Kemperman v Antonenas - [2021] NSWSC 1555

Supreme Court

New South Wales

Medium Neutral Citation: Kemperman v Antonenas [2021] NSWSC 1555
Hearing dates: 10-11 November 2021
Date of orders: 2 December 2021
Decision date: 11 November 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in Clause 5(b) of the Will dated 25 February 2015 of the deceased, the Plaintiff receive, by way of provision, a lump sum of $170,000, out of the estate of the deceased.
(2) Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; 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 the 15th day from the date of the making of these orders until the date of payment in full.
(3) Orders that the provision made for the Plaintiff be provided out of the residuary estate of the deceased.
(4) Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $110,000 (including GST), be paid out of the estate of the deceased.
(5) Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained as the case may be, out of the estate of the deceased.

Catchwords:
SUCCESSION – Family Provision – Claim by adult daughter of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Limited provision made for Plaintiff – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Lack of close contact between adult daughter and the deceased – Allegation of violence and abuse made by the Plaintiff to explain the nature of the relationship - Significant dispute about the Plaintiff’s allegation of violence and abuse - Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for Plaintiff’s proper maintenance and advancement in life and, if so, in what amount

Legislation Cited:
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW) ss 84A & 86
Succession Act 2006 (NSW) ss 3, 57-61, 63, 65, 84 & 99-100

Cases Cited:
Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC); [1947] NZGazLawRp 127
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Benham v Benham [2004] NSWSC 416
Bosch v Perpetual Trustee Co Ltd [1983] AC 463
Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135
Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410
Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Sgro v Thompson [2017] NSWCA 326
Shannon v Steinmetz [2019] HCASL 332
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Sreckovic v Sreckovic [2018] NSWSC 1597
Stanford v Stanford [2021] NSWSC 1469
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269
Worsley v Solomon [2008] NSWSC 444
Yee v Yee [2017] NSWCA 305
Steinmetz v Shannon [2018] NSWSC 1090

Category: Principal judgment
Parties: Antonia Regina Kemperman (Plaintiff)
James Antonenas (Defendant)
Representation:
Counsel:
V Hartstein (Plaintiff)
S Chapple (Defendant)
Solicitors:
Bartels Business Lawyers (Plaintiff)
Thurlow Fisher Lawyers (Defendant)

File Number(s): 2020/277852
Publication restriction: Nil

Judgment

Introduction

These are the reasons for judgement following the two day hearing of proceedings that concern the estate of Johanna Antonia Kemperman (the deceased) and the claim brought by one of her three, now adult, children, Antonia Regina Kemperman, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act) and for her costs of the proceedings. The case provides a further example of an unfortunate legal battle, waged between the living, over the property of the dead. Regrettably, it is also one in which a major issue revolves around the character and conduct of the applicant, her relationship with the deceased, and the competing allegations concerning the causes of the state of that relationship.
A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate and notional 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.
The deceased was born in September 1931, in Utrecht, The Netherlands. She died on 18 December 2019, aged 88 years. The deceased’s husband, Jacobus Kemperman, who was the father of their three children, died in January 1999. Their three, now adult, children are the Plaintiff, who was born in May 1955; Cecilia Mary Kemperman, who born in February 1957; and Mary Christine Blandford, who was born in September 1961. All survived the deceased.
Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to each family member, after introduction, by her first name.
The deceased left a duly executed Will dated 25 February 2015, in which she appointed the Defendant, James Antonenas, her solicitor, as executor of the Will and trustee of her estate. This Court granted Probate of the deceased’s Will to him on 15 April 2020. He played, essentially, a formal role in the proceedings.
The hearing was listed for two days and it was completed well within that time. At the hearing, Ms V Hartstein of counsel appeared for Antonia and Dr S Chapple of counsel appeared for the Defendant. I am most grateful to all of the legal representatives for the manner in which the hearing was conducted.
For reasons to which I shall come, following the completion of the evidence and the oral submissions, which occurred shortly prior to the long adjournment on the second day, I announced that I would return after the adjournment and inform the parties of the decision, then deal with the issue of costs, and would publish reasons as soon as I was able to thereafter.
Upon my return, I announced the orders that will appear at the conclusion of these reasons. Submissions, on the question of costs, became unnecessary as, commendably, the parties were able to agree upon the Plaintiff’s costs of the proceedings and the usual order for the Defendant’s costs.

Formal matters not in dispute

Antonia filed a Summons on 24 September 2020. She seeks further provision out of the estate of the deceased. The Summons was filed within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Antonia is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child 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) of the Act).
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 the question whether the applicant is an eligible person.
As the deceased dealt with all of her estate in the Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
An 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 property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased hereafter.
The only eligible persons are the three children of the deceased. The only one who has brought proceedings is Antonia, although there is evidence that each of the others has been served with a notice of the application, and of the Court's power to disregard her interests in the manner and form prescribed by the regulations or rules of court: s 61 of the Act.
As will be read, each of the children of the deceased is a beneficiary named in her Will. Each of the other two children has advanced her financial circumstances, respectively, as a competing claimant, on the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.
Cecilia swore a single affidavit and Mary swore three affidavits that were read in the Defendant’s case. Each opposed the claim for provision being sought by Antonia. Each was cross-examined.

Oral evidence of Cecilia

Whilst I was dealing with the affidavits, I asked counsel for the Defendant whether there was an updating affidavit from her. He then announced (Tcpt, 10 November 2021, p 08(49)-09(02)):

“She doesn’t have an updating affidavit, and there is a matter that is of some sensitivity that I’ll need to raise with your Honour. If your Honour would grant me the indulgence of doing that in a closed court at the appropriate time.”

