Keaton v Gumulak

[2020] NSWSC 943

Supreme Court

New South Wales

Medium Neutral Citation:

Keaton v Gumulak [2020] NSWSC 943

Hearing dates:

7 July 2020

Date of orders:

7 July 2020

Decision date:

23 July 2020

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision made for her in Clause 3(b) of the Will dated 27 May 2018 of Patricia Gumulak, the Plaintiff receive, by way of provision, a lump sum of $95,000.

(2) Orders that no interest is to be paid on the lump sum if it is paid by 1 September 2020; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from 2 September 2020 until the date of payment in full.

(3) Orders that the burden of the provision made for the Plaintiff be borne equally by John Leslie Gumulak (the Defendant) and Anne Maree Butler, the residuary beneficiaries named in Clause 3(c) of the deceased’s Will.

(4) Orders that the Plaintiff receive a specified gross sum instead of assessed costs, agreed at $66,800, for her costs of the proceedings, to be paid out of the estate of the deceased.

(5) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

(6) Orders that the hearing date listed on 9 July 2020 be vacated.

(7) Orders that the Exhibits be returned.

Catchwords:

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendant is also an adult child of the deceased – Close relationship between Defendant and deceased – Plaintiff estranged from deceased for a few years before deceased’s death – Relevance of Plaintiff’s diagnosis of PTSD and Borderline Personality Disorder on her conduct – Deceased left a Will providing a pecuniary legacy of $10,000 to the Plaintiff – No dispute about nature and value of the estate – Estate of modest value – No competing financial claim by either of the residuary beneficiaries – Whether there was, and if so, the relevance of, an estrangement of the Plaintiff and the deceased – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff, and if so, the nature and quantum of the provision to be made

Legislation Cited:

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW), ss 84A, 86

Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 61, 63, 65, 66, 72, 84, 99, Ch 3

Cases Cited:

Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176

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

Bartlett v Coomber [2008] NSWCA 100

Bkassini v Sarkis [2017] NSWSC 1487

Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86

Bondelmonte v Blanckensee [1989] WAR 305

Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Bowers v Bowers [2020] NSWSC 109

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164; [2012] NSWCA 431

Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195

Butcher v Craig [2009] WASC 164

Carey v Robson (No 2) [2009] NSWSC 1199

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Christie v Manera [2006] WASC 287

Crossman v Riedel [2004] ACTSC 127

de Angelis v de Angelis [2003] VSC 432

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

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

Goodsell v Wellington [2011] NSWSC 1232

Gorton v Parks (1989) 17 NSWLR 1

Grey v Harrison [1997] 2 VR 359

Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359

Harkness v Harkness (No 2) [2012] NSWSC 35

Hawkins v Prestage (1989) 1 WAR 37

Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2

Hunter v Hunter (1987) 8 NSWLR 573

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

Kohari v Snow [2013] NSWSC 452

Liprini v Liprini [2008] NSWSC 423

MacGregor v MacGregor [2003] WASC 169

Marks v Marks [2003] WASCA 297

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

McGrath v Eves [2005] NSWSC 1006

McKenzie v Topp [2004] VSC 90

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107

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

R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52

Rogers v Rogers [2018] NSWSC 1982

Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42

Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473

Sammut v Kleemann [2012] NSWSC 1030

Sgro v Thompson [2017] NSWCA 326

Shannon v Steinmetz [2019] HCASL 332

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

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stern v Sekers; Sekers v Sekers [2010] NSWSC 59

Stott v Cook (1960) 33 ALJR 447

Sung v Malaxos [2015] NSWSC 186

Taylor v Farrugia [2009] NSWSC 801

Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Underwood v Gaudron [2014] NSWSC 1055

Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269

Verzar v Verzar [2012] NSWSC 1380

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)

White v Barron (1980) 144 CLR 431

Yee v Yee [2017] NSWCA 305

Texts Cited:

Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5

Category:

Principal judgment

Parties:

Kathy Keaton (Plaintiff)
John Leslie Gumulak (Defendant)

Representation:

Counsel:
F Austin (Plaintiff)
D Lloyd (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Wilson & Co Lawyers (Defendant)

File Number(s):

2019/00168114

Publication restriction:

Nil

Judgment

Introduction

1. This case concerns the estate of Patricia Gumulak (the deceased). The Plaintiff, Kathy Keaton, is a now adult child of the deceased and she has made a claim for a family provision order out of the deceased’s estate pursuant to Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

2. In this case, many of the persons involved share the same surname. As such, where it is necessary to do so, and without intending any disrespect, I have referred to persons, other than the parties, by first name to avoid confusion. I have referred to the second husband of the deceased, John Joseph Gumulak, as the Plaintiff’s stepfather.

3. The deceased died on 31 May 2018, leaving a Will dated 27 May 2018. Probate of that Will was granted to the Defendant, John Leslie Gumulak, on 11 September 2018. He, too, is a now adult child of the deceased.

4. The proceedings were set down for hearing before me, for three days, commencing on 7 July 2020. At the hearing, Mr F Austin of counsel appeared for the Plaintiff and Mr D Lloyd of counsel appeared for the Defendant. The proceedings, however, were able to be heard within one day. This does all of the legal practitioners involved a great deal of credit. Prior to the hearing, they had complied with the directions that had been made regarding an agreed schedule of assets and liabilities and counsel had provided written submissions in a timely manner. At the hearing, they did not waste time on unnecessary, and immaterial, objections to affidavits, their cross-examination of witnesses was limited to essential matters, and the oral submissions were concise and to the point. Ultimately, they saved the parties a large amount of costs, and time, which, otherwise, would have been incurred, had the hearing continued for the three days.

5. At the conclusion of the hearing, having heard the evidence and the submissions of counsel, with the consent of the parties, I informed them that I was able to express the orders that I proposed to make and that I would publish my reasons subsequently. I stated that I was satisfied that adequate provision for the proper maintenance and advancement in life of the Plaintiff had not been made by the deceased’s Will and I then made the orders set out later in these reasons.

6. In summary, I ordered, pursuant to s 59 of the Act, that the Plaintiff receive, in lieu of the provision made for her in the deceased’s Will, a lump sum of $95,000 by way of provision out of the deceased’s estate. As will be read, the parties, then, were able to agree on the costs orders that should be made. This, also, has saved them further costs and will avoid a delay in the administration of the estate of the deceased.

7. These are the reasons for the making of the orders.

Some formal matters not in dispute

8. The Plaintiff commenced these proceedings by Summons filed on 29 May 2019. It was not in dispute that the Plaintiff had commenced the proceedings within time (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

9. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It was agreed that the Plaintiff, as a child of the deceased, is an eligible person: s 57(1)(c) of the Act. It is not necessary that the child of the deceased be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c)).

10. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (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 …”. This factor, however, will not be relevant, in the case of a child of the deceased, to whether the applicant is an eligible person.

11. By Clause 3 of her Will, the deceased dealt with all of her estate. There is, therefore, no scope for the operation of the rules of intestacy. It is sufficient, hereafter, to only refer to the Will of the deceased and its terms.

12. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. There was no suggestion that any property could be designated as the notional estate of the deceased.

13. It was clear that each of the deceased’s three children, the Plaintiff, the Defendant, and Anne Maree Butler, is an eligible person. Ms Butler played no role in the proceedings, although she may have been present during the hearing. There is the former spouse of the deceased, Mr Warren Keaton, who is the father of the Plaintiff, who is also an eligible person. At the hearing, Mr Austin informed the Court that Mr Keaton was present in Court and that he was aware of the proceedings. Mr Lloyd confirmed that, in any event, Mr Keaton had been served with notice of the application, and of the Court's power to disregard his interests. In the circumstances, in determining the Plaintiff’s application for a family provision order, the Court has disregarded the interests of Mr Keaton, as a person by, or in respect of, whom, an application for a family provision order may be made but who has not made an application: s 61(2) of the Act.

14. Neither the Defendant, nor Ms Butler, has made a claim for provision out of the deceased’s estate. Each, however, is a residuary beneficiary named in the deceased’s Will. The Act specifically provides that the interests of a beneficiary of the deceased’s estate cannot be disregarded, even though each has not made a claim: s 61(1). Each is entitled to rely upon the terms of the deceased’s Will and his, or her, competing claim, respectively, as a chosen object of the deceased’s bounty. Neither disclosed his, or her, financial resources and needs, respectively. It was accepted that each was not a competing financial claimant on the bounty of the deceased, although each was a competing claimant, otherwise.

