Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod - [2022] WASC 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2022] WASC 216
CORAM:   SMITH J
HEARD:   8 MARCH 2022
DELIVERED          :   30 JUNE 2022
FILE NO/S:   CIV 1625 of 2020
BETWEEN:   NICOLINA KEREMESTEVSKI
Plaintiff
AND
SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD
First Defendant
SHAUN MCLEOD beneficiary of the estate of MARK ADRIAN MCLEOD
Second Defendant
LEAH MCLEOD
Third Defendant

Catchwords:

Family provision - Inheritance - Whether plaintiff can establish she was in a de facto relationship with the deceased at the time of death

Family provision - Very small estate - If plaintiff establishes she was the de facto of the deceased whether the deceased made adequate provision for her proper maintenance, support or advancement in life and if not whether in light of the very small estate the court should exercise its discretion to make an order for provision - Gifts to charities considered

Legislation:

Family Provision Act 1972 (WA)
Interpretation Act 1984 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	No appearance
Second Defendant	:	H Bendtsen
Third Defendant	:	In Person

Solicitors:

Plaintiff	:	In Person
First Defendant	:	HLB Lawyers
Second Defendant	:	HLB Lawyers
Third Defendant	:	In Person

Cases referred to in decision:

Dean v Collins [No 2] [2015] WASCA 151
Devenish v Devenish [2011] WASC 129
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
G v O [2022] WASCA 23
Marks v Marks [2003] WASCA 297
Musasghi v Gebremariam [2022] WASCA 37
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

Table of Contents

1.0 The application for family provision, and the size of the estate

2.0 The procedural history of the application

3.0 Whether Mark and Nicolina were in a de facto relationship when he died

3.1 Principles to be applied to determine whether a de facto relationship existed

3.2 What does the evidence establish about the relationship?

3.2.1 The living and financial arrangements of Mark and Nicolina

3.2.2 The interaction of Mark with Nicolina's family and friends and what his family and friends were told by Mark about the relationship before he became seriously ill

3.2.3 The gifts and presents they gave each other, and to others

3.2.4 What Mark told members of his family, his friend, Jim Sharland, and others or represented to others about his relationship with Nicolina when in hospital in October and early November 2019

3.2.5 Other evidence relevant to the relationship between Mark and Nicolina

3.3 Conclusion - not satisfied of a de facto relationship as at the time of death

4.0 Has the will of Mark made inadequate provision for Nicolina, and should the court exercise its discretion to make an order for provision?

4.1 Legal principles

4.2 The nature of the claims made upon the testator's estate

4.3 The applicant's financial circumstances as at the date the deceased died and as at the date of hearing of the applications

5.0 Should the court exercise its discretion to make an order for provision in favour of the applicant?

5.1 Should the gifts to the RSPCA and the Cat Haven be disturbed?

5.2 The financial circumstances of Shaun and Leah

5.2.1 Shaun

5.2.2 Leah

5.3 Do Shaun, Leah or Patricia Tickel have a moral claim to the estate, and should the gifts to any of them be disturbed by an order for provision in favour of Nicolina?

6.0 Conclusion and the orders that should be made

SMITH J:

1.0 The application for family provision, and the size of the estate

For clarity and intending no disrespect, in these reasons, I refer to the parties and the deceased by their first names (after they are introduced).
The plaintiff, Nicolina Keremestevski, has applied for orders for adequate provision to be made for the proper maintenance, support or advancement in life out of the estate of the late Mark Adrian McLeod, pursuant to s 7(1)(a) of the Family Provision Act 1972 (WA).
Mark died on 6 November 2019 at the age of 63, having never married or never having had any children.
Nicolina claims that she was in a de facto relationship with Mark at the time of his death.
The issues to be determined in this matter are:
(a)whether Nicolina was living as the de facto partner of Mark immediately before his death;
(b)if Nicolina was Mark's de facto partner:
(i)whether the disposition of Mark's estate by his will did not make adequate provision for Nicolina for her proper maintenance, support or advancement; and
(ii)if the answer to (b)(i) is yes, what would be adequate provision for the proper maintenance, support or advancement of Nicolina; and should the court exercise its discretion to make an order for provision in her favour?
The estate of Mark is very small. He made a will three days before he died, and appointed his nephew, Shaun McLeod, as executor. In his will:
(a)he made a number of specific bequests of particular pens and watches to Shaun and his niece, Leah McLeod;
(b)he left one quarter of his remaining watches, pens, mobile phones and leather goods to Shaun, Leah, Nicolina and James 'Jim' Sharland;
(c)he gave his cousin, Patricia Tickel, the sum of $5,000;
(d)he gave the Cat Haven of Shenton Park the sum of $5,000;
(e)he gave the RSPCA Australia the sum of $5,000;
(f)he gave Nicolina the sum of $40,000; and
(g)he gave the residue of his estate, in 33.33 shares to Nicolina, 33.33 shares to Shaun and 33.33 shares to Leah.
In a statement of assets and liabilities as at 9 May 2021, annexed to an affidavit sworn by Shaun on 11 May 2021, after repairs had been made to a residential property and the property was sold, and other estate debts had been paid, including funeral expenses (leaving aside the value of the collection of pens, watches, mobile phones and leather goods), there was an amount of $99,602.55 in a bank account and only one debt to be paid, being estimated legal fees for the estate owed to the executor's instructing solicitors of $3,500.[1]
[1] Exhibit 23; Attachments SM3 and SM4, 23 - 24.

2.0 The procedural history of the application

The evidence in these proceedings is substantially set out in affidavits sworn by the parties and others. Documentary evidence relating to the financial positions of the parties was produced at and subsequent to the hearing.
With the exception of one affidavit sworn by Nicolina and filed with the originating summons on 27 May 2020, it is apparent that none of the remaining affidavits filed by the parties and proposed witnesses were prepared with the assistance of a legal practitioner. As a result, some of the affidavits contained repetitive material, and almost all of these affidavits contained inadmissible and irrelevant material.
Prior to the hearing, I formed the opinion that a preliminary hearing should be held to rule on inadmissible material in the affidavits prior to the trial because:
(a)39 affidavits had been filed and served by the parties; and
(b)the proceedings concern a very small estate of approximately $100,000, which required the court to take steps to limit the length of the hearing and to deal with the application for provision in a manner that avoided subsuming the entire value or a substantial portion of the estate by the costs of the proceedings.
On 2 February 2022, the parties were sent an email in which they were asked to provide answers to a number of questions by close of business on 4 February 2022, which included whether there was any objections by any other party to any of the matters set out in the affidavits filed by the parties, and whether there were any witness affidavits that could be tendered into evidence by consent without requiring the witness to attend court and be cross‑examined.
On the same day, Nicolina requested further time to respond. As a result, the parties were granted an extension of time to 4.00 pm on 11 February 2022 to answer the questions. On 11 February 2022, Nicolina provided answers to each of the questions, and set out in some detail her objections to specific paragraphs in a number of affidavits filed by Shaun, Leah and the Cat Haven.
Shaun and Leah also provided answers to the questions and their objections to specific parts of some of the affidavits filed by Nicolina.
During the course of the preliminary hearing on 3 March 2022, rulings were made on each of the 39 affidavits as to what parts of the affidavit material would be struck out and which affidavits would be ruled to be entirely inadmissible.
At the conclusion of the preliminary hearing each party informed the court that the only witnesses who were required to be cross‑examined at the hearing were the parties themselves, that is Nicolina, Shaun and Leah.
Edited copies of the other affidavits were subsequently tendered into evidence at the hearing of the application as exhibits.
The affidavit material filed by the parties was as follows.
After Nicolina filed a notice of intention to appear on her own behalf, she filed and served three subsequent affidavits sworn by her, the last of which repeated the matters set out in the first and second affidavits prepared by her and contained additional material. After inadmissible material was struck out, her third affidavit was tendered into evidence as an exhibit.[2] She also filed and served 14 affidavits sworn by others in support of her case that she was in a de facto relationship with Mark.
[2] Exhibit 1.
Shaun filed appearances in these proceedings as the first defendant as executor of the estate and as the second defendant as a beneficiary, by his solicitors. He filed and served three affidavits which he had prepared and sworn. His first affidavit was sworn in his capacity as the second defendant in support of his case that the terms of the will should not be altered. His second was sworn in his capacity as executor and addressed matters relevant to the administration of the estate. His third affidavit repeated matters in his first and second affidavits and contained additional material. After inadmissible material was struck out, his third affidavit was tendered into evidence as an exhibit.[3]
[3] Exhibit 23.
Shaun was represented at the hearing of the application in his capacity as second defendant (as a beneficiary of the estate) by counsel, but did not appear at the hearing in his capacity as first defendant (as the executor).
Shaun, in his capacity as the second defendant, filed and served 14 affidavits which were sworn by members of Mark's family and other friends of Mark to address matters relevant to the issue of whether Nicolina was in a de facto relationship with Mark at the time he died. Two of these affidavits were sworn by beneficiaries of the will, James Sharland and Patricia Tickel.
Leah filed and served two affidavits, which she had prepared and sworn, and an affidavit sworn by her husband, in support of her case that the terms of the will should not be altered. After inadmissible material was struck out, her first affidavit was tendered into evidence as an exhibit.[4]
[4] Exhibit 40.
The chief executive officer of the Cat Haven, Rosalind Robinson, swore an affidavit, and caused her affidavit to be filed and served in these proceedings, in support of a submission that the gift to the Cat Haven not be altered by an order of the court.
At the conclusion of the substantive hearing on 8 March 2022, although the decision of the court was reserved, the parties were each granted leave to provide further documentary evidence of their financial circumstances. Each of the parties subsequently sent to the court copies of bank statements and other relevant records.
On 16 March 2022, Nicolina sent an email to the court in which she made an application to strike out a large amount of affidavit material in a number of affidavits tendered into evidence by the defendants. In response, Shaun (and Leah) opposed the application and made a submission that the application to strike out affidavit material was too late.
I accept the defendants' submission that the application to strike out affidavit material that has been accepted into evidence at the trial is too late. One of the fundamental principles of justice is that there be finality in judicial proceedings. Part of this principle is that parties not be allowed to reopen a preliminary ruling on evidential material, where no objection was made at trial prior to the tender into evidence of that material.
In this matter, all of the defendants' affidavits had been served upon Nicolina at least nine months prior to the trial. Importantly, Nicolina had more than adequate opportunity to put forward to the court all her objections to each of the defendants' affidavits. Prior to the preliminary hearing she was given sufficient time to set out in detail her objections in writing. Further, she did not raise any of the objections (referred to in her email sent to the court and the other parties on 16 March 2022) at the trial on 8 March 2022.
For these reasons, the application to strike out affidavit material tendered into evidence is refused.