The request had not come as a surprise to counsel for the Plaintiff who said that there was no objection to the matter being raised, initially, without the parties and the witnesses being present in Court.
After dealing with the rest of the affidavits, I requested the parties to leave the Court room, following which counsel said (Tcpt, 10 November 2021, p 10(11-25)):

A matter was raised with me this morning by Cecilia Kemperman in response to some questions about why there was no updating evidence. Your Honour will have seen from the affidavit that she suffers from a fairly serious medical disorder. What was revealed to me this morning, I’ll tell your Honour from the bar table, is that in 2015 Ms Kemperman was diagnosed with a thinning of the pulmonary arteries, which she was told gave her only around five years to live. The reason this has come to light is that two weeks ago she had administered the last rites.
That information having been provided to me, I of course have to make it known to my friend and make it known to the Court. It is obviously of some sensitivity to her. Of importance is the fact that she has not told her sister Mary, who is her carer. What my request would be is obviously I need to ask her those questions when she’s called to give evidence, but if perhaps that aspect of her evidence could be done in the absence of the parties.”

I formed the view that the matter of a beneficiary’s life expectancy, was, or may be, a matter that was relevant to the claim being made by Antonia, particularly as Cecilia had raised her financial circumstances as a competing claimant upon the bounty of the deceased. Both counsel agreed.
Some alternatives were discussed following which the Court suggested that counsel for the Defendant should confer with Cecilia and obtain instructions going to whether she was prepared to have the intensely private matter upon which she had given instructions, communicated to the Defendant, Mary and Antonia. The Court then adjourned so that the instructions could be obtained.
Upon my return to Court, counsel said (Tcpt, 10 November 2021, p 14(13-15)):

“Thank you, your Honour, for that indulgence. I can indicate to your Honour that during the break there’s been an open exchange of information and we are ready to proceed.”

The matter then continued without any further application being made on this topic.

The deceased’s Will

Relevantly, the deceased’s Will provided:

a gift of all of the contents of her home at the date of her death, to Cecilia (Clause 3);

a gift of any motor vehicle registered in her name at the date of her death, her piano, her tiger eye pendant, and her maple recorder, to Mary (Clause 4);

The rest and residue of her real and personal estate to her trustee to pay (Clause 5):

all of the just debts, funeral, testamentary and administrative expenses including the cost of a headstone or other memorial or disposal as Cecilia and Mary determined to erect or arrange;

a pecuniary legacy of $50,000 and a bequest of her violin to Antonia;

a pecuniary legacy of $25,000 to each of her grandchildren, Katherine Fresta and Christine Fresta (who are the children of Mary); and

the residue of her estate to Cecilia and Mary, as tenants in common in equal shares.

Clause 6 of the deceased’s Will provided:

“Attached to this my last Will is a letter written by my husband JACOBUS KEMPERMAN on 25 March 1997 to my daughter ANTONIA… For similar reasons as set out in that letter, the contents of which I adopt, I have left only a bequest of $50,000 to my daughter ANTONIA REGINA KEMPERMAN to express my extreme disappointment in Antonia as my daughter, for her lack of care and understanding throughout her life towards both my late husband and myself.”

The letter to which the deceased referred was, so far as is relevant, in the following terms:

“This letter is written by your father. The reason for this letter is that you can blame no one, for not being notified about the death and funeral of your mother or myself.
We migrated to this country in 1952 and were married on Boxing Day of that same year. You, the first born of our family, have been the greatest disappointment to us, your parents. We have always loved our daughters equally, but you always acted jealous and felt sorry for yourself. You became so obsessed with your self pity, that you betrayed us, your parents to our friends, relatives and even strangers.
I have a very forgiving nature and we have given you many chances. For one, we offered to let you study office management at the St Patricks Business College, in Sydney, at our expense, but you refused because you didn’t like typing. When you came back from Hawaii, we bought you a good second hand car. We tried to help you in every way that we could.
You are supposed to be quite an intelligent woman well educated, but what have you done with your given talents? You have been on the dole for most of your life. What a waste of a valuable life.
What I personally find most unforgivable is that you ignored your mother nor gave her any attention on her special days, especially, Mothers Day and her Birthday. Mostly, I find, mothers plays (sic) the most important role in any family. It is a time that her children should honour, praise and thank her.
After we both your parents are gone into eternity, I suppose you expect a handout from our heritage. You shall receive something but don’t expect much, as you do not deserve it, because of the grief and tears you caused us, your parents.
We could have been a very happy family of five, but you became your own worst enemy. You cut yourself off from the happy family environment that we had.
…”

It will be necessary to return to the matters stated later in these reasons.

The deceased’s husband

Jacobus was born in October 1927, in Utrecht, The Netherlands. He migrated to Australia in about 1952.
The deceased and Jacobus met in Utrecht, and she came to Australia shortly after he did. They were married in December 1952.
At the date of Jacobus’ death in January 1999, they had been married for 46 years. He left a Will dated 2 August 1985 in which he appointed the deceased as the sole executrix and left the whole of his estate to her if she survived him by 30 days. On 18 May 1999, this Court granted Probate of that Will to the deceased.
Jacobus’ estate comprised a property at Willoughby, Sydney ($500,000), furniture ($5,000) and monies in different bank accounts totalling $120,445.
Interestingly, his Will provided that in the event that the deceased did not survive him by 30 days, Jacobus left his car to Antonia, and if he had more than one, it was to be the car of her choice. He also gave the Willoughby property, or any other principal residence owned by him at his death, to Cecilia, as to one half, as to one quarter to Antonia, and as to the other quarter to Mary. He also gave Cecilia the right to buy, from the estate, the Willoughby property, or any other principal residence owned by him at his death, by payment to her sisters, the value of their interest therein, such value to be determined by them, or if unable to be agreed, determined by the Valuer General for New South Wales.

The nature and value of the deceased’s estate

On 12 October 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

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

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

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

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

any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.

