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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KIERNAN -v- EVAN ALEXANDER GEORGE CRANSTON & ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON [No 2] [2019] WASC 410
CORAM:   TOTTLE J
HEARD:   16 - 20 & 23 SEPTEMBER 2019
DELIVERED          :   13 NOVEMBER 2019
FILE NO/S:   CIV 1385 of 2015
MATTER:   In the matter of the Family Provision Act 1972 (WA)
In the matter of the Estate of Frances Elizabeth Anne Cranston, late of Unit 6, 70 Mount Street, West Perth, Western Australia, deceased

BETWEEN: LAURENCE JAMES KIERNAN
First Plaintiff
SARAH ELIZABETH KIERNAN
Second Plaintiff
AND
EVAN ALEXANDER GEORGE CRANSTON & ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON
First Defendant
JOHN WINDSOR CRANSTON
Second Defendant
PERTH COLLEGE ANGLICAN GIRLS SCHOOL
Third Defendant

Catchwords:

Succession - Wills - Application under s 6(1) of the Family Provision Act 1972 (WA) - Where no provision made for plaintiffs in will of deceased - Where plaintiff's adult children of deceased - Where period of estrangement - Whether conduct of plaintiffs constituted disentitling conduct - Whether adequate provision made for proper maintenance support, education or advancement in life of plaintiffs - Will did not make adequate provision - Provision made out of will of deceased

Legislation:

Family Provision Act 1972 (WA), s 6, s 7, s 21A
Wills Act 1970 (WA), s 6(a)

Result:

Application granted
Provision made for the plaintiffs under the deceased's will

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr M Curwood
Second Plaintiff	:	Mr C Chenu
First Defendant	:	Mr N Dillon & Ms G Nofal
Second Defendant	:	Mr R J Nash
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Kershaw Legal
Second Plaintiff	:	Kings Park Legal
First Defendant	:	HHG Legal Group
Second Defendant	:	Lawfield Legal Practice
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Belgravia v Lowe Pty Ltd [No 6] [2019] WASC 5
Blendell v Byrne [2019] NSWSC 583
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co [1938] AC 463
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Ellis; Re Ellis v Ellis [2015] WASC 77
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Grant v Roberts [2019] NSWSC 843
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Ilott v The Blue Cross [2017] UKSC 17; [2018] AC 545
Kearns v Ellis (Unreported, Court of Appeal, 5 December 1984)
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Lathwell v Lathwell [2007] WASC 83
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead [2017] WASCA 215
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) CLR 566; (1957) 31 ALJR 779
McGrath v Eves [2005] NSWSC 1006
Perrin v Morgan [1943] AC 399
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Walsh v Sloan [2019] WASCA 107
Williams v Ancutt [2000] 2 NZLR 479

TOTTLE J:

Introduction

In these proceedings the plaintiffs (James and Sarah), the adult children of Frances Elizabeth Anne Cranston (Anne), seek an order pursuant to s 6 of the Family Provision Act 1972 (WA) (the Act) that adequate provision be made for them out of Anne's estate (the Estate).[1] The value of the Estate is approximately $4.1 million. The aggregate of the provision sought by James and Sarah is $4.183 million.
[1] The orders sought by the plaintiffs in the further re‑amended originating summons dated 16 September 2019 are reproduced in the appendix to these reasons.
Anne died in April 2014 leaving a will made in August 2008 (the Will) in which she made no provision for James or Sarah. When Anne made the Will she was estranged from each of James and Sarah and their respective financial circumstances were such that they had no apparent need for provision. Anne included in the Will a statement to the effect that she had made no provision for her children because they were sufficiently provided for by their own resources and had or would be provided for by 'expectations or inheritances'. The reference to inheritances was a reference to the prospect that the children would inherit from their father Michael, Anne's former husband.
In support of their present claim James and Sarah argue that by the time Anne died their respective financial circumstances had deteriorated and each has a claim on Anne's estate that should be recognised by the making of provision for them.
The application has been opposed by the second defendant, Mr John Cranston, Anne's brother. If the dispositions made by the Will are not altered as a consequence of this application John and the third defendant (the College) will be the major beneficiaries of the Estate. In 2015, reflecting Anne's affection and support for the College during her lifetime, the trustees of a charitable trust established by Anne donated $1 million to the College.
The first defendants, Mr Evan Cranston and Mrs Robyn Purcell, are the executors of Anne's will. Mr Evan Cranston is Anne's nephew and John's son. Mrs Purcell had been Anne's friend since 1984.
On 16 April 2019 the College filed a notice of intention to abide by the decision of the court and has not taken part in the proceedings.
At the trial Anne and members of her family were referred to by their first names and intending no disrespect I will adopt the same course in this judgment.