3.0 Whether Mark and Nicolina were in a de facto relationship when he died

I have made findings of fact primarily based upon the evidence that is not in dispute, and where matters are in dispute, I have made findings of fact where they are supported by contemporaneous documentary evidence.
Some of the affidavit material of witnesses who were not required by any party to attend court to be cross‑examined contained conflicting versions of events to events recounted by Nicolina.
As the parties agreed that all of the witnesses other than the parties were not required for cross‑examination, where statements in affidavits of a witness are inconsistent with statements of another witness who has not been required to be cross‑examined, except where there is reliable contemporaneous documentary evidence in support of one version of events, the court is not in a position to determine the truth of those events.
In any event, most of the conflicting evidence relates to disputes between the parties themselves. These disputes mostly arose after the death of Mark and are immaterial to the issues to be determined by the court in these proceedings.

3.1 Principles to be applied to determine whether a de facto relationship existed

Section 7(1) of the Family Provision Act provides:
(1)An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons -
(a)a person who is married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
…
Whether the deceased person and the person who makes a claim as a de facto under the Family Provision Act were in fact in a de facto relationship immediately before the death of the deceased person is to be determined by considering the evidence at trial in light of the meaning of a de facto relationship, which is relevantly defined in s 13A of the Interpretation Act 1984 (WA) as follows:[5]
[5] Applying the established test referred to in G v O [2022] WASCA 23 [13].
13A.De facto relationship and de facto partner, references to
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
A de facto relationship is not established by the evidence of one party who subjectively believes that the relationship was at the relevant time a marriage‑like relationship. The Court of Appeal made this very clear in G v O when they said:[6]
[6] G v O [2022] WASCA 23 [115] - [122] (footnotes omitted).
The statutory question to which s 13A(1) of the Interpretation Act is directed is whether the parties' relationship is one 'between two persons who live together in a marriage-like relationship'. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship.
The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.
It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. In cases of a 'marriage-like' relationship, what is relevant is the parties' common intention as to matters that are characteristic of a marriage, but that do not depend upon the formal legal status thus acquired.
The parties' common intention may be expressed, or it may be implied.
Where the parties' relationship includes elements that are generally characteristic of a marriage - co-habitation, financial interdependence, and so on - what is significant is the reason for the parties' adoption of those elements. Unless those elements reflect a common intention to form a consensual union which will endure, then those aspects of the relationship cannot in themselves justify a conclusion that the relationship should be characterised as 'marriage-like'.
The common intention of the parties is therefore an important consideration in determining whether a relationship is marriage-like.
It is the parties' common intention which is critical. A subjective belief or intention held by one party as to whether their relationship is 'marriage-like', is not relevant. Further, an intention on the part of one party to form a consensual union which will endure will not suffice to characterise a relationship as 'marriage-like', any more than a wish on the part of one party to a relationship to get married brings about a marriage.
Whether the parties to a relationship are in a 'marriage-like' relationship requires an objective assessment of all of the facts and circumstances.

3.2 What does the evidence establish about the relationship?

3.2.1 The living and financial arrangements of Mark and Nicolina

Nicolina is employed full-time by the Department of Communities, having first commenced employment for the Department in April 2007. She is now 58 years old, and has no dependents.
Nicolina and Mark began their relationship as girlfriend and boyfriend after they first met on 26 May 2006. Nicolina claims that her relationship with Mark became a de facto relationship in 2015, when he began living with her in her home, and continued until Mark died.[7]
[7] ts 142.

At the time Nicolina met Mark in 2006 he lived in an unencumbered villa unit owned by him in Tuart Hill, and Nicolina lived at a rental property in West Perth. In 2009, she purchased a villa unit in Osborne Park.
It is her evidence that during the first nine years of their relationship Mark would spend three to four nights a week and some days at her rental property in West Perth and subsequently at her villa in Osborne Park. Sometimes she would stay at his Tuart Hill property.
After Nicolina commenced work full-time in 2007 she paid for the majority of their outings and entertainment, such as going to cafés or restaurants. During this time, Mark would sometimes buy groceries for each of them to share and purchase takeaway meals.
It is Nicolina's evidence that Mark moved into her Osborne Park villa in May 2015, left his Tuart Hill property without tenants, and used his Tuart Hill property as a storage place for his goods as he was both a collector and hoarder.
Shaun disputes that Mark lived with Nicolina. It is his evidence that Mark told him on numerous occasions not long before he died that he lived at his property until he was admitted to Sir Charles Gardiner Hospital on 14 September 2019 (as a result of being diagnosed with pancreatic cancer) and that on his discharge (a few weeks later) he stayed with Nicolina at her villa.
Although Mark may have told Shaun not long before he died that he did not live with Nicolina, there is evidence to the contrary.
Matthew James Verrier owns a villa in the same complex in Tuart Hill where Mark owned his villa. He knew Mark for over 25 years. Matthew Verrier is not a beneficiary of the will and is not a relative of Mark. In his affidavit, he states Mark had not lived in his villa in the last four to five years prior to his death, and that Mark told him that he had moved in with his long-term partner. It is also his evidence that during the four to five years prior to his death, Mark frequently visited his villa to check on it, water his plants, collect his mail, and asked him (Matthew Verrier) to watch over his villa 'for security'.[8]
[8] Exhibit 22, pars 2 - 4.
It is Nicolina's evidence that when Mark moved into her villa he paid her a once off payment of $200 to cover electricity, gas and phone usage, but after that he did not contribute or provide her with money towards bills or other costs including groceries, except for the rare occasion where he would bring home food he had purchased from Woolworths, Coles or the Innaloo food court to share. In the last few years of his life she would sometimes give him her Coles Mastercard or Bankwest Mastercard to purchase items. She purchased mobile prepaid phone vouchers for him to use every few months.[9] During this period of time she claims to have also purchased him clothes and anything else he needed.
[9] Exhibit 25, pars 29 - 32.
It is also Nicolina's evidence that when Mark lived with her, they slept in the same bed every night and had a sexual relationship.
Although Mark was still involved in his business until at least May 2015, I accept Nicolina's evidence that she purchased items for him and he made no financial contributions to her expenses and made minimal contributions to the food that they shared. This is because it cannot be disputed that by at least 2015, Mark had very limited financial resources.
It is common ground that Nicolina and Mark owned no property jointly and had no joint bank accounts or credit cards.
It appears that Mark did not disclose his true financial circumstances to Nicolina. It is her evidence that during their years together Mark was mainly covert about his financial affairs, although he started to be more open when they lived together.[10] I accept her evidence about this issue. For example, it appears it was not until late October 2019, whilst in hospital, that he disclosed to Nicolina that he had a credit card debt of over $20,000, which he had used to pay for his personal expenses.
[10] Exhibit 1, par 7.
It is clear, however, that Nicolina did not pay any of Mark's expenses associated with his property. All of Mark's personal mail was addressed to his Tuart Hill villa. He personally paid all of his expenses associated with his villa, his car and his storage unit, and did not seek any financial assistance from Nicolina to pay any of these expenses.
The financial statements obtained by Shaun of Mark's Commonwealth SuperSelect superannuation account and his Commonwealth bank account reveal that from 2014 Mark had very limited financial resources. As at 30 June 2014, his superannuation balance was $82,527.28. By late 2017, he had exhausted all of the funds in this account. From this account he withdrew a sum of $20,000 on 15 January 2016, $15,000 on 4 August 2016, $10,000 on 15 March 2017 and $11,084.98 on 14 August 2017.[11]
[11] Exhibit 23, par 54, Attachments SM26 and SM27, 78 - 83.
It appears Mark did not at any time apply for Centrelink benefits. From late 2017 to early 2018, he became more reliant on his credit card as a source of funds with the balance in arrears owing of $12,480.43 and growing to $24,545.88 just after he died on 6 November 2019.[12]
[12] Exhibit 23, par 54, Attachments SM25, 76 - 77 and SM28, 84 – 86.
Mark's mother, Mary McLeod, provided him with some cash. In her affidavit, she states that he had dinner with her every night free of charge at her residential care facility and she provided him with money when he needed it. She recalls giving him $500 on 19 November 2015, $600 on 13 January 2016, $500 on 23 November 2016, $500 on 19 December 2016, $1,000 on 28 November 2017, $1,400 on 21 December 2017, $500 on 17 January 2018 and $2,500 on 1 October 2019.[13]
[13] Exhibit 33, par 10.
Nicolina denies that Mark had dinner with his mother every night and says all of his meals were provided by her, but agrees that sometimes his mother would give him small triangular sandwiches which he would bring home and have for a snack the next day.[14]
[14] Exhibit 1, par 9.
In March 2017, Nicolina purchased her first car with a seven-year loan. It is her evidence that within a few months Mark started using her car instead of his own because his Nissan NX coupe required new tyres and he used her car instead of buying new tyres. From about the middle of 2017 until about September 2019 when he stopped going to his unit (because of his ill health), Mark's neighbour, Matthew Verrier, often saw Mark driving a Mitsubishi Mirage when he visited his villa to collect his mail and water his plants.[15]
[15] Exhibit 22 par 12.
Whilst I accept that Mark may have used Nicolina's vehicle, he may have also continued to use his vehicle from time to time because on 30 November 2017 he had his vehicle serviced and repaired at Giant Nissan Osborne Park at a cost of $2,729.80, which included a wheel alignment and tyre inspection.[16]
[16] Exhibit 23, par 52 and Attachment SM24 and SM25, 72 - 77.
It is clear that Mark used Nicolina's property as his own such as her car, and while she was overseas in New Zealand in August and September 2019 visiting her family, he lived alone in her villa and he used one of her mobile telephones to call her while she was away.[17]

3.2.2 The interaction of Mark with Nicolina's family and friends and what his family and friends were told by Mark about the relationship before he became seriously ill

[17] Exhibit 12.

