Howitt as Executor of the estate of the late Margaret Norma Howitt v Bosschieter

[2025] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Howitt as Executor of the estate of the late Margaret Norma Howitt v Bosschieter [2025] NSWCA 179

Hearing dates:

19 June 2025

Date of orders:

8 August 2025

Decision date:

08 August 2025

Before:

Ward P at [1]
Kirk JA at [2]
Free JA at [3]

Decision:

(1)   Appeal allowed.

(2)   Orders 2 and 3 of the court below of 9 December 2024 be set aside.

(3)   Orders 1 and 3 of the court below of 21 February 2025 be set aside.

(4)   In lieu thereof order that:

(a)   The summons filed on 9 February 2023 be dismissed.

(b)   The plaintiff is to pay the defendant’s costs of the summons.

(5)   The respondent is to pay the appellant’s costs of the appeal.

Catchwords:

SUCCESSION – Family provision – Respondent grandchild beneficiary under will of deceased grandmother – Respondent lived with and cared for deceased – Respondent dissipated $200,000 obtained unconscionably from the deceased – Whether primary judge erred in granting further provision to the respondent – Provision unreasonable and plainly unjust

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 58, 59, 60

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Angius v Angius [2025] NSWCA 113

Bassett v Bassett [2021] NSWCA 320

Bowditch v NSW Trustee & Guardian [2012] NSWSC 275

Chisak v Presot [2022] NSWCA 100

Curtis v Curtis [2024] NSWCA 136

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

Frank v Angell [2024] NSWCA 26

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

Lodin v Lodin [2017] NSWCA 327

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

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

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Sun v Chapman [2022] NSWCA 132

Yee v Yee [2017] NSWCA 305

Category:

Principal judgment

Parties:

David Howitt (as Executor of the estate of the late Margaret Norma Howitt) (Appellant)
Justine Bosschieter (Respondent)

Representation:

Counsel:
W G Muddle SC / P W McDonald (Appellant)
D Reid (Respondent)

Solicitors:
Clear Lawyers (Appellant)
Premier Compensation Lawyers (Respondent)

File Number(s):

2024/479648

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2024] NSWSC 1676

Date of Decision:

23 December 2024

Before:

Slattery J

File Number(s):

2023/43848

HEADNOTE

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

The appellant, David Howitt, is the executor of the estate of the late Margaret Norma Howitt, who died in 2022. Margaret’s two principal assets before her death were the family home in Forestville (Forestville House) and her life savings of just over $200,000 held in a term deposit with the Commonwealth Bank of Australia. Margaret had four children and eight grandchildren, the eldest of whom was Justine Bosschieter (the respondent in the appeal). Justine lived with Margaret and acted as her carer for several years prior to Margaret’s death.

Margaret’s final will was made in 2021 (2021 Will). Margaret considered a number of options as to the treatment during her lifetime and under her will of the Forestville House and her life savings. She ultimately decided under the 2021 Will to divide those assets equally five ways between her children and Justine.

In November 2021, Justine arranged for Margaret to attend a branch of the Commonwealth Bank of Australia, where Margaret transferred her life savings to Justine. Justine quickly dissipated the funds.

Following Margaret’s death Justine commenced proceedings seeking an order for family provision in her favour under s 59 of the Succession Act 2006 (NSW). David, on behalf of the estate, brought a cross-claim seeking the recovery of Margaret’s life savings that had been transferred to Justine in November 2021.

David was wholly successful in his cross-claim in respect of the transfer of Margaret’s life savings. The primary judge found that this transaction was unconscionable and the result of actual undue influence on the part of Justine. His Honour ordered that Justine repay to the estate the money that had been transferred to her, with interest. Justine did not appeal from the resolution of the cross-claim.

As a grandchild seeking a family provision order, in order to show that she was an eligible person Justine was required to satisfy the precondition in s 57(1)(e)(i) of the Succession Act by demonstrating that she was, at a particular time, wholly or partly dependent on Margaret. The primary judge found that this was established, based on evidence about the first two years of Justine’s life, when Justine and her mother (who was 20 and single at the time of Justine’s birth) lived with Margaret and Allan.

The primary judge proceeded to find the jurisdictional preconditions in s 59(1)(b) and s 59(1)(c) were also satisfied. This entailed findings that there were factors which warranted the making of the application by Justine and that adequate provision for the proper maintenance, education or advancement in life of Justine had not been made in the 2021 Will. In relation to the latter question, and also in the context of considering the discretionary question under s 59(2) of whether an order for family provision ought to be made, the primary judge made a number of findings that were adverse to Justine, including that Justine had real resources to draw upon to advance herself in life, whereas other beneficiaries had a real need for the funds which they will inherit. This was in circumstances where Justine was entitled to receive under the 2021 Will around $410,000, after taking account of her obligation to repay the estate Margaret’s life savings plus interest. The primary judge also found that Justine had already obtained considerable benefits from her position as Margaret’s carer, including the carer’s pension and significantly reduced rent.

Notwithstanding these adverse findings, the primary judge found that the jurisdictional preconditions were satisfied and an order for family provision should be made in favour of Justine, on the basis that if Justine was not absolved from the consequences of her own actions in procuring the unconscionable transfer of Margaret’s life savings, so that she had to repay over $200,000 plus interest and costs, she would likely be left with very little to make her way in life, and that this would undermine the testamentary wishes of Margaret.

On appeal David challenged the conclusions of the primary judge that each of the jurisdictional preconditions in s 59(1) was satisfied, as well as the conclusion that it was appropriate pursuant to s 59(2) to make an order for family provision in favour of Justine.

The Court (Free JA, Ward P and Kirk JA agreeing), allowing the appeal, held:

As to ground 1, challenging the finding that Justine was an eligible person within the meaning of s 57(1)(e), rejecting this ground

1. The primary judge was correct in concluding that in the first two years of her life Justine was partly dependent on Margaret. The finding that Justine was primarily dependent on her mother during this time does not demonstrate error or involve inconsistency with the conclusion that Justine (and her mother) were also partly dependent on Margaret. A finding of dependency for the purposes of s 59(1)(e)(i) does not involve demonstrating that the deceased person stood in loco parentis to the claimant at the relevant time, and it is a distraction to seek to reframe the statutory question in those terms: [66]-[71].

Curtis v Curtis [2024] NSWCA 136, Spata v Tumino (2018) 95 NSWLR 706, Alexander v Jansson [2010] NSWCA 176, Chisak v Presot [2022] NSWCA 100, Bowditch v NSW Trustee & Guardian [2012] NSWSC 275, applied.

As to ground 2, challenging the finding that there were factors warranting the making of Justine’s application for further provision within the meaning of s 59(1)(b), rejecting this ground

2. The relatively cursory treatment of s 59(1)(b) in the reasons of the primary judge is readily explained by the way in which submissions on this topic were advanced at trial by David and by the fact that his Honour’s reasons for judgment deal with overlapping factual considerations in the context of a statutory scheme where there is considerable overlap between the various elements to be considered. The primary judge did not fail to consider the submissions advanced by David or otherwise ignore the requirement in s 59(1)(b): [72]-[91].

Frank v Angell [2024] NSWCA 264, Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679, Lodin v Lodin [2017] NSWCA 327, Spata v Tumino (2018) 95 NSWLR 706, Curtis v Curtis [2024] NSWCA 136, Yee v Yee [2017] NSWCA 305, Bowditch v NSW Trustee & Guardian [2012] NSWSC 275, referred to.

As to grounds 3 and 4, challenging the finding that s 59(1)(c) was satisfied and that it was appropriate to make an order under s 59(2), allowing these grounds

3. Grounds 3 and 4 involved a challenge to the primary judge’s finding that s 59(1)(c) was satisfied and the conclusion that it was appropriate in the Court’s discretion to make an order for family provision under s 59(2). In each case it was necessary for David to demonstrate House v The King error. The primary judge fell into error of that kind by taking into account irrelevant considerations and failing to take into account relevant considerations. The order for family provision in favour of Justine was also unreasonable and plainly unjust: [92]-[96].

House v The King (1936) 55 CLR 499; Singer v Berghouse (1994) 181 CLR 201; Durham v Durham (2011) 80 NSWLR 335; Frank v Angell [2024] NSWCA 26, applied.

4. There was not a sound basis on the facts as found for the conclusion that in the absence of an order for family provision Justine would be left without adequate provision to make her way in life. The findings of the primary judge supported the opposite conclusion. The notion that Justine ought be absolved from the consequences of her unconscionable conduct by making a family provision order that would negate the obligation to repay the money taken from Margaret was untethered from findings about Justine’s financial needs or financial resources: [97]-[112]. It also involved a failure to bring to account the significant adverse impact on other beneficiaries of an order for family provision in favour of Justine: [118]-[120].

Andrew v Andrew (2012) 81 NSWLR 656, Angius v Angius [2025] NSWCA 113, applied.

5. In describing Justine’s financial position in the absence of further provision, the primary judge made unverified assumptions about costs, in circumstances where it could not be said with any certainty or precision what Justine’s obligations in relation to costs would be. Considerable caution needs to be exercised before attaching weight to the anticipated impact of legal costs and potential costs orders: [113]-[117].

Bassett v Bassett [2021] NSWCA 320, referred to.

7. In light of such House v The King errors, the findings of the primary judge cannot stand. The appropriate outcome is that no order for family provision in favour of Justine ought be made, including because the jurisdictional precondition in s 59(1)(c) is not satisfied: [121]-[122].

Judgment

1. WARD P: I agree with Free JA.

2. KIRK JA: I agree with Free JA.

3. FREE JA: This appeal involves a challenge to an order for family provision made by the primary judge under s 59 of the Succession Act 2006 (NSW) (Succession Act) in favour of the respondent, Justine Bosschieter, from the estate of her grandmother, Margaret Howitt.

