KD v BS

[2022] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation:

KD v BS [2022] NSWSC 887

Hearing dates:

23 and 24 June 2022; further submissions received 27 and 28 June 2022

Decision date:

05 July 2022

Jurisdiction:

Equity - Family Provision List

Before:

Stevenson J

Decision:

Provision to be made for the plaintiff from the deceased’s estate in the sum of $60,000. Plaintiff’s costs capped at $40,000 to be paid from deceased’s estate.

Catchwords:

SUCCESSION – family provision – small estate – claim by adult daughter from mother’s estate – no provision made for plaintiff in mother’s will – estate left to plaintiff’s two sisters – where plaintiff had loving relationship with mother until two years before her death – where reason mother excluded plaintiff from will clear – whether adequate provision made for plaintiff – what provision ought be made

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Property (Relationships) Act 1984 (NSW)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Succession Act 2006 (NSW)

Cases Cited:

AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889

AS by her tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708

Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595

Brand v Brand [2015] NSWSC 52

Georgopoulos v Tsiokanis [2022] NSWSC 563

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Gorton v Parks (1989) 17 NSWLR 1

Kizon v Palmer (1997) 72 FCR 409

Manuel v Lane [2013] NSWCA 61

Misrachi v The Public Guardian [2019] NSWCA 67

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Smith v Smith (No 2) [2011] NSWSC 1105

Strang v Steiner [2019] NSWCA 143

Sung v Malaxos [2015] NSWSC 186

Szypica v O’Beirne [2013] NSWSC 297

Category:

Principal judgment

Parties:

KD (Plaintiff) (self-represented)
BS (First Defendant)
CC (Second Defendant)

Representation:

Counsel:
I Hoskinson (Defendants)

Solicitors:
Streeterlaw (Defendants)

File Number(s):

2021/73199

Judgment

1. The Plaintiff, KD, seeks provision under s 59 of the Succession Act 2006 (NSW) from the estate of her late mother (“the Deceased”).

2. The Deceased died on 8 July 2020, aged 83. By her will dated 5 June 2018, the Deceased left her entire estate to the Plaintiff’s sisters, BS and CC (together, “the Defendants”), and appointed them as her executrices.

3. KD is now aged 65. The Defendants, BS and CC, are aged 66 and 64 respectively.

4. Much of the controversy in these proceedings relates to applications made by KD to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (“NCAT”) and to the Queensland Civil and Administrative Tribunal (“QCAT”).

5. Section 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”) provides, in relation to proceedings in the Guardianship Division:

“(2)    A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings in the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings in the Tribunal,

whether before or after the proceedings are disposed of.”

6. There is a provision to like effect in the Guardianship Act 1987 (NSW). [1] The transcript of the proceedings before QCAT is marked “restricted” which suggests a non-publication order may, under a corresponding although differently worded provision,[2] have been made.

   1. Section 101.

   2. Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

7. I doubt that, on its proper construction, s 65 of the NCAT Act prohibits publication of the name of a person involved in proceedings in the Guardianship Division by the person to whom the proceeding related, nor that the tendering of the NCAT material before me constituted “publishing” or “broadcasting” that material. I think it clear that this Court is not a “person” subject to the prohibition in s 65. [3] However, the section bespeaks a legislative intention to protect the privacy of persons involved in proceedings in the Guardianship Division and suggests that judicial restraint should be exercised about revealing the identity of such persons. [4] Accordingly, I have decided not to name the parties to these proceedings and to identify them as I have indicated above, and to identify one other person as I indicate below. [5]

   3. Kizon v Palmer (1997) 72 FCR 409 at 430-431 (Lindgren J, with whom Jenkinson and Kiefel JJ agreed); Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595 at [38]-[47] (Adamson J).

   4. See for example, Misrachi v The Public Guardian [2019] NSWCA 67 at [16] (Bell P and Emmett AJA).

   5. This practice has been adopted in like cases: see AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889 (Robb J) and AS by her tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708 (Robb J).

8. KD has engaged three firms of solicitors to act for her in these proceedings. All of the affidavits KD affirmed in the proceedings were prepared by one or other of those legal advisors. The most recent solicitor filed a Notice of Ceasing to Act on 31 May 2022.

9. As a result, KD appeared before me in person.

10. KD clearly found this to be a distressing and difficult experience. Nonetheless, she conducted herself in a dignified manner and with what appeared to be a good familiarity with the eight volume Court Book. ^[6] She also prepared a lengthy opening “Statement” and some 27 pages of “Closing Submissions”.