Although it appears that from time to time Mark and Nicolina had breaks in their relationship, I accept that Nicolina was of the opinion that she and Mark were committed to each other as long‑term partners. The issue to be determined in these proceedings is whether Mark shared that opinion, that is whether he had formed the opinion that they were in a long-term enduring relationship.
When Mark and Nicolina first met, Mark ran a small business as a broker for graphic design work. Nicolina claims that they loved each other very much and were at all material times in a committed monogamous relationship. It is her evidence that in August 2006 he proposed marriage to her and she said 'yes'. Nicolina believed that they would marry each other one day. However, they did not make arrangements to marry. This proposal of marriage was not disclosed to any close member of Mark's family, and it appears in the later years of their relationship Mark did not want to marry Nicolina and thought the relationship would end one day.
In an email Mark sent to a friend on 19 September 2018, Mark said:[18]
[M]y life is very busy, and hectic these days with attending to Nicolina's needs, and visiting my Mother at the nursing home in Innaloo, very little spare time for me, if any at all. Nicolina can be very demanding, and yes, she wants us to get married, do I want to go down that pathway, well, probably not, I would find it very difficult to adjust to married life now at 62 years of age instead of 32 years of age. Nicolina can be very unpleasant at times, and I often ask myself, what in blazers am I doing here with Nicolina???, I actually would like to spend some time on my own after over 12 years.
…
For myself, well, my relationship with Nicolina just doesn't get better, it will end one day, and then my love life will be over, I just cannot do this anymore, it is just too hard, I am just so sick of the disappointments. This is how I feel at the moment anyway.
[18] Exhibit 1, 216.
In her first affidavit, Nicolina stated that as a couple they rarely socialised with others, and did not go on holidays together because they could not afford it.[19]
[19] Exhibit 25, par 48.
Nicolina did, however, travel to New Zealand every year to visit family,[20] and she regularly separately socialised with her own friends as did he.
[20] Exhibit 25, par 48.
Not long after they met in 2006, Mark introduced Nicolina to his mother, Mary McLeod, at her home in Attadale. It is common ground that after that meeting Nicolina only saw Mary McLeod on two other occasions. Although the recollections of Nicolina and Mary McLeod about the times they met are not entirely the same, it appears that they saw each other again when Mark and Nicolina called in briefly at his mother's home or at her nursing home, and they celebrated Mark's 50^thbirthday together by attending a lunch or a dinner with Mark at a hotel.[21]
[21] Exhibit 38, pars 5 and 6; Exhibit 1, par 39.
Mary McLeod moved into a nursing home in 2013. It appears from that time onwards until not long before his death in hospital, Mark visited his mother at her nursing home every evening. Mary McLeod states in her affidavit that from 2013, Mark would spend about two hours with her every evening at the nursing home. During these nightly chats they would reminisce about the good old times, including their favourite cats, and they would often speak fondly of Shaun and Leah, who were Mary McLeod's only grandchildren and Mark's only niece and nephew.[22]
[22] Exhibit 33, pars 6 - 9.
On each Christmas Day Mark would go and see his mother in the evening and collect from her the gifts that Shaun and Leah had left for him. It appears he would have Christmas lunch with Nicolina. At least since 2015, Nicolina would pay for the two of them to go to Sizzlers on Christmas Day for lunch.[23]
[23] Exhibit 1, par 66.
Although it is not entirely clear from Mary McLeod's affidavit, it appears that during her nightly chats with Mark that Mark did not usually speak about Nicolina. It is also her evidence that he told her numerous times over the last few years of his life he was not in a serious relationship with Nicolina and that had he lengthy separations from her.[24]
[24] Exhibit 33, pars 7 - 9.
It appears that Mark may have only had one long-term close friend, and he was James Sharland, who is known as Jim Sharland. Jim Sharland and Mark were close friends for over 20 years. They met together at least once a week for lunch for over three or four hours, and they would chat on the phone on a regular basis.[25]
[25] Exhibit 36, par 2.
Nicolina met Jim Sharland about 10 years before Mark died, but they had no further contact until after Mark died.
Jim Sharland in his affidavit states that Mark spoke often about his relationship with Nicolina. Mark told him very early in the relationship that it was nothing more than a 'girlfriend/boyfriend relationship with benefits'.[26]
[26] Exhibit 36, pars 4 - 10.
Although Mark did not see a lot of Shaun, it is clear that they were very fond of each other. Shaun never met Nicolina while Mark was alive. Shaun did, however, know of the existence of Nicolina. In the early 2010s, Mark would sometimes, when speaking to Shaun about Nicolina, refer to her as his 'girlfriend'. The last occasion on which Mark mentioned Nicolina to Shaun was in May 2014, when Shaun and Mark met for a meal at a coffee shop in Innaloo. During this conversation, Mark told Shaun that he had separated from Nicolina because they had an argument over a number of things, including who he would leave his pens to. After that conversation, Mark never mentioned Nicolina again to Shaun until Shaun visited Mark in hospital in late October 2019.
In her affidavit sworn on 27 May 2021, Nicolina attached an email exchange between Mark and a person who was arranging a booking at the Hyatt Regency Perth hotel for the two of them to have dinner and stay overnight for his 60^thbirthday in August 2016. In this email correspondence, Mark referred to Nicolina as his 'girlfriend'.[27]
[27] Exhibit 1, 76 - 79.
Nicolina contends that she argued with Mark about his controlling behaviour towards her. She said he did not like it when she socialised with her friends without him, even if was just catching up with a female friend for coffee or dinner, and that he would often be invited to events with her friends but he would often not want to join her on these occasions. In support of this evidence, she referred to email exchanges she had with Mark during work hours, which emails spanned a period of 10 years from September 2009 to July 2019.[28]
[28] Exhibit 1, 20 - 117; The emails received and sent by Nicolina were to and from her work email address.
The email exchanges over this 10 year period only reveal two occasions when they discussed social events. The first was on 23 December 2010 when Mark sent Nicolina an email stating that he was not happy about her intention to go to 'Sue's place' on Boxing Day, and referring to an argument about 'the Christmas Day situation'.[29] The second was on 23 January 2018 when Nicolina sent Mark an email asking him whether they could go to Mount Hawthorn around 6.00 pm on 26 January 2018 to have dinner and then watch the Australia Day fireworks from the rooftop car park. Mark replied to this email later that day using what can only be described as self-deprecating language:[30]
No, I cannot go out to eat anywhere anymore, not at all, remember, the 'hair situation'. No more going to restaurants, cafes or even, dare I say it, 'foodhalls', the end has come for me eating out, no diversion. Your lucky though, as you said, 'at least I've got hair'. I will just eat at the kitchen sink where I belong.
Mark
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxooooooooooooooooooooooooooooooooooooooooxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,
[29] Exhibit 1, 27.
[30] Exhibit 1, 101.
The fact that Nicolina and Mark had their disagreements, and at times their relationship was on and off, is apparent from some of the other email exchanges between Mark and Nicolina while Nicolina was at work.[31] How often they disagreed is not clear, and, in any event, is not material. Most of the email exchanges related to discussions about what they would have for dinner and requests by Mark to bring 'home' food or to print out emails or other documents of Mark's.[32] Although some of these email exchanges could be construed as demands rather than requests by Mark, it is difficult to make a reliable assessment of their relationship from these emails.
[31] Exhibit 1, 22, 25, 27 - 30, 41, 46, 56, 101, 111.
[32] Exhibit 1, 21 - 118.
It is clear, however, that at least in the latter years of their relationship, Nicolina and Mark did not attend social events together with her friends. It also appears that Nicolina saw her friends and colleagues regularly for dinner every week without Mark.
In an affidavit sworn by Anna Barlascini she said she first met Mark in about August 2006 in Leederville after the AFL grand final, and over the years that followed on a few occasions she met up with Mark with Nicolina.
Anna Barlascini regularly socialised weekly with Nicolina for dinner. In her affidavit, she states that after they had their dinner, Nicolina would purchase dinner to take home for Mark. In her affidavit, she also states that she sometimes briefly spoke to Mark on the telephone in the evening, after she had spoken to Nicolina on the telephone. She last saw Mark when he was in hospital on 28 October 2019 in the presence of Nicolina. She told him how lucky he was to have Nicolina in his life to support him and it is her evidence that he acknowledged that Nicolina had been a wonderful and supportive partner to him.[33]
[33] Exhibit 13, pars 3, 5 - 6 and 9.
Anna Bradbury is a work colleague and another friend of Nicolina. She regularly went to Nicolina's villa in the morning to give her a lift to work and drove her home after work. In her affidavit, she states that often when she drove Nicolina home, Nicolina talked about what she was planning on cooking for Mark for dinner that night, or takeaway dinners she had purchased for the two of them to eat.[34]
[34] Exhibit 14.
Lina Saunders is also a friend and colleague of Nicolina who regularly had dinner with Nicolina at a restaurant in Leederville and would later drive her home. In her affidavit, she states that during these dinners Nicolina would almost always make a call on a mobile phone to order a takeaway meal for Mark. On the way to Nicolina's home they would stop and pick up the takeaway.[35]
[35] Exhibit 20.
Other friends and colleagues of Nicolina made statements in their affidavits about hearing telephone conversations over the years that Nicolina had with Mark before she left the office about what kind of Chinese takeaway he wanted her to bring home after work.[36]
[36] Exhibit 17, par 11; Exhibit 19, par 7.
Veronika Hamilton is Nicolina's sister. She resides in Townsville, Queensland. In her affidavit, she states that towards the end of August 2019, she telephoned Nicolina's mobile telephone and Mark answered the call. At that time, Nicolina was visiting their mother in New Zealand on an extended trip because their mother was unwell. During the telephone conversation, Mark told Veronika Hamilton that Nicolina had not yet returned home from New Zealand and that she had left one of her mobile telephones at home with him. They spoke for 15 to 20 minutes, during which they spoke about their respective relationships. Although in her affidavit Veronika Hamilton does not state what was said by Mark in that conversation, it is clear from what she states in her affidavit that he said positive things about his relationship with Nicolina.[37]
[37] Exhibit 16.
Despite the fact that it is clear that Mark did in fact reside with Nicolina in her villa unit from 2015, and she made substantial contributions to his maintenance and support by providing him with food, the use of her computer, the use of her car and on occasions one of her mobile telephones, Mark did not inform any members of his family, other than his mother, of his ongoing relationship with Nicolina.
This is evident from the statements made by several cousins and other relatives of Mark in their affidavits.
Kathleen Crofts, Carmel Guppy, Joffre Martin, Margaret Rule, Patricia Tickel and Mary Walker were first cousins of Mark. Dennis Rule is married to Margaret Rule, and Terrence Walker is married to Mary Walker. Other than Patricia Tickel, none of Mark's other relatives have a financial interest in his will. In their affidavits, they each state that:[38]
(a)until they attended Mark's funeral they had never met Nicolina;
(b)they frequently saw Mark, and other members of their extended family, over the years at family gatherings;
(c)Mark always attended family gatherings alone; and
(d)during conversations at family gatherings he never mentioned Nicolina.
[38] Exhibits 26, 27, 28, 34, 35, 37, 38 and 39.