I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
The deceased’s estate, at the date of death, comprised real property located in Lisarow, a suburb of the Central Coast of New South Wales, about 8 kilometres north-northeast of Gosford's central business district ($750,000), cash in bank accounts ($628,874, $194,633, and $11,078), a motor vehicle ($1,200), household contents ($5,000), and a refund from Medibank and RMS (combined totalling $922). The gross estimated value of the deceased’s estate, then, was $1,591,707.

The deceased’s estate, at the date of the schedule, comprised the real property located in Lisarow ($900,000), cash in bank accounts ($762,790), the motor vehicle ($1,200), and household contents ($5,000). The gross estimated value of the deceased’s estate was $1,668,990.
The Court was informed, from the Bar table, that the Defendant, as executor, intended to seek 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). Again, from the Bar table, and without objection, the Defendant estimated the amount of commission to be $25,000.
In the event that the property at Lisarow is sold, the estimated costs and expenses of sale are estimated to be about $25,000. The legacies to Antonia, Katherine and Christine total $100,000. The estimated amount of commission ($25,000) should also be included in the amounts to be deducted from the gross value of the estate.
The only potential liabilities of the estate are the costs of these proceedings. It follows that, subject to the orders for costs that are made, the estate of the deceased, has a value, at the date of hearing, of $1,518,990. It is, therefore, an estate of reasonable value.

Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, 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.
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, 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 his, or her, 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.
As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317; [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.”

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

“... To exclude from consideration the diminution in the estate and hence [the applicant’s] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court ‘is determining whether or not to make such an order’.”

I have repeated many times in the context of a claim for a family provision order, that parties should not 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; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
Antonia’s costs, calculated on the indemnity basis, were estimated to be $174,300 and, calculated on the ordinary basis, to be $145,275 (in each case, inclusive of GST and on the basis of a two day hearing).
Mr M J Fisher, in an affidavit affirmed on 5 October 2021, estimated the Defendant’s costs, calculated on the indemnity basis, to be $135,000 (inclusive of GST and on the basis of a two day hearing) and, calculated on the ordinary basis to be, $108,000. Costs of the proceedings, totalling $42,650 have been paid, leaving $92,350 to be paid. (Other amounts being the costs of the private mediator ($3,960) as well as costs of administration ($9,056) have been paid out of the estate).
I was unable, at the time, to determine what costs orders would be made as part of these reasons as the parties had stated that there may be documents relevant to any determination of costs: Tcpt, 10 November 2021, p 06 (09-17).) However, using the costs estimates as a guide, the amount of costs to be deducted will be $237,625. It follows that the estate out of which any order for provision could be made is in the order of $1,281,365. (Subsequently, the parties agreed on the amount of the Plaintiff’s costs at $110,000).

Nature of the familial relationships

The principal witnesses were the three children of the deceased. Each was cross-examined. (The Defendant, who gave evidence of a formal nature, and each of the solicitors who gave evidence of costs, were not cross-examined.)
The evidence given by Antonia differs starkly from the evidence given by Cecilia and by Mary. The most significant difference between her and them related to the depiction of their family life and the causes of the relationship issues that existed between Antonia and the deceased.
The picture that Antonia sought to portray, in her affidavits, and orally, was one in which she was the victim of violence from both her father and from the deceased; that the deceased used to practice wrestling moves on her; that she was physically frightened of the deceased; that she was physically punished, regularly, for small infractions of the rules by being held in the wrestling moves and that she was punched; she was also subjected to psychological and emotional abuse, saying that she could not remember ever receiving a hug, or any comfort, from the deceased. This treatment was said to have continued from when she was 6 or 7 years old until she left home at the age of 15.
During cross-examination, when asked whether she had raised the family violence she had experienced during meetings with psychologists in 2003 and 2013, Antonia stated that she was unsure whether she had done so: Tcpt, 10 November 2021, p 36(35). However, the psychologists’ notes, which formed part of the evidence relied upon, made no mention of family violence, stating only that Antonia had been raised in a family which was not emotionally expressive and that her mental conditions “appear to have been exacerbated by systemic issues within the family and a style of non-communication”: Affidavit, Antonia Regina Kemperman, 20 October 2020, Exhibit ARK1/63.
Although the psychologist’s notes from the 2013 meetings included a reference to Antonia stating, “I have been cut out of my father’s will completely”, Antonia maintained that she did not recall discussing her father’s Will with the psychologist and that she would not have seen her father’s Will prior to these meetings: Tcpt, 10 November 2021, p 38(16-19).
In cross-examination, Antonia accepted that her parents had enrolled her in the same schools as Mary and Cecilia; had arranged a private tutor when she had appendicitis and had missed school for a period of time; had offered to pay for her to complete a secretarial course; and had purchased a motor vehicle for her: Tcpt, 10 November 2021, p 22(19-46).
When asked about actions taken by her father during her childhood, such as stopping her working part-time at a pancake shop, Antonia stated that she believed her father had done so in an attempt to make her feel guilty and reclaim his authority over her: Tcpt, 10 November 2021, p 42(24-27).
She also stated that she had “no idea” whether it was hurtful to her parents when she moved out of home as a teenager: Tcpt, 10 November 2021, p 43(48)-44(01). However, she accepted that she later apologised for doing so, in the mid-80s: Tcpt, 10 November 2021, p 45(28-30).
Antonia also sought to portray herself as a person who had attempted, more than once, to reconcile with both of her parents; that she had tried to visit the family home from time to time, but was first required to telephone and obtain permission. She wrote that, on many occasions she had made these attempts, but had been turned away. She said that she had tried, in vain, to mend her relationship with the deceased on many occasions over the years but was rebuffed. She said that she would often leave presents at the door of the family home.
By way of example, Antonia gave evidence that, in May 2018, she had texted the deceased, through Mary (Ex P2/9):

“To mum c/- Mary
Dear Mum,
I don’t know what the grievances are about.
I want to say that I’m sorry.
Please have mercy on me and forgive me.
I love you.
Antonia.”