4. As is conventional in matters of this kind, after introducing the deceased and her relatives I will refer to them by their first names. In doing so I do not intend any disrespect to the individuals concerned.

Summary of the issues raised by the appeal and appropriate disposition

5. The appeal raises, in substance, three issues. The first is whether the primary judge erred in concluding that Justine was an eligible person on the basis that she was partly dependent on Margaret in the first two years of her life. The second is whether the primary judge erred by failing properly to apply s 59(1)(b) of the Succession Act (requiring that there be factors warranting the making of an application by Justine), including by failing to consider the submissions advanced by the appellant. The third is whether the primary judge erred in concluding, for the purposes of s 59(1)(c), that adequate provision for the proper maintenance, education or advancement in life of Justine had not been made by Margaret’s will and that, pursuant to s 59(2), an order ought be made for further provision for Justine out of the estate. For the reasons which follow, on the first two points no error is established. On the third point error is established. No order for family provision should have been made.

Factual background

6. Margaret was born in 1928. She was married to Allan Howitt, who died in March 2017. Margaret and Allan had four children – Denise (born in 1950, now Denise Brauman), Phillip (born in 1952), Jennifer (born in 1955, now Jennifer Rollo) and David (born in 1955).

7. At the time of her death Denise had eight grandchildren. The eldest of those is Justine, who was born to Denise in October 1971 when her mother, Denise, was 20 and unmarried. Those circumstances assume some significance for the disposition of Justine’s claim for a family provision order. Although Margaret had initially wanted Denise to give the baby up for adoption, she came to support Denise’s decision to keep Justine. She also allowed Denise to bring Justine back from hospital to the family home in Forestville (Forestville House). Denise and Justine stayed in the Forestville House, at that time, for about two and a half years. The findings of the primary judge regarding that period in Justine’s life, which provided the foundation for the conclusion that Justine was an eligible person for the purposes of the relevant provisions of the Succession Act, are addressed in more detail below.

8. In 1973 Denise and Justine moved out of the Forestville House and into a rental property in nearby Collaroy. They proceeded to live in rental accommodation in other suburbs in and around Sydney. Denise continued to receive some financial assistance from Margaret and Allan. During her childhood years Justine participated in Howitt family celebrations including gatherings at Christmas and other times.

9. In July 1990 Justine gave birth to her first child, Luke Howitt. At some point in 1990 Justine moved to the Forestville House with Luke and stayed there for some period. Justine proceeded to have other children and lived in different properties, mostly in and around Sydney.

10. Justine’s relationship with Margaret and others in the family later became strained. Between 2005 and around 2013, Justine and Margaret were entirely estranged. The primary judge found that Margaret took the view that Justine had behaved badly as an example to her children. Beyond this his Honour did not consider it necessary to make findings about the cause of the estrangement. Justine was welcomed back into the family in 2013, around the occasion of Allan’s 90^th birthday.

11. Justine and her family lived in part of the Forestville House from late 2014, and in March 2015 that was formalised in a residential tenancy agreement. Justine paid rent at a substantially discounted rate ($200 per week as compared with a market value of about $550 per week). There were conditions imposed as to maintaining the property in good condition and vacating it in the event of the death of Allan and Margaret. Justine did not comply with those conditions, either before or after Margaret’s death.

12. There was a dispute in the evidence about the level of domestic assistance that Justine provided to Allan and Margaret while she was living in the Forestville House. The primary judge found that Justine’s evidence on this topic was exaggerated, and his Honour discounted it accordingly. Justine received a carer’s allowance. Margaret had regarded that allowance as fair compensation for carrying out day-to-day tasks such as taking Margaret and Allan to medical appointments. After Allan died in March 2017, Justine’s care for Margaret in terms of the provision of regular meals was not sufficient to prevent Margaret losing substantial amounts of weight. Margaret was admitted to Northern Beaches Hospital at one point and found to be “very underweight”. The primary judge found that Justine’s attention to all aspects of Margaret’s health was suboptimal. Other support was required. Through the Department of Veterans Affairs Margaret received home care assistance twice a week.

13. Following Allan’s death, Margaret made a number of different arrangements concerning the conferral of powers of attorney and enduring guardianship. In March 2018, in the course of adjusting the terms on which her children were appointed as enduring guardians, Margaret placed a limitation on their authority by stating that she was to remain in her home and Justine was to remain her carer. In November 2020 Margaret revoked the appointment of her children as her attorneys and guardians, and appointed Justine instead.

14. Shortly thereafter Margaret revised her will. In 2007 Margaret and Allan had executed mutual wills giving their whole estate to their four children equally, with no provision made for Justine. Margaret often said to her daughter Jennifer that the Forestville House and the couple’s term deposit would be divided equally between the four children. In October 2020 Justine arranged for Margaret to meet a new solicitor, Ms Ghadirian-Marnani. This ultimately led to the execution of Margaret’s final will. The primary judge found that Ms Ghadirian-Marnani gave Margaret excellent advice as far as she was able. There was an evolution in the instructions provided to Ms Ghadirian-Marnani over the course of late 2020 and early 2021 as the solicitor consulted with Margaret in relation to power of attorney, guardianship and estate issues. In terms of testamentary wishes, a topic of particular significance was the evolving approach to the disposition of Margaret’s only two assets of substantial value, being the Forestville House and Margaret’s life savings of just over $200,000, which were held in a term deposit with the Commonwealth Bank of Australia (CBA).

15. Ms Ghadirian-Marnani’s initial meeting with Margaret was in October 2020. The solicitor’s file note of that meeting included the following:

[86]   .… [the deceased] wanted to provide for her grandkid Justine after her death because currently the will provides that her house to be distributed to her 4 kids equally and ideally she does not want to mention Justine in the will because other grandchildren will be then upset. We discussed the life tenancy option but then again it is under the will and she did [not] want to tie up her biggest asset to Justine’s life. After all she can live somewhere else.

She has about $200K in saving[s] in a term deposit with CBA that she can transfer to Justine during her lifetime so that there would be no mention of Justine in the will. I advised her of the notional estate rules and the fact that she might ultimately need to mention Justine in the will …

16. In November 2020 Ms Ghadirian-Marnani had a further consultation with Margaret at the Forestville House. Her file note of that discussion records the following:

[89]   [Margaret] asked how she can make sure that Justine is not kicked out [of the Forestville property] I said you can give her a life interest but she did not want to tie up the asset she suggested that she gives 1/5 of the house, I said but she still has to share with 4 other people she is sure that if anything goes to Justine, it will be challenged by her children I said well you can give her the term deposit which is $200K and that is maybe enough to get a loan or to buy a house in a cheaper suburb such as Western Sydney – but Justine does not want to live in West.

17. In February 2021 Ms Ghadirian-Marnani received instructions from Margaret during a consultation at the Forestville House to draft a will which included Justine as a beneficiary and divided Margaret’s assets equally between her four children and Justine, with Justine to be given a right of first refusal over the Forestville House (which would entail buying out the interests of the four children). The gift to Justine was said to be desired by Margaret because Justine had looked after Margaret for such a long time, and the primary judge found that it reflected Margaret’s gratitude for the care that Justine had given her. Later in February 2021 Margaret provided further instructions to the effect that Justine should inherit one-fifth of the Forestville House as well as one-fifth of her other assets (of which the main asset of value was the CBA term deposit). Ms Ghadirian-Marnani prepared a will that gave effect to these instructions, which was executed by Margaret in March 2021. This was Margaret’s final will (2021 Will). The 2021 Will made provision for Justine to retain the Forestville House if she paid Margaret’s four children 80% of the value of that property.

18. The primary judge found that Margaret’s mental acuity began to decline noticeably after making the 2021 Will. In March 2021 Margaret’s doctor provided a medical certificate explaining that she could not attend the bank as she suffered from “an end-stage medical condition” and was “housebound, frail, and susceptible to infections”. It is to be recalled that this was the time of the Covid-19 pandemic. The primary judge found that there was a regrettable ambivalence within the Forestville House about vaccination against Covid-19 and Margaret remained unvaccinated.

19. Notwithstanding the pandemic, Margaret’s condition, Margaret’s lack of vaccination and the medical certificate that had been issued some six months earlier, in November 2021 Justine, in the company of her son Luke, took Margaret to a branch of the CBA at Frenchs Forest to facilitate the transfer of Margaret’s life savings to Justine. They attended on a bank manager, who was not called to give evidence at trial. Margaret caused the sum of $202,247.29 to be transferred from the matured term deposit to a personal account, and then to an account in Justine’s name. No prior notice was given to Margaret’s solicitor, Ms Ghadirian-Marnani, or advice sought about this proposed transaction. This was despite Justine having received prompts from Ms Ghadirian-Marnani to get further legal advice before a transfer of this kind took place. When cross-examined on the topic Justine could give no satisfactory explanation as to why she did not seek the solicitor’s advice. As the primary judge found, it occurred in circumstances where Margaret could foreseeably have required the funds to meet her own expenses, including medical expenses. The improvidence of Margaret giving away her life savings would have been obvious to any reasonable person. His Honour found that it must have been obvious to Justine. It was also obvious to Justine that Margaret was weak, dependent on Justine and lacked independent legal advice.

20. The primary judge rejected Justine’s evidence that Margaret had spontaneously desired for Justine to have her life savings, as well as Justine’s contention that Margaret wished for Justine to receive both that money and her entitlement under the will. His Honour accepted the evidence of Denise and Jennifer that Margaret had always expressed an intention for those funds to be left to her children equally. Their brother David had a similar recollection, save for the subtle variation that he recalled that Margaret wished for the money to be divided among the beneficiaries equally. The primary judge accepted the evidence of each of Denise, Justine and David that they had never heard Margaret say that she wanted Justine to have the money. His Honour expressly rejected the contention that Margaret freely intended that Justine should receive her entitlement under the 2021 Will and the term deposit in full.

