Katramados v Hasapis - [2018] NSWSC 948

Supreme Court

New South Wales

Medium Neutral Citation: Katramados v Hasapis [2018] NSWSC 948
Hearing dates: 5 – 9 February 2018
Decision date: 22 June 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraphs 290 to 335.

Catchwords:
SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - probate and letters of administration - testamentary instruments governed by Greek law - the effect of Greek law on the ultimate effect of all of the testamentary instruments executed by the deceased - the revocation of prior wills leaving deceased intestate excepting specific gifts
SUCCESSION - family provision and maintenance - whether family provision orders should be made in favour of two children of the deceased being the second and fourth defendants/cross claimants - whether provision made for two children of the deceased was adequate for their proper maintenance, education or advancement in life - family provision orders made in favour of two children of the deceased
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Soens v Rathborne [2018] NSWSC 302
Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432
Category: Principal judgment
Parties: Julia Katramados (plaintiff)
Despina Hasapis (first defendant/first cross defendant)
Adriana Kalantzis (second defendant/second cross claimant)
Maria Kalantzis (third defendant)
Vassilis Kalantzis (fourth defendant/fourth cross claimant)
Representation:
Counsel: A Hill (plaintiff)
FFF Salama/L Teoh (first defendant)
NCT Bilinsky (third defendant)
D Williams (fourth defendant)
Solicitors: First Choice Family Lawyers (plaintiff)
Spiro Troussas Principal Lawyer (first defendant)
Self represented (second defendant)
Whittens McKeough (third defendant)
Sharah & Associates (fourth defendant)

File Number(s): 2015/374480

Judgment

These proceedings concern the estate of the late Nicholaos (Nicholas) Kalantzis (the deceased), who died on 26 December 2014 in Greece at the age of 96 years.

Family members

The plaintiff is the deceased's widow, Julia Katramados. Without meaning any disrespect, as is usual in matters of this kind, I will refer to the plaintiff by her first name as Julia, and will refer to the other members of the family in the same way.
As well as being survived by Julia, the deceased was survived by his daughter, Adriana Kalantzis, who is the second defendant, Maria (Mary) Kalantzis, who is the third defendant, and Vasileios Kalantzis (known as Billy), who is the fourth defendant. All of the deceased’s three children were children of the deceased’s first wife, Diamando Kalantzis.
Adriana was formerly married to Mr Vince Hassapis. Despina Hasapis, who is the first defendant, is the niece of Vince Hassapis. (There is no error in the spelling of Vince’s and Despina’s surnames – the differences arose as a result of events that occurred during the course of their migration to Australia, which are not material). Despina was named by the deceased as his executor under a will made in this State on 6 November 2006 (2006 will). Despina obtained probate of the 2006 will, by order of this Court made on 30 March 2015. At the time probate was granted, Despina was not aware that the deceased had made any later wills in Greece, as he had in fact made. Despina has partly administered the 2006 will.
The deceased was also survived by a stepdaughter, Julia's daughter Maria-Flora Orfanidis (who is apparently called Maria), as well as a niece, Ioulia Orfanidis. Both Maria and Ioulia were named as beneficiaries in the last will made by the deceased on 21 December 2014 in Greece (December 2014 will). Maria’s husband is called Apostolis Orfanidis. Maria is named as Maria-Flora Katramidou in the official translation of the December 2014 will.
These proceedings were commenced by statement of claim dated 11 February 2016 and filed by Julia on 22 February 2016. The statement of claim was properly filed in the Probate List, and the proceedings have been case managed by a Registrar in that list. That is so even though Adriana and Billy have filed cross claims by which they have sought the making of family provision orders in their favour pursuant to s 59 of the Succession Act 2006 (NSW) (the Act or the Succession Act). These proceedings have not had the benefit of case management in the Family Provision List.

Deceased’s wills

In order to understand the claims made by the parties, it is necessary to understand the terms of the various wills made by the deceased.
The deceased made wills in this State before he made the 2006 will. No party has suggested that those wills are material.
The deceased then made the 2006 will, to which reference has been made above. By clause 2 of the 2006 will, the deceased appointed Despina as his executor and trustee. He then made specific gifts of the real properties that he owned in this State. By clause 3, the deceased gave his interest in his property at 436 New Canterbury Road, Dulwich Hill, to Billy (Dulwich Hill property). That property consists of a shop at street level with an apartment above. The deceased was the sole registered proprietor of the Dulwich Hill property at the time of his death.
By clause 4 of the 2006 will, the deceased gave the whole of his interest in a property at 75 Duke Street, Campsie to Adriana absolutely (Campsie property). Apparently, the Campsie property is a single dwelling that can be set up to operate as two separate residences. Earlier, on 31 December 1977, the deceased transferred to the plaintiff an undivided half interest in the Campsie property. Accordingly, the 2006 will would, if it became operative, only have devised the deceased's undivided half interest in that property to Adriana.
After she was granted probate of the 2006 Will, and before she was aware of the matters the subject of the present dispute, Despina transferred the title to the Dulwich Hill property to Billy. She would also have transferred the deceased's interest in the Campsie property to Adriana, were she not prevented from doing so because the deceased and Julia had lodged a caveat against the title to the Campsie property to prevent transfers of it, as they had misplaced the certificate of title to the property.
It came to light after these events that the deceased had made a number of wills while he was living in Greece, as follows.
All of the wills were holograph wills, meaning that they were written in the deceased's handwriting and signed by him without any witnesses, as would ordinarily be required by the law of this State. All parties accepted that holograph wills are recognised as valid under the law of Greece. The parties also accepted that the following translations (contained in Julia’s opening written submissions) from the original Greek are accurate.
The first of the wills was made on 30 August 2012 (August 2012 will), and provided as follows in the certified full translation of the will (names as spelled in the translation):

In Krathio, Akrata, of the municipality of Aegialia, [Prefecture of] Ahaia, today 30 August 2012, I, Nikolaos Kalantzis, write this Will of mine by which I decide the following: I appoint and I name as inheritors my spouse Ioulia nee Constantinos and Maria Christopoulou and my three children Maria Kalantzi daughter of Nikolaos and of Diamanto, Adriana Kalantzi daughter of Nikolaos and of Diamanto and Vassilios Kalantzi daughter (sic) of Nikolaos and of Diamanto to whom I bequeath the following: to my three children Maria Kalantzi, Adriana Kalantzis and Vassilios Kalantzis I bequeath at high and only possession in common and indivisibly and of equal share, that is by proportional percentage of one third (1/3) indivisibly to each one, my whole movable and real estate property whereever is located. To my spouse Ioulia nee Constantinos Christopoulou I bequeath for the duration of her life the usufruct of my whole movable and real estate property wherever is located. I cancel a previous Will that I had made and is currently valid. This present Will of mine I wrote with my own hand today on 30 August 2012 and I sign below.
Signed N Kalantzis.

Had this will taken effect, the parties accepted that Julia would have been entitled to a usufruct, which for present purposes could be understood as giving Julia a life interest in the whole of the deceased's estate. The three children of the deceased would have become entitled to the whole of his estate, subject to the life estate in favour of Julia. This will would have revoked the 2006 will, as no other will made by the deceased is known that the deceased could have intended to refer to as the will he intended to cancel.
The evidence does not disclose why in August 2012 the deceased revoked his 2006 will. That he did so is inconsistent with assurances that Adriana and Billy say were given to them by the deceased. There is nothing irrational, however, or inherently unreasonable about the terms of the August 2012 will.
The next will made by the deceased was made on 26 October 2012 (October 2012 will), only about two months after the first Greek will. It stated:

In Krathio, [Prefecture of] Ahaia, today 26/10/2012, I, Nikolaos Kalantzis son of Vassilios and Panagiota, born on 10/10/1918, residing in Krathio, Akrata, having complete awareness of my deeds and in my own free will I write this by which I recall in their totality every previous wills of mine and I reserve my rights regarding the way that I will distribute my estate. I wrote this will of mine with my own hand today 6/10/2012.
Signed N Kalantzis.

The only effect of this will would have been to revoke the earlier Greek will, and as that will had revoked the previous will, it would have left the deceased intestate. The evidence does not establish why the deceased made this will so soon after the August 2012 will. The terms of this will are unusual to the extent that testators do not usually revoke one will containing positive dispositions, and, without making alternative dispositions, intentionally create an intestacy. The intentional creation of an intestacy may be all the more difficult to understand in so far as there is no reason to believe that the deceased understood the combined effect of the intestacy rules of Greece and this State. The effect of those rules will be considered below. It may be that, as the deceased had lived in Greece for a long time before he made the December 2014 will, he understood the effect of the applicable Greek intestacy rules, as they are reasonably straightforward. It is hard to accept that the deceased understood the effect of the intestacy rules of this State, as the effect is relatively complex and probably would not be understood by the ordinary lawyer in this State who had not studied the rules.
The final Greek will (the December 2014 will) was made on 21 December 2014, only five days before the death of the deceased. It provided:

With this will I leave to my daughter Maria-Flora Katramidou my real estate situated at Krithio, Akarata. This real estate includes a ground floor shop and first floor. Also the next building which consists of ground floor, one first floor apartment and two second floor apartments, as well as the adjacent orchard which reaches to the stream.
To my niece Ioulia Orfanidi, I leave my apartment on 3 Thessalias Street and Helmou Sklivenis, second floor. As for the remaining, the previous Will stands valid. Being of sound mind,
Signed Nikos Kalantzis

This will made gifts of identified property in Greece to Maria and Ioulia, but otherwise confirmed the previous will. As noted, the apparent effect of that will was to revoke all prior wills and to create an intestacy as to the balance of the deceased’s estate not the subject of specific dispositions in the December 2014 will.