15. As to the effect of the silence of the beneficiaries in relation to financial resources and needs, in cases such as these, I have set out the relevant principles in Sammut v Kleemann [2012] NSWSC 1030 at [137]–[140], and have recently reiterated them in Bowers v Bowers [2020] NSWSC 109 at [98]. I shall not repeat those principles here.

16. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 [94]; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing), stated the principle far more succinctly as follows:

“… The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535­–536; Mason v Permanent Trustee Co Ltd (Supreme Court, Macready M, 5 December 1996, unreported) at 6. The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.”

17. Also see Poletti v Jones (2015) 13 ASTLR 113 at 118 [23]; [2015] NSWCA 107 at [23] (Basten JA, Leeming JA agreeing).

18. Even if the Court may infer that each of the two beneficiaries has no need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than the Plaintiff, his, and her, silence does not mean that the competing claim of each of the beneficiaries should not be evaluated. As will be read, what is “proper” requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

19. The Defendant, as executor, does not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

Background Facts

20. It is next convenient to set out a narrative of some relevant background facts that were not the subject of dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court.

21. Although the precise date was not disclosed in the evidence, the deceased was born in about 1953 and died on 31 May 2018. Whilst a teenager, she commenced a relationship with Mr Keaton. There was one child of that relationship, being the Plaintiff, who was born in February 1970.

22. Approximately 18 months after the Plaintiff was born, her parents separated. After the separation, the Plaintiff spent a short period living with her father and, then, with her maternal grandparents. From the age of about two, the sole custody of the Plaintiff was with the deceased.

23. In or around 1971, the deceased commenced a relationship with John Joseph Gumulak. The deceased and Mr Gumulak had two children, being the Defendant, who was born in October 1973, and Ms Butler, who was born in September 1974. In the late 1970s or early 1980s, the deceased and Mr Gumulak married.

24. It was not in dispute that the Plaintiff’s stepfather would physically discipline each of the children. The Defendant deposed in his affidavit, and confirmed in cross-examination, that his father would use a belt to discipline each of the children. What was in dispute, however, was the nature and the extent of that physical discipline, and its effect, upon the Plaintiff. This is a matter to which I shall return.

25. The Plaintiff left the family home when she was 16 years of age. Thereafter, she continued to receive some financial assistance from the deceased. The precise nature and regularity of the financial assistance was not disclosed in the evidence.

26. Sometime after leaving the family home, the Plaintiff commenced a relationship with, and then married, David Pattison. There were two children of the relationship, Michael Pattison and Scott Pattison.

27. In or around 2000, the Plaintiff and Mr Pattison separated.

28. Sometime thereafter, in or around 2000, the Plaintiff commenced a relationship with Kerry Paterson. They were married in 2003. There was one child of that relationship, Blake.

29. In 2014, the Plaintiff was diagnosed with Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder. It was her “belief” that the PTSD was caused by the discipline, and the harsh treatment, imposed upon her by her stepfather throughout her childhood. There was virtually no medical evidence to support her belief.

The deceased’s Will

30. By Clause 2 of her Will dated 27 May 2018, the deceased appointed the Defendant as the executor of her estate. Then, the deceased bequeathed all of her jewellery to be shared between Ms Butler and two of her granddaughters. The deceased then made seven specific pecuniary legacies, each of $10,000. One of those legacies, relevantly, went to the Plaintiff: Clause 3(b)(ii). This lump sum represented the total extent of the financial provision made for the Plaintiff under the Will. The remaining six pecuniary legacies were gifted to, or shared between, a number of the deceased’s grandchildren. There was no dispute in the proceedings that those six pecuniary legacies should be distributed to them, and should not bear any of the burden of the provision to be made for the Plaintiff: Tcpt, 7 July 2020, p 2(22–31), p 4(40–48).

31. As stated, the rest and residue of the deceased’s estate was divided, in equal shares, between the Defendant and Ms Butler.

The nature and value of the estate

32. On 9 June 2020, I directed the parties to provide an Agreed Schedule that contained:

1. the assets and liabilities of the estate at the date of death;

2. the assets and liabilities of the estate at the date of the schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; and

5. any costs of any party that had been paid, and in relation to the Defendant, whether those costs had been paid out of the estate of the deceased.

33. What follows has been taken, principally, from the Agreed Schedule that the parties prepared in accordance with that direction, which was tendered as Ex AS1, and the discussion between Bench and Bar at the commencement of the hearing. In the figures below, I have omitted a reference to cents. This will explain any apparent arithmetical miscalculation.

33. The deceased’s estate, as at the date of death, consisted mainly of two parcels of real property. The first was a property at Halekulani, which I understand to be a suburb of the Central Coast region of New South Wales, had an agreed estimated value of $460,000 (the Halekulani property). The second was a property at Bonnells Bay, which I understand to be a suburb of the City of Lake Macquarie, in New South Wales, had an agreed estimated value of $580,000 (the Bonnells Bay property). The estate also consisted of: various bank accounts ($49,693); proceeds of superannuation accounts ($113,109); shares in NIB and IAG ($11,478); two motor vehicles ($6,500); and furniture and other personal effects ($2,000). Additionally, the deceased’s estate contained what remained of the estate of the Plaintiff’s stepfather ($50,000). As such, the gross value of the deceased’s estate, at the date of death, was approximately $1,272,781.

34. As at the date of death, the deceased’s estate had liabilities of approximately $219,291. These liabilities included a debt due to St George Bank, secured by a mortgage ($174,226), and two credit card debts, also with St George Bank ($4,572). There was also a liability for funeral and other expenses associated with the administration of the estate of the Plaintiff’s stepfather ($40,492). The last amount was not agreed between the parties “pending production of receipts”. Nothing further was said about the estimate at the hearing, and for the purpose of the calculations, that figure was assumed to be accurate.

35. It follows that the net value of the deceased’s estate, at the date of death, was approximately $1,053,490.

36. Ex AS1 also provided the estimated values of the assets and liabilities as at the date of the Schedule, being 29 June 2020. At that date, the deceased’s estate consisted of the following assets: the Halekulani property ($470,000); the Bonnells Bay property ($590,000); a superannuation account in the name of the deceased ($5,900); a superannuation account in the name of the Plaintiff’s stepfather ($5,800); the shares in NIB and IAG ($9,686); an account described as the “Estate Trust Account” ($45,445); and an account described as the “Rental Account” ($32,938). In total, the gross value of the deceased’s estate, as at the date of the Schedule, was approximately $1,159,769.

37. As at the date of the Schedule, the deceased’s estate had two liabilities, being the debt secured by mortgage on the Bonnells Bay property ($174,226); and a credit card debt with St George Bank ($2,489). The liabilities of the deceased’s estate, therefore, totalled $176,716. After repayment of those liabilities, the agreed estimated value of the estate was approximately $983,053: Tcpt, 7 July 2020, p 3(42) – p 4(01).

38. The parties also agreed that the estimated costs and expenses of sale of the Halekulani property were $13,624 and the estimated costs and expenses of sale of the Bonnells Bay property were $16,528. They also agreed that the six pecuniary legacies, each of $10,000, were to be paid out of the estate.

39. It follows, without deducting any amount for the costs of the proceedings, the value of the deceased’s estate, out of which an order for provision could be made, was $892,901.

The Costs of the Proceedings

41. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

42. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

43. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

44. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.

45. In the present case, the Plaintiff estimated her costs and disbursements at $81,800 (inclusive of GST), calculated on the ordinary basis. When calculated on the indemnity basis, that amount increased to $101,500 (inclusive of GST): Ex AS1.

46. The Defendant’s costs and disbursements, calculated on the indemnity basis, were estimated to be $95,465 (inclusive of GST). Of that figure, $45,965 had already been paid out of the deceased’s estate. Therefore, $49,500 (inclusive of GST) remained to be paid as at the date of the Schedule.

47. On the assumption that the usual order for costs would be made, the combined costs of the parties left to be paid totalled $131,300.

48. Naturally, the estimate of the costs of each party was based on a three day hearing. As the hearing concluded within one day, it was necessary for each of the parties to revise the estimate for her, and his, costs of the proceedings.

49. The Plaintiff’s revised costs, calculated on the ordinary basis, were reduced to $66,800. The balance of the Defendant’s costs, yet to be paid, calculated on the indemnity basis, was reduced to $34,500. Again, assuming the usual order for costs was made, the total amount of costs to be paid out of the estate was estimated to be $101,300. (It follows that there was an estimated saving of $30,000.)