    6. Five volumes of which contained bundles of material produced on subpoena from various third parties.

11. Ms Hoskinson appeared for the Defendants, as executrices of the Deceased’s estate. Bearing in mind the obvious hostility between KD and her siblings, Ms Hoskinson conducted their case with appropriate restraint and moderation.

12. The Deceased’s estate was relatively modest with a current value of some $534,000. That value is likely to be understated somewhat as it included “household contents/furniture” at only $400. There is evidence to suggest that the value of the Deceased’s household contents and furniture was more than this. The difference is, however, immaterial, for present purposes.

13. The Defendants’ costs as executrices are in the order of some $124,000. That figure does not appear unreasonable, having regard to the material adduced on behalf of KD: 5 affidavits totalling around 1000 paragraphs.

14. It is common ground that KD had a warm and loving relationship with her mother until April or May 2018. Until then, KD saw her mother regularly and cooked her meals three times a week.

15. Until around 2014, the Defendants saw less of the Deceased than did KD as they had moved away from where the Deceased was living.

16. However, although BS was then living in Queensland, on 4 May 2011 the Deceased appointed BS to be her Enduring Guardian and, on 19 September 2014, to hold an Enduring Power of Attorney. Both documents were explained to the Deceased by her solicitor, who on each occasion witnessed her signature.

17. The Deceased’s earlier wills, each prepared by the same solicitor, reflected her testamentary awareness and her close relationship with KD.

18. By her will of 9 September 2010, the Deceased left her estate to KD, BS and her then husband, JD, equally. She did not include CC in her will “because she and her family are financially secure”.

19. By her next will dated 19 September 2014, the Deceased left her estate equally to KD, BS and CC. The Deceased and JD were then divorced, or about to be divorced.

20. As I have said, by her final will dated 5 June 2018, the Deceased left her estate equally to BS and CC, and made no provision for KD.

Events leading to the will – KD’s application to NCAT in relation to “the Uncle”

21. There is no doubt as to the circumstances that led the Deceased to exclude KD from her will.

22. For many years, the Deceased’s elder brother, JW (who I will call “the Uncle”) lived with the Deceased and her former husband, JD, in the Deceased’s home at Charlestown. The Uncle, a single man, had evidently come to Sydney from regional NSW for medical treatment sometime in the 1990s and thereafter, until his admission to John Hunter Hospital around April 2018, lived with the Deceased and JD at Charlestown.

23. On 30 April 2018, KD made a Guardianship Application, and a Financial Management Application, to the Guardianship Division of NCAT in respect of the Uncle.

24. Evidently, KD did not give the Deceased or the Uncle notice that she intended to make the application. It was this application that led the Deceased to exclude KD from her will.

25. In her Guardianship Application, KD said:

“My uncle is at risk. I am aware of my sister [BS] spending and hiding my uncle’s money. She told me he has little left for his care. She is arranging basic nursing care when he should have the money left for the best care. Family members and myself heard [BS] and Mum discussing hiding his money.”

26. The “money” referred to was, evidently, the proceeds of the Uncle’s lottery win of a little under $200,000 in December 1999. It seems that the Uncle kept cash from that lottery win, and perhaps other cash, in his bedroom at the Charlestown property.

27. In her Financial Management Application to NCAT, KD said:

“My uncle is at risk. [BS] and other family members are spending his money and hiding his money. She told me he has little money left for his care. I don’t believe this. I heard [BS] and Mum … talking about hiding his money from the government etc so they don’t have to pay for his care. We asked to help find a nice nursing home but were told to mind our own business that John Hunter would put him into a nursing home. Mum and [BS] told us he cannot come home ever.

[The Uncle] is at risk and is presently at the John Hunter Hospital. I am concerned when [he] leave[s] the hospital that he will be at risk.

My uncle had at least $400,000 to $500,000 but I believe [BS] and other family members have been taking it for their own use over a number of years, including from his bedroom and his bank accounts.”

28. On 25 May 2018, KD sent an email to NCAT which included:

“For some time now, my [Uncle’s] situation has become too serious to [be] ignored. Myself and other Family members have been concerned and have attempted to keep a watch on [the Uncle’s] health and well-being generally and his ongoing care, in at times extremely difficult circumstances. These circumstances have been brought about by my sister [BS] directly as she had isolated [the Uncle], not allow[ing] myself and other family members to assist and support him even when he asks us to and [BS] was at her home in Queensland. And we believe [BS] has influence[d] Mum to participate with her against other family member[s] assisting [the Uncle].

Over recent years we attempted to shield [the Uncle] from information we have presented in these application[s] as we believed we could protect him and stop [BS] and Mum, but we have not been able to do this on our own. Which is why my Family have asked me to put in these applications for independent support for [the Uncle].”