The deceased replied with the following (Ex P2/9):

“i have no grieveness [sic] against you. marie told me about you and I feel sorry for you. i wish you all the best and i am praying for you. if you need anything or if i can do anything for you let marie know.”

Initially, Mary stated that she recalled this conversation but later stated that she could only recall a telephone call between the deceased and Antonia in 2019: Tcpt, 10 November 2021, p 93(35)-94(12).
Antonia also gave evidence that in mid-2019, she visited the deceased’s home to give her an orchid. Mary texted Antonia, shortly after, “…[Mum] says thank you very much for the beautiful Orchard [sic] and will call you hopefully by next week when she feels a bit better”: Ex P2/46. Mary, however, could not recall the gift of the orchid or the text message sent by her telephone: Tcpt, 10 November 2021, p 95(15-23).
Yet, it was not asserted by Antonia, and nor could it be, that this is a case, like some, in which an applicant for provision, prior to an estrangement, has made personal, or financial, sacrifices in caring for the deceased, or in contributing to the deceased's estate.
Exhibit P1, a receipt for $130 paid by Antonia in 1983 towards the repair of the deceased’s violin, was the only document tendered by Antonia which demonstrated her relationship with the deceased. However, Antonia gave evidence that there may have been other receipts which she had discarded: Tcpt, 10 November 2021, p 20(10-22).
The evidence given on behalf of the Defendant, principally by Mary and Cecilia, was quite different. They gave evidence that Antonia had had little contact with the deceased for the last 50 years of the deceased's life. During that time, there were significant periods of estrangement, spanning decades, at a time.
Furthermore, Mary gave evidence of having lived in the family home until 1983. The family home was a very modest three bedroom house in which 3 adults and 3 children had lived. She stated that she had never witnessed any violence directed towards Antonia. Indeed, the only violence she recalled was perpetrated by Antonia. Cecilia’s evidence was similar.
Mary gave evidence of an incident when she was approximately 8 or 9 years old, when Antonia slapped her father in the car, after being told she could not go out with friends. Mary also gave evidence of an incident, at her 21^st birthday party, in 1982, when the Plaintiff pushed and shoved Cecilia and yelled at the deceased and her father. Antonia denied both of these incidents.
Mary gave evidence that, when she was approximately 9 or 10 years old, she recalled the police speaking with her father, after Antonia accused him of raping her. However, according to Mary, in 2019 she discussed this incident with Antonia, who stated “someone else raped me”.
Cecilia also gave evidence that Antonia made a rape allegation against their father and recalled the police attending the family home. Cecilia stated that Antonia later told her that this allegation was false.
The Plaintiff denied ever accusing her father of raping her, stating that she was raped by a family friend and had told her father about it, after reporting the incident to police.
When asked, in cross-examination, why she did not report her parents’ violence at the time she reported her rape, Antonia stated that “I went to the police station out of rape. It’s two different things”: Tcpt, 10 November 2021, p 29(22). She also stated that she never reported the violence because “it was normal”: Tcpt, 10 November 2021, p 29(32).
Antonia also stated that she had told her father about the rape, despite the violence, because “he was my dad”: Tcpt, 10 November 2021, p 31(38).
It was said that for a period of about 10 years, from the mid-1980s until the mid-1990s, Antonia had little, if any, contact with both of her parents. This continued until the death of the deceased. However, Antonia stated that she continued to see her parents from 1985 to 1988: Tcpt, 10 November 2021, p 48(39-40).
Antonia's evidence was that at the time of the deceased’s death she had not seen her for some three to four years and that in the final two years of the deceased's life, she and the deceased had only a few conversations. There is no evidence that any of those conversations were anything more than perfunctory, and at least one of them became openly hostile.
Antonia stated that she visited the deceased in 2014 and 2015 but then she “disappeared”: Tcpt, 10 November 2021, p 51(25). Antonia resumed contact with the deceased in 2018 by way of text messaging: Tcpt, 10 November 2021, p 51(21-22). Antonia also gave evidence of a phone call she had with the deceased in September 2019, during which the deceased became upset due to Antonia’s allegation of rape against her father and hung up: Tcpt, 10 November 2021, p 57(20-28). Antonia then sent email correspondence to the deceased, by way of Mary, in an attempt to “clarify [the] conversation”: Tcpt, 10 November 2021, p 59(43-45). This was the last correspondence between the deceased and Antonia.
I have adverted to the terms of the letter written by Jacobus, Antonia’s father, which was adopted by the deceased. Clearly, in doing so, she wished to disclose the reasons that had actuated her to make the dispositions she had made in the Will.
Mary characterised her relationship with her parents as loving and supportive. Growing up in her parent’s home, Mary described a happy childhood. After moving out of home at age 22, Mary continued to see her parents at least once per fortnight and they assisted her in caring for her children.
Cecilia also had a warm and caring relationship with her parents. In 1981, after her marriage was annulled, she returned to live with them until the deceased’s death. Cecilia was the deceased’s main carer until approximately 7 years prior to the deceased’s passing, at which point Mary commenced caring for both the deceased and Cecilia.

Credibility

I deal, first, with the documentary evidence of the deceased.
Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section “includes any representation of fact whether or not in writing”: s 100(1).
Sub-section (5), (6), and (8) of s 100, provide:

100 Evidence
…
(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve.
(6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it.
…
(8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including:
(a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and
(b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement.”

Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2:

"… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

Whilst the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.
Where the truth of the statements made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statements.
I have also borne in mind, also, that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

“[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.”

As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 152):

"If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim."