21. The money transferred to Justine was rapidly dissipated. The primary judge found that the funds were applied to a range of objects including personal indulgences and the transfers of large sums to Justine’s children and to other individuals. By June 2022 almost the entire amount had been spent or distributed to others. The circumstances of Justine’s treatment of those funds led the primary judge to make the following findings relevant to the question of awarding family provision to Justine:

[107]   The Court is not confident that any sum, no matter how large or small, that might be awarded to the plaintiff would not be given away to her children rather than used as a basis for her to purchase a house. She is susceptible to pressure from her children to give them money when she has money available to her. Her past management of the $200,000 proves that she is vulnerable to this pressure, which can overwhelm her. And she is driven by a powerful need to have her children’s approval as a generous and all-providing mother. This is demonstrated in part by many of the transfers of funds to her children, which are accompanied by the message, “My mums the BEST”.

[108]   Looking realistically at the situation, this does not augur well for how she could manage any future award of a lump sum in her favour, were one to be made. She is sui juris and legally able to manage her own affairs. Creating a testamentary trust to protect her from this pressure is impractical. The probable ineffectiveness of any additional order for provision that might be made to the plaintiff is another reason for not making such an order.

22. Margaret contracted Covid-19 in January 2022. The primary judge found that someone brought the virus into the house and there was insufficient infection control within the house to protect Margaret. Margaret was admitted to hospital but died on 24 February 2022, at the age of 93. Probate of the 2021 Will was granted to David on 8 May 2023.

23. Following Margaret’s death, there was conflict over vacating the Forestville House. As noted above, under the terms of her tenancy agreement Justine was required to vacate the property following Margaret’s death. That was required to occur within 30 days. In July 2023 Justine was still in occupation and Margaret’s estate served notice of termination of the lease requiring her to vacate. The estate commenced proceedings in NCAT for possession in October 2023. Justine and her family vacated the property on 10 November 2023, more than 20 months after Margaret’s death. According to the findings of the primary judge, the house was left in a grossly dilapidated state. It was uninhabitable with obvious signs of property damage and rubbish strewn both in and outside the dwelling.

24. His Honour inferred that Justine and her family had expressed their resentment at having to vacate the property by leaving it in a condition from which their contempt would be obvious and the cleanup costs to the estate would be maximised. Unsurprisingly, indeed with some understatement, the primary judge described Justine’s conduct in this regard as “thoroughly discreditable”. Justine was found to have obfuscated not only in vacating the Forestville House but also on the question of whether she would exercise her right of first refusal to retain the property by buying out the other beneficiaries. This included neglecting to reply to correspondence from the estate. This added unnecessarily to the cost of administering the estate. Justine offered no reasonable excuse for her conduct.

25. David on behalf of the estate incurred debts of $55,000 to restore the Forestville House. It was sold in February 2024 for $2,850,000.

The claim and cross-claim in the proceedings below

26. On 9 February 2023 Justine commenced proceedings seeking an order for family provision under the Succession Act on the basis that the provision made for her under the 2021 Will is inadequate. David, in his capacity as executor acting on behalf of the estate, resisted the claim. He put in issue whether Justine qualified as an “eligible person” under the Succession Act (ss 57 and 59(1)(a)), whether there were factors warranting the making of the application for further provision (s 59(1)(b)) and whether adequate provision had already been made under the 2021 Will for the proper maintenance, education or advancement in life of Justine (s 59(1)(c)). David submitted more generally that it was not appropriate to make an order under s 59(2).

27. David also cross-claimed against Justine for relief in respect of the transfer to her of Margaret’s life savings in the CBA term deposit account. In his cross-claim David contended that the transfer was the product of undue influence and/or unconscionable conduct on the part of Justine.

28. The cross-claim was wholly successful. The primary judge found that Margaret was in a position of special disadvantage and Justine acted unconscionably in taking advantage of that by procuring the transfer of Margaret’s life savings. His Honour found that the transaction was also a product of actual undue influence. Justine was Margaret’s gatekeeper to the outside world, and Margaret was physically and emotionally dependent on her. Margaret did not bring an independent mind to transferring her life savings and that transaction was the result of Justine’s actual undue influence over Margaret.

29. The Court therefore ordered Justine to repay to Margaret’s estate $202,247.29, plus interest. It is to be recalled that under the terms of the 2021 Will Justine remains entitled to one-fifth of that amount from the estate, as well as a one-fifth share in the Forestville House.

30. Justine did not appeal or cross-appeal from this part of the judgment below. Although in her written submissions Justine complained that she did not agree with a number of adverse findings made by the primary judge, including in relation to David’s cross-claim, Justine did not seek to bring any formal challenge to the correctness of those findings (including by way of a notice of contention). As the President pointed out to counsel for Justine during the course of the hearing, submissions of this kind are a distraction. They neither advance Justine’s cause nor assist the Court.

31. There being no challenge to the outcome of the cross-claim below, the primary question to be resolved in the appeal is whether his Honour erred in making an order for family provision in favour of Justine. For the purposes of resolving what I regard as the critical issue in this regard, it is important to focus on the way in which Justine advanced her claim for family provision and the corresponding factual findings of the primary judge about her circumstances and needs.

32. Justine contended that she requires further provision from Margaret’s estate so that she can buy her own home, buy a good quality second-hand car, top up her savings account with a contingency for future unplanned expenses of $250,000, top up her superannuation in the sum of $150,000 and provide a fund for future medical expenses of $100,000. As counsel for Justine conceded at the hearing of the appeal, this was always an optimistic, indeed ambit, claim.

33. At the time of the hearing before the primary judge, Justine was living at a women’s refuge. She was employed on a casual basis as a disability care worker, earning between $300 and $900 per week. The extent of her earnings depended on the number of shifts she worked and Justine was willing to take on a fulltime load as a disability care worker. There is no medical or other apparent impediment to Justine doing so. Justine no longer has any dependent children. Justine has no assets of significant value, which his Honour found was largely a product of her incapacity to save, as throughout her life money that has come into her hands has usually been quickly dissipated. Justine was found to have at least seven years working capacity, and five sons to whom she can look for some financial support.

34. The primary judge considered the present needs of Margaret’s four children, as the other beneficiaries under the 2021 Will (and thus the parties apt to be disadvantaged by an order for family provision in favour of Justine). His Honour’s findings in that regard reveal that at least some of Margaret’s children have pressing financial needs.

35. Denise’s second child, Paul, has Asperger’s syndrome and special needs. Denise, who is now 74, cares for Paul two days a week. Her present living circumstances have reduced her ability to care for him on a full-time basis. Aside from specialist care providers, Denise has been caring for Paul on her own since 2021. Denise is dependent solely on the carer’s pension to which she is entitled because of her care for Paul. She essentially lives day-to-day within her means. Denise owns her home in Nambucca Heads, which is unencumbered, but it is in a very poor state of repair. It is uninsurable and virtually uninhabitable. The primary judge found that the house needs to be demolished and rebuilt to suit the needs of Denise and Paul. A quote of $450,000 has been provided for that work.

36. Philip, who is now 73, suffers from bowel disease, lung disease and other age-related medical conditions. It is likely that as he ages over the next few years he will have increasing financial needs for personal care and medical requirements.

37. Jennifer has been retired since 2021. She has no further earning capacity and depends upon her pension to meet her living expenses. She resides in a house at Belrose. Although the property has substantial value that is primarily land value and the house requires substantial repair due to termite damage. The primary judge accepted that, aside from her expected inheritance, Jennifer has no means to pay for the works required to make her home liveable. Jennifer has a son, David Rollo, who was born with an intellectual disability known as Cornelia de Lange Syndrome. One of the reasons Jennifer wants to repair and remain living in the Belrose house is because it is a house with which David is familiar.

The primary judge’s analysis of Justine’s family provision claim

38. The primary judge correctly identified the threshold question as being whether Justine was an “eligible person” within the meaning of the Succession Act, this being a matter put in issue by David. That turned on the application of s 57(1)(e) which provides:

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

…

(e)   a person—

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

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

…

39. As Justine was a grandchild of Margaret, the only issue to be determined was whether Justine was, at any particular time, wholly or partly dependent on Margaret. Having set out the summary of principles relevant to the question of dependency in Curtis v Curtis [2024] NSWCA 136 at [11], [13]-[16], the primary judge found that Justine had demonstrated that she was partially dependent on Margaret during the first two years of Justine’s life. His Honour concluded that although Justine was dependent on her mother Denise during this period, she was also partially dependent on Margaret. Margaret was found to have provided both Justine and Denise with the necessities of life during this period.

40. This was notwithstanding his Honour’s findings that during this period Denise paid board to her parents, received what was then described as an unmarried mother’s pension and had limited work for at least some of the time as a casual waitress and as a babysitter. The primary judge found that it was uncertain how much board Denise paid, how much pension she received and how much she had left over for herself after paying board. Nevertheless, his Honour found that the evidence supported an inference of partial dependence:

[31]   … [A]ny realistic view of this period allows the Court to infer that both Denise and Justine were being financially supported by the deceased and Allan for many months after Justine’s birth. With her young baby Denise was initially not capable of any regular employment outside the home. She only had available to her the limited financial means of a pension. It is unlikely the pension was available immediately. Denise had to feed clothe and look after Justine and meet all her medical and financial needs. Even if one regards the board that Denise paid her mother as a market rate for her accommodation, the Court accepts that the deceased was the very generous, caring and family minded woman that she was described to be by all her children and grandchildren. The deceased was undoubtedly providing food, assisting with clothing, babysitting, and providing Denise and Justine with other incidentals necessary for their support well beyond the value of Denise’s board at home and well beyond any income that might have come from the pension. The Court can confidently infer this from the clear evidence of the deceased’s generous character and Denise’s situation.