29. At some time during May 2018, the Deceased wrote:

“[KD] does not really know my brother [the Uncle], and I consider her relationship with him could only be described as superficial. Since lodging this application to the Guardianship Board neither she, her daughter [KG] or [JD] have come to the hospital to speak to him and find out if he isn’t satisfied with his care. The hospital said he needs 24 hour medical care and he cannot get this level of care at his home.

…

It doesn’t give me any pleasure to say but my daughter [KD] … is a poor excuse for a human being. To apply for Guardianship of [the Uncle] is simply an attempt to isolate him from his family...”.

30. KD informed me that she believes her sisters, particularly BS, influenced the Deceased to write this. I do not doubt that this is KD’s belief. However, the evidence before me does not enable me to come to any conclusion about this.

31. As I have said, the Deceased made her final will on 5 June 2018.

32. A file note dated 5 June 2018 made by her solicitor reveals that he asked the Deceased for whom she wished to make provision, and that the Deceased answered, “my two daughters, [BS] and [CC]”.

33. The solicitor asked whether the Deceased had other children. The Deceased identified KD. The solicitor asked why the Deceased did not wish to make provision for KD. His note records that the Deceased replied, “definitely not after what she’s been up to”.

The Deceased’s stroke and admission to hospital

34. On 27 June 2018, a little over three weeks after she made her last will, the Deceased had a stroke and was admitted to Belmont District Hospital. The Deceased was discharged from hospital on 13 August 2018. She then travelled by air ambulance to Gympie in Queensland, where she was admitted to the Japara Gympie Residential Care Centre. BS was by then living in Gympie.

35. KD informed me that she believed BS had unduly influenced the Deceased into moving to Gympie and pointed to a hospital note made on 16 July 2018 which recorded that the Deceased “plans to go home on [discharge]”.

36. However, there is in evidence a note made by the Deceased, sometime later, in which she stated:

“[KD] hasn’t been truthful in her version of events. I didn’t go to Queensland to get on the pension. [JD] and I had been separated for years, in those days you had to be a certain age to qualify. ([BS] took me to Queensland and supported me until I was able to qualify.)”

37. Other evidence, to which I will refer below, suggests that the Deceased was happy enough with her transition to the Japara Care Centre in Queensland.

KD’s further NCAT application

38. On 14 August 2018, KD filed a further Guardianship Application at NCAT, this time in relation to the Deceased.

39. In that application, KD said that the Deceased was at risk and continued:

“Myself, [KG] [7] and [JD] believe that [the Deceased] is at significant risk if she is taken out of the Belmont Hospital by [BS] and moved to live with her in Queensland.

I spoke to Sue, Social Worker Belmont Hospital who advised that the only reason for Mum to be in the STRAS UNIT is while waiting for a placement in a Nursing Home.

We were told that a Nursing home has come up for Mum, but we now know that [BS] had no intention of Mum going into a Nursing Home.

[BS] had become familiar with STRAS’s processes as she had used them for my Uncle.

It appears that [BS] has used the STRAS UNIT as a hiding place for Mum so that she would not have to testify at the recent Hearing, for the case of her brother [the Uncle] (Thursday 2 August 18, and now adjourned to 31 October 18). My Uncle had said that [BS] told him, that Mum and herself could go to jail – [BS] is lying and scaring Mum into going with her to Queensland.

[BS] is taking Mum out of the Belmont Hospital tomorrow and taking her to Queensland to live. We observed [BS’s] 4x4 to be packed and ready to go.”

7. KD’s daughter.

40. KD also said:

“Dad said that Mum was very clear when she repeated that she was not going into a Nursing Home. [KG] said to Mum ‘but why are you here [then]’, and told her that the Nurses said that this place is only for patients waiting to go into a Nursing Home. Mum repeated ‘no, I’m not going into a Nursing home, [BS] says I have to live with her in Queensland’.”

41. At around this time, the Deceased’s Charlestown property was sold for $615,000. What remains of the proceeds of the sale of the property appears to comprise the bulk of the Deceased’s estate. KD informed me that she believed BS had influenced the Deceased to cause the Charlestown property to be sold. It may well be that BS suggested to the Deceased this was a sensible course, bearing in mind that the Deceased was to move to Queensland. There is, however, no direct evidence as to the circumstances which led to the sale of the Charlestown property.

The Deceased’s “statutory declaration”

42. On 12 October 2018, the Deceased made what purports to be a “statutory declaration” in which she stated:

“1. I wish [BS] to continue to be my Enduring Power of Attorney and Enduring Guardian.