Mark's only brother, Kenneth William McLeod, also did not meet Nicolina until after Mark had died.[39] This is not surprising for two reasons. First, Kenneth McLeod and Mark had been estranged for some years before Mark's death, and did not reconcile before Mark died. Second, Kenneth McLeod had for some time prior to Mark's death been a resident of Thailand.
[39] Exhibit 31, par 5.
Kenneth McLeod's former wife, Lynne McLeod, is the mother of Shaun and Leah. In her affidavit, she states that:[40]
(a)Mark had introduced her to a number of his girlfriends including one who had subsequently become engaged to Mark (for a period of time), and another who she subsequently from time‑to‑time would converse with by telephone; and
(b)Mark had not at any time mentioned Nicolina to her and she became aware of Nicolina (for the first time) at Mark's funeral.
[40] Exhibit 32, pars 8 - 9.
Leah did not know about the existence of Nicolina until Mark was diagnosed with terminal cancer. She too would see Mark at family gatherings. She was very fond of him and he was very fond of her. They both shared a love of cats. They exchanged Christmas, birthday and Easter gifts and cards every year. The cards that Leah received from Mark were from him alone.[41]
[41] Exhibit 40.
On 28 January 2019, Leah invited Mark to her wedding in Spain on 7 September 2019. The invitation was addressed to him alone.[42] On 23 April 2019, Mark responded to the invitation as follows:[43]
Dear Leah,
It is with a deep regret, and disappointment that I need to let you know that I will not be able to attend your wedding in Spain later on this year. This is something that I feel very sad about.
When your wedding day arrives, I do sincerely hope that everything goes smoothly, and that you both have a wonderful, and memorable day. I am sure that your special day will be fantastic.
With lots of love as always to you Leah, from your uncle Mark……
[42] Exhibit 40, par 10 and Attachment LM 1.
[43] Exhibit 40, par 10 and Attachment LM 1.
On 10 August 2019, Leah sent Mark a message to wish him happy birthday and informed him that she and Shaun had left a birthday present for him with their grandmother who she referred to as 'Memmie'. On 12 August 2019, Mark responded thanking her for the birthday card and presents, stating once again that it was a shame that he could not be in Europe to share her wedding day.[44]
[44] Exhibit 40, par 11 and Attachment LM 2.
Leah was in Europe when she learnt Mark was unwell. She sent him an email and asked if she could see him as soon as she returned to Australia. On 29 October 2019, he sent her an email in reply in which he said:[45]
My Dearest Leah,
Thank you for your email, much appreciated.
Yes, I am very sick, and still in hospital, it is really awful. I would love to see you, you are my beautiful, beautiful niece. I hope that you had a great time in Europe.
See you, from your Uncle Mark xxx
[45] Exhibit 40, par 12 and Attachment LM 3.
Leah did not see her uncle in hospital. She learnt he had died when she was in Singapore in transit waiting for a flight back to Perth.[46]

3.2.3 The gifts and presents they gave each other, and to others

[46] Exhibit 40, par 12.

Mark was a collector of pens, watches, leather goods and mobile phones.
Nicolina purchased Mark many gifts over the years. Most of these gifts cost more than $200 each. The majority of pens Nicolina purchased for Mark cost over $500, most of which she purchased from a pen shop in Perth city, T Sharp & Co. Two of the pens purchased from this business for Mark cost $1,100 each.[47] In mid-2019, she purchased him a television for approximately $300 as an early birthday present.[48]
[47] Exhibit 25, par 22; See also Exhibit 21, Affidavit of Linda James Somers business owner of T Sharp & Co.
[48] Exhibit 25, par 32.
Mark purchased Nicolina inexpensive gifts for her birthday, Easter and Christmas, which she described as romantic gifts such as lingerie, perfume, chocolates and sometimes jewellery. On her 50^thbirthday, Mark bought her a quill pen, which she regards as a special present.[49] He also gave her birthday cards, Easter cards, and Christmas cards. On 14 February 2016, he gave her a Valentine's Day card.[50]
[49] Exhibit 25, par 23.
[50] Exhibit 1, 237 - 246.
Mark also exchanged gifts and cards with his mother for birthdays and Christmas.
All of the cards that he gave to members of his family were from him alone. However, on one occasion he sent a sympathy card to Shaun and Leah in July 2017 after their maternal grandmother had died, and he wrote on the card to indicate it was not only from him but also from his mother as he used her family name (Memmie).[51]
[51] Exhibit 23, par 42 and Attachment SM22.
Mark kept a record of the presents he gave and received from Nicolina, his mother, Shaun and Leah.[52]
[52] Exhibit 1, 223 - 226.
It is Nicolina's evidence that after Mark moved into her villa:
(a)she would buy his mother weekly items from the supermarket that included biscuits, lollies, toothpaste, face cream, hairnets, Vasoline and baby powder. She also bought birthday gifts for Mark to give his mother such as cakes, flowers and occasionally a card (if Mark had not yet purchased one) for his mother;[53] and
(b)Mark used her washing machine weekly to wash his mother's clothes.[54]

3.2.4 What Mark told members of his family, his friend, Jim Sharland, and others or represented to others about his relationship with Nicolina when in hospital in October and early November 2019

[53] Exhibit 25, par 50.

[54] Exhibit 25, par 51.