50. Deducting the reduced estimate of the costs for each party, the net distributable estate out of which an order for provision for the Plaintiff could be made was agreed to be $791,601: Tcpt, 7 July 2020, Part 2 p 3(03) - (21).

Relationship between the Plaintiff and the deceased

51. The nature of the relationship between the Plaintiff and the deceased was advanced as a key issue in these proceedings. For her part, the Plaintiff described the relationship between her and the deceased as a “very close” one: Affidavit, Kathy Keaton, 26 June 2019 at par 19. The main impediment to the relationship, in the Plaintiff’s mind, was her stepfather.

52. However, as will be read below, there were various times at which the relationship between the Plaintiff and the deceased was not close at all. Indeed, there were periods in which the Plaintiff avoided visiting, or speaking to, the deceased. What was apparent, on the reading of all of the evidence, was that mother and daughter became estranged. What remained in dispute, however, between the parties, was the cause of that estrangement, and the significance that it had on whether an order for provision should be made.

The early years of the relationship

53. The Plaintiff gave little evidence of the relationship between her and the deceased during her childhood, other than asserting that she was wholly dependent on the deceased during these years. Instead, most of her evidence focussed on her relationship with her stepfather.

54. The relevance of the Plaintiff’s relationship with her stepfather to a claim for provision out of her mother’s estate is questionable. Nonetheless, the relationship assumed a particular significance in the evidence and in the submissions. It is, therefore, necessary to consider it, albeit briefly.

55. The Plaintiff described the relationship with her stepfather as abusive. It was her evidence that he was violent and would physically discipline her with a belt. The Defendant confirmed that his father, the Plaintiff’s stepfather, would discipline all three children with his belt. The Defendant deposed at par 12 of his affidavit sworn 6 January 2020:

“Our father was the disciplinarian in the family, and I considered that the three siblings were all treated exactly the same. Our father was very firm but also fair and never disciplined any of us for no reason.”

56. The Plaintiff, in her evidence in reply, disputed the Defendant’s characterisation of her stepfather as firm but fair. In addition to the physical abuse, she asserted that he would also verbally abuse, and bully, her. She asserted that she was singled out, from her siblings, and given an unreasonable amount of chores to do.

57. To a limited extent, the Plaintiff’s account was corroborated by the evidence of Susan Bugg. Ms Bugg swore an affidavit, read in the proceedings, confirming that the Plaintiff was given an extensive list of chores and that the Plaintiff was required to write lines if she failed to complete the list. Ms Bugg recalled one occasion when the Plaintiff’s stepfather was verbally abusive towards the Plaintiff. Ms Bugg was not cross-examined.

58. Mr Austin spent some time, in the cross-examination of the Defendant, putting to him that the Plaintiff’s stepfather had exhibited anger whilst disciplining the children. The following exchange occurred in cross-examination (Tcpt, 7 July 2020, p 49(01–28)):

“Q. Sir, when your father used a belt to discipline you, Kathy or Anne, he exhibited anger?

A. I - I can't make a claim as to what he was exhibiting other than the reason for - the motivation for the discipline is because we failed to - like, if - if - if we've misbehaved after we've received a warning, or if we'd not completed chores, even though we've been asked several times. It - I can't speak to what his motivation or his feeling was when he was applying the discipline. So I can't speak to that.

Q. I appreciate that, but he exhibited anger when he belted you.

A. I - I can't speak to that. I can't speak to what he was feeling or - or what was - he was exhibiting. I mean, as a - as a young kid, like, being at school, given the cane, you could say that to a - a - about a teacher giving you force, you know. They have to exhibit something that could be observed as being anger. I - I really can't speak to it.

Q. Did you observe him in anger?

A. Sorry?

Q. Did you observe him become angry before and during the disciplines?

A. The act of the smack, if that's considered in court as anger

Q. Well, to be a bit - sorry, I cut you off.

A. No.

Q. Did he ever raise his voice or yell at you before using a belt to discipline you?

A. Yes. As a warning.”

59. When the Court enquired about the relevance of the stepfather’s conduct, Mr Austin submitted that the deceased would have known about it but, it appeared, she did not do anything to intervene or other prevent it.

The relationship between 1986 and 2003

60. The Plaintiff moved out of the family home when she was about 16 years of age. Although she asserted that she was kicked out of the home by her stepfather, that assertion was disputed by the Defendant.

61. The Plaintiff contended that the relationship between her and the deceased was close and supportive through this period. She deposed to the deceased loaning her money on occasions, and to them spending special occasions such as Christmas, together.

62. Shortly after the Plaintiff moved out of the family home, she and her siblings learned, for the first time, that the Plaintiff’s stepfather was not the Plaintiff’s biological father.

63. To an extent, the Defendant corroborated the nature of the relationship as the Plaintiff had asserted it. He confirmed that the Plaintiff would return to the family home every two or three weeks during a period in which she lived at Guildford, and that she would also return for special occasions. However, he deposed:

“Our parents always welcomed the Plaintiff and her family to their home and the Plaintiff would turn up for a period of time at Christmas and for birthdays but then leave.”

64. While their perception of these visits was somewhat different, it was plainly not in dispute between the parties that visits had occurred.

65. The Defendant also confirmed that the deceased provided the Plaintiff with financial assistance. However, he contended that the Plaintiff never paid back any of the amounts that had been loaned.

66. On at least one occasion, during the 1990s, the Plaintiff moved back in with the deceased and the Plaintiff’s stepfather. The Defendant asserted that, for some of this time, the Plaintiff did not pay rent or assist with household duties. Although the Plaintiff accepted that she did not pay rent, she contended that she did help out, otherwise, with household duties.

67. The Defendant deposed that, after the Plaintiff commenced her relationship with Mr Paterson, the deceased and the stepfather were not welcomed by the Plaintiff. He deposed, also, that the Plaintiff did not make attempts to visit the deceased and her stepfather.

68. When the Plaintiff and Mr Paterson were married in 2003, none of the deceased, the Plaintiff’s stepfather, the Defendant, or Ms Butler, was invited to the wedding. The Plaintiff explained that the wedding was “just a formality” and was not a big celebration.

69. As a result of the above, it was the Defendant’s evidence that the deceased and the Plaintiff’s stepfather were upset at the decline in their relationship with the Plaintiff. He deposed at par 28 of his affidavit sworn 6 January 2020:

“Our parents were very upset about the decline in the relationship with the Plaintiff and the fact that they were not able to see their grandchildren despite them being two houses away when they visited. On a number of occasions, I spoke with our parents about how they felt not being able to see their grandchildren and both of them told me about their pain that they felt especially our mother.”

70. The Plaintiff denied that she had prevented her children from seeing the deceased. She deposed in her affidavit in reply sworn 7 February 2020:

“Even on occasions when I was not speaking to my mother I would still encourage my children to go and see their grandmother. Whilst they would not always go, I would always encourage it. I find it hard to believe that my mother and stepfather were upset about the decline in the relationship as they had never brought this up with me. I tried to have a relationship with my mother but every time I went to visit my stepfather would continue with his criticisms of me and starting fights with me. My mother would never stand up for me and I just couldn’t cope. In or about 2005 Kerry and I were staying with his parents whilst we looked for a rental property. During this time I was not on talking terms with my mother however I made sure my sons went to visit her several times.”

71. As is clear from the above, and as was accepted by her, in cross-examination, there were various times when the Plaintiff did not visit, or speak to, the deceased. However, the Plaintiff maintained in cross-examination that her children would continue to visit the deceased even during these periods.

The relationship between 2003 and 2014

72. In or around 2003, the deceased was hospitalised due to complications arising from a rare blood disorder. The Plaintiff gave evidence that she was a consistent source of support and care for her mother during this time. This ranged from visiting her in hospital every day, to performing household chores.

73. For his part, the Defendant accepted that the Plaintiff provided some assistance and did visit during the deceased’s hospitalisation in 2003. However, by reference to his own contact with the deceased during this period, he seemed to suggest the frequency and significance of such support was not as much as the Plaintiff asserted.

74. The Defendant also referred to an incident around Christmas 2007 where the Plaintiff and the deceased were involved in a physical altercation. While the Defendant was not present on that occasion, he deposed to his second-hand account of what occurred:

“… the Plaintiff came over and stormed into our parent’s house and started yelling very loudly and struck my mother causing our mother to fall to the ground where the Plaintiff continued by scratching her and pulling her hair. Anne’s husband, Brett, and my father had to pull the Plaintiff off our mother and remove her from the house.”