2. [KD] and [JD] have lied about me.

3. I am happy to be living in Queensland.

4. I do not want my address or personal details to be given to [KD], [JD] or [KG].

5. I do not wish to be contacted by [KD], [JD] or [KG] again.”

43. KD told me that she believed BS had unduly influenced the Deceased to sign this document. There is, however, no evidence before me that would enable me to come to this conclusion.

44. On 23 October 2018, Ms Cassandra Naylor, the Home Manager at the Japara Care Centre, wrote a note addressed “To Whom It May Concern”:

“[The Deceased] resides with us at Gympie Residential Care and has reported to staff that she becomes upset and does not wish to be visited by her daughter [KD]. [The Deceased] was observed by staff to be upset and concerned when her daughter [KD] last tried to visit her at our home.”

NCAT determination of KD’s application in relation to the Uncle

45. On 31 October 2018, the Guardianship Division of NCAT ordered that the Uncle’s estate be subject to management under the NSWTrustee and Guardian Act 2009 (NSW) and that management of that estate be committed to the NSW Trustee and Guardian.

46. The Tribunal concluded:

“[KD] told us that she was strongly opposed to any option other than the appointment of the NSW Trustee and Guardian. She considers that [BS] has made decisions that are not in their uncle’s interests and will continue to do so, particularly if he moves to Queensland.

The Tribunal considers [the Uncle] to be vulnerable to financial exploitation due to his age and various medical conditions. We had regard to [the Uncle’s] views, as advised by his separate representative. However, after having regard to all of the evidence before us, including [BS’s] actions in removing a large sum of cash from [the Uncle’s] bedroom and placing it in her safe in Queensland rather than depositing it into his bank account, we decided that an independent financial manager should be appointed to ensure that his financial interests are protected.

The Tribunal was satisfied that the management of [the Uncle’s] estate should be committed to the NSW Trustee and Guardian.”

47. Thus, to an extent, KD’s concerns about the management of the Uncle’s affairs were vindicated.

48. However, a little over two weeks later, on 16 November 2018, the Uncle died.

NCAT’s determination of KD’s application in relation to the Deceased

49. Several weeks later, on 10 December 2018, NCAT heard KD’s application to be appointed guardian of the Deceased’s estate.

50. Again, to some extent, the concerns raised by KD about the manner in which BS had dealt with the Deceased’s estate were upheld.

51. The Tribunal concluded that the Deceased was not able to manage her financial affairs and expressed “several concerns” about the manner in which BS had managed the Deceased’s financial affairs under the Power of Attorney of 19 September 2014.

52. Thus, the Tribunal held:

“In a five month period under [BS’s] management [the Deceased’s] savings reduced from $31,337 to $5,466. Of that amount $7,963 represented payments to the aged care facility, $10,361 represented the cost of the air ambulance flight and [BS] reimbursed herself $2,605 in fuel and accommodation costs. The Tribunal was not satisfied that [BS] had carefully managed her mother’s limited funds since June 2018. Given the relatively small amount of money available to [the Deceased] and the declining property market which could slow the sale of her property, [BS] had a duty to ensure that her mother had sufficient funds to pay her accommodation fees until her property was sold. The use of the air ambulance, the reimbursement of her fuel and accommodation costs, which seemed excessive and the high costs of solicitors’ fees rapidly depleted her funds.

[BS’s] use of her mother’s funds to pay her fuel costs while she was living in her mother’s house and visiting her in Belmont Hospital also raised concerns, given that she appeared to be charging her fuel costs to her mother when she visited her in hospital.”

53. The Tribunal also observed:

“The significant conflict between [BS] and [KD], which was evident during the hearing, has led to [KD] distrusting [BS’s] management of [the Deceased’s] finances and very difficult interpersonal relationships within the family.”

54. The Tribunal ordered that the Deceased’s estate be subject to management under the NSW Trustee and Guardian Act and that management of the Deceased’s estate be committed to the NSW Trustee and Guardian.

JD’s Supreme Court proceedings

55. On 27 June 2019, JD commenced proceedings in this Court against the Deceased, claiming a share of the proceeds of sale of the Charlestown property based on his contention that, when the property was purchased in 1998, he had advanced $40,000 towards the purchase price.

56. This claim had been foreshadowed by a letter that JD’s solicitor sent the Deceased on 9 August 2018 (when she was in Belmont Hospital and shortly before she was transferred to the Japara Care Centre).

57. In that letter, JD’s solicitor wrote:

“[JD] has instructed me that some time ago he advanced you the sum of $40,000.00 to assist in buying your home at Charlestown.