When Mark was admitted to hospital sometime in September 2019 after being diagnosed with pancreatic cancer, Nicolina took leave from her employment. It appears that from this time until he died on 6 November 2019, she spent a lot of time with him when he attended medical appointments and when he was in hospital.
On 24 September 2019, Shaun learnt that his uncle had been diagnosed with cancer and sent him a text message saying:[55]
Dear Uncle Mark. I'm very sorry to hear that you have been unwell. My thoughts and prayers are with you in this difficult time. Please let me know if there is anything I can do to help. Kind regards, Shaun.
[55] Exhibit 23, par 8.
On the same day, a friend of Mark's and a friend of Mark's brother, Ken, (and of the McLeod family generally), Roderick Martin, after hearing Mark was in hospital, sent Mark an email in which he asked if he needed anything (and if so) to contact him. Two days later, on 26 September 2019, Roderick Martin attempted to visit Mark in hospital, but was told by Nicolina that Mark was not in need of any assistance and did not wish to see him or his wife.[56]
[56] Exhibit 29, pars 3 - 4.
On 26 September 2019, Mark responded to Shaun's text message and thanked him for his offer of help.[57] He also sent an email to Roderick Martin, in which he thanked him and his wife for their visit and said it was unfortunate when they arrived at the hospital earlier that day he was being visited by a palliative care consultant/coordinator and he was not in a good way to receive any visitors.
[57] Exhibit 23, par 8.
It appears Mark was released from hospital a short time after he sent this email.
Mark continued to seek further medical treatment and sought to be included in a trial for pancreatic cancer. On a patient information sheet dated 2 October 2019, for an oncologist's practice, he nominated Nicolina as his next of kin.[58]
[58] Exhibit 1, 17.
It appears that Mark became very unwell and was re-admitted to Sir Charles Gardiner Hospital on 17 October 2019, where he remained until he died on 6 November 2019.
In the inpatient hospital notes covering the period from 17 October 2019 to 3 November 2019, various authors described Nicolina as the partner of Mark. A summary of these notes is as follows:[59]
[59] Exhibit 1, 2 to 15.
'he lives with his partner',
'long discussion with Mark and his partner Nicolina',
'partner wants "normal" options for treatment',
'Patient & partner to discuss options',
'pts partner became concerned during shift',
'updated Mark and his partner together',
'Nicolina very keen for Mark to start chemo',
'lives with partner',
'Mark reports partner having trouble coming to terms with situation',
'from home with partner',
'Pt express concern about how his partner was adjusting to situation. Couple together for 13 years. Mr McLeod reported that he had no children and limited family contact. Estranged from brother ... PT keen to meet with Ward SW to discuss finalising his affairs',
'Partner, Nicolina has advised medical update given to Mark and Nicolina at bedside',
'Discussion with wife re Marks condition very distressed about delay in chemo',
'Wife present most of shift'.
Whether all or any of the notes that describe Nicolina as a partner or wife of Mark were made as a result of information directly provided by Mark or were statements made by him in the absence of Nicolina is not clear. However, it is clear that he did describe her as his partner in her absence to a priest the day before he died.
The day before he died, Mark was visited by Father Peter Porteous. It is clear from his affidavit that Nicolina was not present during this visit. Prior to talking about spiritual matters, Mark told Father Porteous that he had a partner named Nicolina, they had been together for a long time, and she was going to visit him soon that day.[60]
[60] Exhibit 18.
When Mark was in hospital for the final time, he was visited by Shaun and Jim Sharland. He was not visited by Leah because she was in Europe having married in Spain in September 2019.
On 27 October 2019, Mark sent Shaun a text message in which he said:[61]
Hi Shaun, Can you please come and see me at SCGH, today if you can, plus bring some paper or a note book, please Shaun. - Uncle Mark.
[61] Exhibit 23, par 9; Mark sent this message two days after he had spoken to a clinical psychologist on 25 October 2019 who recorded in the inpatient notes that Mark was keen to meet with Ward SW to discuss finalising his affairs.
Shaun saw Mark at hospital later that day. He asked him how he 'was going' and if there was anything he could do to help him or if he needed items brought to him.
Mark asked Shaun if he could arrange for his mother, Mary McLeod, and him (Shaun), to be listed as his next of kin.[62]
[62] Exhibit 23, par 9.
Mark wanted Shaun to assist him to put his affairs in order. He told Shaun that he hoped to live for about two years,[63] and that:[64]
(a)he was still feeling mentally strong, but was physically very weak;
(b)he had a number of bills that needed to be paid, including his: credit card bill, water bill and his KeepSafe Storage bill. He also told Shaun that he should not have any trouble with KeepSafe Storage as he had been his alternative contact for his storage unit for a number of years;[65]
(c)the Australian Taxation Office had written to him stating that he had a number of outstanding tax returns;[66]
(d)he was running out of money as he had been unable to do any work recently due to his health. He owed a few thousand dollars on his credit card and would need Shaun's help to sell his villa so he would have money to sustain him during his cancer battle;
(e)he had a list of items that needed to be rectified in his property before it could be sold, which included a leaking tap in the bathroom, tidying up his courtyard, which he called a 'disaster area', replacing the carpet, potentially replacing the curtains and having the property repainted;
(f)to take his car to the wreckers prior to the car registration falling due, if it no longer started; and
(g)he understood that Shaun could not sell his house or car for him without proper authority and asked Shaun to look into getting power of attorney or a guardianship over him.
[63] ts 111.
[64] Exhibit 23, par 9.
[65] He gave Shaun his Commonwealth Bank Low Fee Mastercard to use to make the payments.
[66] He gave Shaun the letter and asked if he could resolve the matter.
After discussing his health and property matters, Mark asked Shaun to prepare a will for him and to be his executor.[67] He provided detailed instructions as to who should receive specific items of his pen collection, and as to the other bequests and the residuary of his estate, he said he wanted:[68]
(a)to give $5,000 to the Cat Haven and $5,000 to the RSPCA because he loved animals;
(b)to leave Patricia Tickel $5,000 because she had helped out by letting him board with her when he was younger and that her assistance left her out of pocket, and he wanted to compensate her for that; and
(c)the rest of the estate to be divided between Nicolina, him (Shaun) and Leah.
[67] Exhibit 23, par 43.
[68] Exhibit 23, pars 10 and 12.
Mark told Shaun that Nicolina had told him she expected to get all of his inheritance and would be furious when she found out about his intended will. Each time he spoke of Nicolina in this conversation with Shaun he referred to her as his girlfriend.
Mark asked Shaun if he could ask Roderick Martin if he could paint his villa, because he was a long-term family friend and was likely to charge a fair price. He also told Shaun that Roderick Martin and his wife, Lesley Martin, had tried to see him about a month earlier in hospital. Mark also suggested to Shaun that Roderick and Lesley Martin would make good witnesses for his will.
It appears that Mark told Nicolina of the intended terms of his will, which led to both an argument between them and an angry telephone exchange between Nicolina and Mark's mother, Mary McLeod. It is not necessary to consider the allegations about what was said in that exchange. What was said, or not said, is not relevant to the disposition of the issues in this application.
Shaun visited Mark in hospital on 2 November 2019. During this visit Mark told Shaun he was very upset with Nicolina, that 'she was out of line', and that he would 'get rid of her if he could, but he's stuck with her'. During the course of this conversation he told Shaun:[69]
(a)he had added an additional clause to his will for an amount of $30,000 to be left to Nicolina to stop actions against his mother and him (Shaun) which would more than adequately cover (the cost of) any food and gifts she paid for when they spent time together; and
(b)he hoped that Nicolina would cooperate, and that he (Shaun) should make sure she got what was allocated to her in his will.
[69] Exhibit 23, pars 33 - 34.
He also told Shaun on 2 November 2019 that Jim Sharland had been a close friend for many years and he would like Jim Sharland to receive a quarter of his pens to repay for his many years of friendship.
During this visit Mark asked Shaun to bring the revised will back to the hospital the next day at 3.00 pm to be signed and witnessed by Roderick and Lesley Martin.[70]
[70] Exhibit 23 par 72.
On 3 November 2019, Mark executed his will in the presence of Lesley Martin and Roderick Martin. During the course of this visit to the hospital, Mark also signed an enduring power of attorney appointing Shaun as his attorney.[71]
[71] Exhibit 23, par 43 and Attachment SM23, 68 - 71.
In his affidavit, Roderick Martin states that during the visit and prior to the execution of his will, Mark thanked Roderick and Lesley Martin for coming to the hospital and said that this had to be done (the execution of the will) whilst Nicolina was at home because she would cause trouble if she were present. Mark asked Roderick Martin to record the execution of his will on his mobile telephone which request Roderick Martin complied with.[72]
[72] Exhibit 29, par 5.
Roderick Martin also states in his affidavit that Mark:[73]
(a)read the will word for word and sought clarification from time to time as to specific clauses; and
(b)changed the gift to Nicolina of $30,000 to $40,000. (This change and other handwritten changes made by Mark on his will were initialled by Mark and Roderick and Lesley Martin).
[73] Exhibit 29, par 6.
During this visit Mark asked Roderick Martin to prepare his unit for sale, including painting it throughout because it had not been fully repainted before he purchased it in 1991. Roderick Martin agreed, and after Mark's death he carried out this work.[74]
[74] Exhibit 29, par 6.
It appears that Mark did not explain to the others present when he executed his will why he made a hand written change on his will to increase the gift to Nicolina from $30,000 to $40,000. The reason why he may have done so can be inferred from what Nicolina states in her affidavit sworn on 27 May 2021 about a conversation she had with Mark after he told her about the gift of $5,000 he intended to give to his cousin, Patricia Tickel.
In Nicolina's affidavit, she referred to a conversation in which she complained to Mark that he only intended to leave her one third of his estate and the other two thirds to Shaun and Leah, and then she stated:[75]
I calculated and said to Mark that if he was leaving a distant relative $5,000 because he felt he owed her something from when he had lived with her and her husband for six months when he was around 19 or 20 years old, 40+ years ago (yet he had paid bed and board to them at the time) then he would owe me money too.
I told him Mark you would then be paying me over $40,000 for every year you had lived with me. I had calculated that at $5,000 for every six months.
Mark had not paid me bed and board and because we were a couple, he had lived with me for free. Even so this was how Mark had come up with a figure of $40,000 …

3.2.5 Other evidence relevant to the relationship between Mark and Nicolina

[75] Exhibit 1, pars 79 - 81.

When Shaun went inside Mark's villa in Tuart Hill after Mark had died, he observed in Mark's bedroom there were a number of photographs of Mark with his mother, himself (Shaun) and Leah. There were also a number of photographs of Mark with one of his former girlfriends. Shaun did not locate any photographs of Nicolina.[76]
[76] Exhibit 23, par 41.
Mark's death certificate issued on 14 November 2019 recorded that the marital status of Mark at the time of death was single, no de facto name was noted, and the informant's name was Yanna Henry of Simplicity Funerals - Osborne Park. Nicolina subsequently applied to the Registrar of Births, Deaths and Marriages to amend Mark's death certificate to note her name as Mark's de facto partner at the time of his death. Although the application was opposed by Mark's family, the application was successful, and the Registrar issued a new death certificate on 20 August 2020.[77]

3.3 Conclusion - not satisfied of a de facto relationship as at the time of death

[77] Exhibit 1, par 50, 221.

Section 4(2) of the Family Provision Act requires that a matter of fact should be taken to be proved if it is established to the reasonable satisfaction of the court.
Having considered all of the relevant evidence, I am not satisfied that Nicolina was living as the de facto partner of Mark immediately before he died. In making this finding, I have had regard to the factors set out in s 13A of the Interpretation Act.
I am satisfied that Nicolina and Mark had been in a sexual relationship since 2006, and although from time to time their relationship had ceased for periods, it is clear that their relationship continued until Mark died on 6 November 2019.
I am satisfied that Mark did live at Nicolina's villa from 2015, in the sense that it appears he slept there every night until he went to hospital. It also appears that he used Nicolina's home and vehicle as if they were his own. I also accept that from 2015 they shared the same bed on most if not all nights at her villa.
It is clear that Mark spent a considerable amount of time at Nicolina's villa and he stayed there alone whilst she was in New Zealand in the middle of 2019.
Mark may not have disclosed the full extent of the paucity of his financial affairs to Nicolina until he was terminally ill in hospital. It appears by at least 2015, his business ceased to operate and he had limited access to funds. He only had a small amount of superannuation and did not apply for Centrelink benefits.