41. Having reached the requisite state of satisfaction that Justine was an eligible person to bring a family provision claim (s 59(1)(a)), his Honour turned to the criterion in s 59(1)(b). That criterion was enlivened because Justine was an eligible person by reason only of paragraph (e) of the definition of eligible person in s 57. Pursuant to s 59(1)(b), the power of the Court to make a family provision order on application by such a person under Division 1 of Part 3.2 of the Succession Act is only available if the Court is satisfied that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

42. The primary judge reached that state of satisfaction. His Honour’s reasons for being so satisfied were briefly stated:

[187]   Here there are factors warranting within Succession Act, s 59(1)(b). Quite apart from Justine’s care and support for the deceased from 2015, the deceased has already recognised Justine was a suitable object of testamentary intentions by her a first right of refusal over the Forestville property and one fifth of her residuary estate. The real issue in this case is whether Justine has established within Succession Act, s 59(1)(c) that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made.”

43. The primary judge thus proceeded to deal with the question arising under s 59(1)(c). His Honour held that Justine had established “to a limited degree” that adequate provision for her maintenance, education or advancement in life had not been made. His Honour’s explanation for this conclusion begins with the following reasoning:

[188]   … The estate’s success on the cross-claim means that [Justine] will have to repay the $200,000 to the estate together with interest and costs in relation to the estate’s successful cross-claim. This will substantially neutralise the benefit the deceased intended her to have under her will and to that extent what the deceased provided for her in Court’s view has turned out to be inadequate. But the wider claims mentioned earlier in these reasons, that she lacks funds to buy a house, to buy a motor vehicle, to supplement superannuation or to provide a contingency fund do not evidence inadequate provision for her for several reasons.

44. His Honour proceeded to give seven reasons why Justine’s “wider claims” as to her financial needs failed to demonstrate that adequate provision had not been made for her in the 2021 Will. All seven reasons described by the primary judge entailed findings that were significantly adverse to Justine. Although the list of findings is introduced on the basis that they explain why Justine’s particular claims of inadequate provision were not accepted, in substance they involve a combination of reasons why Justine had failed on that point and reasons why it was not appropriate to make an order for family provision in favour of Justine. This reflects the primary judge’s approach which involved, at least implicitly, the application of s 59(1)(c) and an anticipation of the discretionary exercise required by s 59(2) of determining whether a family provision order ought to be made. That approach is understandable given the substantial overlap between the considerations that inform the determination of the jurisdictional precondition in s 59(1)(c) and the discretionary task to be performed under s 59(2) if all the applicable preconditions are satisfied.

44. A number of the adverse findings made by the primary judge warrant particular emphasis. His Honour found that Margaret had put considerable thought into her will and decided to treat Justine equally with her children. This was in circumstances where she had received sound and careful legal advice in drawing the 2021 Will. The primary judge not only emphasised that “[p]roper regard should be given to [Margaret’s] judgment about the relative testamentary claims upon her of her children and of Justine” but went on to find more emphatically that “[n]o substantial reason” had been shown to depart from Margaret’s judgment of overall equality among the five beneficiaries.

45. His Honour found that most of Margaret’s children, as the beneficiaries apt to be adversely affected by a family provision order, have “real need for the funds which they will inherit”. Some were found to have “very pressing need for the funds and community standards do not require the Court to deny them part of those funds to benefit [Justine]”. His Honour expressed particular concern about the impact of a further award upon Jennifer and Denise. As summarised above, his Honour had found that both required the funds due to them under the 2021 Will to undertake building works on their properties, including urgent works to “rectify their dwellings and to provide adequate housing for their children who are living with special needs”.

46. By contrast, the primary judge found that Justine was in a sound financial position. She was found to have present earning capacity (with no medical impediment to working in gainful employment) and the assistance of her children. Taking into account the money that she will receive from the estate pursuant to the 2021 Will, Justine was found to have “real resources to draw upon to advance herself at this stage in life, if she is so minded”.

47. While observing that Justine had been Margaret’s carer, the primary judge found that Justine had already obtained considerable benefits from the relationship through her carer’s pension and significantly reduced rent (which was not always paid, even at that reduced rate). His Honour had earlier made the finding, at [71], that Margaret appeared to regard Justine’s receipt of the carer’s allowance as fair compensation for carrying out the day-to-day tasks that she performed as a carer.

48. The primary judge expressed grave concerns about Justine’s capacity to apply funds in a sensible way. His Honour had no confidence that any additional money sum ordered in favour of Justine “would be applied prudently by her for her own benefit”. This finding is consistent with his Honour’s earlier finding that any such order for additional provision would probably be ineffective and this was “another reason for not making such an order”.

49. Despite this apparently conclusive list of factors contradicting Justine’s asserted need for further provision and telling against the making of an order for family provision, the primary judge concluded that the criterion in s 59(1)(c) was met and that it was appropriate to make such an order under s 59(2). His Honour’s reasons for reaching those conclusions were as follows:

[196]   But if Justine is not absolved from the consequences of her own haste to obtain the $200,000 transfer from the deceased, and to have to repay it to the estate with interest and costs, she is likely to be left with very little with which she can make her way in life. This would contrast with the deceased’s intention for her to be treated as having an equal testamentary claim upon the deceased’s estate. Moreover, had the $200,000 not been transferred she would have been entitled to $40,000 of it anyway.

[197]   Some argument was addressed to issues of potential notional estate. But it is not necessary to consider that. The estate has what the deceased had at the time of her death: property in a chose in action for recovery of the $200,000 from Justine. If she must restore that property to the estate, what she will receive from the estate is in the Court’s view not “adequate provision for the proper maintenance, education or advancement in life”.

[198]   The appropriate course here is to make an award from the estate of a sum equivalent to the value of that chose in action and that is the relief which the Court will give in this case. This is reflected in the orders below. …

51. The primary judge proceeded to make an order for family provision in favour of Justine from Margaret’s estate in the terms described in this passage.

52. It is necessary to consider the treatment of costs and the additional impact of costs on the financial position of the estate and each affected person. Before doing so, it is instructive to summarise the practical effect of the primary judge’s orders, without taking into account the impact of costs, and compare the outcomes which would flow from the administration of Margaret’s estate with and without an order for family provision.

53. In light of the outcome of the cross-claim, Margaret’s estate was entitled to be paid $202,247.29 plus interest by Justine. This was to restore the estate to the position it would have been in had Justine not acted unconscionably and exercised undue influence in prevailing upon Margaret to transfer her life savings to Justine. For the sake of analytical simplicity, I will round the value of this asset of the estate down to $200,000. The Forestville House was sold in February 2024 for $2,850,000. Again, for simplicity’s sake, it is convenient to ignore whatever interest may have accrued to the benefit of the estate on the proceeds of sale. On this approach, the two principal assets in Margaret’s estate were worth $3,050,000.

54. In the absence of an order for family provision, each of the beneficiaries, including Justine, was entitled to a 20% share of the two principal assets of Margaret’s estate, being $610,000. In Justine’s case, a full understanding of her financial position includes an appreciation that she is obliged by virtue of the Court’s orders on the cross-claim to pay the estate $200,000. Given that the executor can be expected to set off Justine’s liability to the estate against her entitlement as a beneficiary, in Justine’s case she would in fact be expected to receive $410,000. Of course, it is also important not to overlook that Justine received $200,000 from Margaret before her death and Justine made her own choices at the time about the use to be made of that money.

55. Those outcomes can be compared with the outcomes stemming from the primary judge’s orders. The economic effect of those orders was to reduce the value of the estate available for distribution to the beneficiaries by $200,000 and require that amount to be provided to Justine by way of the order for family provision. Each of Denise, Philip, Jennifer and David would then be entitled to receive $570,000 (being 20% each of $2,850,000). Justine would, at least nominally, receive $770,000. Given that Justine has an obligation to pay the estate $200,000, Justine would in fact be expected to receive only $570,000, with the estate setting off Justine’s liability to repay the $200,000 to the estate.

Costs orders made by the primary judge and the impact on the net position of the estate and Justine

56. As part of the process of making orders consequential on the substantive judgment, his Honour made directions for a further hearing to deal with questions of costs and any other consequential orders.

57. Prior to the trial the Court had, consistently with the approach described in the practice note applying to matters in the Probate and Family Provision List, been informed about the costs that had been incurred by each party. David, on behalf of the estate, had incurred costs of approximately $282,000, with an additional amount of $22,000 expected to be incurred at trial. Justine had, prior to trial, incurred costs of approximately $175,000.

58. In a second judgment the primary judge accepted the arguments of the estate on the question of costs, with the result that there was no order as to the costs of the summons in respect of Justine’s family provision claim, such that each party is to bear his and her own costs. Justine was ordered to pay the estate’s costs of the cross-claim. In order to minimise the complexity of any costs assessment to give effect to the Court’s costs orders, the Court noted that the cross-claim issues occupied no more than one-third of the estate’s total costs of preparation for, and conduct of, the trial.

59. A relevant factor informing the Court’s discretion on costs was that the estate had not initiated any claim for repayment of the $200,000 until after Justine had commenced the family provision proceedings. His Honour inferred that if Justine had not commenced the proceedings the estate would not have brought any claim for repayment of the $200,000. This was a significant factor weighing heavily in the estate’s favour on the question of costs. As is to be expected given that the relevant communications were apparently made on a without prejudice basis, evidence about these matters came to light only after the Court had delivered its substantive judgment. As explained below, that has some significance when it comes to his Honour’s approach to the application for a family provision order.