[JD] now understands that you are selling the property and he requests that you repay the sum of $40,000.00 which he has asked for on several earlier occasions to be repaid to him.

[JD] does not wish to initiate legal proceedings or seek interest but merely wishes to have the sum of $40,000.00 paid to him from the proceeds of the sale.”

58. This claim was made notwithstanding the fact that JD and the Deceased had agreed to “Terms of Settlement” over 20 years earlier in the Family Court of Australia. As I have said, they were divorced in 2014.

59. The Deceased’s defence to those proceedings was conducted by her tutor, the NSW Trustee and Guardian.

60. It is BS’s and CC’s position that KD was instrumental in instigating that demand.

61. That contention was based on KD’s statement in her affidavit of 13 April 2021 that:

“The two separate NCAT and the QCAT ^[8] proceedings that I brought to protect both Mum and [the Uncle’s] welfare and wellbeing and their estates, and the Supreme Court matter to uphold the financial agreement between Mum and Dad. These proceedings were brought at my own expense.”

8. I refer to these proceedings below.

62. KD attributed the statement in this paragraph about her bringing and funding the Supreme Court proceedings to an error by her then solicitor. Nonetheless, KD had affirmed the truth of the statement and I see no reason to doubt it reflected her belief when she did so. KD, however, insisted that the Supreme Court proceedings were “not against Mum” and that she was sure that, had she been in a position to do so, the Deceased would have agreed to pay her former husband the money he sought. I return to this below.

KD’s application to QCAT

63. On 7 February 2020, KD commenced proceedings in QCAT.

64. In her application, KD sought an order that she be appointed as the Deceased’s guardian. KD alleged that “[BS] had used fear, lies and manipulation to control Mum and protect herself” in the NCAT proceedings and that:

“I am concerned for Mum’s welfare and her mental health (depression) not having regular Family Visitors. [BS] continues to use the Guardianship document to stop us from visiting Mum.”

65. However, on 25 March 2020, Dr Rodney Day wrote:

“I have been informed that [KD] is making representation to QCAT in an attempt to move her mother [the Deceased] to NSW.

[The Deceased] has been my patient since moving into Gympie residential Care [Japara]. I have had numerous discussions with [the Deceased] during that time, the last one a few weeks ago, regarding the ongoing interference by [KD] in her attempts to influence her mother.

I suggest you refer to the interview I had with NCAT when this issue was raised with them – this is a repeat of that.

The fact is that [the Deceased] has capacity to understand and make decisions about where she lives and who she wants to see. She has repeatedly told me she is very happy at Gympie Residential Care and does not want to leave this facility. She is keen to have [BS] continue to provide her support but not [KD].

While [the Deceased’s] physical condition is slowly deteriorating, she still has capacity to understand what is happening and make decisions regarding her care.”

66. I see no reason to doubt the accuracy of Dr Day’s observations.

67. On 30 March 2020, QCAT dismissed KD’s application.

68. In the course of the application the following exchange took place between [KD] and the Tribunal Member:

“[KD]:   And I would like there to be a reparation order, where they assist helping me and helping Mum repair our relationship. Now, these orders are able to happen, and I can’t see why the nursing home can’t participate in that in encouraging Mum and my relationship.

MEMBER:   Well, that’s not a matter for me. That’s a matter for the nursing home, isn’t it?

[KD]:   No. No. No. For you to put in a place a reparation order [indistinct]

MEMBER:   I can’t direct the nursing home to do anything, I’m afraid.”

69. The Member, giving the Tribunal’s reasons, said:

“However, there’s also – appears to be the case that [KD] has not been kept informed of what’s happening with her mother. She has a right to that information. And, in fact, one of the general principles is in relation to maintaining existing supporting relationships. While at this stage, [the Deceased] might be a bit peeved or out of sorts with her daughter, her cognition and function is, no doubt deteriorating. In any event, the [T]ribunal finds that the healthcare decision-maker ought to include the close family members in the situation as to what is going on with their parent.

[BS] has indicated that in the past, she’s refused to do this in accordance with her perception as to her mother’s wishes. However, she’s indicated that in future, the support network, including [KD], will be kept informed of what’s happening with their mother in relation to significant healthcare decisions, and the [T]ribunal is satisfied in that regard that the document is likely to work in the future. If it doesn’t, then the parties are at liberty to return to the [T]ribunal and point out this deficiency.”

70. Thus, although KD failed to persuade QCAT that she should be appointed guardian, or indeed that any of the arrangements then in place for the Deceased’s care be changed, she appears to have elicited from [BS] an agreement to keep her informed of any “significant healthcare decisions” about the Deceased.