Pleaded claims

By her statement of claim, Julia sought the following relief:

1. That the Grant of Probate ("the Grant") made to the First Defendant by this Court on the 30th March, 2015 in Probate suite 24780 of 2015 be revoked.
2. That the First Defendant deposit the Grant in the Registry.
3. An order that administration of the deceased's estate with the deceased's Will dated the 21st December, 2014 annexed in Solemn Form be granted to the Plaintiff.
4. An order that the file be returned to the Registrar to complete the Grant.
5. An order that all that land contained in Certificate of Title Volume 13259 Folio 59, situate and known as 436 New Canterbury Road, Dulwich Hill in the State of New South Wales be transferred by the Fourth Defendant to the Plaintiff as Administrator CTA of the deceased's estate.
6. A Declaration that so much of the Will made by the deceased in Greece on the 21st December, 2014 as deals with the remainder of the deceased's estate wherever situated, is so vague or uncertain as to be void.
7. A declaration that apart from the real properties situated in Greece specifically dealt with in the Will made by the deceased on the 21st December, 2014 the deceased died intestate as to the remainder of his estate wherever situated.
8. Further in the alternative, an order for provision for the Plaintiff's maintenance, education, and advancement in life, pursuant to Chapter 3 of the Succession Act 2006 out of the estate, or the notional estate, of the deceased.
9. Further, or in the alternative, an order that the land comprising 75 Duke Street, Campsie in the State of New South Wales Folio Identifier F/369428 ("the Campsie property") be vested in the Plaintiff As Trustee for sale under Section 66G of the Conveyancing Act 1919.
10. An order that the Plaintiff's costs be paid from the deceased's estate on an indemnity basis.

Julia sought an order that administration of the deceased's estate be granted to her with the December 2014 will annexed. As a result of questions that I asked counsel for Julia during the course of the hearing concerning the practical administration of both the New South Wales and Greek estates of the deceased, counsel indicated that Julia was content for an appropriate independent administrator to be appointed in her stead. That is a matter that can be given effect when final orders are made.
At the hearing, Julia did not seek the declaration referred to in prayer 6, and did not pursue the family provision application in prayer 8.
Despina and Adriana were initially represented by the same solicitor, and filed a joint defence on 18 May 2016. Relevantly, they admitted that the deceased made the 2006 will. They admitted that the deceased made the three Greek wills, but pleaded that the deceased, by those wills, only disposed of his Greek property, and did not purport to dispose of his property in this State, or alternatively, that if the Greek wills did purport to do so, they were incapable of enforcement in this State. As to the December 2014 will, Despina and Adriana further pleaded that, apart from the two specific gifts, which they conceded were valid, the will reinstated the disposition of property affected by the first Greek will. Alternatively to that position, they pleaded that the December 2014 will confirmed the legal effect of the second Greek will, which resulted in an intestacy concerning the balance of the deceased's property in Greece.
As will be seen below, by the time of the hearing the parties all accepted that the December 2014 will was valid, and there was no contest as to the effect of that will.
In response to Julia's alternative claim for a family provision order, Despina and Adriana pleaded a number of matters that the Court should take into account in determining that claim, being primarily Julia's entitlement to enjoy the benefit of the deceased's Greek property.
Adriana filed a cross claim on 23 March 2017, in which she sought the making of a family provision order in her favour under s 59 of the Act out of the deceased's estate.
Adriana also sought an order granting leave to her to make her application outside the 12 months period after the death of the deceased provided for in s 58(2) of the Act, which was 26 December 2015.
None of the parties mentioned this application for leave during the hearing. That is explicable in Adriana's case because she represented herself, and may not have been aware of the need to make the application. The case proceeded upon the unspoken assumption that Adriana was entitled to pursue her claim, and Julia responded to it in substance. Although nothing was said about the issue, it is likely that there was no contest about the appropriateness of leave being granted, as for some time after the death of the deceased Despina and the deceased's children acted upon the assumption that the 2006 will was valid and would be given effect. So long as they thought that, there was no occasion for any of the deceased's children to contemplate making an application for a family provision order. There was also, apparently, some doubt as to the effectiveness of the Greek holograph wills, after they came to light.
This point raises the issue that no party has formally been appointed to represent the deceased's estate for the purpose of these proceedings, so strictly there is no party with authority to consent to the Court's making an order under s 58(2) of the Act that could bind the estate.
As all relevant parties have appeared during the hearing, it may be appropriate for the Court in due course to make an order under s 91(2) of the Act nunc pro tunc granting administration of the deceased's estate to Julia for the purpose only of permitting the family provision applications to be dealt with. That course will not give rise to any conflict of interest on Julia's part, because of her own application for a family provision order. As I have explained above, by the time of the hearing all of the other parties had effectively accepted Julia's case in respect of the probate issues. Whether or not Julia could still have pursued an application for a family provision order, she did not do so. The subject was not mentioned during the hearing.
Maria filed a defence in which, in substance, she did not contest the claims made by Julia.
Billy filed a defence on 18 April 2016. The defence is very brief. Billy opposed the relief claimed in the statement of claim. He admitted the date of the death of the deceased, and the granting of probate of the 2006 will to Despina. He admitted the making of the 2006 will. He said that he did not know and could not admit the effect of the three Greek wills.
Billy filed an amended cross claim on 7 July 2017. Billy sought a declaration that the 2006 will had been revoked by the August 2012 Greek will. He sought an order that the August 2012 Greek will was the last will and testament of the deceased, subject only to the devises of real estate made in the December 2014 will. He sought an order that letters of administration be granted to himself of the August 2012 will with the December 2014 will annexed. Alternatively, he sought a grant of administration to Despina of the August 2012 will with the December 2014 will annexed. He sought an order that the grant of probate made to Despina of the 2006 will be revoked.
Billy also sought an order under s 58(2) of the Act permitting him to make a family provision application out of time, together with an order for family provision under s 59 of the Act.
As was the case for Adriana’s application for leave to make her family provision application out of time, nothing was said during the hearing about this application. I assume that was for the same reason as I have given above in relation to Adriana’s application.
In due course, it will be appropriate for the Court to make orders that permit Adriana and Billy to pursue their family provision applications.
It should briefly be recorded that Billy commenced an application on the first day of the hearing for leave to further amend his defence and cross claim. The primary effect of those amendments, if permitted, would have been to introduce a claim that the Dulwich Hill property was held on constructive trust for him, or alternatively an order that the Dulwich Hill property be transferred to him at a discounted price equivalent to his interest as a beneficiary in the estate of the deceased. Billy withdrew his application to amend to include these claims.

Billy ultimately did not contest Julia’s probate claims, so the only claim in issue became Billy’s claim for a family provision order.

Effect of Greek law

Julia filed an affidavit of Mr Sotirios Stavropoulos dated 30 September 2016. Mr Stavropoulos is an expert in Greek law. Despina and Adriana filed an affidavit by another expert in Greek law, Mr Andreas Voltis, dated 15 June 2017. Materially, the experts agreed on the questions that they were asked. First, the August 2012 will revoked all of the deceased's prior wills. Secondly, the October 2012 will not only revoked the prior wills, but left the deceased intestate. Finally, the deceased's December 2014 will continued the intestacy, with the exception of the specific gifts, which were valid.
The combined effect of the evidence of the experts in Greek law was to remove any grounds for argument concerning the ultimate effect of all of the testamentary instruments executed by the deceased. The parties appear to have agreed that, as the deceased was domiciled in Greece at the time of his death, Greek law governed the effect of the various testamentary instruments made by the deceased.

Costs of the probate claim

The Court was not taken to any of the communications between the parties about the stance that the defendants would take at the hearing concerning what may be called the probate claims in the statement of claim, but it is clear that, from the commencement of the hearing, none of the defendants contested that the Court should make the orders sought by Julia concerning the effect of the deceased's various wills, although as I have mentioned above, it is likely that any grant of administration in this State will be made to a suitably qualified independent person.
In due course, it will be necessary for the Court to address the issue of the costs of Julia's probate claims. Julia will now succeed on those claims. Those claims were at least initially put in issue by Despina, Adriana and Billy. It is not clear whether, and if so when, any of those parties informed Julia during the course of the preparation of the matter for hearing that they would not contest the probate claims. That is a matter that will become relevant when the issue of the costs of the probate claims is dealt with.
I will consider the significance of the costs of the parties to the outcome of these proceedings below. At this stage it may simply be noted that the probate claims made by Julia and the family provision applications made by Adriana and Billy are substantially separate claims, which may call for the making of different cost orders. Any costs order made in favour of Julia on the probate claim will have the dual effect of reducing her legal costs, and also possibly reducing the assets available to Adriana and Billy. That reduction may itself be material to their family provision claims.

The position of the executor

Shortly before the hearing, Despina served an affidavit made on 29 January 2018. She explained the circumstances in which she had been granted probate and partly administered the 2006 will. She explained that she had taken those steps in ignorance of the existence of the Greek wills. She gave evidence of her understanding of the assets and liabilities included in the deceased's Greek estate.
Despina also annexed to her affidavit curb side appraisals of the Campsie Property and the Dulwich Hill Property, which assigned values to them of $600,000-$650,000 for the deceased’s half interest in the Campsie property and $1,100,000-$1,200,000 for the Dulwich Hill property. Despina did not oppose any of the relief sought by Julia at the hearing. Notwithstanding that, she was represented by counsel and solicitor throughout the hearing. That was so, notwithstanding that counsel for Mary had observed early in the hearing that there was no reason for Despina to be represented. In final submissions, her counsel only submitted that Despina should be entitled to an order for payment of her costs.
That is a matter that will have to be dealt with when all of the appropriate cost orders are considered. I will only observe that it is likely that it was reasonable for Despina initially to explore whether she should defend her grant of probate of the 2006 will, and there will be an issue as to the point of time when it became appropriate for Despina to submit to the order of the court, save as to costs. I have not formed any final opinion, but it is difficult to see how it was reasonable for Despina to be represented throughout the hearing. At least at the hearing, no party made any submission adverse to Despina in relation to the consequences of the steps that she took to obtain a grant of probate of the 2006 will, and to partially administer it during the period that she thought that she was authorised to do so.