60. On the costs hearing the Court also received into evidence Calderbank offers that had been made by each party prior to the commencement of proceedings. Neither party was in a position to demonstrate that it had achieved an outcome that was better than the position advanced in its relevant Calderbank offer and the Court did not consider it appropriate to vary the costs outcome by reference to the offers that had been made.

61. In broad terms, and adopting rough estimates of the likely outcome of any costs assessment, the effect of these findings as to costs incurred and the orders made in respect of costs is that the value of the estate has been reduced by approximately $300,000 to cover the costs of the proceedings. Using the guide noted by the primary judge, around $100,000 of that amount related to the cross-claim. Applying a rule of thumb that 70% of those costs would be recoverable by the estate on a costs assessment (and without in any way seeking to influence the outcome of any costs assessment), Justine may be expected to be liable to pay around $70,000. That would reduce the effective costs burden to the estate to approximately $230,000. As these are costs of the estate and the five beneficiaries are entitled to equal shares in the estate assets, the net impact on each of Denise, Philip, Jennifer, David and Justine is to reduce the amounts that would otherwise be distributed to them by $46,000 each.

62. As for Justine, although the Court made findings about the costs incurred by her up to trial, no findings were made about the additional costs expected to be incurred during trial. Assuming for these purposes that Justine’s costs were roughly equivalent to David’s costs, Justine may be taken to have incurred total costs of around $200,000. To that may be added the liability to pay the estate’s costs of the cross-claim, which can be estimated at around $70,000 on the basis explained above. It follows that, to the extent it is relevant to consider the ultimate financial position of Justine, Justine is $270,000 worse off because of the costs that she has incurred in conducting the proceedings and her obligation to pay the estate’s costs of the cross-claim. Of course, these are matters that the primary judge at the time of determining the family provision claim was not in a position to know or anticipate with anything approaching this level of accuracy.

The grounds of appeal

63. By his amended notice of appeal, David seeks to overturn the primary judge’s family provision order in favour of Justine on the following grounds:

1. the primary judge erred in determining that the respondent was partially dependent upon the deceased in the first two years of her life, notwithstanding the primary judge's finding that the respondent was dependent upon her mother, and thus that the respondent was an eligible person within the meaning of s 57(1)(e) of the Succession Act;

2. the primary judge erred in determining that there were factors warranting the making of the respondent's application for further provision within the meaning of s 59(1)(b) of the Succession Act;

3. the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the respondent had not been made by the will of the deceased within the meaning of s 59(1)(c) of the Succession Act;

4. the primary judge erred in determining that the respondent ought be awarded further provision in the amount (including interest) to which she was found on the appellant's cross-claim to have misappropriated the deceased's life savings by undue influence and unconscionable conduct shortly before the deceased's death.

64. Ground 3 thus seeks to challenge his Honour’s determination that the criterion in s 59(1)(c) was satisfied. Ground 4 seeks to challenge his Honour’s exercise of the discretionary power in s 59(2) to make an order for family provision in favour of Justine. As noted above, the primary judge’s reasons in substance deal with the jurisdictional precondition in s 59(1)(c) and the discretionary determination under s 59(2) in an interlinked way. Likewise, David’s arguments on appeal in respect of grounds 3 and 4 are interlinked. Given that context, and the overlapping issues involved, it is convenient to deal with grounds 3 and 4 together.

65. For the reasons which follow, I would uphold grounds 3 and 4 and allow the appeal on that basis. I would reject grounds 1 and 2.

Ground 1 – Challenge to the finding that Justine was an eligible person pursuant to s 57(1)(e)

66. Ground 1 involves a challenge to the primary judge’s finding that s 57(1)(e)(i) was satisfied. It falls to be determined on the correctness standard. A claimant either does or does not satisfy the requirement of dependency and there is no basis to limit appellate review to errors of the kind described in House v The King: Curtis v Curtis at [11], citing with approval Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [53]-[54] and Sun v Chapman [2022] NSWCA 132 at [8]-[11] and [189].

67. As to what is required to satisfy the statutory criterion, senior counsel for David properly acknowledged at the hearing of the appeal that s 57(1)(e)(i) imposes a low threshold in respect of dependency. Dependency is not to be given a restrictive meaning: Spata v Tumino at [70]-[84]. Payne JA noted in Spata v Tumino at [72] that the words of the subsection are indicative of an expansive, rather than restricted, concept of dependency. Those words make plain that having been “partly dependent” on the deceased is sufficient. As to the timing of such dependency, it is sufficient to demonstrate that the person in question was wholly or partly dependent on the deceased person “at any particular time”. It may be accepted that dependency at a particular time will not be established by demonstrating only that a person was dependent on the deceased for a very brief period, such as when a child is left in the care of grandparents overnight: Alexander v Jansson [2010] NSWCA 176 at [13] and Chisak v Presot [2022] NSWCA 100 at [47], [56], cited with approval in Curtis v Curtis at [11]. However, the present is not a borderline case when it comes to the period of time over which the relationship of dependency was said to exist. Justine lived with Margaret from the time of her birth for around two and a half years.

68. David sought to emphasise that during this period the evidence demonstrated that Justine was primarily dependent on her mother Denise, and there was no finding by the primary judge (and no basis for a finding) that Margaret stood in loco parentis to Justine. Such observations do not disclose error in the approach adopted by the primary judge to s 57(1)(e)(i). As to the first point, senior counsel for David properly accepted that a person may, at any given time, be dependent on more than one person. Dependency on one person may well be a relevant factual circumstance in considering a contention that the person in question was at the same time dependent on someone else. But it is far from conclusive to observe that a relationship of dependency with a different person existed. On the facts of this case, there is nothing illogical or contrary to the statutory test in the primary judge’s conclusion that the infant Justine was partly dependent on Margaret, even if she was also dependent on her mother Denise: see Spata v Tumino at [76].

69. As to the second point emphasised by David, there is nothing in the statute or the authorities to which David made reference to suggest that dependence on the deceased person necessarily entails that the deceased person stood in loco parentis to the putative eligible person. Dependence upon a person involves simply being reliant on that person to meet one’s needs: Spata v Tumino at [78]. David’s submission that the “correct legal test” is that “the deceased assumed the role of parent” to Justine must be rejected. No doubt where the deceased person did stand in loco parentis at a particular point in time that may well be indicative of a relationship of dependency at such a time: see Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 at [113(b)] quoted with approval in Curtis v Curtis at [15]. But the converse does not follow. A relationship of dependency, and in particular partial dependency, may exist between two people without there being a relationship equivalent to that of parent and child. A relationship of partial dependency may exist with a person even while there is also a simultaneous dependence upon a parent or person standing in loco parentis. It involves an unwarranted gloss on the statutory concept of dependency, and it is ultimately a distraction, to reframe the statutory task as being to ascertain whether or not the deceased person stood in loco parentis to the putative eligible person.

70. In support of ground 1 David pointed to the lack of specific evidence to establish the precise ways in which Justine, in her infant state, was dependent on her grandmother Margaret. David also noted the lack of specificity in the evidence regarding the financial circumstances of Denise, including the precise timing and amount of her pension and the extent of her financial obligations (including the payment of board to Margaret and Allan).

71. David’s criticisms about the lack of detail and specificity in the evidence may be accepted. But it does not follow that there is no sound basis to find that a relationship of dependency existed. The primary judge found that there was ample basis to infer such a relationship. His Honour pointed to a number of facts supporting that inference, connected with Margaret’s character and what his Honour described as “Denise’s situation”. Denise was a very young woman with an infant. She was, it is appropriate to infer, initially not capable of any regular employment outside the home. Margaret was a person of very generous character, caring and family minded. David argues that the primary judge’s finding to this effect did not logically support the inference drawn, because the finding about Margaret’s generosity derived from evidence about later conduct. However, that argument unduly confines the use that can and should be made of the finding about Margaret’s character. The significance of the finding about Margaret’s generous character (with which David does not seek to cavil) is that it provides a rational basis to draw inferences about how she is likely to have acted at all times in relation to her family, including in relation to the infant Justine.

72. I respectfully agree with the correctness of the inference drawn by the primary judge that both Denise and Justine were being financially supported by Margaret and Allan, and partly dependent on them, for many months after Justine’s birth. The known facts about what his Honour described as “Denise’s situation” and the unchallenged findings about Margaret’s character and attitude to her family are such that the inference should be drawn. Indeed, given what was established on the facts about Denise’s situation during that period of Justine’s life there is an air of unreality to the submission that the Court erred in inferring a relationship of partial dependency.

Ground 2 – Error in the application of s 59(1)(b)

73. In support of ground 2, David draws attention to the apparently cursory treatment by the primary judge of the question posed by s 59(1)(b), namely whether the Court was satisfied that there were, “having regard to all the circumstances of the case (whether past or present)”, factors which warranted the making of the application for a family provision order. As David accurately observes, in expressing his reasons for reaching the state of satisfaction required under s 59(1)(b) the primary judge referred to only two circumstances, each of which was favourable to Justine. The first was Justine’s care and support for Margaret from 2015. The second was that Margaret had in her 2021 Will recognised Justine as a suitable object of testamentary intentions by making her a beneficiary of one fifth of her residuary estate and giving her a right of first refusal over the Forestville House.

74. It is unsurprising that his Honour highlighted the second of these factors as being significant in showing that there were circumstances warranting the making of an application by Justine for family provision. In light of the authorities considered below, it was highly significant for the application of s 59(1)(b) that Justine, uniquely among Margaret’s eight grandchildren, was singled out to be a beneficiary under the 2021 Will. The second factor is also interrelated with the first. Margaret’s carefully considered decision to make Justine a beneficiary at that point in time tends to reinforce that the special position of Justine as Margaret’s carer since 2015 had led Margaret to regard Justine as a worthy object of testamentary recognition.