71. KD also alleged before QCAT that the appointment by the Deceased of BS as her Enduring Guardian was “invalid” or “fraudulent”. The Member was not satisfied that that was so. There is no evidence before me that it was so.

72. Following the hearing, BS’s solicitors reported to her:

“As discussed during the Hearing, the main issues requiring a decision to be made related to who shall have contact with your Mother and health care decisions for your Mother. The Member for the Tribunal reiterated that the issue in relation to who your Mother have contact with is entirely up to your Mother at that particular time. The Member for the Tribunal stated that the Tribunal has no power to make any orders directing the staff at Japara [Care Centre] to facilitate or assist [KD] to repair her relationship with your Mother. There are no orders in place that give any person authority to decide who has contact with your Mother. It is your Mother’s decision as to who she has contact with.” (Emphasis in original.)

73. Having read the transcript of the proceedings before the Member, this appears to me to be a fair summary of what transpired during the hearing.

Settlement of JD’s proceedings against the Deceased

74. On 15 April 2020 Lindsay J approved the settlement of JD’s claim against the Deceased.

75. In an affidavit sworn in support of such approval, the NSW Trustee and Guardian’s solicitor, Ms Sherlock, deposed:

“NSWTG is concerned that, should the case run to trial, there will be evidence from the plaintiff and his daughter [KD], adverse to the Defendant’s Case, where the defendant may be incapable of giving evidence.”

76. KD accepted that she had made an affidavit in support of her father’s claim against the Deceased in these proceedings. The form of that affidavit is not before me. As I have set out above, KD maintained before me that her evidence, and the proceedings generally, were not “against” the Deceased. I find it hard to see how KD could have seen things that way.

77. The result of the settlement of the proceedings, and Lindsay J’s approval of the settlement, was that the Deceased’s estate was diminished by the $75,000 settlement figure, as well as by the costs incurred by the NSW Trustee and Guardian acting on her behalf, which were paid out of the Deceased’s estate. It is impossible to know whether any different outcome would have resulted had the Deceased had the capacity to give instructions in the matter.

The Deceased’s final admission to hospital

78. In or around June 2020, the Deceased was admitted to Gympie Hospital. She died there on 8 July 2020.

79. KD placed great emphasis on the following extract from the hospital’s Progress Notes on 20 June 2020:

“[Nurse] approached [the Deceased] with [KD] to observe response. [The Deceased] looked at [KD] and extended her [left] arm moving her fingers to indicate [KD] to move closer. [KD] sat at bedside, [the Deceased] was observed to squeeze [KD’s] hand. [Nurse] remained bedside for approximately two mins to observe. [Nurse] returned within five mins and observed [the Deceased] to be settled. [Nurse] returned to [the Deceased] post visit … and asked [the Deceased] to squeeze hand if she was able. [The Deceased] squeezed [nurse’s] hand to affirm. [Nurse] asks [a number of] questions. One, ‘are you feeling ok after seeing your daughter and ex-husband?’ ^[9] [The Deceased] squeezed [nurse’s] hand. Two, ‘do you wish to see your daughter [KD] again?’ [The Deceased] squeezed [nurse’s] hand … [the Deceased] observed to be settled.”

9. JD had also visited the Deceased on this occasion.

80. Thus, it seems, very shortly before her death, KD was able to achieve some form of reconciliation with her mother.

KD’s circumstances

81. As I have said, KD is now aged 65. She lives at a property she owns in Warners Bay. She lives there alone and has no dependents. Her only income is a Centrelink benefit of $353 per week.

82. The Warners Bay property is not encumbered. There is no evidence as to its value save that a certificate from the Valuer General dated 11 May 2022 states that the net land value is $466,000.

83. The house is in bad condition, as it was when KD purchased it in 2013.

84. KD contended:

“When I purchased the property, the agent had not displayed any photos from inside the house when advertising it, as the defendants have produced.

The property was in such condition that the real estate agent had only put up two old photos, which were of the outside only, one being of the front of the house and the other being of the pool.

The property had been sold previously in 2009.

When I purchased the property, it had been under a lease agreement for years and it remained under a lease agreement after I purchased it, until I could afford to live there.

When I went through the property prior to purchasing it the tenants had it full of furniture and belongings throughout the lounge room, bedrooms, with the robes full of their belongings, fridge, dining furniture. Their belongings were all over the place, in the carport and the yard.

When the tenants moved out it was a disgusting mess, and in a state of disrepair with damage to the walls, windows, doors and to the kitchen and the bathroom tiles had been patched up and some were falling off the walls.