Mary’s position

Mary’s participation at the hearing was also unusual. She obtained undertakings from both Adriana and Billy that, if they satisfied the Court that they were entitled to family provision orders out of the deceased's estate, they would not seek to throw the burden of those orders on Mary's share of the estate. Mary did not challenge Julia's claim, and did not make any claim of her own. She did not provide any evidence concerning her financial position or needs. She was represented by counsel and solicitor at the hearing.
On the first day of the hearing, her counsel advised the Court that he would, with the leave of the Court, withdraw as Mary could submit to the order of the Court, save as to costs, on the basis of the undertakings to her given by her siblings. That prompted counsel for Julia to respond by advising the Court that, even if Adriana and Billy did not seek to throw the burden of any family provision orders in their favour onto Mary, it was Julia's position that any undertakings given by the siblings did not bind her, and she would submit that any family provision orders made in favour of the siblings should be better born by Mary's share of the estate, rather than her own. Counsel submitted that the Court should proceed upon the basis that, as Mary did not proffer evidence of her own financial position or needs, her share of the estate was available to meet orders made in favour of Adriana and Billy. In fact, the Court knows little more about Mary's circumstances than that she was appointed in about 2006 as the Dean of Education at the University of Illinois at Urbana-Champaign, and that she was a successful and highly published academic.
This response prompted Mary's counsel to advise the Court that he had been instructed that he should remain in Court, for no other purpose than to put submissions against the submission that was foreshadowed by Julia's counsel. Ultimately, the foreshadowed submission was put on behalf of Julia. Mary's counsel responded by submitting that the position taken on behalf of Julia was misconceived. He submitted that the real consequence of the undertakings given by Adriana and Billy was that, if they persuaded the Court that they were entitled to family provision orders, to the extent that the Court determined that the proper course was to make an order that Mary's share of the estate should bear those orders, the Court would simply decline to make the orders in favour of Adriana and Billy pro rata. That is, the effect of the undertakings having been made would be that Adriana and Billy had waived their family provision claims to the extent that the Court would otherwise have ordered those claims to be borne by Mary. Counsel submitted that, as his client had relied upon the undertakings in the manner in which she had conducted the hearing, by not challenging the claims made by her siblings, there would be such a waiver, and it was not open to Julia to argue that any family provision orders made in favour of the siblings should be thrown upon Mary's share, notwithstanding that the undertakings had been given.
This will give rise to another issue as to costs in due course, being whether in any event Julia should be ordered to bear the costs of Mary for the period of the hearing after Mary's counsel initially indicated that he and his solicitor would withdraw.

Value of the deceased’s estate

It will be convenient to set out the property in the deceased's estate, as well as its liabilities, before I proceed to consider the effect of his various testamentary instruments in accordance with the applicable laws.
In Despina’s 29 January 2018 affidavit, the deceased's Australian estate is valued at $1,700,000-$1,850,000. That is on the basis of curb side valuations of $600,000-$650,000 for the deceased’s half share in the Campsie property, and $1,100,000-$1,200,000 for the Dulwich Hill property. This affidavit is no longer strictly the executor’s affidavit, as the defendants all accept that the Court should make an order revoking the grant of probate in favour of Despina of the 2006 will. Despina gave evidence that she is not aware that the deceased had any liabilities in Australia.
A solicitor assisting in Julia’s case, Nikita Sofronov, gave evidence of market appraisals that would give the half interest in the Campsie property a value of $625,000-$675,000, and the Dulwich Hill property a value of $1,250,000-$1,350,000.
There was no contest between the parties at the hearing concerning the value that should be attributed to either of the deceased’s properties in this State, and as the appraisals put in evidence by the parties fall within a relatively narrow range, I will accept them as establishing broadly the approximate values of the properties. For the sake of simplicity, I will adopt an approximate mid-range value of $625,000 for the deceased’s interest in the Campsie property and $1,275,000 as the value for the Dulwich Hill property.
Julia gave evidence in her 5 July 2017 affidavit that the deceased's estate in Greece has a total value of $1,737,850 which, after payment of Greek land tax and other debts of $30,224, leaves a net value of $1,707,626.
The deceased's Greek estate is described by Julia as consisting of the following:

Description of Asset

Estimated Value

Apartments situated at Samara 26, Kato Patissia (50%)

AU$45,323 (€30,000)

Apartments situated at Spintharou 62, Neos Kosmos, Athens (50%)

AU$45,323 (€30,000)

Property (700 m²) situated at Akrata Ampelos, named “Erimokklisi”

Est. $85,752

Property (1554 m²) situated at Akrata Ampelos, named “Limperikos Loggos”

Est. $121,606

Property (2591 m²) situated at Akrata Ampelos named “Lasinia-Margoseika”

Est. $20,275

Property (12,571 m²) situated at Akrata Ampelos named “Lasinia-Margoseika”

Est. $89,430

Property (1217 m²) situated at Akrata Ampelos named “Pleura-Sakos”

Est. $97,490

Property (1300 m²) situated at Akrata named “Chalasmata"

Est. $146,974

Property (1580 m²) situated at Akrata Ampelos named “Tholo Potami”

Est. $118,006

Property (2061 m²) situated at Aigira named “Lazana”

Est. $17,594

Property (1500 m²) situated at Akrata named “Mesonisi”

Est. $658,020

Property (6000 m²) situated at Akrata named “Mesonisi”

Est. $166,652

On my calculation, the total value of the properties in the above table is $1,612,445, not the $1,737,850 claimed in Julia’s evidence. The difference is $125,405. I do not know the reason for this discrepancy and whether the error lies in the calculation of the total made by Julia or some property has inadvertently been omitted from the table.
The evidence given by Julia of the value of the Greek properties in the deceased’s estate was not supported by any independent valuations, or even what in this State would be understood as market appraisals by real estate agents. Julia did not explain the basis upon which the estimates of value were made (although I suspect that the specific values in Australian dollars reflect a round number estimate in euros).
The defendants also did not tender any market valuation or appraisal evidence to contest the estimates made by Julia.
Julia provided evidence of her own assets in Greece in an affidavit dated 8 December 2017. Those assets have a total value of $903,264, and are as follows:

Description of Asset

Estimated Value

Apartment situated at Samara 26, Kato Patissia (50%)

AU$45,323 (€30,000)

Apartment situated at Spintharou 62, Neos Kosmos, Athens (50%)

AU$45,323 (€30,000)

Property situated in Krathio, Akrata, consisting of two buildings (50%)

AU$812,618(€537,975)

It is evident that the first two properties in the above table concern Julia’s half interest in the two properties that are listed first in the table of the deceased’s properties in Greece.
The evidence was that the deceased and Julia were each half owners in the principal property that included the apartment in which they lived. I infer that must be the property described in the above table as the property in Akrata consisting of two buildings. The estimated value is $812,618. I infer that this property is Julia’s half interest in the two properties that are last in the table of the properties in the deceased’s estate. The evidence suggests that those two properties are contiguous, and the values given of $658,020 and $166,652 give a total of $824,672.
The effect of the 2014 Greek will is that Maria became entitled to the deceased’s half share in the two properties with the name “Mesonisi”. Because of the different descriptions of the properties given to Ioulia Orfanidi by the 2014 Greek will from the descriptions in the table of the deceased’s Greek properties, I have not been able to identify which of those properties were given to Ioulia.
Adriana sought to persuade the Court that many of the Greek properties would not be readily saleable for the values assigned to them; particularly the various fields owned by the deceased. Julia responded by submitting that the Court was obliged to rely upon the evidence of value that had been provided to it, and that Adriana had not provided any contrary evidence, either as to value or saleability. Julia's submission would in principle have been correct if Julia had provided independent evidence of the value of the properties, even if only in the form of the appraisals permitted by par 18 of Practice Note SC Eq 7. While Julia’s evidence of value has been admitted, and there was no suggestion in cross-examination that she did not assign values to the properties conscientiously, it is difficult for the Court to give great weight to Julia’s opinions as to value, given her lack of expertise, the absence of any explanation as to how she determined the values, the nature of some of the properties, and the relatively small values that have been attributed.
Julia's counsel informed the Court that, under Greek law, in respect of that part of the deceased's estate that passed on an intestacy, the actual administration of the estate, including the sale of the properties and the distribution of the proceeds, would be conducted by officers of the Greek court, rather than some individual in a similar position to an administrator, as would be appointed under the law of this State. While there was no evidence on the subject, and the matter was not considered in detail, it appeared to be accepted by all parties that there was reason to doubt that the administration of the intestate estate in Greece would occur expeditiously.
The uncertainty on the evidence as to when the deceased’s property in Greece that passes on an intestacy will be realised, and what the price of realisation will be, prompted Adriana in her final written submissions to argue that the Court should not allow the deceased’s estate in this State to be administered until the result of the administration of the Greek estate is known, because otherwise Adriana (as well as Billy) may be forced out of their homes in circumstances where the ultimate value of their shares in the deceased’s estate are unknown and uncertain. I shall return to this issue below when I come to consider how the Court should resolve these unusual proceedings.

