchase of a motor vehicle, ongoing counselling, refurbishment of the Warwick property, repayment of her debts (including to her brother but excluding the advances she has received from the Deceased' estate) and for further education or advancement. Third, an additional sum of $550,000 to provide for contingencies, including any remote contingencies, that may arise over her lifetime.
[164] Exhibit 3.
In this case, the Deceased's estate is large enough to make provision for the plaintiff's proper maintenance and support and to meet the legitimate claims of the other defendants to his estate as at the date of the Deceased's death.
Excluding the legal costs of the parties, which I address below, this provision equates to approximately 60% of the Deceased's estate as at the date of trial. In considering what adjustments to the statutory will are required, I have taken into account the circumstances of each of the other defendants, including the totality of their relationship with the Deceased and their own financial position.
Apart from the third defendant, I accept that the financial circumstances of the remaining defendants are dire and their needs great. I accept that the remaining defendants cannot maintain themselves out of their own resources.
Turning first to the second defendant, I find that he did not have a strong or ongoing relationship with the Deceased over his lifetime. His life expectancy is significantly less than the remaining defendants.[165]
[165] Exhibit 3.
In relation to the third defendant, I find that her financial circumstances are significantly better than any other defendant. She is employed and has been for a lengthy period of time, although she has no assets. The third defendant accepts that she never met the Deceased and did not have any relationship with him over his lifetime.
The fourth and seventh defendants did not have a significant or ongoing relationship with the Deceased. In relation to each of them, I accept that while their 'moral claim' is slight, the need of each of them is great.
The eighth defendant has not adduced any evidence as to her financial circumstances. Accordingly, I assume that she has no special claim and has adequate resources on which to live.
Each of the ninth, tenth and eleventh defendants had a significant and ongoing relationship with the Deceased over his lifetime. They grew up with him and assisted the plaintiff to care for him both before and after his accident. I accept that a wise and just testator would have made provision for each of these defendants in their will. I also accept that each of these defendants had unmet financial needs as at the date of the Deceased's death.
Finally, in respect of the twelfth defendant, while Mr Narrier's estate did not take part in the proceedings, there is evidence before me, which I accept, that Mr Narrier had an ongoing relationship with the Deceased over his lifetime.
Taking all of these matters into account, I consider that the additional provision for the plaintiff can be provided by:
(a)removing the eighth defendant as a beneficiary of the Deceased's estate;
(b)reducing the second defendant's entitlement by $1,000,000 to a lump sum of $158,314.06; and
(c)reducing the entitlement of the third defendant and twelfth defendant to 50% of an equal share of the remainder of the estate with the remaining defendants (the fourth, seventh, ninth, tenth and eleventh defendants).
Otherwise, it is my view that each of the remaining defendants (fourth, seventh, ninth, tenth and eleventh defendants) should retain their provision under the statutory will, namely an entitlement to an equal share of the remainder of the Deceased's estate after payment of the lump sums to the plaintiff and the second defendant.

Costs

During the course of the hearing, I asked the parties to provide me with an estimate of their costs on a confidential basis. Based on the information available to me about the quantum of the parties' legal costs, if each of the parties' costs were to be paid from the estate on a solicitor-own client basis, this would reduce the value of the Deceased's estate by between $600,000 and $750,000. This would, in my view, have a disproportionate effect on all parties apart from the plaintiff and the second defendant. Given that I cannot estimate with confidence what the quantum of the costs will be nor where the burden of those legal costs should fall, I will hear the parties in relation to costs before making final orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
21 MAY 2021