It had been tenanted out over many years and the home, carport and pool were not in a good condition and it had been neglected. Most windows had been damaged with some attempts at home-job repairs with ill-fitting pieces of glass glued in. It looked like either previous break-ins or tenant accidents.” (Emphasis in original.)

85. In her 17 May 2022 affidavit, KD said:

“My home is still in urgent need of repairs and is in very poor condition and had been under renovation prior to me leaving work before 2015. The kitchen, laundry, part of the bathroom and a number of internal and external walls had already been demolished ready for renovation before 2015. I used the money from [the Uncle’s] Estate to buy a second hand kitchen, a new fridge and to put in a security gate and CCTV cameras as my home had been broken into. I also repaired some of the old broken windows and doors.”

And further:

“The bathroom is still in a stripped state with tiles falling off the walls exposing asbestos walls with holes. There was considerable black mould on the bathroom ceiling and walls where gyprock had been used instead of villa board. Most has been removed but there are still considerable exposed asbestos walls with holes and cracks. The toilet doesn’t flush and the tap leaks. I keep a bucket under it and use it to flush the toilet.

I have an inground pool which I have not been able to use for over 2 years. I have not been able to afford to maintain it in any way and it is full of putrid brown green water which has caused a lot of mosquitos. The pool is very old and in need of comprehensive repairs. The pool has holes and cracking in the fibreglass surface and needs resurfacing. It needs a new skimmer box, filter system and pump. It is estimated to cost over $30,000.

The double carport is structurally unsafe and has construction support jacks supporting the roof. There is wood rot to the timber support posts, fascia and barge boards and the metal posts are rusted through at the bottom of all the posts. I have no other storage on the property as I do not have a garage and I need to store my belongings under the carport with tarps.”

86. KD told me that she is no longer able to sleep in the house and sleeps in her van, parked in the driveway.

87. KD appears to live a spartan existence.

88. KD stated in her affidavit evidence that she estimated it would cost $150,000 to renovate the Warners Bay property. There is, however, no independent evidence confirming what the likely cost of renovation would be.

89. As I have said, there is no direct evidence as to the property’s current value. It may well be that the property is, for all practical purposes, unsaleable in its present condition.

90. There is no call in this case for a comparative analysis between KD’s financial position and that of BS and CC as they are not applicants for provision.

91. KD has incurred legal costs in these proceedings in the order of $97,600, of which she has only paid some $12,000, using money loaned to her by her father. Her costs assessed on an ordinary basis are in the order of $73,500.

92. KD told me that she is disputing her obligation to pay these fees, at least as to part, and that she had had some communications with the Legal Services Commissioner about this.

93. KD said, in relation to her legal representation:

“I have also had to battle to get my evidence put forward in these proceedings. My affidavits were changed at the last minute before signing. Critical evidence for my case had been removed from my affidavits and some had been left out altogether.”

94. However this may be, the fact is that KD signed the affidavits in their final form and affirmed the contents to be true.

95. It is not possible to predict the outcome of such dispute as KD may have with the solicitors who have acted for her, in relation to their fees. It is therefore not possible to predict the amount for which she will ultimately be liable for legal fees.

Did the Deceased make inadequate provision for KD?

96. The question under s 59 of the Succession Act is whether the Deceased made “adequate” provision for KD’s “proper” maintenance or advancement in life.

97. “Adequate” and “proper” are value-laden concepts. ^[10] The expressions are “always relative” and “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”. ^[11]

    10. Brand v Brand [2015] NSWSC 52 at [26] (Pembroke J).

    11. Goodman v Windeyer (1980) 144 CLR 490 at 502; [1980] HCA 31 (Gibbs J).

98. Although a binary choice is necessary, a provision being either adequate or not,^[12] what is involved is “an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific”. ^[13]

    12. Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA).

    13. Manuel v Lane [2013] NSWCA 61 at [9] (Emmett JA, with whom Meagher and Ward JJA agreed), speaking of the discretion to be exercised under s 20 of the Property (Relationships) Act 1984 (NSW) which I see as involving, in this respect, the same notions as arise under the Succession Act. This formulation was adopted by me in Szypica v O’Beirne [2013] NSWSC 297 at [40] and, since then, by other judges in many subsequent cases; most recently by Hallen J in Georgopoulos v Tsiokanis [2022] NSWSC 563 at [261].

99. It is not the Court’s function, in cases like this, to endeavour to achieve a “fair” disposition in a deceased estate, or to achieve some sort of equity between the various claimants. ^[14]

    14. See for example, Gorton v Parks (1989) 17 NSWLR 1 at 6 (Bryson J) and Sung v Malaxos [2015] NSWSC 186 at [5] (Pembroke J).