75. The Plaintiff did not deny that the physical altercation had occurred. She asserted that she had visited the deceased’s home looking for Ms Butler’s husband in relation to an alleged dispute over invested moneys. Following an argument between the Plaintiff and Ms Butler:

“Mum got upset and told me to leave. She jumped up from the lounge which she was sitting in and walked towards me waving her hands around. Initially I though [sic] mum was going to hit me so I put my hands up and pushed her away from me by pushing on her shoulders. Mum then grabbed me on the shoulders and we scuffled holding onto each other around the shoulders. I then stormed out. Brett and John never separated us, they weren’t even in the room with us when the scuffle occurred. I stormed out of the house and passed Brett and John in the kitchen on my way out. At no stage did I strike, scratch or pull my mother’s hair.”

76. However, in cross-examination, the Plaintiff accepted the following (Tcpt, 7 July 2020, p 37(39–50)):

“Q. There was a physical altercation between you and your mother on Christmas day in 2007. Is that true?

A. I think it was Christmas Eve, yeah. And no, it wasn’t between my mother, it was to do with a confrontation between myself and my sister actually. Mum stepped into the situation. I didn’t go over there to confront my mother at all. It was between my sister and I.

Q. Isn't what happened that you said some things to your mother to the effect that you regarded her as being at fault for things that had happened to you in your childhood and said things like that to her?

A. I've said things to her that I felt that she didn't protect me and that I felt neglected. Yeah.”

77. It was clear that, even during this period, the relationship between the Plaintiff and the deceased had begun to fray. In cross-examination, it was put to the Plaintiff, and she accepted, that she would drop her children off at the deceased’s house but would not herself get out of the car (Tcpt, 7 July 2020, p 37(16–37)):

“Q. Can I ask you about a period around 2005.

A. Yes.

Q. There were times, weren’t there, when you drove your kids to your mum’s house, and let them run in, but did not get out of the car yourself to go and say hello?

A. There have been times. I'm not sure of the exact dates, but there have been times I've dropped my children off so that they could spend time with their grandmother when mum and I may not have been on talking terms. So I'll pull up out the front, because it had been prearranged, to drop the kids off to allow her and them to have a relationship; and not have any drama around that.

Q. And those times included times well before 2015, true?

A. Yeah, there were some, yep.

Q. There were a number of times, weren’t there, when that happened?

A. It happened more than once, yeah.

Q. Well, how many times do you say, approximately?

A. How many times did I drop them off without getting out of the car. I'm not sure of the number. Maybe half a dozen times. I'm not sure.”

78. In late 2010, the Plaintiff separated from her husband and moved in with the deceased and her stepfather. This continued, on the Plaintiff’s evidence, for approximately two months until she was “kicked out” of the family home.

79. The Defendant agreed that the Plaintiff had moved back in with the deceased and her stepfather in 2010. He, however, did not believe that she was “kicked out”. He suggested that she moved on of her own volition.

The relationship after 2014

80. What emerged as a common thread through the evidence of the Plaintiff and the Defendant was that the relationship between the Plaintiff and the deceased significantly deteriorated in 2014. Unsurprisingly, they differed as to the cause of that deterioration.

81. In 2014, as averred to above, the Plaintiff was diagnosed with PTSD and Borderline Personality Disorder. As earlier stated, the Plaintiff believed that her PTSD was caused by the treatment suffered at the hands of her stepfather. The Plaintiff raised this belief and her concerns with the deceased. However, in the Plaintiff’s view, the deceased did not provide an appropriate level of support at this time. She deposed at pars 25–26 of her affidavit sworn 26 June 2019:

“My mother did not want to acknowledge what caused my sickness and she struggled to provide me with the emotional support I needed during this time. I would try to talk to my mother about my diagnosis, however she would get uncomfortable and change the subject. She was very dismissive of my condition and the cause. Her response became a trigger for me, and I would become angry, which is a symptom of my diagnosis.

After my diagnosis, I tried my best to maintain a good relationship with my mother, however she was reluctant to be around me when I was unwell. When I was down and depressed I would become tearful and emotional. I yearned for love and support and became very needy during these times.”

82. It would seem that the Plaintiff felt that the deceased was dismissive of her condition. Perhaps, more importantly, the Plaintiff considered that the deceased did not believe that the cause of that condition was, ultimately, the Plaintiff’s stepfather. This was a view that was the Plaintiff held, consistently, through the proceeding years.

83. In 2015, the Plaintiff recounted an incident where the deceased and Ms Butler had come to visit the Plaintiff at her home. Upon the Plaintiff raising, again, the issues concerning her condition, she deposed that an argument erupted between the deceased and her. She wrote at par 28:

“My mother denied the issues, and this caused me to get upset. The two of us had an argument and my mother ran out. She implied that my illness was all in my head and that it had nothing to do with my upbringing. We did not really speak after this. This was very upsetting for me as I had always had a strong bond with my mother.”

84. The Plaintiff stated that she received support during this period from her own father, and perceived that the deceased retained a degree of animosity towards her former husband. Consequently, the Plaintiff considered that her receipt of support from her father further exacerbated the difficulties between the deceased and her.

85. Things did not improve in 2016 when the deceased was diagnosed with cancer. It was the Plaintiff’s evidence that she was instructed not to visit the deceased while the deceased was in hospital. She deposed at par 34:

“From this point onwards I did not have contact with my mother given that she was unwell and did not want to see me. I did not feel emotionally stable enough to see my mother and did not want to do so whilst she was so sick. I was concerned that I would not be able to keep hold of my emotions as I was so mentally unstable at the time. The last thing I wanted to do was go to try and be with and support my mother but have things go pear shaped and argument break out. I didn’t want to make anything worse for mum.”

86. In cross-examination, counsel put to the Plaintiff that, by the end of 2015, she felt hostile towards the deceased. He suggested that it was this hostility that was the reason that the Plaintiff ceased contacting the deceased. The following exchange occurred at Tcpt, 7 July 2020, p 38(19–33)

“Q. And that was the reason that I suggest to you, you made the decision to stop having contact with her in that year, that you felt hostile towards her.

A. I was receiving treatment and I wanted to get past the anger issues and I didn’t want to have conflict with my mother. It wasn’t about not wanting to see her or spend any time with her. It was about not wanting to upset her because - after her diagnosis especially, but before that, it was about me wanting to control and not let things get out of control. And that’s why I was going to counselling and to the psychologist, was to try and get better at doing that.

Q. See, I suggest to you that your decision not to have contact with your mother from 2015 had nothing to do with you being worried about her reaction, but rather it was because you felt hostility towards her.

A. No. I just didn’t want to get upset by having my illness denied again and the things that led up to causing that. And I didn’t want to have an argument. It didn’t serve any purpose.”

87. Counsel continued with this line of cross-examination and put to the Plaintiff that she was never told not to visit the deceased in hospital. He suggested, again, that it was the Plaintiff’s hostility towards the deceased that caused her not to visit the deceased when the deceased was unwell. Although the Plaintiff maintained that she had been instructed not to attend the hospital, she appeared to accept that her anger towards the deceased had played some part in her behaviour during this period (Tcpt, 7 July 2020, p 39(49) – p 40(04)):

“Q. The true reason that you made the decision not to have contact with your mother in 2016 after the diagnosis was your feeling of hostility, for example, reflected in your Facebook post.

A. I was still working through with my psychologist to deal with my anger issues, which I've now dealt with. But yeah, at that time, I was still working through it. It was fresh from the diagnosis and the treatment is ongoing, so--”

88. The content of the Facebook post, to which Mr Lloyd referred, is a matter to which I will return below.

89. The Defendant’s evidence, again, portrays the relationship between the Plaintiff and the deceased during this period in a different light. He asserted that the deceased had been supportive of the Plaintiff following the diagnosis and it was the Plaintiff who had caused the deterioration in the relationship. He deposed at par 35 of his affidavit:

“Our mother was very supportive of the Plaintiff during this time. The Plaintiff was verbally aggressive and at times, violent towards our mother. As an example, our mother told me that if she saw the Plaintiff, she would approach her, but the Plaintiff would yell abusive comments at her and our mother would walk away from her.”

90. Similarly, the Defendant deposed, in respect of the incident in 2015:

“Our mother told me about this incident and described to me how the Plaintiff stood face to face with our mother and was verbally aggressive towards her and made a number of nasty comments to her and blamed her for everything wrong in her life. Our mother told me that she decided that her being there was not helping the situation and so she left while Anne stayed.”