75. In Frank v Angell [2024] NSWCA 264 Stern JA (with whom Bell CJ and Gleeson JA agreed) analysed authorities concerning s 59(1)(b), including the influential judgment of McLelland J in Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (which concerned s 9(1) of the Succession Act which was in similar terms). Stern JA at [83] summarised the effect of those authorities in stating that the overarching question under s 59(1)(b) is whether, in all the circumstances, there are factors which “in addition to the applicant being an eligible person, give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by a deceased”. This formulation from Re Fulop was also cited with approval in Curtis v Curtis at [14] as reflecting the settled understanding of “factors warranting the making of an application”.

76. In Lodin v Lodin [2017] NSWCA 327 Sackville AJA (with whom White and Basten JJA relevantly agreed) referred to “factors warranting” as being “such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant”. That coheres with the analysis of the concept by McLelland J in Re Fulop. This is demonstrated by Sackville JA’s endorsement in Lodin v Lodin of that analysis as identifying the basis for determining whether there were factors warranting the making of the application: at [107]. In Spata v Tumino at [97] Payne JA (with whom Macfarlan JA and Sackville AJA agreed) explained that demonstrating a social, domestic or moral obligation on the part of the testator to make some provision for the claimant is the means by which one demonstrates that there are circumstances that justify regarding the person as a natural object of testamentary recognition.

77. As Leeming JA explained in Curtis v Curtis at [13], these considerations arise in a context where the statute divides eligible persons into two classes. Lawful and de facto spouses and children qualify automatically as eligible persons on the basis of a legislative recognition that they are generally regarded as natural objects of testamentary recognition. The types of persons described in s 57(1)(d), (e) and (f) are not generally so regarded but their eligibility may be established in a particular case through satisfaction of the additional precondition in s 59(1)(b). His Honour quoted with approval the observation of the Court in Yee v Yee [2017] NSWCA 305 (footnotes omitted)):

[112]   Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are “potentially appropriate objects of testamentary recognition, depending upon their circumstances”. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.

78. In developing ground 2 David does not cavil with the proposition that the two matters referred to by the primary judge were relevant to the conclusion that s 59(1)(b) was satisfied. The essence of the appellant’s argument in ground 2 is rather that the primary judge was required to do more in applying s 59(1)(b), in particular by bringing to account the factors that might suggest that an application for family provision by Justine was not warranted, even if there were also factors pointing to the other conclusion. David notes that the subsection explicitly requires that the Court have regard to “all the circumstances of the case”. David contends that the application of s 59(1)(b) was the subject of “extensive written submissions” at trial, to which the primary judge made no reference, such that this Court can conclude that his Honour effectively failed to address s 59(1)(b).

79. Those arguments should be rejected. In dealing with the submission that the primary judge erred in this way, there are three important contextual considerations that must be brought to bear in assessing his Honour’s approach.

80. The first is that the statutory scheme involves overlapping jurisdictional preconditions and evaluative and discretionary exercises. There is an overlap between the jurisdictional questions of whether there are factors warranting the making of an application and whether adequate provision has not been made for the eligible person: see Frank v Angell at [64].

81. That is not to suggest that there is no difference between the tests required to be applied by each of s 58(1)(b) and s 59(1)(c). As Stern JA proceeded to observe in Frank v Angell at [86], there is a meaningful distinction between the two. Section 59(1)(b) is not looking to the needs of the applicant but to whether, in all the circumstances, the applicant would have the status of being a natural object of testamentary recognition. This does not involve determining the needs or circumstances of the applicant as at the time of the Court’s decision. Demonstrating that adequate provision has not been made for a person under a will, despite available resources, does not demonstrate that the circumstances warrant the making of an application for family provision by that person: see Lodin v Lodin at [12].

82. Nevertheless, the overlap between the subsections means that factors relevant to one precondition may well be relevant to the other. This in turn informs an understanding of the approach of the primary judge in this case, particularly in light of the submissions that were advanced at trial.

83. There is likewise an overlap between each of those jurisdictional questions and the discretionary exercise under s 59(2) of determining whether an order for family provision ought to be made “having regard to the facts known to the Court at the time the order is made”. Again, the overlap is not complete. If there were no distinction at all between “factors which warrant the making of an application” and the circumstances which justify the making of the family provision order, the subsection imposing the former criterion would be pointless as McLelland J observed in Re Fulop at 681, cited with approval in Lodin v Lodin at [106]. To illustrate the practical distinction between the application of the two subsections, McLelland J in Re Fulop at 681 noted that in a particular case an applicant might establish that there are factors warranting the application, yet the court might decline to make a family provision order in the applicant’s favour. Nevertheless, there is no doubt that considerations bearing on the discretion to make an order for family provision under s 59(2) may also be relevant to the Court’s consideration of whether it is satisfied that there are factors which warrant the making of the application.

84. The second point of context concerns the way in which submissions were advanced at trial. Contrary to the submission in this Court about the matter having been the subject of “extensive” submissions, the submissions made at trial by David directed specifically to s 59(1)(b) were in fact very brief. In his written opening and written closing submissions directed to that subsection, David referred to the passage in Bowditch v NSW Trustee & Guardian at [113] which has been described in Curtis v Curtis at [15] and [16] as providing “helpful guidelines” and a source of “useful assistance” for considering claims for grandchildren. David submitted that on an application of those “guidelines” Justine had not shown that she was a grandchild of a kind to whom her grandparent had a responsibility to make provision.

85. David’s submissions on this topic also repeated the point that had been made in the context of s 57(1)(e), namely that it had not been demonstrated that Margaret had come to assume, for some significant time in Justine’s life, a position more akin to that of a parent than a grandparent. That submission was misdirected in relation to s 59(1)(b), just as it was in relation to s 57(1)(e).

86. In oral submissions at the conclusion of the trial, which were evidently abbreviated because of time pressures, senior counsel for David argued that the significance of Justine’s activities as the carer for Margaret had been overstated as Justine’s care was suboptimal and because she had in fact received direct benefits at the time. The oral submissions otherwise did not add to the argument about whether Justine had demonstrated that there were factors which warrant the making of the application.

87. Significantly, David did not in either his written or oral submissions on s 59(1)(b) grapple with the point that Justine had expressly been singled out by Margaret as a worthy recipient of a testamentary gift. To the extent that David made submissions about the nature of Justine’s role as carer, that matter was the subject of extensive factual findings by the primary judge. Although Justine received benefits from Margaret during her lifetime, the fact remained that Justine, uniquely among the grandchildren, had provided care and support for Margaret from 2015. In 2021 she was also uniquely singled out from the other grandchildren for special treatment as a beneficiary. In light of the authorities considered above, these were highly significant factual circumstances on the application of s 59(1)(b). The primary judge was entitled to treat them as such. They demonstrated that Justine’s situation was not that of a typical grandchild, such that a finding that there were circumstances warranting an application for family provision was not in any way in tension with the “helpful guidelines” formulated in Bowditch at [113]. The submissions that had been advanced by David provided no proper foundation for his Honour to conclude that, despite those circumstances, there were not factors warranting the making of the application. Once that context is appreciated, the relatively cursory treatment of this topic by the primary judge is readily explicable.

88. In support of his submission to this Court that s 59(1)(b) had been the subject of “extensive written submissions” below, David also referenced that part of his written submissions to the primary judge that analysed the factual findings that ought be made by reference to various of the factors set out in s 60(2) of the Succession Act. The reference is erroneous. In fact, the relevant section of David’s written submissions (both in opening submissions and closing submissions) was introduced by a submission that the primary judge ought have regard to such matters “for the purposes of determining whether an applicant is an eligible person and whether to make a family provision order”. It follows that to the extent David invoked factual circumstances that told against the ultimate success of Justine’s family provision application, the primary judge was invited to deal with those circumstances in the context of determining whether or not Justine was an eligible person and in deciding the ultimate discretionary question of whether or not it was appropriate to make an order for family provision. That is not to say that the factual circumstances addressed in that part of the written submissions were necessarily irrelevant to the jurisdictional preconditions in either s 59(1)(b) or s 59(1)(c). But it is inaccurate to describe those submissions as being directed specifically to s 59(1)(b). It is also an unsound basis on which to criticise the primary judge for failing to deal with those matters in the specific context of s 59(1)(b).

89. The approach to submissions adopted by David in the Court below also tends to reinforce the point that one cannot read the primary judge’s analysis of s 59(1)(b) in isolation from his Honour’s analysis of s 59(1)(c) and s 59(2). That is the third point of context to which I now turn. His Honour’s brief treatment of the criterion in s 59(1)(b) must be understood in the context of the more detailed reasoning which follows in relation to s 59(1)(c) and 59(2).

90. What emerges from that part of the reasons is that the primary judge was ultimately persuaded that adequate provision for Justine had not been made in Margaret’s 2021 Will and, most importantly for present purposes, that it was appropriate to make an order for family provision in favour of Justine. The primary judge reached the ultimate conclusion about the proper exercise of the discretion under s 59(2) after taking into account all of the circumstances and submissions relied upon by David as being adverse to Justine’s claim. That involved engaging with David’s submissions in the very way in which they were advanced.

91. While the primary judge did not analyse every circumstance separately through the prism of s 59(1)(b) by asking whether there were factors warranting the making of the application, there is an air of artificiality about the appellant’s complaint of a failure to do so. David’s submissions did not invite such analysis. Nor did they logically compel it. As a matter of substance, his Honour was persuaded that Justine was an eligible person, adequate provision had not been made for her in the 2021 Will and it was appropriate for the Court to make an order for family provision. While David complains (in my view correctly) that these conclusions were infected by error, there is no suggestion that in reaching those conclusions the primary judge ignored David’s submissions or ignored the various factual findings that tended to support the opposite conclusions. The complaint is rather about the ultimate significance attached to those findings. Given the approach adopted by the primary judge to explain his reasons for finding in favour of Justine, there was nothing to be served by separately repeating the analysis through the terms of s 59(1)(b) when the conclusion was self-evident from his Honour’s assessment of the balance of the issues.