100. In this case, KD got nothing from the Deceased’s estate. If regard were to be had only to KD’s financial circumstances, that does not appear to be adequate. KD’s financial position is not strong.

101. But there are other factors to be considered.

102. The first is that the estate is relatively small.

103. The second is that weight must be given to the Deceased’s deliberate decision to exclude KD from her will. The Court must always be cautious about interfering with a testator’s or testatrix’s decision, especially where, as here, there is an identified reason for the decision.

104. On one view, the Deceased’s decision was an extreme reaction to KD’s application to NCAT in relation to the Uncle. That application was, I am satisfied, born of KD’s genuine concern for the Uncle’s welfare; which concern was, as I have set out above, to some extent vindicated by the outcome of the proceedings. It was, nonetheless, not heralded by KD nor sought by the Deceased or the Uncle.

105. The Deceased’s decision to exclude KD from her will may have been informed by things said to her by BS or CC.

106. However, as I have set out above, the Deceased committed to writing her position at the time.

107. As has been said:

“The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator [or testatrix] is dead and cannot tell his [or hers].”^[15]

15. Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at [7]; [1962] HCA 19 (Dixon CJ with whom McTiernan J agreed).

108. Here, the Deceased’s decision was to exclude KD from her will. There is no suggestion that the Deceased was not competent to make this decision.

109. I must also take into account KD’s later conduct, including her application to NCAT concerning the Deceased’s estate. As I have set out, to some extent KD’s application was vindicated. But it was, nonetheless, evidently unwelcome by the Deceased. I must also take into account her decision to play a role in her father’s claim against the Deceased and her later application to QCAT.

110. I see substance in Ms Hoskinson’s submission that:

“In her unwavering determination to wrestle control over [the Deceased’s] care from her sister, KD demonstrated little insight into her own behaviour and no regard for the stress and upset it was causing [the Deceased].”

111. Nonetheless, my conclusion is that, taking all these matters into consideration, the provision made in the Deceased’s will for KD – nothing – was not adequate.

112. As to what “proper” provision is, more difficult questions arise.

113. KD submitted that she should receive her costs from the estate, as well as two thirds of the balance of the estate. On the other hand, Ms Hoskinson submitted that KD should have no, or at most nominal, provision.

114. I am persuaded that some modest provision, between these two extremes, should be made for KD.

115. BS and CC, as executrices, must have their costs from the estate on an indemnity basis. Their duty was to seek to take all reasonable steps to uphold the Deceased’s will. They have done that.

116. Were KD, as a successful applicant, to have her costs, assessed on an ordinary basis (some $73,500) paid from the estate,^[16] that alone would account for some 17.5% of the remaining distributable estate. However, the figure of $73,500 must be discounted to take account of the challenge KD proposes to make to her liability to pay those costs. It is impossible to be precise about what that discount should be. Again, an evaluative discretionary decision is called for. I will assess the discounted figure to be $40,000 and will, pursuant to s 99 of the Succession Act, cap the amount KD may recover from the estate for costs at that figure.

     16. The usual position: see for example, Smith v Smith (No 2) [2011] NSWSC 1105 at [55] (Hallen J).

117. That will leave the distributable estate, making an allowance for the likely understatement of the value of the Deceased’s household effects, to be in the order of $375,000. ^[17]

     17. Gross estate $539,000 (to take account of the household effects understatement), less $124,000 executrices’ costs, less $40,000 KD’s costs.

118. I can see no basis on which KD should receive an equal share with BS and CC of that amount: some $125,000.

119. That would, in any event, be far short of the amount needed to meet KD’s actual costs, some $97,600, assuming she remains liable to pay them, and her estimate of the amount needed to renovate her home, some $150,000.

120. And to award KD an amount equal to one third of the estate would be to ignore the Deceased’s decision to exclude KD as a beneficiary, and to place no weight on KD’s conduct that, whether KD intended this or not, and although vindicated to some extent, caused distress to the Deceased.

121. My conclusion is that there should be provision for KD of $60,000, being an amount in the order of 16% of the remaining distributable estate after costs. In addition, as KD has to this extent been successful, I will also order that she have her costs from the estate, but capped at the figure of $40,000 to which I have referred.

Conclusion

122. I order that, pursuant to s 59 of the Succession Act, provision be made for the Plaintiff from the estate of the Deceased in the sum of $60,000.

123. I further order that, pursuant to s 99 of the Succession Act, the Plaintiff’s costs, capped at $40,000, be paid from the estate.

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Endnotes

Decision last updated: 05 July 2022