91. Of particular relevance, in the case advanced by the Defendant, was a Facebook post, made by the Plaintiff, in or around August 2015. The Defendant annexed a copy of the post to his affidavit sworn 6 January 2020. The post, better described as a comment on another post, was in the following terms:

“Speaking from experience, i am the result of a 16 year old who wanted a baby. My parents divorced when i was a baby and my mother married an absolute pig of a man who was cruel and abusive. I have no respect for her choices and would probably think more of her if i was given up for adoption. Theres [sic] nothing worse than wanting to be part of a ‘normal’ family. All you people judging have no right. My mother was just a selfish bitch who thought of no one but herself.”

92. The Plaintiff did not deny that she made the above post. She responded at par 41 of her affidavit sworn 7 February 2020:

“The comment was following my diagnosis and further falling out with my mother who refused to recognise my illness. I was so upset and hurt by the way she dismissed me and my diagnosis. I had no intention or desire for my mother to see the comment, it was not made to hurt her, it was simply me venting my feelings and frustration at the time.”

93. In cross-examination, the Plaintiff accepted that the post was public. She expressed her regret in making the post, explaining that she was “angry at the time” and that she had “worked through a lot of those emotions now”: Tcpt, 7 July 2020, p 39(09–12).

94. The Defendant categorically denied that the Plaintiff was instructed not to visit the deceased whilst she was hospitalised in 2016. It was his evidence that it was simply the Plaintiff’s choice not to visit, or enquire about, the deceased. He referred to another occasion, in March 2018, when the deceased was again in hospital. Whilst visiting the deceased, the Defendant met the Plaintiff at the hospital. The Plaintiff, coincidentally, was there visiting her son who was undergoing knee surgery. Despite spending some time with the Plaintiff and her son, the Defendant asserted that she did not enquire about the deceased nor offer to visit her.

95. The Plaintiff, in cross-examination, whilst agreeing that she did not enquire, simply said that as the Defendant had informed her about the deceased’s condition during their time together, this was unnecessary.

96. In her evidence in reply, the Plaintiff explained that she felt unwelcome, and, for that reason, had not offered to visit the deceased despite being at the hospital. Thus, there was no dispute that she did not visit the deceased on this occasion, despite being at the hospital.

97. Ultimately, the Defendant considered that the deterioration in the relationship was the responsibility of the Plaintiff through the choices she had made. As a final example of those choices, the Defendant deposed at par 48:

“I knew that our mother would send the Plaintiff’s children birthday cards and money every year but she did not know whether they received these gifts. The Plaintiff would drop her children off to our parent’s house at Christmas time but would not get out of the car or stay and say hello to our parents and her family. This upset and distressed our mother greatly.”

98. The Plaintiff, in cross-examination, did not deny that this had occurred. She accepted that it had occurred on a number of occasions, including on some occasions prior to 2015. On one view, the Plaintiff’s conduct in this regard is symptomatic of the increasingly poor relationship between her and the deceased. However, the Plaintiff’s persistence in allowing, and encouraging, her children to have a relationship with their grandmother is a matter that does the Plaintiff some credit.

99. (In a case defined by bitter disputes between family members, it serves as some small consolation to know that the Plaintiff’s children continued to have a relationship with the deceased.)

100. In her oral evidence, the Plaintiff considered that her anger at the deceased had subsided by 2017. Despite that, she did not make any attempt to reconcile, or to repair, their relationship. At Tcpt, 7 July 2020, p 46(18–30), the following exchange occurred:

“Q. There was still a period of time after 2017 before your mother died, did you ever think of writing her a letter or sending her a birthday card, or a Christmas card, or--

A. I didn’t go down that line. I was trying to gain support from my brother and sister because I would've thought that they have wanted a reconciliation, and my brother had come over to try and achieve that earlier, but it was on the proviso that I didn’t have any symptoms of my illness. And I just felt that nobody was on my side, and that’s very confronting when you suffer major anxiety, and you’re trying, when you’ve got a group of people that blame you for everything, and it’s like - it’s a trigger for my illness, and I didn’t want a meltdown, I didn’t want to cause mum anymore upset, and I couldn't guarantee that that wasn’t going to happen if nobody was going to do any - or talk to me about it. Nobody believed me, nobody - there was no support at all.”

101. The Plaintiff did, however, make an attempt to see the deceased at the hospital in the last few days of her life. That attempt was, it appears, unsuccessful. The Plaintiff deposed:

“I called John and told him that I was going to the hospital. When I arrived at the hospital with Michelle and my sons, John was waiting in the car park. I had a conversation with John about mum’s condition and then told him that I wanted to go in and say goodbye and tell her that I loved her. John said to me words to the effect of ‘No, mum told me she doesn’t want to see you.’ This hurt as I really wanted to say goodbye but I didn’t want to cause a scene or upset mum so I did not go in. My sons went in with Michelle so that they could at least say goodbye.”

102. The Plaintiff’s evidence in this respect was, to an extent, corroborated by the evidence of Sarah Collins. Ms Collins swore an affidavit, dated 14 February 2020, deposing to conversations with both the deceased and the Defendant. In each conversation, Ms Collins recalled being told that the deceased did not want the Plaintiff at her funeral.

103. Perhaps, this demonstrates the extent to which the relationship between the Plaintiff and the deceased had deteriorated. Ms Collins was not cross-examined.

104. Despite all that I have written on the topic of the relationship between an applicant and the deceased, I remember what was written by Campbell JA (Giles JA and Handley AJA agreeing) in Hampson v Hampson (2010) 5 ASTLR 116 at 133 [79]; [2010] NSWCA 359 at [80]:

“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.” (emphasis in original)

Testamentary intentions of the deceased

105. There was limited evidence of the testamentary intentions of the deceased. The Plaintiff deposed at par 23 of her affidavit sworn 26 June 2019:

“In around approximately 2008, my mother-in-law told me that my stepfather had been pressuring my mother to write me out of her will. My mother-in-law was informed of this by my mother, as the two of them were best friends. I spoke to my mother about this. She told me she would never do that and that her estate would be split evenly between her three children. I had always assumed that I would be provided for in her will.”

106. The Defendant contested this portrayal of the deceased’s testamentary intentions, although he did not dispute (nor could he) that the conversation to which the Plaintiff referred had occurred. However, the Defendant deposed at par 33 of his affidavit sworn 6 January 2020:

“Our father updated his Will so that the Plaintiff would not receive an equal part of his Estate if he had survived our mother. I do not believe that there was any pressure placed on our mother to do the same. Our mother adjusted her Will after our father’s death after a very considered process, in which she gave the Plaintiff every opportunity to resume their relationship. Our mother and I had a number of conversations in relation to ensuring that her affairs were in order.”

107. By the date of the deceased’s Will, 27 May 2018, the relationship between the Plaintiff and the deceased had deteriorated significantly. It is, therefore, unsurprising that the Plaintiff did not receive an equal share of the residuary estate.

108. I shall return below to the relevance of the deceased’s testamentary intentions in assessing a claim for provision made under the Act.

The situation in life of the Plaintiff

109. The Plaintiff is currently 50 years of age. She is separated from her husband, Mr Paterson, but no divorce order has been entered. Currently, she lives in rented accommodation in Lake Haven, a suburb of Wyong on the Central Coast of New South Wales. She resides there with her sons, Scott and Blake, and her father, Mr Keaton.

110. The Plaintiff has few assets. In her updating affidavit sworn 4 June 2020, she deposed to a small amount of cash in bank ($863) and two superannuation accounts (totalling $54,833). The Plaintiff’s Centrelink Income Statement dated 15 May 2020 disclosed household and personal effects valued at approximately $5,000. It would also appear that she owns a car, the value of which was not disclosed.

111. Shortly after swearing that affidavit, the Plaintiff received $24,185 as her share of the deceased’s superannuation death benefit. The balance in her bank account as at 19 June 2020 was approximately $23,832.

112. In her primary affidavit sworn 26 June 2019, the Plaintiff disclosed owning shares in Suncorp valued at approximately $1,884. An updated valuation of these shares, assuming the Plaintiff still possesses them, was not provided.

113. Her liabilities total approximately $19,089, comprising an amount owed on a credit card ($4,675) and a car loan ($14,414).