Thus, that a statement is made by the deceased does not mean, necessarily, that it must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].
Similarly, in circumstances where the parents of the applicant are both dead, and where neither has had an opportunity to respond to the serious allegations made against each of them, the Court must also remember that “the natural self-interest and human imperfections to which we are all prone are such that, when you get that kind of situation, great caution and even suspicion, is called for if justice is to be done and an unjust imposition is to be avoided”: Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC) at 105; [1947] NZGazLawRp 127 (Callen J).
Whilst I have carefully considered Antonia’s evidence, I am unable to accept her evidence regarding the violence and abuse she asserts against each of her parents. In this regard, I bear in mind:

The allegations do not appear to have been made to either parent, about the other, during her, and his, lifetime, respectively.

Even though Antonia explained why she did not report the abuse to the police, one would expect her to have repeated a complaint to someone, including her aunt, to whom she referred as a person who had witnessed it. (Her aunt was not called as a witness.)

Neither Cecilia, nor Mary, had observed any conduct of the type complained of by either parent. It is more likely than not that, even if they had not observed all of the conduct complained of, they would have observed some of it. Each gave evidence of not having observed any such conduct by either parent.

Antonia made no complaint to either of her siblings, at any time, prior to the proceedings being threatened. Indeed, the first time each became aware of the allegations of physical and psychological abuse was following receipt of a letter from Antonia’s solicitor following the deceased’s death. Even if Antonia chose not to raise the matter with Cecilia, with whom she did not have a close relationship, one would have expected her to have raised a complaint with Mary, with whom she had a close relationship.

One would have expected Antonia to have raised the behaviour of her parents with one, or both, of the professionals she had seen for diagnosis and treatment. If she had raised the conduct, it is inconceivable that her complaints of abuse would not have been referred to in one, or both, of the reports which formed part of Antonia’s evidence. I am satisfied that she did not raise the allegations with either.

The contents of the letter, written by Jacobus, and adopted by the deceased, were not the subject of substantial dispute by Antonia. I think it unlikely that either Jacobus or the deceased would have fabricated the events to explain making limited provision for Antonia in her Will.

I carefully observed Antonia in the witness box and the passionate manner in which she gave her evidence. In reaching the conclusion that I am not satisfied about the allegations made, I do not conclude that Antonia consciously raised the allegations, falsely, for the purpose of establishing a basis to explain her conduct during the lifetime of the deceased in order to succeed in the proceedings. I tend to the view that she has convinced herself that certain events occurred and has attributed her relationship with both of her parents, and particularly the deceased, to those events.
In any event, I have considered all of the evidence. What was written by Campbell JA (Giles JA and Handley AJA agreeing) in Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 at [79] should be remembered:

"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)

In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

“…respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.”

His Honour added, at [86]:

“To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is ‘proper’. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.”

In Steinmetz v Shannon [2018] NSWSC 1090, at [10], Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32] – [33], that:

“There are sound practical reasons for not encroaching too readily on the testator’s freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality … In Pontifical Society for the Propagation of the Faith v Scales (supra) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm:
The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.
To similar effect were some observations of Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than:
…acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics.”

I should state that Antonia does not assert that she made any contribution (whether financial or otherwise) to the acquisition, conservation and improvement of the estate of the deceased, or to the welfare of the deceased, or to other members of her family, either before, or after, the deceased's death. The only exception was, at the hearing, she produced a receipt dated 2 December 1983 for $130: Ex. P1.
Nor is it asserted, on the part of the Defendant, that provision was made for Antonia by the deceased, either during the deceased's lifetime, other than when Antonia was a child. Naturally, it was not suggested that Antonia was being maintained, either wholly, or partly, by the deceased, before the deceased’s death.
I have referred to the fact that Antonia receives $50,000 and a violin under the deceased’s Will. Counsel submitted that the fact that Antonia had received the violin from the deceased was important in determining the way in which the deceased viewed the relationship: Tcpt, 11 Nov 2021, p 106(45-48).

The statutory scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.
The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Since the Plaintiff’s eligibility is not disputed, the Court must determine whether adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1)(c). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order: s 59(2). Only then may “the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
In Stanford v Stanford [2021] NSWSC 1469, at [139]-[151], another claim by an adult child on the estate of their parent, I set out the case law which is applicable to a family provision claim:

“139. In Grey v Harrison [1997] 2 VR 359, Callaway JA observed, at 366-367:
‘There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.’
140. In the Court of Appeal, Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], wrote that the state of satisfaction ‘depends upon a multi-faceted evaluative judgment’. In Kay v Archbold [2008] NSWSC 254, at [126], White J wrote that the assessment of what provision is proper involved ‘an intuitive assessment’. Stevenson J described it as ‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’: Szypica v O'Beirne [2013] NSWSC 297, at [40].
141. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
142. The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
143. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve ‘an overall fair’ division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.
144. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:
‘Fairness and equality are not touchstones for relief under the Succession Act.’
145. The role of the Court is not ‘to address wounded feelings or salve the pain of disappointed expectations’ that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
146. In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:
‘… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.’
147. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased’s will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).
148. In Goodsell v Wellington [2011] NSWSC 1232 at [108] I wrote that:
‘Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.’
149. Pembroke J wrote in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:
‘The court does not simply ride roughshod over the testator’s intentions... The court’s power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where ‘adequate provision’ has not been made for the ‘proper maintenance, education or advancement in life’ of the claimant. The adjectives ‘adequate’ and ‘proper’ are words of circumspection.’
150. In Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], White J wrote:
‘In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.’
151. In Sgro v Thompson [2017] NSWCA 326, White JA (with whom each of McColl JA and Payne JA agreed) wrote (at [86]):
‘I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is ‘proper’. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.’”

Section 65(1) of the Act requires a family provision order to specify:

the person or persons for whom provision is to be made;

the amount and nature of the provision;

the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and

any conditions, restrictions or limitations imposed by the Court.

The Court’s order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit”: s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.

Claim by an adult child

In Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474, at [473]-[474], I repeated the principles that relate to a claim by an adult child:

“I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out:
(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ‘… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation’: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).
(c) Generally, also, ‘… the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute’: Taylor v Farrugia at [58] (Brereton J).
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].
(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ).
(f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA).”