Deceased’s alleged deposit of $300,000

Adriana gave evidence in her principal affidavit that the deceased had at the time of his death a term deposit in Australian dollars with Alpha Bank in Greece. She annexed to her affidavit a document that she described as a term deposit certificate for $300,000. Unfortunately, the document is written in Greek and no translation has been provided. It does contain a reference to $300,000. It includes dates in February and May 2013. Adriana said that the certificate of deposit was in the name of the deceased, her sister Maria and herself. That claim appears to be correct. Adriana said that she attended the Alpha Bank branch in Aigion in January 2015 with a copy of the term deposit certificate, and was told that the account did not exist anymore. The Bank would not give Adriana any information concerning the circumstances in which the account was closed.
Adriana also gave evidence that, immediately after the deceased’s funeral, she was told by Apostolis, Maria’s husband, that he did not even have €500 to buy oil for the furnace for heat for his family, but Adriana observed while she was in Greece in 2015 that Apostolis had commenced extensive renovation works at the restaurant that forms part of the properties owned by the deceased and Julia at Krathio Akrata, which involved cladding the whole building inside and out with stone.
Julia did not deal with this issue in her evidence, although she did say in respect of a payment of $57,000 that the deceased made to Adriana before his death that the deceased was so angry with Adriana for demanding that he give her the money “that he changed the names in the bank account, which had previously included Adriana’s name”. Apostolis did not specifically deal with this issue in his evidence, although unhelpfully he denied “everything that Adriana Kalantzis claims in her affidavit and especially those concerning me”.
Billy’s counsel cross-examined Julia on this issue at T 119.3-120.2, and the following exchange occurred:

Q. You are aware that your husband had with the Alpha Bank a term deposit of $300,000 in 2013?
A. INTERPRETER GALLOS: I don't know about that, he divided up and gave it to the kids, to Billy.
Q. You did not say anything about this $300,000 being given to anyone in your affidavit evidence?
INTERPRETER GALLOS: I just said, "Did you hear me?"
I don't remember this at all.
Q. Do you remember your husband dealt with the Alpha Bank in the Ageo(?) Branch in Greece?
A. INTERPRETER GALLOS: I went with him once when he took $54,000 to give to I think she said Vulla.
Q. To Adriana?
INTERPRETER GALLOS: To Nuala, yes. To Nuala. I just confirmed with her, she went with him to withdraw $54,000 to give to Nuala.
Q. Thank you. Was that a different bank or this same bank?
A. INTERPRETER GALLOS: It was the same bank.
Q. Did your husband have other
A. INTERPRETER GALLOS: When my husband came back and gave her this money she said, "Not enough. I want some more."
Q. But he didn't give her more, did he?
A. INTERPRETER GALLOS: He didn't give her any, no.
Q. So you tell the Court you don't know what happened to the rest of the money?
A. INTERPRETER GALLOS: Don't know. No, I don't. Adrianna then had a fight with her father then and that's when he actually did not go ahead with the will for the property at Campsie.
INTERPRETER GALLOS: She said she said that's why she said the husband destroyed the will and it's about the property in Campsie.
Q. Did you know whether your husband spent $300,000 in the last year of his life?
A. INTERPRETER GALLOS: I was in hospital with as a result of the stroke and I don't know and I don't know what he did. He may have given it to the he may have divided it and given it to the kids. He wasn't telling me everything.
WILLIAMS: Disconnected. How did you meet the liabilities of the estate if you didn't have any cash?

Adriana also asked questions of Julia on this subject in cross-examination. At T 128.40, Julia explained the source of the funds used by Apostolis to undertake the renovation of the property by saying that Apostolis sold a house.
The evidence is unclear as to whether the deceased had a bank account at the date of his death that had originally contained $300,000, the amount in the account at the date of death, and what the fate of the money in the account was. Adriana was not directly challenged in respect of her evidence that in the first part of 2013 such an account existed with $300,000 in it. She was also not challenged about her evidence concerning Apostolis apparently having sufficient funds to carry out substantial renovations on the property now owned equally by Julia and Maria, notwithstanding his assertion that he was short of ready cash. However, just as Adriana was not challenged on this subject, the defendants did not require Apostolis to make himself available for cross-examination, even though they cross-examined Julia and Maria. In the part of the transcript extracted above, Julia appears to accept that, at some stage, the deceased did have an account containing substantial funds, but she said that $57,000 of that money had been given by the deceased to Adriana, and she did not know what had happened to the balance. Julia’s lack of information on the subject is consistent with the fact that, since some time in 2014 before the death of the deceased, Julia has suffered the debilitating effects of a stroke.
I am satisfied that, on the balance of probabilities, the deceased did have at the date of his death an account that contained Australian dollars. It seems clear that $57,000 of the money that had been in the account was paid by the deceased to Adriana in 2013. There is a possibility that some unknown balance in the account was by means unknown obtained by Apostolis and applied in the betterment of the property now owned by Julia and Maria, but the evidence does not justify a positive finding to that effect, and in any event there is no evidence as to any increase in the value of the property that may have resulted from the improvements.
In the circumstances, the Court would not be justified in giving any significant weight, in determining the family provision applications made by Adriana and Billy, to the possibility that the value of the property owned by Julia and Maria has been increased through the unauthorised use of funds in the deceased’s bank account in Greece at the time of his death.

Effect of the deceased’s December 2014 will

At the hearing, the parties accepted that, as the deceased died domiciled in Greece, Greek law will govern the succession to the deceased's movable property in Greece, and also, as the situs of that property, will govern the succession to immovable property in Greece.
There has been no suggestion that under Greek law the validity of the December 2014 will could be challenged, or that the deceased was in any way incompetent. Accordingly, this Court must proceed upon the basis that the December 2014 will was effective.
The parties accepted that the effect of Greek law is that, after the specific gifts to Maria and Ioulia, the balance of the deceased’s Greek estate is, in this case, to be distributed on intestacy as to one quarter to Julia, and as to one quarter each to the deceased’s three natural children, Maria, Adriana and Billy.
Julia’s counsel stated, at par 52 of his opening written submissions, that the total amount of the deceased’s Greek estate was approximately $1,737,850, and in par 53 that the gift of real estate to Maria had a value of $823,732.91, and the gift to Ioulia of the two properties had a value of $67,573.61. Counsel gave Court Book 142 as the source of these figures. Unfortunately, a translation of the order made by the Local Court of Akrata in relation to the December 2014 Greek will is at that page of the Court Book, so the reference given by counsel does not establish the figures given to the Court.
I have noted above that the total value of the deceased’s Greek assets, as stated by Julia in her evidence, appears to be $1,612,445, and I cannot verify the value of the assets given to Ioulia, so that there is an element of uncertainty about the value of the remaining Greek assets.
Having asserted that the total value of the specific gifts of the Greek assets was $891,306.56, counsel made the following submission at par 53:

(d)   The deceased’s Greek estate being approximately Aus$1,737,850:
I.   Greek land tax Aus$30,224.00;
ii.   leaves Aus$1,707,626.00;
iii.   The plaintiff and the deceased’s three children are entitled to one quarter each of this amount being Aus$426,906.50 each.

The first observation to be made about this submission is that on Julia’s evidence, the value of the deceased’s Greek estate must first be reduced by $125,405. That will reduce the $1,737,850 to $1,612,445. When the debts of $30,224 are deducted, the result is $1,582,221. Then, at step ii, counsel has omitted to deduct the value of the specific gifts of the Greek properties, which for the sake of argument I will assume have the value given by counsel of $891,306.56. When this sum is also deducted, the result is $690,914.44. A quarter of this amount is $172,728.61. That is the amount that each of Julia, Maria, Adriana and Billy will receive from the Greek intestate estate of the deceased, rather than the $426,906.50 suggested by counsel for Julia. The difference is $254,177.89 each.
Given what has been said above at [67] concerning how the deceased’s intestate estate in Greece will be administered, as well as its nature, and the doubts in the figures concerning the value of the Greek assets, it is difficult for the Court to be confident about what the parties entitled on intestacy to that property will get or when they will get it.
Julia's counsel set out at pars 54 to 60 of his opening written submissions how the deceased's Australian estate valued at approximately $1,950,000 will be distributed on intestacy under ss 106, 113 and 127 of the Act. I note that at [55] above, I have adopted a total value of the deceased’s assets in this State as being $1,900,000, rather than $1,950,000, which is towards the top of the range. Those submissions and the calculations contained in them were not challenged by any other party, so it is not necessary for the Court to set them out in detail. It is sufficient to say that, under s 106, Julia, as the spouse of the deceased, is entitled to a statutory legacy described as the "CPI adjusted legacy", plus interest at the relevant rate, if the statutory legacy is not paid within one year. In the circumstances of this case, the statutory legacy is $444,395 plus interest of $43,328, giving a total statutory legacy of $487,723.
Relevantly also, as the deceased left a spouse and issue who are not issue of the spouse, the effect of s 113 of the Act is that, in addition to the deceased's personal effects, Julia is entitled to the statutory legacy and one half of the remainder of the intestate estate. When the statutory legacy of $487,723 is deducted from Julia's assumed value of $1,950,000, leaving $1,462,277, Julia is entitled in addition to half, being $731,138. Julia’s entitlement to the assets in this State would on these figures total $1,218,861. (Note that, even though I have adopted a value of $1,900,000 for the deceased’s assets in this State, to avoid confusion, where I am considering the effect of Julia’s submissions – which assume a value of $1,950,000 for those assets – I have accepted her value solely for the purpose of analysing the figures).
Counsel suggested that Julia will be entitled to a total of $1,645,767.50. This amount is the total that Julia would receive from the Greek and Australian estates, being the Australian share of $1,218,861 and the Greek share of $426,906.50. As noted above, this last figure apparently must be reduced by $254,177.89. Consequently, Julia’s total entitlement would be $1,391,589.61.
To this must be added the value of Julia’s half interest in the Campsie property of $650,000, and her own property in Greece, being $903,265 (see [61] above). On the various assumptions of value referred to above, putting aside legal costs that have been incurred by Julia, and assuming that no family provision orders are made, Julia is entitled to property with a value of $2,944,854.61, say $2,950,000.
Under s 127(3)(b) of the Act, the three children of the deceased are entitled to equal shares of the other remaining half, which gives them an entitlement to $243,712 each out of the deceased's Australian estate. When added to each of the children’s $172,728.61 share of the Greek estate, each would receive $416,440.61. That calculation assumes that the value of the deceased’s assets in this State is $1,950,000, rather than the lesser amount of $1,900,000 that I have adopted.
One effect of the deceased having made his December 2014 Greek will, in so far as he made specific gifts of his Greek property valued at approximately $891,306.56 out of his Greek estate, was that the only amount that was left by reason of the partial intestacy under Greek law for Julia was an amount of $172,728.61. Effectively, the deceased cast Julia's primary entitlement on his Australian assets.
Another effect was that, although each of the deceased's children will in principle be entitled to receive an amount of $416,440.61, only $243,712 of that amount will be received out of the readily saleable Australian assets. The children will not receive the balance of $172,728.61 unless and until the officials of the Greek court are able to realise the assets the subject of the Greek partial intestacy for the assumed values.