Nicolina paid for all expenses relating to her villa, including utility bills. She purchased food for both of them to eat and Mark made no financial contributions to her expenses or to building her assets.
It is apparent that Mark had insufficient financial resources to meet his personal expenses at least in the last two years of his life (if not from 2015) because it appears from 2017 he relied on a credit card for funds, which resulted in a debt that he would not have been in a position to personally repay without selling his villa if he had not died in November 2019.
Notwithstanding his lack of financial resources, it appears Mark paid all of his own expenses relating to his villa in Osborne Park, including his utility bills. He also paid for a storage unit at another location. It can be inferred that he visited his villa at least every few days, because the evidence establishes he watered his plants and collected his mail.
Despite his paucity of financial resources, it is clear that Mark took and maintained steps to keep his property and financial affairs entirely separate from the property and financial affairs of Nicolina.
Although I accept that Mark may have proposed marriage to Nicolina and she said 'yes' within a few months of them meeting in 2006, I do not accept that he maintained an intention to marry her at any time after 2015. This is because they had parted for a period before 2015, and there is no evidence that he renewed his intention to marry Nicolina at any time after 2006. In addition, he at no time made any mention of any proposal to marry Nicolina to Jim Sharland or to any member of his family. Further, he indicated to a friend in an email in September 2018 that he did not want to marry Nicolina and that the relationship would end one day, and the only photographs at his villa, other than members of his family, were of a woman who had been his girlfriend sometime in the past.
Notwithstanding this finding, I accept that Nicolina believed from 2015 that she was in a marriage‑like relationship with Mark. Her intentions alone, however, are not sufficient. As set out in G v O,[78] the question to be determined in these proceedings is whether Nicolina and Mark had formed a common intention to form a consensual enduring union. What must be ascertained is what was the reason for Nicolina and Mark's adoption of any elements that are generally characteristic of a marriage.
[78] G v O [2022] WASCA 23 [119] - [121] (footnotes omitted).
Nicolina has provided no evidence that she claimed Mark as a dependent de facto spouse on her taxation returns or notified him as such on any documents which related to her personal affairs.
What is telling against a finding that they were in a marriage‑like relationship is that although Nicolina provided Mark with financial support at least from 2015 (if not earlier), by paying for food and other day-to-day living expenses, and allowing him to use her property as if it was his own, this degree of financial dependence on its own with a sexual relationship without more, is also consistent with a relationship of girlfriend and boyfriend.
To infer a marriage‑like relationship there must be more. Although they had a sexual relationship and they slept in the same bed together for many years, apart from sharing food and shelter they lived very separate lives.
Apart from the last few weeks of Mark's life when he was seriously ill in hospital, they did not generally present themselves to others as a couple.
Although Mark had met Nicolina's sister, Veronika Hamilton, and he had met some of her friends, he did not tell any of his extended family about her existence. He spent two hours in the early evening of each day with his mother and rarely spoke to her about Nicolina. When he did, he did not indicate to her that he was in a long‑term committed relationship with Nicolina. The only friend that he regularly saw was Jim Sharland, and he made it clear to Jim Sharland that his relationship with Nicolina was that of girlfriend and boyfriend. He also described the nature of his relationship with Nicolina to Shaun as his girlfriend.
For these reasons, the application for provision should be dismissed.
If it could be established to a reasonable satisfaction that Nicolina was living with Mark as his de facto immediately before his death, I would find that Mark made inadequate provision for Nicolina and I would exercise my discretion to set aside the gifts to the RSPCA and the Cat Haven, and make an order for provision of an additional $10,000 in favour of Nicolina. The reasons why I would make these findings are as set out below in 4.0 and 5.0 of these reasons.

4.0 Has the will of Mark made inadequate provision for Nicolina, and should the court exercise its discretion to make an order for provision?

4.1 Legal principles

The terms of s 6(1) of the Family Provision Act give rise to two issues (which are to be dealt with in two stages) in an application for provision.
The first stage requires the court to decide as a question of fact (notwithstanding that it involves a value judgment) whether the applicant has been left without adequate provision from the estate of the deceased for their proper maintenance, support, education or advancement in life. This question is a 'jurisdictional question'. An affirmative answer to the question invokes the court's power to make an order.
This stage is to be determined as at the date of death of the deceased, having regard to all of the material facts that existed at the date of death, whether the deceased was aware of them or not, including all material eventualities that might reasonably have been foreseen by a deceased who knew of the facts. It does not involve an exercise of discretion.
Unless the answer to the first question is yes, there is no jurisdiction to make an order by considering the second question.
The Court of Appeal in Musasghi v Gebremariam recently set out the well-established principles to be applied by the court as follows:[79]
[79]Musasghi v Gebremariam [2022] WASCA 37 [107] - [121] (footnotes omitted).
The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc. See White v Barron; Goodman v Windeyer; Singer (210 ‑ 211) (Mason CJ, Deane & McHugh JJ).
The second stage, which only arises if the 'jurisdictional question' is determined in the claimant's favour, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant. See White (442 ‑ 443) (Mason J), (449 ‑ 450) (Aickin J); Goodman (501 ‑ 502) (Gibbs J), (509) (Aickin J); Singer (211) (Mason CJ, Deane & McHugh JJ).
The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd; White (437) (Barwick CJ), (441) (Mason J), (448 ‑ 449) (Aickin J); Goodman (498 ‑ 499) (Gibbs J).
In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen (508). Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight' (508). See also White (441) (Mason J).
At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates (509) (Dixon CJ); White (441) (Mason J); Goodman (498 ‑ 499) (Gibbs J).
In Bosch v Perpetual Trustee Co Ltd, Lord Romer (delivering the advice of the Privy Council) observed that the discretionary power given to the court at the second stage 'must always be one of great difficulty and delicacy' and 'must always be one largely of guess‑work, especially in a case … which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty' (483).
The discretionary power conferred by the Act at the second stage is to interfere with a deceased's dispositions when he or she has left a claimant without adequate provision for his or her proper maintenance, etc. Freedom of testamentary disposition is a relevant and important consideration. See Pontifical Society for the Propagation of the Faith v Scales. The court is empowered to order such provision from the deceased's estate as the court thinks fit, but the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, etc. See Coates (509) (Dixon CJ); Blore v Lang. Those propositions are derived from the statutory text. In particular, the words 'for that purpose' at the end of s 6(1) refer to the purpose identified earlier in s 6(1), namely ensuring that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc. The text and purpose of s 6(1) qualify the court's power at the second stage. The power is confined by the text and purpose to the making of orders which will ensure that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc.
The word 'proper' connotes something different from the word 'adequate'.
For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance, etc. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstances. See Bosch (476); Worladge v Doddridge; White (457) (Wilson J).
The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman (496 ‑ 497) (Gibbs J); Hunter v Hunter; Singer (209 ‑ 210) (Mason CJ, Deane & McHugh JJ).
Plainly, the totality of that relationship would include:
(a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b)any contributions by the claimant to building up the deceased's estate; and
(c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.
See Coates (510) (Dixon CJ); Hughes (147) (Gibbs J); Goodman (497) (Gibbs J).
Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser.
'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch (476 ‑ 479); Worladge (11) (Williams & Fullagar JJ), (15 ‑ 18) (Kitto J); White (440) (Stephen J), (441 ‑ 445) (Mason J), (457) (Wilson J); Goodman (497, 502) (Gibbs J); Singer (209 ‑ 211) (Mason CJ, Deane & McHugh JJ), (227 ‑ 228) (Gaudron J).
The capacity of a court to make 'adequate' provision for the 'proper' maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency. See McCosker v McCosker; Singer (227) (Gaudron J); Barns v Barns.
In Scales, Dixon CJ pointed out that the words 'adequate' and 'proper' are always relative and that what the testator regarded as 'superior claims or preferable dispositions' is a relevant consideration …
When assessing what is adequate provision, at least at the discretionary stage, the court must take into account and give weight to the existing rights of beneficiaries of the will in addition to any relevant need or moral claim made by an applicant.[80] Further, what is adequate must be assessed also having regard to the means of the testator or testatrix, that is, the size of the estate, and to the relative urgency of the various claims upon the estate.
[80] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [13].
In Permanent Trustee Co Ltd v Fraser,[81] Kirby P referred to observations made by V Grainer in a published submission to the Law Commission of New Zealand:[82]
The court is required to establish the content of the duties of 'a just but not a loving' testator [Allardice, 973]. This formulation denies that love plays any part in the creation of this duty. Instead the duty is characterised as being based on justice. Testators can be forced to act justly but not lovingly.
[81] Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 29 - 30.
[82] Is Family Protection a Question of Moral Duty? (1994) 24 VUWLR 141, 147 - 148.
Maintenance may simply imply a continuity of a pre‑existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. Support, similarly, may imply provision beyond bare need. Advancement would ordinarily be provision beyond the necessities of life.[83]
[83] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [115] (Callinan & Heydon JJ); applied in Musasghi v Gebremariam [2022] WASCA 37 [129].
When considering maintenance, support or advancement, the court should assess the standard of living and anticipated future needs of a claimant.[84] The court is to consider whether there is a need for financial security and a fund to protect an applicant against the ordinary vicissitudes of life.[85]
[84] Devenish v Devenish [2011] WASC 129 [70] (Pritchard J).
[85] Marks v Marks [2003] WASCA 297 [43].
When comparing the position of a beneficiary such as a charity with whom a deceased had no connection on the one hand, with the position of a dependent relative on the other, it is established and self‑evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary with whom a testator had no connection (such as a charity) than a provision in favour of a dependent relative.[86]

4.2 The nature of the claims made upon the testator's estate

[86] Devereaux-Warnes v Hall[No 3] [2007] WASCA 235; (2007) 35 WAR 127 [102] (Buss JA), citing Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [13] (Gleeson CJ).