92. This is not to overlook that s 59(1)(b) imposes an independent jurisdictional precondition to the making of an order which is separate from the exercise of the Court’s discretion under s 59(2). The point is rather that, reading the reasons as a whole, this is not a case where his Honour ignored the requirement or neglected to have regard to the circumstances telling against a conclusion that Justine’s application for a family provision order was warranted.

Grounds 3 and 4 – Errors in the application of s 59(1)(c) and 59(2)

93. In ground 3 the appellant alleges that the primary judge erred in determining the question posed by s 59(1)(c), namely whether adequate provision for the proper maintenance, education or advancement in life of Justine had not been made by the 2021 Will. In ground 4 the appellant alleges that his Honour erred in his exercise of the discretion that was found to be enlivened under s 59(2), by determining that an order for family provision should be made in favour of Justine in the amount of $202,247.29 plus interest.

94. In each case, it is necessary for David to establish error of the kind described in House v The King: Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 212; Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 at [82]; Frank v Angell at [107]-[108].

95. Error of this kind is established where the outcome is unreasonable or plainly unjust as explained by Dixon, Evatt and McTiernan JJ in House v The King at 505:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

96. House v The King error is also established where the primary judge can be shown to have acted on a wrong principle or been influenced by extraneous or irrelevant matters, or where the primary judge has not taken into account a material consideration.

97. With respect to the primary judge, I am persuaded that his Honour’s judgment was infected by errors of this kind. His Honour took into account extraneous or irrelevant matters, and also failed to take into account material considerations, both in determining that adequate provision for Justine had not been made under the 2021 Will and in determining, if the jurisdictional preconditions in s 59(1) be satisfied, that it was appropriate to make a family provision order in favour of Justine in the amount determined. Even if it were not the case that his Honour erred in these particular ways, I would regard this as a situation where the outcome in both respects is unreasonable or plainly unjust, such that a substantial wrong has occurred even if the precise nature of the error in his Honour’s approach cannot be discerned.

98. There are a number of features of the matter, and indeed of his Honour’s own express findings, that lead me to these conclusions.

99. The first point to be noted is that under the 2021 Will, and taking account of the restoration of Margaret’s estate through the order for repayment of the unconscionably transferred lifesavings in the CBA account, Justine was entitled to inherit $610,000. Because of her obligation to repay the money that she had improperly taken from Margaret, and the consequential entitlement of the estate to set off that amount, Justine would in fact receive $410,000. The application for a family provision order was in substance a claim to receive further amounts from the estate, over and above $410,000 and at the expense of the other beneficiaries. This is the most favourable context in which to understand Justine’s claims and asserted financial needs, given that it ignores the fact that Justine has already had the benefit of the $200,000 that she received and dissipated.

100. The second point concerns the strength of the findings made about Margaret’s testamentary choices. Before the decline in her mental acuity, Margaret gave careful thought about how she wished to dispose of her Forestville House and her life savings in her will, or before her death. She did so at a time when Justine had been her carer for several years, and whatever moral obligation in favour of Justine that arose from that situation from Margaret’s perspective had been enlivened. Margaret had the benefit of careful and sound legal advice over an extended period. A number of possibilities about the treatment of Justine, including whether she might benefit from the life savings, either in addition to or separate from a share in the Forestville House and whether before or after Margaret’s death, were expressly considered by Margaret. Margaret ultimately chose to give Justine a 20% share, through her will, in both the Forestville House and the life savings.

96. That outcome reflected a careful choice to confer on Justine a very substantial testamentary benefit, in circumstances where Margaret’s seven other grandchildren were to receive no such benefit and Justine was being elevated in testamentary status to the same level as Margaret’s children. This was during a phase of Margaret’s life where Justine was already receiving considerable benefits from her relationship with Margaret in the form of a carer’s pension and significantly reduced rent. Margaret’s view was that the carer’s pension was itself fair compensation for performing the tasks that Justine did as carer.

97. The third point to be emphasised concerns the findings made about Justine’s financial position and her financial needs. As explained above, Justine made an ambit claim that she required further provision from Margaret’s estate so that she can buy her own home, buy a good quality second-hand car, top up her savings account with a contingency for future unplanned expenses of $250,000, top up her superannuation in the sum of $150,000 and provide a fund for future medical expenses of $100,000. This was the way in which Justine sought to persuade the Court below that, despite her inheritance, she would lack adequate provision from the 2021 Will for her “proper maintenance, education or advancement in life”.

98. Justine was wholly unsuccessful in this regard. Justine did not establish inadequate provision by reference to her assertions that she lacked funds to buy a house, to buy a motor vehicle, to supplement her superannuation or to provide a contingency fund. On the contrary, Justine was found to have “real resources to draw upon to advance herself in life, if she is so minded”. The primary judge identified three sources of financial support in this regard – Justine’s present earning capacity, the assistance of her children and the money that Justine will inherit from the estate. On appeal Justine has not sought, by way of notice of contention, to demonstrate that his Honour erred in making these findings. Nor could Justine otherwise articulate what her unmet needs were, in light of the rejection of the claim she had originally asserted.

99. The fourth point concerns the stark contrast between those findings about the financial position and financial needs of Justine and the equivalent findings about other beneficiaries who stood to be prejudiced by any order for additional provision in favour of Justine. It is sufficient to focus on Jennifer and Denise. Each was found to have a “very pressing need for the funds” which they were to inherit, as they lived in dwellings in urgent need of repair and the funds were needed to carry out those repairs and “provide adequate housing for their children who are living with special needs”. It might be said that these findings are not necessarily inconsistent with a conclusion some reduction in the respective inheritances of Jennifer and Denise might nevertheless be justified in order to allow for further provision to be ordered in favour of Justine. However, his Honour considered that very matter and was evidently satisfied that this was not the case, observing that “community standards do not require the Court to deny them part of those funds to benefit [Justine]”.

100. The fifth point concerns the character and conduct of Justine, both before and after Margaret’s death. These are relevant matters to which regard may be had in determining whether to make a family provision order and the nature of any such order: s 60(2)(m). The primary judge’s findings reflect poorly on Justine’s character and conduct. Justine acted unconscionably and exercised undue influence over Margaret to obtain Margaret’s life savings. The transfer was not in Margaret’s interests and Justine must have known that. It was also obvious to her that Margaret was weak and dependent on her. Justine exploited that situation to her own advantage. This was in circumstances where Justine had no pressing financial needs of her own. She spent and distributed the funds improvidently and she cannot be relied upon to make good use of any further funds that come her way.

101. Having had the benefit of a favourable rental arrangement at the Forestville House, Justine refused to hold up her end of the bargain when Margaret died. Justine remained in occupation long after Margaret’s death and frustrated the proper administration of Margaret’s estate, to the financial detriment of all beneficiaries. Despite having no apparent sensible basis to complain about the requirement to vacate the property, Justine resented having to leave to the point that she caused so much damage to the property as to render it uninhabitable and inflict substantial financial harm on the estate.

102. These circumstances would appear to compel the conclusion that the necessary preconditions for an order for family provision were not satisfied and Justine’s claim for such an order was entirely lacking in merit. In my opinion they do compel that conclusion. However, in circumstances where House v The King error must be established before disturbing the judgment below, it is necessary to consider why, despite these circumstances, the primary judge was satisfied that adequate provision had not been made for Justine under the 2021 Will and a family provision order ought be made in her favour, to the value of the chose in action for recovery of the money that Justine had taken from Margaret before her death. The reasons for this conclusion, as set out in paragraphs [188] and [196]-[198] of his Honour’s reasons for judgment, reduce to the following propositions:

1. if Justine has to repay the $200,000 to the estate together with interest and costs this will “substantially neutralise the benefit the deceased intended her to have under her will and to that extent what the deceased provided for her in [the] Court’s view has turned out to be inadequate”;

2. if Justine is not “absolved” from the consequences of her own haste to obtain the $200,000 transfer from the deceased, and to have to repay it to the estate with interest and costs, she is likely to be left with “very little with which to make her way in life”;

3. that outcome would “contrast with the deceased’s intention for [Justine] to be treated as having an equal testamentary claim upon the deceased’s estate”;

4. had the $200,000 not been transferred to Justine she would have been entitled to $40,000 of it anyway;

5. if Justine must restore the $200,000 to the estate, what she will receive from the estate is not adequate provision for her proper maintenance, education or advancement in life.

108. Proposition (4) may be dealt with briefly. It is accurate to observe that as a beneficiary Justine was entitled to receive $40,000 of Margaret’s life savings, if this formed part of Margaret’s estate. But that observation does not demonstrate anything about the lack of adequate provision for Justine in the 2021 Will, or the appropriateness of an order for family provision for the full amount of $200,000. As David submitted on appeal, the point is neutral when it comes to the questions of adequate provision and the making of an order for further provision.

109. Propositions (1), (2) and (5) involve essentially the same proposition, namely that if Justine in fact has to repay the $200,000 (in the sense that the obligation is not negated by a family provision order of equivalent value), Justine will have “very little with which to make her way in life”, such that the 2021 Will can be seen not to make adequate provision for Justine’s proper maintenance, education or advancement in life. It is, with respect, difficult to reconcile that conclusion with the factual circumstances as found by the primary judge. Putting to one side the question of costs, his Honour was effectively comparing a situation where Justine receives $410,000 from Margaret’s estate (being the outcome in the absence of a family provision order) with a situation where Justine receives $570,000 (being the outcome that would follow from the administration of Margaret’s estate with the order for additional family provision). The proposition that the former outcome will “substantially neutralise” the benefit Margaret intended Justine to have under her will is not, with respect, sound. Justine would be in receipt of a large sum of money and a large proportion of the amount to which she would have been entitled if she had never orchestrated the transfer of Margaret’s life savings.