114. The Plaintiff is employed as a call centre consultant and receives a gross income of $31,934 per annum. In her oral evidence, she accepted that, in view of deductible expenses, she paid very little, if any, tax on that income. She accepted that, in some years, she might even receive a tax refund, and in others, she might incur a tax liability of around $1,000.

115. The Plaintiff receives child support in the amount of $25 per month.

116. In addition to her income for her employment and the child support payments, the Plaintiff receives Centrelink benefits related, inter alia, to her status as a carer for her son, Scott. As at 15 May 2020, the Plaintiff was receiving approximately $587 per fortnight less a deduction of $80 (being for repayments of a loan and a speeding fine).

117. In cross-examination, the Plaintiff clarified that the amount she receives from Centrelink varies from time to time. Her entitlement may increase when she borrows money from Centrelink or when she does not work a particular day or week. Equally, her entitlement may decrease, as averred to above, when she repays those borrowed amounts.

118. By the date of the hearing, the Plaintiff had ceased receiving a family tax benefit payment connected to her youngest son, Blake. She confirmed, in her oral evidence, that she does not receive any additional payment in lieu of the family tax benefit.

119. The nature of the Plaintiff’s Centrelink entitlements caused some confusion at the hearing. Mr Lloyd’s submission, albeit using a document from one of the Plaintiff’s earlier affidavits, was that the Plaintiff receives approximately $445 per week in benefits: Tcpt, 7 July 2002, p 76(25–49). Conversely, Mr Austin submitted, with the aid of calculations prepared by his instructing solicitor, that the Plaintiff received between $539 and $587 per fortnight: Tcpt, 7 July 2020, p 83(19–21).

109. The confusion as to the amounts the Plaintiff was receiving from Centrelink seemed to be caused by the fluctuating nature of the amounts in her bank statements. However, it emerged, during the Plaintiff’s cross-examination, that the disability support pension paid to Scott was paid directly into the Plaintiff’s account. That amount is approximately $941 per fortnight.

110. The Plaintiff also receives payments each month from each of Mr Keaton and Blake. Such payments are in the nature of rent or board, and are put towards the joint expenses of their home. From Blake, she receives from his income, by way of direct deposit into her bank account, $250 per week. The Plaintiff’s bank statements, to which she was taken in cross-examination, indicate that she receives a fortnightly amount of $350 from Mr Keaton.

111. The Plaintiff disclosed that her monthly expenses were in the order of $4,100. In cross-examination, the Plaintiff clarified that the $4,100 figure included amounts spent for Blake and her share of the household expenses. She accepted that in calculating that figure she had not accounted for the contribution of $250 per week that Blake made to his share of the expenses. She also accepted that there was no accounting for those of Scott’s expenses that she paid, in part, out of his disability support pension which was paid into her account.

112. The Plaintiff also revealed in cross-examination that she spends approximately $400 per week on cigarettes for herself. Her oral evidence was somewhat unclear as to whether that amount had been included in the estimated total monthly expenditure as she had only allowed $1,200 per month for groceries. At Tcpt, 7 July 2020, p 18(37–44), she gave evidence that “there’s more that’s spent for Scott on cigarettes …”.

113. Some reference has already been made to the Plaintiff’s medical conditions. She has been diagnosed with PTSD and Borderline Personality Disorder. For those conditions, she consults a clinical psychologist and a general practitioner. She also takes medication on an “as needs basis”. She stated that the costs of some of her “medical scripts” had been included within the $4,100 figure she provided for monthly expenses.

114. The Plaintiff also deposed that she wanted to engage in further cognitive behaviour therapy, and, if necessary, electroconvulsive therapy. At present she does not have the financial means to pursue these treatments.

115. The Plaintiff was diagnosed with breast cancer in 2012, but is presently in remission. She requires regular scans every 12 months.

116. As would be apparent from the references to her carer’s entitlement above, the Plaintiff is the sole carer of her son, Scott. He has been diagnosed with social anxiety, psychotic depression and blepharospasm (a neurological disorder characterised by involuntary muscle contractions and spasms of the eyelid). The Plaintiff cares for Scott in most aspects of his life including his medication and treatment, his finances and other everyday tasks.

117. In one of her earlier affidavits, the Plaintiff also described her youngest son Blake as financially and emotionally dependent on her. She deposed that he had been diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Although the Plaintiff was not challenged on any of that evidence, it is clear that Blake has gained some financial independence through his employment. Nonetheless, I accept it as likely that the Plaintiff continues to fulfil a care and support role for Blake.

118. The Plaintiff described her needs as, first and foremost, to pay off her liabilities. She also expressed a desire to purchase a home for her and her family to afford them with greater financial security. As averred to above, she also seeks to join a private health fund and, additionally, to cover the costs of further medical treatment. Finally, she also deposed to the need for a sum for the contingencies of life. In this regard she pointed to Scott and her ongoing health issues, and her inability to work when either of them is unwell.

The medical evidence

130. At the commencement of the hearing, the Plaintiff tendered, without objection, extracts of medical records relating to the Plaintiff: Ex P1.

131. Some of the documents in Ex P1 merely confirmed the nature of the Plaintiff’s medical conditions. For example, Ex P1/197 was a copy of the Plaintiff’s Patient Health Summary from Grace Medical Care. It confirmed that in 2012 the Plaintiff was diagnosed with breast cancer and in 2014 she was diagnosed with PTSD and Borderline Personality Disorder.

132. The Defendant did not dispute that the Plaintiff suffered from these conditions.

133. Other parts of Ex P1 were relied on variously by Mr Austin and Mr Lloyd to show a connection, or lack of connection, between the Plaintiff’s medical conditions and her conduct towards the deceased.

134. Although I will return to the submissions made by both counsel below, it suffices to say that the medical evidence was equivocal as to any link between the Plaintiff’s medical conditions and her conduct towards the deceased.

135. In some documents, the Plaintiff disclosed that she felt her concerns were discounted, or invalidated, by the deceased. For example, at Ex P1/200 was a copy of a record of a surgery consultation by Dr Oliver Weir dated 22 July 2019:

“CSA from stepfather. Invalidated by mother. Mother died 12m ago. Lacks support from siblings due to her illness.”

136. At Ex P1/205, there was a copy of a surgery consultation record dated 22 February 2018 from Dr Rukhsana Javed. The record relevantly provided:

“not feeling well at all still

low mood

anxious

insomnia

difficulties with her son Scott who is becoming more of a recluse day by day

mother is dying but kathy has not had anything to do with her since her childhood abuse”

137. There were other passages that merely referred to the Plaintiff’s relationship with the deceased as being a source of stress without referring to the actions of the Plaintiff’s stepfather. For example, in a letter dated 15 March 2018, (Ex P1/230), Dr Javed listed, amongst other things, as a “Barrier”:

“Kathy’s mother is dying, from a terminal illness.”

138. Other passages in the medical records indicated that there were other aspects of the Plaintiff’s life that were causing her emotional difficulty. Variously these included issues with the care of her son Scott (Ex P1/209, Ex P1/212, Ex P1/235), Mr Keaton coming to live with her (Ex P1/215), her relationship with her partner (Ex P1/262), and a misdiagnosis of bipolar disorder (Ex P1/219).

139. Finally, there were other handwritten records commencing after the date of the deceased’s death, which contained much the same information as the Plaintiff’s affidavits. For example, at Ex P1/281–283 dated 27 July 2019:

“Talking to mum – triggered [illegible]

Half bro + sis abused too. No illness. Making it up. Physical + emotional to them.

Emotional abuse did most damage.

- slut in gutter, useless, stupid – invalidated from 3 or 4.

…

Childhood filled [with] memories all nasty hated him.

Mum never cared.

…

She never stood up to him.

…

Mother manipulative.

…

Lived [with] mum + step dad – 2 ½ months.

2 sons not allowed to visit – kicked out.”

140. In another similar handwritten note, dated 2 August 2019, at Ex P1/286:

“Anxiety around mum will. $80K super. [Illegible] mum wants me dead.”

141. Similarly, at Ex P1/287, a note dated 19 October 2019 recorded:

“Mum always played the victim. I trusted her when I was young. Never defended me.

…

She hated me more than she loved my boys.

Had to choose between her + dad. I needed dad. he was the only one to give support

…

Mum went around family to ostracise me angry. Sent an email.”

142. At Ex P1/291, in a note dated 16 November 2019:

“Known triggers – rejection or abandonment

…

Mum + I were v. close when young

She used to stick up for me. But she [would] pay for it. Smacked – Emotionally + [illegible] run down to point of her turning against me.”