What is unusual in this matter is that Mark provided no financial support to anyone, including Nicolina.
Nicolina makes a claim upon Mark's estate as a statutory claimant. The other beneficiaries of the estate would not be entitled to make a claim on the estate as a statutory claimant.
In Devereaux-Warnes v Hall [No 3], Buss JA remarked that a moral claim of a beneficiary may arise independently of the Family Provision Act, from the totality of the relationship between a beneficiary and a testator and contemporary accepted community standards.[87] Appeal Justices McLure and Pullin both observed that persons who have a legitimate claim upon the bounty of a testator include persons entitled to claim under the Family Provision Act as well as testamentary beneficiaries who, although not entitled to claim under the Family Provision Act, have a moral claim upon the bounty of the testator.[88]
[87] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [109].
[88] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [10] (McLure JA) and [24] (Pullin JA).
The Court of Appeal in Musasghi v Gebremariam pointed out the difference between a moral duty of a testator to provide for a claimant under the Family Provision Act, and moral claim of others who are beneficiaries under the terms of a deceased's will, as follows:[89]
The term 'moral duty' has been used as a shorthand expression referring to a deceased's 'duty' to make adequate provision for the proper maintenance, etc, of persons within the statutory class, the nature and extent of that 'duty' in any case being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards. Where 'moral duty' has been used in this sense, the term 'moral claim' has referred to the 'right' which is correlative to that 'duty'. See Permanent Trustee Co (27 ‑ 29) (Kirby P); Collicoat [43] ‑ [45] (Ormiston J).
…
At both the first stage and the second stage, the court must have regard to the deceased's 'moral duty' to other people who are in the statutory class of claimants (whether or not they are also beneficiaries of the deceased's will), and the 'moral claims' of those other people against the deceased, especially where the deceased's estate is of modest or moderate value. See Sampson v Sampson; McCoske (571 ‑ 572) (Dixon CJ and Williams J); Blore (128) (Dixon CJ); Scales (19) (Dixon CJ).
Although the discretionary power at the second stage is, no doubt, very broad, the discretion must be exercised by reference to the evidence before the court or, in appropriate circumstances, facts of which the court can take judicial notice. See Chappell v Hewson.
[89] Musasghi v Gebremariam [2022] WASCA 37 [130], [134] - [135] (footnotes omitted).
It is not necessary, however, for an applicant in order to satisfy the jurisdictional question (whether inadequate provision has been made), to demonstrate that his or her needs are greater than the named beneficiaries under the will.[90]
[90] Dean v Collins [No 2] [2015] WASCA 151 [26] (Chaney J, Martin CJ & Buss JA agreed).
Nicolina is a beneficiary of the estate, and because of the very small value of the available funds in the estate, she is, in accordance with the terms of the will, entitled to an amount of just over 50% of the available funds of the estate. This is because there is presently only an amount of $99,602, less the amount of $3,500 owing to the executor's solicitors for the administration of the estate,[91] leaving an amount of $96,102 for distribution in accordance with the terms of the will.
[91] It is well-established that an executor is entitled to be paid his or her legal costs of administration of an estate from the estate on an indemnity basis.
Of the amount of $96,102, Patricia Tickel is entitled to an amount of $5,000, the RSPCA $5,000, and the Cat Haven $5,000. Nicolina is entitled to a specific gift of $40,000 together with one third of the residue of the estate, which residue should be an amount of $41,102.
If the residue of $41,102 is divided in accordance with the terms of the will (after the specific legacies (gifts) are paid to her and the other beneficiaries), Nicolina would receive an additional $13,700.66, being a total of $53,700.66, and Shaun and Leah would receive an amount of $13,700.66 each.

4.3 The applicant's financial circumstances as at the date the deceased died and as at the date of hearing of the applications

Nicolina is a child protection worker, employed by the Department of Communities.
At the time of Mark's death, Nicolina's:
(a)salary was $92,345 per annum. From her gross salary each fortnight she salary sacrificed pre-tax $50 to her West State superannuation account, and after deduction of tax her net salary was $2,330.65 a fortnight.[92] This net amount equates to $5,049.74 a month;
(b)villa was appraised to have a value of between $252,000 and $308,000;[93]
(c)household contents were valued at approximately $15,000;[94]
(d)West State superannuation account had a balance of $128,704.15,[95] and her Australian Super Fund had an account balance of $7,220.02, being a total balance of superannuation funds of $135,924.17;[96] and
(e)car, a 2017 Mitsubishi Mirage, was worth approximately $8,000.[97]
[92] Exhibit 6.
[93] Exhibit 25, par 59. This is based on an appraisal conducted on 5 May 2020.
[94] Exhibit 25, par 59.
[95] Exhibit 50.
[96] Exhibit 51.
[97] Exhibit 25, par 59.
Consequently, at the time Mark died, Nicolina's gross assets were valued between $410,924.17 to $466,924.17.
Her debts at the time of Mark's death were approximately:[98]
(a)a mortgage, with a balance owing of $247,000;
(b)a car loan with a balance owing of $13,344; and
(c)credit cards, personal loan and overdraft debts totalling $13,635;[99]
being total debts of $273,979.
[98] Exhibit 25, par 59; All of these debts were calculated as at 31 March 2020.
[99] It is noted, however, that in an email sent to the court attaching statements covering the period of November 2018 for some of these debts (received into evidence as Exhibit 69), the amounts outstanding were approximately the same as at 31 March 2020.
Consequently, Nicolina's net assets at the time Mark died can be assessed as having a value of approximately between $136,945 and $192,945.
Nicolina's monthly living expenses at the time Mark died, taking into account annual visits to New Zealand to visit her family, were $4,160.23, including mortgage payments of $1,504.96 a month, leaving her an amount of approximately $889 a month to service her car loan, credit cards and other debts.
It is apparent from her mortgage statements that at least since Mark died (if not before), Nicolina has been paying substantially more than interest payments on her mortgage, because by 4 March 2022 she had reduced the balance owing on her mortgage to $230,996.61, by making fortnightly payments of $781.22, when the interest on her mortgage was at that time an average of approximately $726 a month.[100] She had also reduced the amount outstanding on her car loan to $6,443.68 as at 9 March 2022.[101] The amounts owing on her other loans have remained approximately the same.[102]
[100] Exhibit 59.
[101] Exhibit 50.
[102] Exhibits 52 to 56 and 58.
As at 4 March 2022, her debts totalled approximately $251,075.
Thus, it appears that by 4 March 2022, Nicolina had reduced her debts by an amount of $22,904 (being $16,004 less on her mortgage and $6,900 less on her car loan).
The value of her villa as at the date of hearing is not known. However, it is not suggested that the value of her villa would be less than the appraised value conducted on 5 March 2020.
As at 3 March 2022, Nicolina's annual gross salary had increased to $94,345, and she has continued to salary sacrifice $50 a fortnight to her West State superannuation account.[103]
[103] Exhibit 57.
Since Mark's death, Nicolina's superannuation balances have increased. The balance of her West State superannuation fund as at 3 March 2022 was $170,503.26,[104] and her Australian Super superannuation fund balance as at 25 February 2022 was $8,400.56,[105] being a total balance of superannuation funds of $178,903.82.
[104] Exhibit 50.
[105] Exhibit 51.
Assuming the value of her vehicle and her household contents remained unchanged, Nicolina's total gross assets as at the date of hearing can be estimated to be valued at between $453,903.82 and $509,903.82, or her total net assets to be valued between $202,828.82 and $258,828.82.
Taking into account the amount Nicolina is to be paid pursuant to the terms of the will, (approximately $53,700.66) and disregarding whether any order for provision should be made, her debt should be reduced to $197,407, and her net assets could be estimated to increase in value to between $256,496.82 and $312,496.82.
Nicolina does not have any family in Western Australia, and has no children. Her now 81‑year‑old mother has chronic health issues and lives in New Zealand. Nicolina also has other family members who live in New Zealand. She would like to return to New Zealand in late 2022 (when she will then be 59 years old) or in early January 2023 to care for her mother in her later years. To do this she will need adequate funds to retire in New Zealand, and would like to purchase a property outright in New Zealand so that she has security for her retirement.[106]
[106] Exhibit 25, pars 66 - 69 and ts 150.
If Nicolina returns to New Zealand to care for her mother, it is her evidence that she is unlikely to be able to work full-time. Following the hearing of this matter, Nicolina provided information about average wages paid in New Zealand for social workers which indicates that salaries for this work vary from a starting salary of $53,000 NZ per annum to $113,000 NZ per annum for positions with extra responsibilities. This information is not of assistance.
First, the court takes judicial notice of the fact that the exchange rate for New Zealand dollars is less than that for Australian dollars. Second, it is not known where in the scale of those salaries Nicolina would be likely to secure a salaried position. Third, the court is not in a position to make any assessment of living costs or the price of buying an equivalent property in New Zealand.
For these reasons, the court can only have regard to Nicolina's current financial circumstances and note that she is now aged 58, and will be 59 later this year, and intends to retire sometime in the near future. The court takes judicial notice of the fact that a person at the age of 60 can access their superannuation without deduction of taxation, but a person who is now aged 58 can make no application for an aged pension until they turn the age of 67.
The court notes that even if Nicolina were to work until the age of 67, she may not be in a position to fully discharge her mortgage by that time, and would have to draw some of her superannuation funds to pay the balance owing on her mortgage.
When the evidence of Nicolina's financial circumstances are considered, it is clear that her financial circumstances have improved since Mark's death. She is, however, approaching retirement with debt, and without provision for a buffer against the vicissitudes of life.
Although Nicolina did not make any contributions to Mark to build up his estate, she contributed financially to the well-being of Mark by providing him with food, shelter and access to her possessions, particularly her vehicle, at least in the last four and a half years of his life. She also provided him with companionship, and although they may have had a difficult relationship, it does appear from the hospital notes that Nicolina provided him with emotional support.
When regard is had to all of the evidence, if I were to find that Nicolina was living with Mark in a marriage-like relationship at the time he died, I would be satisfied that at the date of Mark's death, a wise and just testator would have made adequate provision for maintenance and support of Nicolina to assist her to meet her commitments when she retires, if the size of the estate allowed for such provision. I would also find that the size of the estate is too small for adequate provision to have been made for Nicolina at the time of Mark's death.
As set out above, a finding that inadequate provision has been made does not of itself entitle an applicant to an order by this court for provision. This is because where the court is satisfied that the jurisdictional question is met, the second stage requires the court to not only consider the circumstances of the claimant by reference to the circumstances as they exist at the date the court makes an order, but the court must also have regard to the other claims on the estate.