110. As to the point that this outcome would leave Justine without adequate provision, when the different outcomes are properly exposed, the logic of his Honour’s approach is that if Justine receives only $410,000 she will lack adequate provision for her proper maintenance, education or advancement in life, but that deficiency will be appropriately solved if Justine receives an additional amount of $160,000.

111. With respect to the primary judge, the facts established in this case do not support such a conclusion. His Honour had rejected everything that Justine had in fact asserted about her needs and the money that she required to improve her lot in life. This is not a situation where there was an initial ambit claim that was rejected, but a more refined and modest set of financial needs was established. Rather, this was a situation where Justine failed to demonstrate that she had any financial needs that would not be adequately met if she received her inheritance from the estate (being effectively $410,000). His Honour made a positive finding to the effect that Justine had “real resources to draw upon to advance herself in life, if she is so minded”. That ought to have been the end of Justine’s case when it came to satisfaction of s 59(1)(c) and the exercise of the discretion in s 59(2). It is apparent that his Honour failed to take into account that the factual findings that he had made on this topic did not leave any room to reach a contrary conclusion. That involves House v The King error.

112. This conclusion is reinforced by the point that his Honour was implicitly comparing a situation where Justine received $410,000, rather than $570,000. The difference between those amounts is relatively small. A comparison of this kind brings into sharp focus the operation of the statutory criteria. There may well be factual circumstances where a claimant for further provision can demonstrate that $410,000 would amount to inadequate provision, whereas an additional $160,000 would make such a meaningful difference in terms of the maintenance, education or advancement in life of the claimant that it is a suitable amount to be ordered by way of further provision. But nothing on the facts of this case leads to such a conclusion. Neither the amount of $200,000, being the approximate value of the family provision order, nor the amount of $160,000, being the net increase in Justine’s financial position taking account of her reduced inheritance, reflected any considered or precise assessment of Justine’s needs, and the relative inadequacy for Justine’s maintenance, education or advancement of $410,000.

113. The only apparent significance of the figure of $200,000 was that this was the amount that Justine was being ordered to repay, such that “absolving” Justine of the obligation was found to be a suitable measure of the appropriate order for further provision. That approach became untethered from any findings about Justine’s financial needs or financial resources. And it introduced into the analysis extraneous or irrelevant matters that lacked a proper connection to the statutory criteria.

114. An additional problem with propositions (1) and (2) in the list set out above is that each involves an unverified assumption about costs which was apparently significant to his Honour’s conclusion. The primary judge was postulating a situation in which Justine had to repay to the estate $200,000 “with interest and costs”. However, his Honour was at that stage not in a position to anticipate, with any certainty or precision, what Justine’s obligations in relation to costs would in fact be, in the absence of an order for family provision. Nor was his Honour in a position to make an informed assessment of the extent to which Justine’s obligations to pay for her own costs or the costs of others might be the reflection of unreasonable conduct on her part, in circumstances where that might impact on the merits of her claim for a family provision order and the extent to which costs should be factored into the analysis (either favourably or unfavourably).

115. A trial judge must exercise considerable caution in circumstances like these before attaching weight to what is anticipated to be the adverse impact of legal costs and potential costs orders. While it is ultimately a discretionary matter for the Court whether or not to take such matters into account (Bassett v Bassett [2021] NSWCA 320 at [198]), there are bound to be significant complications involved in taking them into account. In most cases, there will be material uncertainties when anticipating the likely outcome as to costs. Those uncertainties will affect how much a party pays for its own costs, as well as the extent to which that party may need to pay the costs of others, or have the benefit of costs orders imposed on others. For example, the orders ultimately made by the Court may be affected in significant ways by offers of compromise about which the Court will usually be ignorant at the time of making an order for family provision: see Bassett v Bassett at [120].

116. The problems with placing reliance on an assumption about costs are well illustrated by the facts of this case. In relation to the costs of Justine’s claim for a family provision order, his Honour ultimately found that a weighty factor in deciding the appropriate costs outcome was Justine’s choice to bring her claim for additional provision, in circumstances where Margaret’s estate is otherwise unlikely to have brought proceedings to recover the $200,000. Once that relevant consideration was revealed, the position in terms of Justine’s costs exposure changed. At the earlier stage of determining that a family provision order was appropriate, his Honour had no way of anticipating this outcome and the consequences for the respective financial positions of Justine and the estate. Nor was his Honour in a position to assess the reasonableness of the conduct of each party in this connection, which in turn might impact on the approach to be taken to factoring costs into the assessment of the claim for a family provision order.

117. This is a case in which relatively minor variations in the respective positions of the parties as to costs could well have had a material impact on the primary judge’s assessment of the merits of Justine’s family provision claim. As emphasised above, his Honour was implicitly comparing an outcome where Justine received $410,000 with an outcome where Justine received $570,000. In a situation like this where the margins are relatively fine, variations in the quantum of costs and the burdens and benefits of costs orders may well be material to the outcome. That tends to reinforce the need for caution before making assumptions about the extent of any costs burden and factoring them into the assessment of the questions.

118. The primary judge reasoned that if Justine had to repay $200,000 to the estate “with interest and costs”, she is likely to be left with very little with which to make her way in life. His Honour did not seek to quantify his implicit assumption about the costs that Justine would be liable to pay. Nor did his Honour articulate why, in that scenario, Justine’s obligation to pay costs in respect of the cross-claim would be an appropriate matter to be taken into account in Justine’s favour for the purposes of her family provision order claim. His Honour was describing an assumed obligation on the part of Justine to pay the costs of the estate in respect of the cross-claim. Any such costs would reflect the success of the estate in suing Justine to recover money that she had obtained unconscionably and through the exercise of actual undue influence. It is far from self-evident that an obligation on the part of Justine to pay such costs was an appropriate matter to be taken into account in Justine’s favour in determining whether inadequate provision had been made for her in the 2021 Will or in determining that it was appropriate to make an order for family provision.

119. The final aspect of the primary judge’s reasons which remains to be considered is proposition (3) in the list set out above, namely that an outcome where Justine had to repay the $200,000 with interest and costs would “contrast with the deceased’s intention for [Justine] to be treated as having an equal testamentary claim upon the deceased’s estate”. This does not go to the question of whether adequate provision had been made for Justine under the 2021 Will, but rather appears to be relevant to the discretionary question of whether or not it was appropriate to make a family provision order in favour of Justine.

120. In relying upon this proposition in that context, his Honour appears to have ignored material considerations and taken irrelevant matters into account. Margaret’s testamentary intentions were clear and in the absence of a family provision order those testamentary intentions would be given effect, with each beneficiary entitled to the same 20% share. In Justine’s case, the estate would be entitled to set off Justine’s liability to repay the $200,000 plus interest. By contrast, an order for family provision in favour of Justine would, in economic terms, result in Justine receiving a greater share of Margaret’s assets than any of the other beneficiaries. That would tend to frustrate, rather than keep faith with, Margaret’s intention that each beneficiary should have an equal testamentary claim upon her estate.

121. His Honour, in exercising the discretion under s 59(2), also neglected to have regard to a material consideration, being the impact of the order for family provision on the other beneficiaries. When exercising the discretion under s 59(2) the Court is concerned to act by reference to “perceived prevailing community standards of what is right and appropriate”: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [16], cited with approval in Angius v Angius [2025] NSWCA 113 at [24]. The primary judge’s order for family provision in favour of Justine had the effect of reducing the amount due to each of the other beneficiaries by at least $40,000. This is in circumstances where Jennifer and Denise in particular have very pressing needs for the funds due to them under the 2021 Will. Moreover, as the primary judge expressly found, community standards do not require that the Court ought deny Jennifer and Denise any part of those funds to benefit Justine. That was a significant consideration that ought to have been brought to bear, given how strongly it told against the making of an order.

122. For these reasons, I consider that his Honour fell into error of the kind described in House v The King by taking into account irrelevant considerations and failing to take into account relevant considerations. In any event, the factual circumstances are such that the order for family provision in favour of Justine was unreasonable and plainly unjust.

123. It follows from what I have said that Justine has failed to establish, for the purposes of s 59(1)(c), that adequate provision was not made in the 2021 Will for her proper maintenance, education or advancement in life, and in any case it would not be an appropriate exercise of the discretion in s 59(2) to make an order for family provision in favour of Justine.

Appellant’s submissions as to indemnity costs in respect of the cross-claim

124. In his written submissions the appellant argued that Justine should be ordered to pay David’s costs in respect of the cross-claim on the indemnity basis from the date of the expiry of a Calderbank offer that was made by David prior to trial. However, David has not sought in his notice of appeal to disturb the existing costs order in respect of the costs of the cross-claim or challenge the correctness of the primary judge’s findings in respect of the costs of the cross-claim. Nor did the notice of appeal seek an alternative order of this kind as to the costs of the cross-claim in substitution for the order made by the primary judge. In the circumstances, David has not established a proper basis for a different order of this kind.

Orders

125. The orders that I would make are:

1. Appeal allowed.

2. Orders 2 and 3 of the court below of 9 December 2024 be set aside.

3. Orders 1 and 3 of the court below of 21 February 2025 be set aside.

4. In lieu thereof order that:

1. The summons filed on 9 February 2023 be dismissed.

2. The plaintiff is to pay the defendant’s costs of the summons.

5. The respondent is to pay the appellant’s costs of the appeal.

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Decision last updated: 08 August 2025