Estrangement

I set out the principles relevant to family provision claims in the case of estrangement in Underwood v Gaudron [2014] NSWSC 1055 at [230]–[233]. An appeal from that decision was dismissed by the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269.
As I observed in Rogers v Rogers [2018] NSWSC 1982 at [150], the summary I provided in Underwood v Gaudron has been referred to, without disapproval, and in some cases with approval, in a number of subsequent authorities.
I next repeat part of what I wrote in Underwood v Gaudron, at [231]-[233]:

“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.’”

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].
…

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?’”

I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1; [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.”

Ultimately, although the relationship of parent and child is important and carries with it a moral obligation reflected in the Act, nevertheless, it is an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
In this case, there was really no dispute that the duty owed by a parent to a child to provide maintenance and advancement in life will be reduced if the relationship was dysfunctional, intermittent or reduced in some other way. That conduct is likely to reduce the amplitude of provision to be made for the applicant: Tcpt, 11 November 2021, p 107(43-48).

Qualifications on “Principles”

As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, 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.”

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 725 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.
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.
As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380 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].”

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313; [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 (2019) 99 NSWLR 687; [2019] NSWCA 114 at [37] (White JA). They must be remembered.
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.”

(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).)
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.

Antonia’s situation in life

There was really not much dispute about Antonia’s current situation. She last worked, full time, in August 1991. Thereafter she had received unemployment benefits until she was given the disability pension in August 2002.
She lives in community housing and pays an accommodation contribution of $738 per month, which is deducted, automatically, from her disability pension income of $2,369 gross per month, leaving her with about $1,631. She says that she is unable to afford private health insurance and yet needs expensive medical investigations and treatment which are not covered or not completely covered by Medicare. However, over a period of some years, she has managed to save about $55,168, which together with a car ($18,000) and some household furniture, constitutes the total of her assets.

She is not cohabiting with another person, has no partner, or any other person liable to support her.
Antonia’s health is poor. Her major conditions are autoimmune disorders namely CIDP, which I understand to mean Chronic Inflammatory Demyelinating Polyneuropathy, a rare neurological disorder in which there is inflammation of nerve roots and peripheral nerves. She also suffers Sjogren’s syndrome, which I understand affects the glands in the body that make moisture, and most often causes dryness in the eyes and mouth.
She describes her symptoms as including brain fog, dizziness on and off, generalized body aches, muscle fatigue, difficulty climbing stairs, difficulty with sitting and getting out of a chair quickly, constant fatigue, altered sensation and an inability to regulate her temperature. Her motor responses are markedly reduced and she has absent ankle reflexes, which she says causes her to trip and fall, as well as being off balance when walking. She experiences burning pain, pins and needles, tingling numbness and weakness in all limbs and she drops things and knocks things over. She believes that her symptoms are progressively getting worse.
Bearing in mind her age (66 years), that her health is poor, and that she suffers from a number of different medical conditions, I accept that she has virtually no future earning capacity.
Antonia is now subject to an NDIS plan, which pays for some of her needs, although it does not pay for medical treatment. For the period from 18 June 2019 and 17 June 2020, she was approved for support totalling $89,824. For the period from 9 June 2020 to 9 June 2021, she was approved for support totalling $99,262. Under her present plan, Antonia has been approved for support totalling $95,561. Those funds may be applied as to $71,992, in respect of "core supports", which includes assistance with personal activities of daily living, including within the home, daily activities and community participation, and transport; and $23,569, in respect of "capacity building supports", which includes financial planning, funding for allied health professionals and counselling, and support co-ordination.
Antonia seeks provision to purchase a two-bedroom unit or villa with flat access and no renovation or maintenance, as she currently has no permanency of accommodation. She wishes to remain in the Marsfield area as it is central to her medical appointments and has good public transport. Antonia stated that she requires a two-bedroom apartment because she requires a carer to stay with her for 24 hours after her medical appointments and procedures: Tcpt, 10 November 2021, p 68(42-45).
Antonia maintains that her current unit is unsuitable accommodation as it requires several modifications and due to cigarette smoke from neighbouring residents: Tcpt, 10 November 2021, p 63(16-18). Antonia has been approved for a housing transfer but this is subject to a waiting list: Tcpt, 10 November 2021, p 67(13).
In future, Antonia expects that her medical conditions will worsen and she will need further care assistance and medical procedures, which she estimates will cost more than $200,000.
Antonia seeks further provision to assist her with the contingencies of life.

Mary’s Situation in Life

Mary is employed as a medical secretary and earns approximately $980 per fortnight after tax. However, her working hours are expected to be reduced in November 2021, at which point she will earn approximately $700 per fortnight. Mary is currently searching for new employment, as she does not believe she can live comfortably on $700 per fortnight. Her currently earnings and expenditure are approximately the same each fortnight.
Mary has superannuation of approximately $168,048.
Mary’s husband, David Blandford, is 60 years of age and in reasonable health. He is employed at Bunnings and earns approximately $800 per week net.
David and Mary are joint owners of their unencumbered property located at X McGrath Close, Lisarow. The estimated value of the house is $979,000.
David has approximately $200,000 in superannuation and $60,000 in savings. He also owns a vehicle worth an estimate $4,000 and some shareholdings.
Clearly, she is significantly better off, financially, than Antonia.