Legal principles

As the deceased has not left a will disposing of his assets in this State or of many of his assets in Greece, the respect that the Court ordinarily gives to the right of testamentary disposition of a testator of sound mind may not have the significance in this case that it would where a family provision claim is made against the estate of a testator who has left a valid will disposing of his or her property in the manner thought fit by the testator. Nonetheless, the Court is only empowered to alter the effect of the intestacy rules of this State in accordance with the statutory power that is vested in the Court to make family provision orders.
Section 59 of the Succession Act relevantly provides:

(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a)   the person in whose favour the order is to be made is an eligible person, and
…
(c)   at the time when the Court is considering the application, 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 by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

The first requirement (in s 59(1)(a)) is that each of Adriana and Billy be eligible persons, as defined by the Act. As both applicants are children of the deceased, they are eligible persons by reason of s 57(1)(c) of the Act.
It is generally accepted that these statutory provisions impose two steps before the Court may make a family provision order in favour of an eligible person.
The first is sometimes called a threshold question, and requires the applicant (see s 59(1)(c)) to establish on the evidence that, at the present time (i.e. when the Court is considering the application), adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the operation of the intestacy rules (as relevant to the present case).
This threshold test requires an examination of whether, having regard to all relevant circumstances, the intestacy rules of this State do not make adequate provision for the proper maintenance, education or advancement in life of Adriana and Billy. Cases that have been decided over the years have given guidance concerning how the Court is required to go about implementing this threshold test. I will refer to some of the more significant authorities below.
If, and only if, the threshold test is satisfied by one or both of Adriana and Billy, then s 59(2) will empower the Court to make such order for the provision out of the estate (being the property in this State) of the deceased as the Court thinks ought to be made for the maintenance, education or advancement in life of each applicant, having regard to the facts known to the Court now.
These provisions vest in the Court some powers of evaluation and discretion, but it must be understood that the statutory provisions circumscribe how the Court is entitled to interfere with the manner in which the intestacy rules of the State would otherwise operate. At its heart, the exercise is concerned with adequate provision for the claimant’s proper maintenance, education or advancement in life and it is not concerned with the Court dividing up the assets in the estate in accordance with the perceptions of the Court or the parties as to what is a fair sharing of those assets.
The Succession Act provides inconclusive guidance concerning the factors that the Court may take into account in determining whether the threshold test has been passed, and if so, as to what family provision orders should be made. However, in the end the Court is required to decide for itself and take proper account of all relevant considerations.
Section 60 of the Succession Act relevantly provides:

(1)   The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a)   whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b)   whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a)   any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b)   the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d)   the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e)   if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f)   any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g)   the age of the applicant when the application is being considered,
(h)   any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i)   any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k)   whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l)   whether any other person is liable to support the applicant,
(m)   the character and conduct of the applicant before and after the date of the death of the deceased person,
(n)   the conduct of any other person before and after the date of the death of the deceased person,
…
(p)   any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

While it will be apparent from the list of factors in ss (2) how those factors could be relevant in various ways to an assessment of whether adequate provision for the proper maintenance, education or advancement in life of a particular applicant has not been made, and if not what provision would be proper, it is plain that the Court is not provided any mechanism for weighing the factors in a particular case, and factor (p) expressly contemplates that other unlisted matters may be relevant. Accordingly, the factors may provide a list to assist the Court in approaching its task properly, but they do not obviate the need for the Court, upon the whole of the evidence, to decide for itself the crucial questions involved in achieving the state of adequate provision for the proper maintenance, education or advancement in life of the applicant. Furthermore, as each estate will be finite and more persons than the applicants for family provision orders may have similar claims against the estate, the Court will be required, without any definitive guidance from the statutory provisions, to reach an outcome that achieves a proper balance between the provision made out of the estate in respect of all such persons, having regard to the nature and strength of their individual claims for provision out of the estate.
I will now set out some statements of principle in relation to the statutory scheme for the making of family provision orders contained in the Act, in so far as they are material to the present case. I will do so by means of extracts from a recent decision of Hallen J, whose mastery of this subject is, with respect, universally acknowledged.
In Soens v Rathborne [2018] NSWSC 302, Hallen J observed at [148] that: “No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant” and then added:

[149] In Grey v Harrison [1997] 2 VR 359 at 366–367, Callaway JA observed:
There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.

On the subject of what is meant by the word “adequate” and what is “proper maintenance”, Hallen J said:

[161] In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]:
‘Proper maintenance’ is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.

…
[168] The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision — a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall(No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
…
[171] Dixon CJ and Williams J, in McCosker v McCosker at 571–572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:
It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.

[172] In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:
The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning.

[173] In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:
… the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.

[174] In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:
… the use of the word ‘proper’ … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here … The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.

[175] Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:
‘Adequate’ relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. ‘Proper’ depends upon all the circumstances of the case. These include the applicant’s station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased’s bounty, the applicant’s conduct in relation to the deceased, the applicant’s contribution to building up the deceased’s estate, the existence of dependents upon the applicant, the effects of inflation, the applicant’s age and sex, and whether the applicant is able-bodied. [Citations omitted.]

[176] In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”
[177] His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]:
The question of what level of maintenance or advancement in life is ‘proper’ depends on all of the circumstances of the case including ‘the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty’ (Singer v Berghouse (1994) 181 CLR 201 at 210).

…
[185] As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

Hallen J also made observations on the limitations imposed by the Succession Act on the exercise of the Court’s statutory power to make family provision orders:

[235] The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 at [63].
[236] Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.
[237] As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:
Fairness and equality are not touchstones for relief under the Succession Act.
[238] In Stott v Cook (1960) 33 ALJR 447 at 453–4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:
There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged.

[239] In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:
It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.

[240] In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:
Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.
[241] Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
[242] In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote:
Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of “community standards”, although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty — subject to the qualification that the court’s determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator’s will or death.”

[243] In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
[244] The size of the estate and/or notional estate is a consideration in determining an application for provision. However, its size does not justify the Court in rewriting the will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].

Hallen J has collected a number of principles that have been accepted in many cases as providing useful guidance where the applicants for family provision orders are adult children of the deceased:

[245] In relation to the claim by the Plaintiff, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:
(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].
(c) Generally, also, “the community does not expect a parent to look after her, or his, children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58].
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58].
(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].
(f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
[246] A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]–[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62].

Finally, in the present case the expectations in Adriana and Billy raised by promises claimed to be made to them by the deceased concerning what they would inherit from him form a significant part of their respective cases. In this respect, in Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432, Brereton J (with whom Basten JA and Handley AJA agreed) said:

[18] …I do not accept that promises and representations made by testators are, in this respect, of but slight significance. Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (dec’d) (1975) 11 SASR 276 at 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148], though this may be more so where a claimant has relied to his or her detriment on any such promise or expectation. The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of “moral duty” which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74]; and see now (NSW) Succession Act 2006, s 80(2)(b), which like its predecessor in the Family Provision Act expressly recognises the notion of moral duty]. This moral obligation of testators, the enforcement of which is facilitated by the testators’ family maintenance legislation, reflects an assumption inherent in our system of succession law that testators will exercise their testamentary freedom with moral responsibility, so as to make provision for those who would be regarded as having legitimate claims on their bounty — to the point that ability to appreciate this moral obligation has been said (by Cockburn CJ, speaking for the Court of Queen’s Bench in Banks v Goodfellow (1870) LR 5 QB 549 at 563 and 565) to be an essential element of testamentary capacity…

Adriana’s circumstances

Adriana was born on 26 April 1951 and is now 67 years old.
According to Adriana, she had a secure childhood, and participated with her family in the Greek community in Sydney.
Adriana left school at the end of fifth form in 1968. She worked in a pharmacy and at the State Bank of NSW until she married in 1969. She separated from her husband in April 1991, and divorced in February 1990. She has never remarried.
Adriana’s first child was born in 1969 when she was 18 years old. When her children were small, she worked at home and in factories sewing piecework. In 1978, Adriana and her husband opened a takeaway shop at Top Ryde shopping centre. By then, Adriana’s three children were at school, and she worked full-time in the shop.
In the 1980s, Adriana matriculated from Meadowbank Technical College. She commenced study at Macquarie University for a Bachelor of Arts degree, but could not complete the second year, as she was raising three small children, working in the takeaway shop and studying, as well as looking after the household. She has not recommenced her studies.
In 1987, the takeaway shop was sold, and Adriana’s husband bought a trucking business doing deliveries. They also bought the residential property next door to their home at 10 Cressy Road, Ryde, as an investment. Adriana worked in various jobs. At the time she separated from her husband, Adriana’s two younger children were still at school. She moved with them to rented rooms at first and then rented flats. Adriana had a low wage and could not afford the heavy mortgage that her husband had built up by buying another takeaway shop.
Adriana gave evidence that the instalments on the debt she and her husband owed reached $6000 per month, and her husband paid no income from the shop towards the loan and no support for the children. The loans were in joint names but the properties were in Adriana’s husband’s name only. The bank to which the loans were owed refused Adriana’s requests to call in the loans, which caused the debts to increase, with the consequence that Adriana and her husband lost everything they had built up over 20 years, and they were left with a debt of $56,000.
In her primary affidavit dated 26 August 2016, Adriana stated in par 120 that she had decided not to make a family provision claim as she was satisfied with the provision made for her in the 2006 will that had been the subject of the grant of probate. Adriana did not make a family provision claim until she filed her cross claim on 23 March 2017. Adriana said that she is in poor health. She suffers from pericarditis, emphysema and other conditions. At the time of her affidavit, she was being examined for lower limb swelling, cervical polyp and a lump on her left breast. She had recently been in hospital after an attack of pericarditis. Adriana has been advised to undergo ENT investigation in connection with her lung conditions.