143. In a letter dated 5 December 2019, from Ms Stella Bowring, clinical psychologist, the following is recorded:

“As you would be aware, Kathy suffered a traumatic childhood, with physical and verbal abuse, together with neglect. Kathy’s mother remarried when Kathy was young and Kathy lost all contact with her biological father, who had shown Kathy love and support. Adulthood has not been too kind to Kathy either. Kathy was diagnosed with PTSD and Bipolar Disorder. I concur with the diagnosis of PTSD.”

The Submissions

144. I have benefited from the written submissions provided by both Mr Austin and Mr Lloyd prior to the hearing and from their detailed oral submissions at the conclusion of the hearing. I have carefully considered each of the submissions made and shall only refer to certain submissions, by way of emphasis, below.

145. Mr Austin put at the commencement of his written submissions that “[e]strangement lies at the heart of the case”. He referred to my decision in Rogers v Rogers [2018] NSWSC 1982 for the relevant principles in cases of estrangement. I will return to what I said in that case below.

146. As to the relationship between the Plaintiff and the deceased, Mr Austin referred to the Plaintiff’s evidence regarding her PTSD. He echoed her evidence that the reason for the estrangement was the deceased’s refusal to acknowledge that the abuse the Plaintiff suffered at the hands of her stepfather was the cause of her PTSD. He submitted that the Plaintiff’s evidence as to the abuse was corroborated by the evidence of Ms Bugg, to which reference has been made above.

147. As to the Defendant’s apparently contradictory evidence, Mr Austin submitted at par 35 of his written submissions:

“The examples that John makes in his affidavit of 6 January 2020 to illustrate Kathy’s behaviour towards the deceased is largely comprised of hearsay conversations with the deceased, is respectfully vague and devoid of any context, and caution needs to be exercised in dealing with this evidence, particularly so where such statements are uncorroborated.” (citations omitted)

148. I remember, in this regard, as I must, the comments of Campbell JA (Bergin CJ in Eq and Sackville AJA agreeing) in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 179 [66]; [2012] NSWCA 431 at [67]:

“It is elementary that in a claim based on communications with a deceased person, the court treats uncorroborated evidence of such communications with considerable caution, and is entitled to regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: Plunkett v Bull (1915) 19 CLR 544; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789; Hunt v Barlow [2000] NSWSC 324 at [5]-[8] per Bryson J; Cross on Evidence at [15150]. Ultimately, though, the question remains whether the claim has been made out on the balance of probabilities. The high degree of suspicion that Lord Morris showed in Lachmi Parshad v Maharajah Narendro Kishore Singh Bahadur [1891] UKPC 42; (1891) LR 19 Ind App 9 to the absence of possible corroborating witnesses is a function of the highly suspicious and unlikely character of the claim of the plaintiff in that case, internal inconsistencies in the evidence, and allegations of forgery. It does not stand for a principle that all possible corroborating witnesses must always be called in a claim against a deceased estate.”

149. Mr Austin also pointed to the failure of the Defendant to call Ms Butler to give evidence. In the circumstances of the case, which centred heavily on estrangement, he submitted that it was appropriate to make a Jones v Dunkel inference: see Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J), 320–321 (Windeyer J); [1959] HCA 8.

150. Mr Austin submitted that, even accepting the Defendant’s evidence, the evidence as a whole did not lead to the conclusion that the estrangement was the Plaintiff’s fault alone, or that there was real antagonism directed by the Plaintiff towards the deceased.

151. He submitted in conclusion on this issue at par 39:

“In the context of her troubled mind and emotional lability, her subjective perception of her relationship with the deceased is understandable (and perhaps even worthy of empathy) even if her perception is not considered particularly coherent, reasonable or rational.”

152. In oral submissions, Mr Austin expanded on this issue. He submitted that the Plaintiff’s diagnoses of PTSD and Borderline Personality Disorder “created a level of disharmony and anger in the plaintiff’s mind”: Tcpt, 7 July 2020, p 57(22–23). He submitted that expert medical evidence to demonstrate a link between the Plaintiff’s conditions and her conduct and anger towards the deceased was not necessary (Tcpt, 7 July 2020, p 58(10–26)):

“AUSTIN: In my submission, there is no need for expert evidence on such a straightforward issue. If one accepts - and there’s bountiful medical evidence there, which I’ll take in a moment, of the condition itself, the diagnosis. Obviously, this was an issue in her life. And she says that she wanted support from her mother and acknowledgement of this from her mother.

One doesn’t need expert evidence to prove a causal link between wanting emotional support and acknowledgement and anger. It’s not suggested that anger is necessarily a symptom of the condition. The point of submission I make is that it was the lack of support she felt. And that’s a subjective belief, of course. The lack of acknowledgement that caused her to become angry.

So when she talks of a trigger, she’s not saying that PTSD was a trigger. Rather, she’s saying that her mother's response was a trigger. And that is, with respect, a common sense belief. It’s a coherent and rational belief on her behalf that that lack of acknowledgement caused her to become angry. It’s not an irrational thought, with respect.”

153. Mr Austin clarified that he did not make this submission as an excuse for the Plaintiff’s behaviour, but as an explanation for it. He conceded that the Plaintiff had not made any attempts at reconciliation but said that neither had the deceased.

154. He also submitted that the conduct of the Plaintiff’s stepfather, and the physical discipline suffered by the Plaintiff, was of relevance to the Plaintiff’s claim. He submitted (Tcpt, 7 July 2020, p 62(14–22)):

“But nonetheless, it’s still significant conduct, and it’s not something which, in my respectful submission, would have been condoned in the 1970s either. So the deceased was part of the household. She would have had to have witnessed it. And there’s no suggestion that she ever attempted to intervene. And bear in mind that the person who had perpetrated this was her stepfather, not her father. So if the deceased were alive today and able to give evidence and be cross examined, she’d might be asked questions concerning her lack of intervention for abuse at the hands of a stepfather, not a paternal father, blood father.”

155. He returned to the submission that it was connection between the Plaintiff’s conditions, said to arise from the conduct of her stepfather, and the Plaintiff’s conduct and anger towards the deceased, which was presently relevant. Mr Austin pointed to two passages in the medical evidence that, he said, showed that connection. The first at Ex P1/200 was a record of a surgery consultation by a Dr Oliver Weir. The record relevantly provided:

“CSA from stepfather. Invalidated by mother. Mother died 12m ago. Lacks support from siblings due to her illness.”

156. Secondly, he pointed to a Progress Psychological Report & Mental Health Care Plan Review prepared by Arthur D Cooke, clinical psychologist. Mr Cooke wrote (Ex P1/256):

“However as time, sessions and further assessment have since revealed, it is appropriate in my view to update/upgrade the diagnosis to now also include Borderline Personality Disorder - Provisional. This is particularly evident through the significant levels of abandonment, suicidality, labile emotions and dysregulation, explosive anger, instability, stormy relationships, inability to work, and lack of care for self and others, which generally characterise such persons.” (emphasis in original)

157. It was his submission that the evidence, including the medical evidence, largely supported the sense of abandonment by the deceased that was felt by the Plaintiff.

158. Finally, Mr Austin submitted that the provision of $10,000 made for the Plaintiff in the deceased’s Will was not adequate and proper in the circumstances. He submitted at par 46 of his written submissions:

“Kathy is a person who is extremely vulnerable both psychologically and financially. She has effectively no assets, little superannuation and she lacks the financial reserves to meet unforeseen demands and the vicissitudes of life.”

159. Mr Austin submitted, in his written outline, that an appropriate order for provision was in the range of $150,000 to $200,000. By the conclusion of his oral submissions, in view of the value of the estate, he submitted that any order for provision should be towards the lower end of that range.

160. Mr Lloyd, on behalf of the Defendant, frankly accepted that there were some factors supporting the Plaintiff’s claim that adequate and proper provision was not made by the deceased’s Will. However, he submitted that the “lack of any established financial need and the abandonment of the relationship with her mother by the plaintiff” were decisive factors against the Plaintiff’s claim.

161. It was Mr Lloyd’s primary submission that the Plaintiff’s current financial resources were sufficient to meet her asserted needs, with the exception of the purchase of a home. He submitted that the funds the Plaintiff received from the deceased’s superannuation death benefit coupled with the $10,000 legacy to which the Plaintiff was entitled under the terms of the Will, were sufficient to meet all of the Plaintiff’s current liabilities.

162. He also submitted that the Plaintiff has a surplus of income over expenditure, and that surplus could be used to pay for any additional medical treatment which the Plaintiff wished to undergo.