Cecilia’s Situation in Life

Cecilia is single and does not have any children. In 1981, her marriage was annulled, and she did not receive any property settlement from her ex-husband. Since the annulment of her marriage, Cecilia has lived at her parent’s property in Lisarow.
Cecilia is currently on a disability pension of approximately $1,880 per month and has no other sources of income. She has been unable to work since 1999 due to two sleeping disorders from which she suffers, namely idiopathic hypersomnia and severe obstructive sleep apnoea, which cause her to sleep up to 23 hours a day. These conditions have worsened since the deceased’s death and treatment has been unsuccessful.
Cecilia owns a 21 year old motor vehicle and has $17,000 in a savings account, which she has set aside for emergencies. She has no superannuation.
Cecilia’s current monthly expenses are as follows:

Expense

Amount

Electricity

$ 126

Water

$ 70

Landline & Internet

$ 75

Foxtel

$ 48

Car Repairs & Registration

$ 115

Food

$ 480

Medication

$ 120

Gifts

$ 80

Donations

$ 30

Clothes & Personal Expenses

$ 60

Petrol

$ 40

TOTAL

$1,244

Cecilia accepted, in cross-examination, that her income exceeds her expenses by approximately $600 per month, but stated that she spends a significant amount of this treating her health complications: Tcpt, 10 November 2021, p 76(44)-77(19).
Cecilia requires funds to attend on repairs to her home, including a roof leakage in the kitchen and a major electrical problem.
Cecilia requires $8,000 for dental work as a result of an injury she sustained after falling and injuring her mouth.
In the event that Cecilia is required to sell the property in which she currently lives, which is next door to her carer, Mary, she will need to move into a nursing home, as she is unable to cook and clean for herself. Cecilia estimates the cost of a nursing home to be approximately $1,500 a week and the bond to be $400,000.
The significance of this evidence has been reduced by the oral evidence given by Cecilia at the hearing.
In any event, in view of the quantum of the provision which I have ordered, the financial and material circumstances of each of Cecilia and Mary will not be significantly altered.

Submissions

Counsel for Antonia submitted that, in cases of partial estrangement between parent and child, the whole of the relationship should be considered. She referred to my judgment of Sreckovic v Sreckovic [2018] NSWSC 1597, where I wrote, at [288], “In family relationships hurts are inflicted or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life.” It is a reality and I do not depart from that view.
Counsel for Antonia submitted that the causes of the estrangement and attempts by Antonia to achieve a rapprochement are also relevant considerations. It was submitted that Antonia had been treated badly from her parents by a young age, but continued to return and attempted to achieve a warm relationship with them. The abuse alleged by Antonia was too unusual to be fabricated, and that disclosure of childhood abuse later in life is commonplace. She further submitted that, merely because Cecilia and Mary did not witness any violence, this did not mean it did not occur: Tcpt, 11 November 2021, p 102(41-46).
However, as I pointed out to counsel for the Plaintiff, there is no evidence that Antonia told anyone about the violence until she made a family provision claim on the deceased’s estate: Tcpt, 11 November 2021, p 103(06-11). Specifically, she did not mention family violence to either of the psychiatrists whom she saw: Tcpt, 11 November 2021, p 104(05-10). Nor did she mention it to either of her sisters at any time.
According to counsel for Antonia, other relevant factors include the value of the estate, which is of sufficient size to allow additional provision to be made for Antonia without greatly impacting upon the other beneficiaries; that Antonia has no person with a responsibility to maintain her; her need for funds to pay for medical bills, accommodation and future care expenses and her lack of sufficient available financial resources to meet the exigencies of life.
Ultimately, counsel submitted that Antonia should receive, by way of additional provision, a lump sum of approximately $225,000. This amount was adequate and proper because it equates to a quarter of the value of the real estate, provides a buffer for Antonia and is a considerable reduction of the amount Antonia might have expected had there been no estrangement from her family.
Counsel for the Defendant submitted that Antonia had minimal contact with the deceased for the last 50 years of the deceased’s life. At its highest, Antonia’s evidence was that, over the final two decades of the deceased’s life, she and the deceased had only a handful of conversations. Antonia’s explanation for the estrangement, being family violence, was described as fanciful. Counsel pointed to the following evidence as establishing that the violence Antonia alleged had not occurred:

Mary and Cecilia never witnessed their parents display any violence towards Antonia.

The deceased suffered a serious fall in mid-1965, which left her with only one layer of skin and made her cautious in her movements.

Antonia did not refer to family violence in her discussions with two psychologists.

Antonia made no mention of any family violence when reporting her sexual assault to the police.

Counsel for the Defendant submitted that the estrangement between Antonia and the deceased was largely, if not entirely, caused by Antonia. There was none of the love, companionship and support, present in what might be described as “normal” parent-child relationships. This factor, alongside Antonia’s untruthful evidence about family violence, was said to warrant restraining the amplitude of any provision made for her.
The extent of the estrangement between Antonia and the deceased, coupled with the intensity of feeling, meant that the deceased was justified in making no provision for Antonia and that her claim should be dismissed. However, if further provision were to be made for Antonia, counsel for the Defendant submitted that it should be in the amount of approximately $80,000: Tcpt, 11 November 2021, p 116(21).

Determination

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified should not lead to the conclusion that they have not been fully considered.
As stated, there is no dispute that Antonia is an eligible person and that she commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of Antonia has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, her material situation.
I am satisfied that adequate provision for her proper maintenance or advancement in life has not been made by the Will of the deceased for Antonia. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.
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, and in this case, actually did, 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 a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd [1983] AC 463, 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 at 19–20 (Dixon CJ).
The Court should also make allowance for current social conditions and standards: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 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.
In reaching my determination, I have considered all the circumstances of the case. The following factors, whilst, on their own, not determinative of Antonia’s entitlement to a family provision order, may be regarded, as of some significance:

As I must, I have had regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable will-maker. I do not treat the deceased’s decision, reflected in her last Will, as merely having a prima facie effect, the real dispositive power being vested in the Court.

However, in my view, a wise and just testator would not be blinded by intergenerational disappointment, or disharmony, to the needs of her, or his, child. As a parent, she, or he, ought to recognise that family disharmony, and disappointment in the conduct of a child, are commonplace in family relationships.