The ultimate outcome of this dispute between Mary and Julia will have to be resolved when the Court deals with the costs orders that should be made in these proceedings.
The effect of the giving of the undertaking by Adriana and Billy is a novel problem, so far as I am aware. No authority was cited to the Court by any party on this issue.
In my view, as a matter of principle, the effect of an applicant for family provision relief giving an undertaking to a beneficiary of the deceased’s estate of the nature given by Adriana and Billy in this case requires the Court to take the following steps. First, in the ordinary way, the Court should determine whether each applicant has established an entitlement to receive a family provision order, and if so what order should properly be made. Secondly, the Court should ignore the existence of the undertaking and decide how the provision made in favour of the applicant should be borne as between the other beneficiaries entitled to share in the estate. Then, thirdly, to the extent that the Court has decided that the share in the estate to which the beneficiary of the undertaking is entitled would otherwise have borne part of the provision for the applicant, the Court should adjust the terms of the family provision order to reduce the provision so that the share in the estate of the beneficiary of the undertaking bears no part of any family provision order made in favour of the applicant.
If that is the correct way for the Court to deal with the existence of the undertaking in this case, it is necessary for the Court to decide how any family provision order made in favour of Adriana or Billy should be borne as between Julia’s and Mary’s shares in the estate of the deceased.
Julia’s position was that, as Mary has not put her circumstances in issue in these proceedings by leading evidence of her financial position, and as it appears that by reason of Mary’s employment as the Dean of Education in a highly respected university in the United States, the burden of any family provision order made in favour of Adriana or Billy should fall entirely on Mary’s share in the deceased’s estate.
To put this submission into perspective, as I have observed above at par 90, the amount of Mary’s share in the deceased’s estate in this State is only $243,712, so that is all that is available to bear any family provision order in favour of Adriana or Billy.
Apart from the brief submission that I have mentioned above that was made on behalf of Julia, neither Julia nor Mary explored this issue in any detail in their submissions.
I have set out above at par 87 the basis of my assessment that, taking the evidence before the Court at face value, Julia’s assets have a value of $2,950,000. While it is true that the value of Mary’s assets has not been established, even if I infer that Mary is relatively well off, the conclusion that I reach is that both Julia and Mary will have a relatively substantial and secure financial position.
That observation has led me to the conclusion that there is no justification in this case for the Court to make any order as to how the shares of Julia and Mary in the deceased’s estate should bear any family provision orders made in favour of Adriana and Billy other than that they should do so rateably according to the relative shares of Julia and Mary in the estate of the deceased in this State. As I have observed above at par 86, the value of Julia’s share of the assets in this State is $1,218,861. The ratio of the two shares is therefore $1,218,861 to $243,712, or about 5 to 1.
The consequence is that the effect of Adriana and Billy having given the undertaking to Mary is that the value of any family provision order that would otherwise have been made by the Court in their favour will be reduced by 1/6.

Order under s 66G of the Conveyancing Act

Julia is entitled to an order under s 66G of the Conveyancing Act appointing trustees for the sale of the Campsie property (subject to any contrary order that may be made in these proceedings).
Although there was some indirect evidence that Julia may have told the deceased that she would transfer her share in the Campsie property to Adriana, and that Julia agreed with Adriana to do so after the deceased’s death (both of which are denied by Julia), it is clear that Julia is entitled to retain her half share in the Campsie property (which was in any event purchased by her from the deceased).
The evidence clearly establishes that Julia has an immediate need to increase her cash resources, and the quickest way for that to happen is for the Campsie property to be sold, and Julia’s share of the net proceeds of sale transferred to Julia.
It is therefore desirable not only that an order under s 66G being made, but that the sale should take place as soon as possible.
As I have mentioned above at par 131, during final submissions Adriana made an informal offer that Julia’s interest in the Campsie property could be purchased by Adriana’s sons, on the basis that Adriana would by means of a family provision order be provided with an after-money out of the estate for her to buy the estate’s share in the Campsie property.
As I understood the offer made by Adriana, the proposal was that the price for the Campsie property would be fixed by reference to the value established by the evidence in this case, being $1,250,000 (being twice the $625,000 value of the deceased’s share in the property: see par 55 above). The Court has no means of knowing on the evidence whether the suggestion made by Adriana is viable, and whether Adriana’s sons are prepared to and have the financial resources to buy Julia’s interest in the Campsie property.
It would, in theory, be a desirable outcome if this suggestion could be implemented quickly, as it would provide Julia with the cash resorts she needs, and would preserve Adriana’s home in a manner that will facilitate her caring for Diamando.
However, I do not think it would be justified for this proposal to be implemented on the basis of a price artificially limited to $1,250,000. The proper approach would be to put the Campsie property to auction in the hope that it will achieve the highest sale price possible. It would not be rational for the Court to deny Julia the opportunity to gain more than $625,000 for her share in the property, if a greater price can be gained; and equally it would not be rational for the Court to deprive the deceased’s estate of the same opportunity.
Any attempt by Adriana’s sons to buy the Campsie property at auction would be facilitated in principle by the knowledge that Adriana’s share in the deceased’s estate would be applied towards the purchase price. The practical question is whether, following any family provision order that may be made, Adriana’s share in the estate is sufficient to make an effective difference in the sons’ ability to purchase the Campsie property at public auction.
If the reality is that the financial willingness and capacity of Adriana’s sons is limited, or Adriana’s share in the deceased’s estate is not sufficient to make the proposal viable, then both Adriana and her sons would have to set their sights at some less valuable property.
Unfortunately, given the present arrangements and Diamando’s desire to be cared for by Adriana, it is entirely a matter for speculation as to whether Diamando’s assets can be used in any way to achieve an optimal form of accommodation for both Adriana and Diamando.
I am prepared to contemplate making orders that facilitate the proposal made by Adriana, subject to the conditions outlined above, but the making of such orders would require further consideration in the light of the other conclusions that will be expressed in this judgment.

Costs

Julia filed an affidavit in Court on the last day of the hearing by a solicitor assisting in the carriage of her matter that deposed to the solicitors’ costs on an indemnity basis, up to the end of 8 February 2018, as being $104,238.95, and disbursements, including counsel’s fees, being $137,411. The Solicitor said that Julia’s Greek lawyers’ fees in relation to the present proceedings were unknown. The total known costs were $241,648.95.
Counsel for Julia informed the court on the last day of the hearing that Julia’s solicitors had received an email from her Greek lawyers informing them that their fees would be $42,526.05. Counsel advised the Court that, in due course, an affidavit could be filed on behalf of Julia to establish the amount of the fees payable to her Greek lawyers.
If I assume the correctness of the information given to the Court, the total amount of the legal costs incurred by Julia in respect of these proceedings will be $284,175.
That amount has not been divided between costs attributable to the probate matter and costs incurred in defending the family provision applications. It may be that the different aspects of Julia’s costs will be treated differently. In principle, any defendant who resisted Julia’s probate claim may be ordered to pay her costs of that claim on the ordinary basis. The practical effect of such an order may depend upon evidence concerning when particular defendants withdrew their resistance to the probate claim. Julia is not the administrator of the deceased’s estate for the purpose of the family provision claims. I have mentioned this difficulty above at par 30 and suggested a possible solution. The resolution of this difficulty remains a matter for submissions. However, in a practical sense Julia has contested the family provision applications as if she was the administrator, and in that respect has properly acted to protect her legitimate interests. It may be that she is entitled to a costs order in respect of the family provision claims that will put her in the same position as if she was the administrator of the deceased’s estate. If so, Julia may be entitled to that part of her costs on the indemnity basis out of the estate.
As I have mentioned above, Billy has asked for an order for his costs capped at $120,000. The implication is that his actual costs are greater than that amount. I do not understand there to be any evidence of Billy’s actual costs.
That is also true for the other defendants and Adriana in respect of her cross claim for family provision relief. Although for a considerable period Adriana has represented herself, I understand that for a period she enjoyed the same representation as Despina. As I have noted above at par 124, there is some evidence that Adriana has become liable for legal costs at least up to $76,713.25.
I assume that the need for evidence to be provided to the Court concerning the costs of Adriana and Billy of the family provision applications has escaped attention because the proceedings have been managed in the Probate List.
If I simply add up all of the legal costs that are known (albeit in some cases only approximately) the total is about $480,000. It must be stressed that this is not a sound basis for estimating the ultimate legal costs that will have to be paid out of the deceased’s estate before any distributions of that estate can take place.
Nonetheless, I propose to issue that the legal costs will be $500,000 for the purpose of determining the applications for family provision relief.
It is unsatisfactory that the Court cannot escape making such a broad estimate, as knowledge of the amount of costs that will be paid out of the estate is a fundamentally important component of the process of determining what family provision orders should be made.
I repeat, so that sight is not lost of the issue that the problem goes deeper than the fact that the evidence of the legal costs is imprecise (except in the case of Julia’s costs) but the ultimate cost position may be complicated by the possibility that the defendants may be ordered to pay Julia’s costs of the probate claim, and there are particular issues arising concerning Despina’s participation in the hearing and the dispute between Mary and Julia concerning the need for Mary’s counsel to continue appearing for her after he had indicated an intention to withdraw.

Consideration

Before I begin my consideration of the application of the statutory provisions to determine whether family provision orders should be made in favour of Adriana and Billy, I propose to collect a number of features of the present case, some of which are quite unusual, which confine the freedom of the Court in how it responds to the application that have been made:

The deceased’s assets were spread approximately equally between Greece and this State at the time of his death.

The Court’s powers only extend to dealing with the disposition of property situated in this State.

The deceased’s final December 2014 will effectively disposed of his primary and readily realisable property in Greece in favour of Maria.

The remaining effect of the December 2014 will was to create an apparently intentional intestacy in relation to all of the deceased’s other property, with the effect that the intestacy rules of Greece and this State would deal in a mechanical way with the disposition of the property in each jurisdiction.

That effect of the 2014 will was inconsistent with the 2006 will and the assurances which Adriana and Billy say were frequently given to them by the deceased over many years before his death.

The deceased’s remaining assets in Greece, said to be worth $690,914.43 (after conversion from the estimates made in euros) must be realised by officers of the Greek court. There is uncertainty as to when this will occur. The realised amount will be divided equally between Julia, Mary, Adriana and Billy, with each receiving an estimated $172,728.61.

The practical effect of the December 2014 will was to substantially throw the claims by Julia, Adriana and Billy onto the deceased’s property in this State.

It is inevitable that an order will be made under s 66G of the Conveyancing Act that the Campsie property be sold by trustees for sale. At least when Julia receives that amount, estimated as being $625,000, her present serious lack of cash resources will be alleviated.