163. Finally, he submitted that the Plaintiff had a realistic expectation of being a beneficiary under her father’s Will. There was, however, no evidence going to Mr Keaton’s financial resources. Nor was his Will (if one exists) in evidence.

164. Mr Lloyd referred to the Plaintiff’s explanation for the estrangement as being her diagnosis of PTSD as being a matter in dispute. He submitted at par 42:

“… but what is not in dispute is that at least from mid 2015 the plaintiff and her mother had no relationship at all, and by the end of 2015, the plaintiff had resumed contact and then started living with her father, in circumstances where to her knowledge her mother and biological father had no meaningful relationship - in fact, the plaintiff says that that relationship was acrimonious. That is, from 2015, on the plaintiff’s own account, the plaintiff eschewed contact with her mother and began living with her father.”

165. Mr Lloyd squarely faced the conflicting accounts of the Plaintiff and the Defendant. However, he submitted that, ultimately, it may not be necessary to resolve those conflicts:

“Whilst it is difficult for the Court to resolve factual disputes of this kind, and on one view some of these disputes may be of little relevance to the issues to be determined, John contends that it is significant that the plaintiff, whatever her diagnosed psychological problems, plainly made a conscious choice not to have contact with her mother for a number of years prior to her mother’s death, and that this was a cause of distress to her mother.”

166. In his submission, the attitude of the Plaintiff towards the deceased was demonstrated by the Facebook post, to which reference has been made above.

167. Mr Lloyd submitted, in conclusion, that the Court should not interfere with the deceased’s provision for the Plaintiff in her Will.

168. In his oral submissions, Mr Lloyd also expanded upon his written outline. He reiterated his submission that the true reason for the estrangement was the Plaintiff’s hostility expressed, inter alia, in the Facebook post. In making that submission he accepted that there was some force in what was put against his case, namely that the Plaintiff was unable to control her emotions due to her medical conditions. However, he emphasised that there was a lack of medical evidence linking the Plaintiff’s conduct to her medical conditions (Tcpt, 7 July 2020, p 69(38–47)):

Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:

(a) The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:

‘... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’

(c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):

‘If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.’

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].

(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows:

‘As explained by the primary judge, the term “estrangement”, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the “natural” process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience.’

His Honour added:

‘The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.

...

Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of “love and support” from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother’s will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.

…

Although the mother’s reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter’s share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.’”

233. In Rogers v Rogers at [152]–[154] I added:

“Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27].

The comments of Sackville AJA in Foley v Ellis [2008] NSWCA 288, at [102], should also be remembered:

‘… Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.’

As Allsop P (as his Honour then was) wrote in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [7]:

‘Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word “should” in the question embodies various suppressed [premises] based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the court intercede and interfere with the expressed testamentary wish?’”

234. I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1 at 17 [106]; [2017] SASCFC 89 at [106]:

“… how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff.”

Qualifications on “Principles”

235. As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

“… this jurisdiction is pre-eminently one in which the trial judge’s exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

236. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

237. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.

238. As Lindsay J wrote in Verzar v Verzar at [131]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]–[19].”

239. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]–[85]; [2015] NSWCA 195 at [84]–[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

240. But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]–[108]:

“As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:

[19] … the real provenance of the ‘principles’ is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance

Similarly, Barrett JA explained:

[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply ‘the feeling and judgment of fair and reasonable members of the community’ in cases of the present kind.

Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency.”

241. (In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that “[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave”: Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)

242. In addition, the formulation of principles, whilst not intended to “constitute a fetter upon the discretion not intended by the legislature”, may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.

Determination

243. As already averred to, there was no dispute that the Plaintiff was an eligible person. Nor was it in dispute that she commenced her claim within time. The first question, therefore, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has been made by the deceased’s Will.

244. What is written below should be read as a continuation of what has been written above. In coming to the conclusion expressed below, I have had regard to the factual matters set out above.

245. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased, and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19–20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

246. The Court is required to make, and I have made, an assessment of the financial position of the Plaintiff, the size and nature of the deceased’s estate, the relationship between the Plaintiff and the deceased, and the competing moral, and financial, claims of the beneficiaries: see, for example, McCosker v McCosker at 571–572 (Dixon CJ and Williams J); [1957] HCA 82; Singer v Berghouse at 209–210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also remembered that neither of the beneficiaries gave evidence of his, or her, financial resources and needs.

247. As would be apparent from the evidence as set out above, the relationship between the Plaintiff and the deceased was advanced as the major issue in this case. In assessing that relationship, I have been mindful not to descend into the minutiae of the interactions between the Plaintiff and the deceased. I have also remembered that the precise cause of that estrangement was a matter of dispute between them. Ultimately, it is neither desirable, nor possible on the evidence before me, to determine with any degree of confidence the precise cause.

248. While the estrangement was of a not insignificant period, such an estrangement in my view did not destroy the ties between the deceased and the Plaintiff. The relationship does not, in the circumstances of this case, preclude an order for provision being made for her.

249. The Plaintiff is not in a strong financial position. Despite Mr Lloyd’s submission to the contrary, I am satisfied that she cannot meet all of her needs out of the surplus of her income, should such a surplus exist. (It would exist if, perhaps, less was spent on cigarettes, but this is a choice that the Plaintiff, herself, must make.)

250. In all the circumstances, I was satisfied that a lump sum of $10,000 made in the Will of the deceased constituted inadequate provision. In coming to that conclusion, I have remembered that the Defendant and Ms Butler were the chosen objects of the deceased’s testamentary bounty.

251. The next question is what provision “ought to be made for … her, maintenance … or advancement in life”, having regard to the facts known to the Court at the date of hearing. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or exact, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made. However, similar considerations as are set out above often arise.

252. It is quite clear, as I have set out above, that the Plaintiff and the deceased had virtually no contact from late 2015 until the date of the deceased’s death. Although that estrangement does not preclude an order for provision being made, it does in my opinion, in the circumstances of this case, restrain the amplitude of the provision to be made for her.

253. Remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I was satisfied that a lump sum should be provided for the Plaintiff out of the deceased’s estate which will provide her with an ability to pay off all of her debts, and leave a fund for the exigencies of life.

254. I concluded that the Plaintiff should receive, in lieu of the provision made for her in the Will of the deceased, a lump sum equal to $95,000. Taken with the amount that she received from the deceased’s superannuation, that, in my view, constituted adequate and proper provision for her maintenance and advancement in life.

255. That leaves, on present calculations, approximately $696,000 to be distributed between the Defendant and Ms Butler as residuary beneficiaries. Each of them therefore receives $348,000.

Costs

256. At the commencement of the hearing, counsel indicated that I would not be able to deal with costs as part of these reasons. The implication from that being that there may, depending on the result, have been some documents either or both wished to tender on the issue of costs.

257. In view of the fact that I informed the parties of the result and my orders at the conclusion of the hearing, I was able to deal with the issue of costs immediately.

258. At that time, neither party sought to tender any documents or make any submissions that I should make an order other than the usual order as to costs.

259. The principles relevant to the exercise of the Court’s discretion as to costs are well known, and I do not propose to repeat them here.

256. To their credit, the parties were able to agree on the quantum of the Plaintiff’s costs. This enables me to make an order pursuant to s 98(4)(c) for costs to be paid in a specified gross sum instead of assessed costs. Such an order saves the parties from the costs of assessment and prevents further delay in the administration of the deceased’s estate.

Orders

261. In view of the above, I made the following orders at the conclusion of the hearing:

1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision made for her in Clause 3(b) of the Will dated 27 May 2018 of Patricia Gumulak, the Plaintiff receive, by way of provision, a lump sum of $95,000.

2. Orders that no interest is to be paid on the lump sum if it is paid by 1 September 2020; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act1898 (NSW), from 2 September 2020 until the date of payment in full.

3. Orders that the burden of the provision made for the Plaintiff be borne equally by John Leslie Gumulak (the Defendant) and Anne Maree Butler, the residuary beneficiaries named in Clause 3(c) of the deceased’s Will.

4. Orders that the Plaintiff receive a specified gross sum instead of assessed costs, agreed at $66,800, for her costs of the proceedings, to be paid out of the estate of the deceased.

5. Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid or retained, as the case may be, out of the estate of the deceased.

6. Orders that the hearing date listed on 9 July 2020 be vacated.

7. Orders that the Exhibits be returned.

**********

Decision last updated: 28 July 2020