That the relationship between Antonia and the deceased was not close is undeniable. Antonia must accept a degree of responsibility for the conflict between them. Yet, she was not completely estranged from the deceased, and she continued to have an, albeit limited, relationship with the deceased prior to her death. This is evidenced by the telephone call and text messages which were exchanged between them (via Mary) and Antonia’s gift of an orchid to the deceased.

The deceased left Antonia $50,000 and her violin, which indicates that her relationship with Antonia was not such that the deceased regarded her as a child who had no claim on her bounty. (Whilst not the relevant deceased in these proceedings, Antonia’s father had also wished to make some provision to Antonia, leaving her a one quarter share in his property, in the event that the deceased did not survive him.)

Antonia has little future earning capacity, due to her age, poor health and the various medical conditions from which she suffers. Her health conditions will require the ongoing payment of medical expenses, which are likely to increase over time. She has few assets of her own and requires a buffer against the vicissitudes of life. She has an extremely limited capacity, by reasonable means, of providing for her own proper maintenance and advancement in life. Yet, it is to be remembered that she is single with no dependents.

Antonia is, and will continue to be, reliant upon support from the social security system. I have borne in mind that she is in receipt of benefits under the NDIS and that this is a factor to be taken into account. However, while the NDIS plan provides services to treat and manage her disabilities, those funds do not significantly alter her income. (The alleged need for accommodation was not pressed during submissions.)

I do not forget the significant competing claims of Cecilia and Mary. Each had a caring and loving relationship with the deceased, and each was the chosen object of her testamentary bounty. Yet, neither gave evidence of any pressing financial need. Cecilia receives a regular income via her disability pension and will still receive a substantial capital sum out of the estate. Her life expectancy appears to be not very long. She has no dependants. Mary has substantial assets, including an unencumbered home shared with her husband, and a steady income from her employment. Each has resources greater than those of Antonia.

The estate, whilst not particularly large, is of sufficient size to allow further provision to be made for Antonia, whilst not substantially depleting the provision to be made to the other beneficiaries. The additional provision will not have a significant impact on Mary or Cecilia. (In this regard, the competing moral claim of each of them has not been forgotten.)

The lump sum proposed to be given to Antonia equates to approximately 15% of the estate. Such an amount reflects a reduced amplitude of provision arising from the nature of the relationship. This amount, taken with the amount provided in the Will, also equates to about one-quarter of the current value of the Lisarow property.

I have not accepted Antonia’s evidence that she experienced violence at the hands of the deceased. However, whilst I am unable to reach a positive finding that she lied, or concocted, this evidence for the purpose of advancing her family provision claim, I have taken into account the character and conduct of Antonia in making the allegations without any contemporaneous, or other, corroboration. (Even if I were wrong, a family provision order is not a means of obtaining compensation or assigning blame.) I have considered this conduct in the context of, and relative to, other aspects of Antonia’s claim, particularly her need.

In accordance with s 65(3) of the Act, since provision is to be made by payment of a lump sum, the orders should specify whether interest is payable on the whole or any part of the amount payable, and, if so, the period during which interest is payable and the rate of the interest.
Having examined, and considered, all of the evidence, the Court:

Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in Clause 5(b) of the Will dated 25 February 2015 of the deceased, the Plaintiff receive, by way of provision, a lump sum of $170,000, out of the estate of the deceased.

Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; 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 the 15th day from the date of the making of these orders until the date of payment in full.

Orders that the provision made for the Plaintiff be provided out of the residuary estate of the deceased.

Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $110,000 (including GST), be paid out of the estate of the deceased.

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

**********

Decision last updated: 07 December 2021

Medium Neutral Citation:	Kemperman v Antonenas [2021] NSWSC 1555
Hearing dates:	10-11 November 2021
Date of orders:	2 December 2021
Decision date:	11 November 2021
Jurisdiction:	Equity
Before:	Hallen J
Decision:	The Court: (1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in Clause 5(b) of the Will dated 25 February 2015 of the deceased, the Plaintiff receive, by way of provision, a lump sum of $170,000, out of the estate of the deceased. (2) Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; 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 the 15th day from the date of the making of these orders until the date of payment in full. (3) Orders that the provision made for the Plaintiff be provided out of the residuary estate of the deceased. (4) Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $110,000 (including GST), be paid out of the estate of the deceased. (5) Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained as the case may be, out of the estate of the deceased.
Catchwords:	SUCCESSION – Family Provision – Claim by adult daughter of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Limited provision made for Plaintiff – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Lack of close contact between adult daughter and the deceased – Allegation of violence and abuse made by the Plaintiff to explain the nature of the relationship - Significant dispute about the Plaintiff’s allegation of violence and abuse - Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for Plaintiff’s proper maintenance and advancement in life and, if so, in what amount
Legislation Cited:	Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) ss 84A & 86 Succession Act 2006 (NSW) ss 3, 57-61, 63, 65, 84 & 99-100
Cases Cited:	Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC); [1947] NZGazLawRp 127 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Benham v Benham [2004] NSWSC 416 Bosch v Perpetual Trustee Co Ltd [1983] AC 463 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Sreckovic v Sreckovic [2018] NSWSC 1597 Stanford v Stanford [2021] NSWSC 1469 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Steinmetz v Shannon [2018] NSWSC 1090
Category:	Principal judgment
Parties:	Antonia Regina Kemperman (Plaintiff) James Antonenas (Defendant)
Representation:	Counsel: V Hartstein (Plaintiff) S Chapple (Defendant) Solicitors: Bartels Business Lawyers (Plaintiff) Thurlow Fisher Lawyers (Defendant)
File Number(s):	2020/277852
Publication restriction:	Nil

Expense	Amount
Electricity	$ 126
Water	$ 70
Landline & Internet	$ 75
Foxtel	$ 48
Car Repairs & Registration	$ 115
Food	$ 480
Medication	$ 120
Gifts	$ 80
Donations	$ 30
Clothes & Personal Expenses	$ 60
Petrol	$ 40
TOTAL	$1,244