5.0 Should the court exercise its discretion to make an order for provision in favour of the applicant?

The capacity of the court to make adequate provision for the proper maintenance or support of Nicolina is necessarily constrained by the very small size of the estate and the competition from the other beneficiaries upon Mark's estate, and the relative moral claims made on the estate.

5.1 Should the gifts to the RSPCA and the Cat Haven be disturbed?

Both the RSPCA and the Cat Haven are charitable organisations.
The RSPCA has not participated in these proceedings.
In her affidavit, the Cat Haven's chief executive officer, Rosalind Robinson, states:[107]
(a)the Cat Haven is a Western Australian charity which has an open admission shelter taking in around 8,000 cats and kittens per year;
(b)the Cat Haven has to raise 98% of its operational costs each year, and relies on bequests for 20% to 25% of its operational costs;
(c)the Cat Haven would not be able to operate without the generosity of people who leave gifts to it through their wills; and
(d)COVID-19 has resulted in the cancellation of major funding events in 2020 and 2021, which has had the effect that the receipt of funds from deceased estates has been crucial for the survival of the Cat Haven.
[107] Exhibit 49.
Although I am satisfied that Mark had a fondness for cats, it is clear that he was not connected with either the RSPCA or the Cat Haven. In the absence of a connection, it cannot be found that the RSPCA or the Cat Haven has a moral claim to the estate of Mark because there was no relationship between him and either charity.
If it could be established to a reasonable satisfaction that Nicolina was living with Mark as his de facto immediately before his death, I would disturb the gifts to the charities, pursuant to s 14 of the Family Provision Act, by making an order that the gifts of $5,000 to the RSPCA and $5,000 to the Cat Haven be altered by paying Nicolina an additional sum of $10,000. This is because I would be satisfied that the terms of the will did not make adequate provision for her maintenance and support, despite the fact that there are insufficient assets in the estate to properly make an adequate award.

5.2 The financial circumstances of Shaun and Leah

5.2.1 Shaun

Shaun is now 36 years old and is single. He is a qualified accountant and is employed by the State government as a chief finance officer.
His annual salary at the time Mark died was $138,348 per annum and as at 3 March 2022 his annual salary was $155,689.[108]
[108] Exhibit 24.
Shaun owns two units. One on Murray Street, Perth, and the other in Floreat. The estimated value of the units is unknown. As at the date of Mark's death, $222,570.57 was owing on a mortgage on the Perth unit and $375,473.54 was owing on a mortgage on the Floreat unit, being debts totalling an amount of $598,044.11.[109]
[109] Exhibit 24.
At the time of Mark's death, Shaun had approximately $190,000 in his West State superannuation account.[110]
[110] Exhibit 60.
It appears that Shaun's financial position has improved since the death of Mark. Not only has his salary increased, but as at March 2022, he had reduced the debt owing on his properties.
As at March 2022, Shaun owed $177,276.28 on the mortgage on the Perth property, and $320,054.24 on the Floreat property, with credit card debts of $8,127.91, being total debts of $505,458.43.[111]
[111] Exhibit 24.
As at 8 March 2022, the balance of Shaun's West State superannuation fund was $264,688.69.[112]

5.2.2 Leah

[112] Exhibit 60.

Leah is 32 years old. She is also employed by the State government. As at January 2022, her annual salary was $112,443.[113] At the time of giving evidence, she had recently been employed by the Mental Health Commission on a salary of $114,590 a year.[114]
[113] Exhibit 41.
[114] Exhibit 62 and ts 123.
At the time Mark died, Leah had approximately $77,186 in her GESB Super superannuation account, and as at 8 March 2022 the balance in the account was $116,160.98.
Prior to her marriage in 2019, Leah owned a property in Carine. As at 2 May 2019, the payout figure for a loan on that property was $307,427.22.[115] It appears that that property was sold and Leah purchased another property in Carine with her husband. As at 8 September 2021, they jointly owed $573,236.28, or $286,618.14 each, on the mortgage on this property.[116]
[115] Exhibit 42.
[116] Exhibits 43 and 44.
Leah's husband also owns another property in Stratton, which is not rented, in which his grandmother resides. As at 12 August 2021, an amount of $224,000 was owing on what appears to be an interest only loan for this property.[117] As at 11 February 2022, the debt outstanding on this loan remained the same. Leah also jointly shares the liability for payment of the mortgage payments on this property.[118]
[117] Exhibit 46 and ts 126.
[118] ts 126.
There is no information before the court as to the estimated value of the Carine or Stratton properties.
At the time of Mark's death, Leah had a credit card debt of $1,095.89[119] and as of February 2022, she had joint credit card debts with her husband of $3,835.28.[120]
[119] Exhibit 61.
[120] Exhibit 47 and Exhibit 61.
Leah and her husband also have a car loan, which is in her husband's name. The vehicle was acquired in 2018. The loan requires repayments of amounts of $665.95 a month for 60 months.[121] The vehicle order form indicates the vehicle was delivered in or about September 2018, and that her husband's salary at that time was $111,590 per annum.[122]
[121] Exhibit 64.
[122] Exhibit 45.
Leah suffers from a number of medical conditions and has provided copies of some of her expenditure for medical services from January 2019 to 9 March 2022, which indicate that she has had to make payments for medical services, excluding the cost of medications, after claims have been made to her medical fund and Medicare, that exceeds an amount of $6,000.[123]
[123] Exhibit 65.
Leah has substantial debts. However, she is relatively young. Although she has health issues she is presently able to work full-time. Because Leah has not provided any information about the value of her assets and whether she and her husband share any equity in their properties, the court is unable to make any real assessment of whether her financial position at the time of Mark's death, and at the time of hearing of the application for provision, has improved or was or is better than Nicolina's. However, for the reasons that follow, because of the small size of the gift in the will to her, the fact that the court is unable to make any assessment of whether she had or has an urgent need for funds or not is not material.

5.3 Do Shaun, Leah or Patricia Tickel have a moral claim to the estate, and should the gifts to any of them be disturbed by an order for provision in favour of Nicolina?

There is uncontradicted evidence that Shaun and Leah had a long‑standing loving relationship with Mark. They were Mark's only nephew and niece. From the time they were small until his death, Mark gave them cards and presents on their birthdays and at Christmas. They reciprocated by also giving Mark cards and presents.
It appears that Mark and Shaun did not see each other often in the latter years of Mark's life, but when Shaun found out that Mark was seriously ill, he not only visited Mark but also assisted him to put his affairs in order. Leah was unable to assist because she was overseas, but she sent Mark a loving message which, from his reply, clearly indicated that her message was of great comfort to him.
For these reasons, as close relatives of Mark, Shaun and Leah have a moral claim to the estate, which claims do not and cannot arise as a statutory claim for provision under the Family Provision Act, but as close relatives who are beneficiaries of the estate, and who provided emotional support to Mark during his lifetime.
If I were to find that Nicolina was living in a de facto relationship with Mark at the time he died, it is clear from the financial circumstances of Nicolina and Shaun at the time of Mark's death and as at March 2022, that Nicolina's moral claim for provision would be superior and more urgent to the claim of Shaun. I would, however, not be persuaded that I should exercise my discretion to disturb Shaun or Leah's gifts under the will.
This is because under the terms of the will, apart from a share of Mark's watches, pens, mobile phones and leather goods, Shaun and Leah are each only entitled to receive a modest sum of $13,700.66 each, whereas Nicolina is to receive $53,700.66.
When regard is had to the very small amount of available money in the estate, after payment of debts, the amount that Nicolina is to receive, pursuant to the terms of the will, cannot be regarded as a small sum in itself.
Further, when regard is had to the fact that Shaun and Leah were Mark's only niece and nephew, which familiar relationship provided him with happy memories and emotional support during his lifetime, I am satisfied a fair and just testator would wish to provide some of the bounty of his estate to Shaun and Leah.
I am also of the opinion that the gift to Patricia Tickel of $5,000 should not be disturbed by the court. This is because this gift was intended by Mark to compensate Patricia Tickel for the financial support given to him when he was quite young through the provision of board and lodging. Given that the amount of this gift is also very small, and when regard is had to the fact that Nicolina is entitled to a little more than 50% of the available cash assets of the estate of Mark, if it could be established that Nicolina was at the time of Mark's death his de facto, I would not be persuaded to exercise my discretion to disturb this gift under the will.

6.0 Conclusion and the orders that should be made

As I have found that Nicolina has not discharged the burden of proving that she was living with Mark as his de facto immediately before his death, an order should be made to dismiss the application for provision.
I will hear the parties further as to any orders that should be made, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
30 JUNE 2022