However, if the Campsie property is sold on the open market, Adriana will lose her home and the immediate ability to care for Diamando who lives with her. It is not clear whether Adriana will have sufficient funds to obtain any reasonably suitable alternative accommodation.

The title to the Dulwich Hill property must be transferred to the new administrator of the deceased’s estate, which will lead to the eviction of Billy from the only accommodation now available to him. It is unlikely that Billy will have sufficient funds to obtain any reasonably suitable alternative accommodation.

It seems likely that Adriana and Billy will be evicted from their present accommodation long before they receive their share of the deceased’s intestate estate in Greece, and as the estimate of the value of their shares is only $172,778.61, the eventual receipt of that amount may not make much difference to their ability to obtain suitable accommodation.

Adriana’s and Billy’s shares of the deceased’s estate in this State are presently valued at $254,177.89, which when added to the Greek expectancy only gives a total of $416,440.61.

Even those estimates do not allow for the costs of the present proceedings, much of which is likely to be paid out of the deceased’s property in this State before distributions are made to any of the claimants.

If the assumption that I have made above at par 55 is correct (by taking an approximate mid-point between the appraisal values for the deceased’s interests in the Campsie property and the Dulwich Hill property) the present value of that property is $1,900,000.

If I assume (on the somewhat arbitrary basis discussed above) that the total amount of the legal costs of these proceedings that will have to be paid out of the estate is $500,000, then the balance of the estate available for distribution to all claimants will be $1,400,000. That is a proportionate reduction of 26.32%, say 25% for simplicity of reasoning. The consequence will be that every beneficiary’s interest will be reduced by this percentage before any distribution can be made.

The amount of Mary’s interest in the estate is $243,712, say $250,000. If this amount is reduced by 25%, the result is $187,500. As for the reasons I have given above, the effect of the undertaking given by Adriana and Billy to Mary is that no part of any family provision order made in their favour will be borne by Mary’s share, then of the available $1,400,000, Mary will receive $187,500. The balance available for distribution will be $1,212,500.

It is against this reality that the reasonableness of the family provision orders suggested by Adriana and Billy must be measured. It will be remembered that Adriana asked for at least $625,000, representing the estate’s interest in the Campsie property. Billy ultimately asked for an amount of $900,000. (It is assumed for the purposes of these calculations that Adriana’s and Billy’s legal costs are accommodated within the $500,000 that I have allowed).

The total amount of $1,525,000 is obviously far in excess of the $1,212,500 that is available after allowing for legal costs and Mary’s share in the deceased’s estate. Quite apart from the fact that family provision orders in these amounts are impossible, they would leave nothing out of the deceased’s estate in this State for Julia, who was the deceased’s wife for 43 years.

Furthermore, Adriana and Billy may bear some liability for resisting Julia’s probate claim, so that the distributions that they ultimately receive may be further eroded by costs orders.

While it will understandably cause Adriana and Billy substantial grief, the course that the deceased took in the years before his death in making the holograph wills, and in particular the substantial gift made to Maria of the deceased’s principal assets in Greece by means of the December 2014 will have put it beyond the power of the Court to make good the expectations of Adriana and Billy engendered by the deceased’s conduct that led them to understand that they would inherit the deceased’s interests in his properties in this State.
I am satisfied that the evidence establishes in respect of both Adriana and Billy that the provision made for them under the intestate estate of the deceased is not an adequate provision for their proper maintenance, education or advancement in life for the purposes of s 59(1)(c) of the Succession Act.
I will explain my reasons for this finding having regard to relevant matters listed in the separate paragraphs of s 60(2) of the Act, although for convenience I will change the order of the matters listed in the provision.
Both Adriana and Billy are in their mid-60s (par (g)), and although Billy is not in employment and is on a disability pension, it would not be expected that either applicant would be able to work for much longer in any event.
Both applicants have reasonably significant physical disabilities, which are likely to impose financial burdens on them in the future in relation to treatment and accommodation (par (f)).
The financial resources of both Adriana and Billy extend only to a limited income that is barely sufficient to sustain them for a relatively frugal existence (par (d)). Neither applicant has any capital or fund to provide for contingencies into the future.
Neither Adriana nor Billy is cohabiting with any other person, and there does not appear to be any present likelihood that those circumstances will change in the future (par (e)). There is no other person who is liable to support either applicant (par (l)). Adriana made an unverified suggestion that her sons may be able to finance the purchase of Julia's interest in the Campsie property. It is not yet established that they will be able to do so, and although it is possible that they will be able to assist in providing Adriana and Diamando with accommodation, it has not been suggested that they will make a gift of that property to Adriana.

I continue to bear in mind what I have said above concerning the unsatisfactory state of the evidence concerning Diamando's property, the terms of her will, and the likelihood that Adriana's and Billy's financial circumstances will be improved out of Diamando's estate. On the basis of the evidence that is before the Court, it is not rationally possible to respond to the issue of Diamando's estate other than by allowing for an indefinite possibility that both applicants' circumstances will end up better than they are presently expected to be.
The deceased's estate is relatively substantial, consisting as it does of assets in this State for which I have adopted a value of $1,900,000, as well as assets in Greece valued at $1,612,445. It will be recalled that as discussed above at par 58, there is some uncertainty as to whether the deceased's Greek assets are worth an additional $125,409.
However, as a consequence of the specific gifts in the deceased's December 2014 will, property in Greece with a value of $823,732.91 has been given to Maria, and additional property with a value of $67,573.61 has been given to Ioulia. The result is that the property in Greece the subject of the intestacy is only valued at $690,914.43. That property is subject to the doubts that I have expressed above concerning its realisable value, and the time that it will take to sell the properties by the relevant officers of the Greek court.
In principle, however, there is property in Greece that is said to be worth $690,914.43 that will be available to Julia, in addition to her own property in Greece, and the value of her half interest in the Campsie property, if the Court were to make family provision orders in favour of Adriana and Billy out of the deceased's assets in this State, on the condition that those applicants relinquished their claims to any share of the Greek intestate estate.
Plainly, Adriana and Billy, as two of the natural children of the deceased, had a close family relationship with the deceased over the whole of their lives up to his death (par (a)). I am satisfied that the deceased's relationship with Billy was close, even though it must have suffered the inhibitions of distance. I am satisfied that the same was true for Adriana, although it is likely that in her case the relationship was subject to more ups and downs.
I consider that the fact that the deceased in real terms was content to provide accommodation for Adriana and Billy for the number of years that he did, without requiring them to pay rent, reflected the reality of his relationship with them, and the underlying love and affection that he bore them. If the deceased's life and material circumstances are viewed overall, he was a successful and industrious man who, in his long life, amassed a reasonable estate. It seems likely that the deceased viewed himself as the patriarch of the family, who willingly undertook an obligation to assist and materially provide for the members of his family. In that sense both applicants were being maintained partly by the deceased before his death (par (k)).
The most significant aspect of the financial circumstances of both Adriana and Billy is that for some time, and into the indefinite future, they have been and will be unable to provide secure accommodation for themselves out of their own resources.
The most significant issue for the purpose of determining whether or not adequate provision has been made for the proper maintenance, education or advancement in life of both applicants is my satisfaction, as explained above, that the deceased did on a number of occasions tell the applicants that they would ultimately receive the properties in which they lived, and that he reinforced those assurances by telling them of the terms of his 2006 will.
In the manner that I have separately described above in relation to both applicants, I am satisfied that, in the expectation that they would ultimately receive ownership of the respective properties, both Adriana and Billy engaged in significant work by way of improving the properties. It is not possible to say more on the evidence than that the work done was substantial, and was likely to improve the sale value of the properties, albeit by amounts that cannot be estimated.
It does not follow that the availability of the Court's jurisdiction to make family provision orders in favour of the applicants is a ground for the Court to make orders that would have the effect of requiring the deceased's estate to specifically perform the assurances that the deceased gave to Adriana and Billy.
The fact that the assurances were made, and were acted upon by the applicants, in a way that caused them some detriment, and some benefit to the deceased's estate, is only one factor in favour of a determination that the provision made for the applicants was inadequate, albeit that in my view it is a very significant factor.
On the other hand, par (b) requires the Court to have regard to the nature and extent of any obligations or responsibilities owed by the deceased to persons other than the applicants, who are beneficiaries of the deceased's estate. This requirement calls for proper weight to be given to Julia's 43 year marriage to the deceased, and the responsibilities imposed upon the deceased by that relationship. Not only was the relationship successful and enduring, but there is evidence that Julia worked with the deceased in relation to the establishment of his Greek estate. (That may not be so in relation to the deceased's property in this State, which the deceased appears to have substantially acquired before his relationship with Julia began).
Were it not for obligations or responsibilities that the Court may accept the deceased owed to the present applicants, Julia's position is such that there would be nothing at all inappropriate in her inheriting all of the deceased's property, save for those assets of which he specifically disposed by his December 2014 will.
In short, when the Court contemplates whether Adriana and Billy have satisfied the threshold for the making of family provision orders, and if so, what those orders should be, the Court must be conscious that any further provisions made in favour of the applicants must reduce the entitlement of Julia, who as the deceased's widow, has the primary call, in the circumstances of this matter, on his bounty.
That said, it is clear that by reason of Julia's half ownership of the deceased's principal properties in Greece, together with the gift of the deceased's share in those properties to Maria, Julia will in physical circumstances be properly provided for and cared for over the balance of her life. As soon as the Campsie property can be sold, and Julia receives what is assumed to be her $625,000 share of that property, the present cash deficiency from which she suffers should substantially be alleviated.
Even if some additional provision is made out of the property in this State in favour of Adriana and Billy, Julia's financial position should be bolstered further by her remaining share of the property in this State, together with the availability of Julia’s quarter share, and the half share of Adriana and Billy between them, in the $690,914.43 value of the deceased's intestate estate in Greece. (Mary will remain entitled to her quarter share in the Greek intestate estate).
Apart from the effect of the assurances given by the deceased to Adriana and Billy, the other most significant matter in the present case is that raised by par (j), which is "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person".
As stated, I am satisfied that the deceased did express testamentary intentions to Adriana and Billy that he would leave the respective properties in which they lived to them on his death.
That testamentary intention was incorporated into the 2006 will, but it is clear by the deceased's August 2012 will that he had changed his mind, albeit that the gifts of one third each of the whole of his estate to his three natural children, subject to the usufruct in favour of Julia, may well have been a better outcome for the children that the 2006 will.
Thereafter, it is not possible to reconstruct the final intentions of the deceased with any confidence or certainty.
It is difficult for the Court to accept that the final intention of the deceased was to create an intestacy for all bar the property that was the subject of the specific gifts in his December 2014 will. It is difficult for the Court to accept that such was the deceased's intention, without evidence that he was aware of the consequences of the application of the relevant intestacy rules. As discussed above, it is not too hard to accept that the deceased might have understood the effect of the Greek intestacy rules, in that his property would be divided equally between Julia and his three natural children. It is hard to accept, without evidence, that the deceased knew what the effect of the intestacy rules of this State would be, or that the Greek rules and the rules of this State would apply separately to the property in each jurisdiction.
Although the deceased's final intention simply cannot be determined as a fact, for the reasons I have given above, there are sound grounds for suspicion that the deceased's objective in making a will to govern the distribution of the balance of his property was denied because his death intervened.
Whatever the truth may be, this is an unusual case in which the Court has no ultimate guidance from the deceased as to how he wished his remaining property to be distributed as between his wife and his natural children.
In my view that assists the claims made by Adriana and Billy, at least to the extent that there is an absence of good grounds for believing that the ultimate intention of the deceased was to deny the applicants the fruits of the assurances that he gave to them during his lifetime.
I should add that, notwithstanding the attack made by Julia and her witnesses on the character and conduct of Adriana, I am not satisfied that the attack has been sustained on the evidence (par (m)).
That brings the Court to the extremely difficult question of what must, or perhaps more properly, what can be done in the present case by way of the making of family provision orders in favour of Adriana and Billy?
For the purpose of deciding that question, in accordance with s 59(2) of the Succession Act, if the available property within the jurisdiction of the Court in this State had been sufficient to sustain the orders, it would have been justifiable for the Court to make family provision orders that would allow for the provision of some reasonable, secure accommodation for both applicants into the future, albeit perhaps not the properties in which they are living at present.
However, the obvious problem is, as discussed above, that the deceased's property in this State will ultimately have to bear a substantial amount for orders for costs, although for the special reasons that I have explained above, it is significantly more difficult in the present case for the Court to estimate the ultimate effect of those orders than is usual in family provision applications. As also explained above, the effect of the undertakings given by Adriana and Billy to Mary, is that on the one hand Mary's share of the remaining property will not be reduced except to the extent that the effect of costs orders may do so, and instead the value of the family provision orders made in favour of the applicants will be reduced by the proportion of the value of those family provision orders that the Court would otherwise have awarded be borne by Mary's share in the estate. I have also noted that it is possible, subject to final submissions, that the Court may rule that some part of the costs of Julia's probate proceedings must be borne by Adriana and Billy.
These considerations narrow the Court's focus to the conclusion that I have expressed in par 290(16) above, that the balance of the deceased's property available for distribution in these proceedings will be $1,212,500. I immediately acknowledge that the figure I have just given is a result only a broad estimation, and is only intended to provide some logical structure to the Court's decision-making process.
Accepting that the whole process is an evaluative one, rather than an application of scientific or mathematical reasoning, I have concluded on the basis of the whole of the evidence that, if the whole of the $1,900,000 value of the deceased's property in this State had been available for distribution without deduction, it would have been warranted for the Court to make family provision orders in favour of Adriana and Billy by way of lump sum legacies in the amounts of $700,000 and $750,000 respectively. The extra $50,000 provision for Billy would have acknowledged the fact that the deceased gave $57,000 to Adriana in 2013, and my judgment that Billy is slightly worse off than Adriana.
The total of $1,450,000 would have allowed for Mary's share in the estate and a relatively small legacy for Julia. The orders would have been made on the condition that Julia would be entitled to Adriana’s and Billy’s shares the value of the deceased's intestate estate in Greece, said to have a value of $690,914.43, as well as Julia’s own share.
The justification for extra family provision in favour of Adriana and Billy in the amounts specified above would have to be tested by comparison to the amount that Julia, as the long-time wife of the deceased, would have received. If the gift of the Greek property to Maria under the December 2014 will, valued at $832,732.91 (see par 79), is treated as being solely for the benefit of Maria, and not at all for the benefit of Julia, then the provision in favour of Adriana and Billy would clearly appear to be excessive. Julia would only receive three quarters of the residual value of the Greek estate and the relatively small proportion of the $1,900,000 that would remain available to Julia after payment of the legacies to Adriana and Billy, and also payment of Mary’s share of the property in this State.
However, in my view it would be wrong to treat the effect of the deceased’s December 2014 will as being to confer a benefit on Maria to the exclusion of Julia, by means of the gift of the principal part of the deceased’s Greek property to Maria. For the reasons I have considered above (principally at par 225) I am satisfied that the deceased made the specific gift of his principal properties in Greece to Maria for the combined purpose of ensuring the welfare of Julia and at the same time providing for his stepdaughter. It is likely that the deceased made the judgment, which is amply borne out by the evidence, that Maria would continue to look after Julia, and that the combined interests of Julia and Maria in the properties would ensure that Julia was accommodated comfortably during the remainder of her lifetime. While it would not be rational to think of the effect of the deceased’s December 2014 will as providing something of money value to Julia, I believe it is appropriate to assign a substantial notional value of that gift to Julia, if only for the purpose of making a judgment as to the provision that the deceased ought to have made in favour of Adriana and Billy, given the somewhat idiosyncratic testamentary instruments made by the deceased.
The obvious problem now is that the consequence of the costs that have to be borne by the deceased's property in this State is that legacies totalling $1,450,000 obviously cannot be paid out of a sum that has been assumed to be $1,212,500.
The inevitable consequence will be that the legacies that can be ordered in favour of Adriana and Billy must be reduced proportionately to allow for the payment of the costs, and then proportionate legacies in favour of Julia and Mary.
I do not propose to make any family provision orders to the effect that I have just suggested now.
My reason for taking this course is that, as a result of the unusual features and uncertainties of this matter, which I have discussed at various points above, I have concluded that it will be appropriate to allow the parties to consider these reasons for judgment, and then for the final orders to be reconsidered after further submissions.
In particular, as I have mentioned above, some of the evidence as to the value of the deceased's estate and various calculations that have been put before the Court appear to be questionable. I would prefer for those uncertainties to be resolved in fact, rather than to take the risk of making any orders that may involve error on the part of the Court.
There is also the need to resolve the issue of costs, and to deal with the effect of the undertaking given by Adriana and Billy to Mary.
When I deliver these reasons for judgment, I will discuss with the parties appropriate arrangements for the resolution of outstanding issues, and the making of final orders to complete the proceedings.

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Decision last updated: 22 June 2018

Medium Neutral Citation:	Katramados v Hasapis [2018] NSWSC 948
Hearing dates:	5 – 9 February 2018
Decision date:	22 June 2018
Jurisdiction:	Equity
Before:	Robb J
Decision:	See paragraphs 290 to 335.
Catchwords:	SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - probate and letters of administration - testamentary instruments governed by Greek law - the effect of Greek law on the ultimate effect of all of the testamentary instruments executed by the deceased - the revocation of prior wills leaving deceased intestate excepting specific gifts SUCCESSION - family provision and maintenance - whether family provision orders should be made in favour of two children of the deceased being the second and fourth defendants/cross claimants - whether provision made for two children of the deceased was adequate for their proper maintenance, education or advancement in life - family provision orders made in favour of two children of the deceased
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Soens v Rathborne [2018] NSWSC 302 Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432
Category:	Principal judgment
Parties:	Julia Katramados (plaintiff) Despina Hasapis (first defendant/first cross defendant) Adriana Kalantzis (second defendant/second cross claimant) Maria Kalantzis (third defendant) Vassilis Kalantzis (fourth defendant/fourth cross claimant)
Representation:	Counsel: A Hill (plaintiff) FFF Salama/L Teoh (first defendant) NCT Bilinsky (third defendant) D Williams (fourth defendant) Solicitors: First Choice Family Lawyers (plaintiff) Spiro Troussas Principal Lawyer (first defendant) Self represented (second defendant) Whittens McKeough (third defendant) Sharah & Associates (fourth defendant)
File Number(s):	2015/374480

Description of Asset	Estimated Value
Apartments situated at Samara 26, Kato Patissia (50%)	AU$45,323 (€30,000)
Apartments situated at Spintharou 62, Neos Kosmos, Athens (50%)	AU$45,323 (€30,000)
Property (700 m²) situated at Akrata Ampelos, named “Erimokklisi”	Est. $85,752
Property (1554 m²) situated at Akrata Ampelos, named “Limperikos Loggos”	Est. $121,606
Property (2591 m²) situated at Akrata Ampelos named “Lasinia-Margoseika”	Est. $20,275
Property (12,571 m²) situated at Akrata Ampelos named “Lasinia-Margoseika”	Est. $89,430
Property (1217 m²) situated at Akrata Ampelos named “Pleura-Sakos”	Est. $97,490
Property (1300 m²) situated at Akrata named “Chalasmata"	Est. $146,974
Property (1580 m²) situated at Akrata Ampelos named “Tholo Potami”	Est. $118,006
Property (2061 m²) situated at Aigira named “Lazana”	Est. $17,594
Property (1500 m²) situated at Akrata named “Mesonisi”	Est. $658,020
Property (6000 m²) situated at Akrata named “Mesonisi”	Est. $166,652

Description of Asset	Estimated Value
Apartment situated at Samara 26, Kato Patissia (50%)	AU$45,323 (€30,000)
Apartment situated at Spintharou 62, Neos Kosmos, Athens (50%)	AU$45,323 (€30,000)
Property situated in Krathio, Akrata, consisting of two buildings (50%)	AU$812,618(€537,975)