The Will

Anne made her last will on 21 August 2008. It was a home-made will which Mrs Purcell assisted Anne to prepare. The Will replaced a will made by Anne in 2005. No legal advice was obtained by Anne, though Mrs Purcell had suggested that Anne should obtain advice. Relevantly the Will contained the following provisions:
2.In this Will I have consciously made no provision for my children LAURENCE JAMES KIERNAN and SARAH ELIZABETH [KIERNAN], and their children because I am satisfied that they have or will be provided for in the future from their own respective resources and inheritances and expectations.
3.In this Will I have consciously made no provision for my sister SHARNE MARY CRANSTON and her children because I am satisfied that they have or will be provided for in the future from inheritances.
4.I BEQUEATH to JENNIFER RIGG of New South Head Road, Double Bay, New South Wales, my Mercedes car and $250,000.
5.I GIVE DEVISE and BEQUEATH to my brother JOHN WINDSOR CRANSTON of Birdwood Parade, Dalkeith Road, Western Australia, I leave my residence [at] Unit 6, 70 Mount Street, West Perth and my land holdings
a) Bushby Road, Albany, Western Australia
b) Coraki Holiday Cottages, Albany, Western Australia
6. I GIVE DEVISE and BEQUEATH to the executor's of my will, ROBYN RUTH PURCELL, the sum of $250,000.
7.I GIVE DEVISE AND BEQUEATH the remainder of my personal estate whatsoever and wheresoever situate, to PERTH COLLEGE ANGLICAN GIRLS' SCHOOL, 31 Lawley Crescent, Mt Lawley.
A handwritten addendum to the Will states:
I leave my unsold home at 22 Mere View Way Subiaco and my shares in 'John Windsor' to my brother John Cranston.
All parties proceeded on the basis that the addendum was of dispositive effect in relation to 1000 D Class shares in John Windsor Pty Ltd (John Windsor) registered in Anne's name. Anne's home at 22 Mere View Way had been sold by the date of her death.

An overview of the issues and the evidence

The primary issues are:
(a)Was the disposition of the Estate effected by the Will not such as to make adequate provision for the proper maintenance, support, education and advancement in life of each of James and Sarah?
(b)If, in either case the answer is 'yes', what provision should be made?
The primary issues generated a number of subsidiary issues:
(a)Was Anne's gift to John of the property located at Bushby Road Albany an effective gift?
(b)What value should be ascribed to Anne's shares in J L Windsor Pty Ltd?
(c)What was the value of the Estate?
(d)Were James and Sarah responsible for the estrangement from Anne?
(e)Was James's conduct towards Anne such as to disentitle him to the benefit of an order for provision?[2]
(f)Was James suffering from cognitive impairments to such an extent that he was prevented from earning an income?
(g)Did James make a full and frank disclosure of his financial circumstances and his activities as a corporate adviser?
(h)What were James's financial needs at the date of Anne's death and at the date of the trial?
(i)Was Sarah's conduct towards Anne such as to reduce her entitlement to provision?
(j)What were Sarah's financial needs at the date of Anne's death and at the date of the trial?
[2] Family Provision Act 1972 (WA) s 6(3).
In this application all the critical factual issues were contested. John's opposition to the claims involved a challenge to the evidence adduced by James and Sarah about their relationships with Anne, a detailed examination of their respective financial circumstances and needs, and a challenge to the evidence adduced by James about the extent to which he suffers from cognitive impairments and whether, contrary to his evidence, he had continued to work productively as a corporate adviser following an illness in 2010.
In addition to lay evidence about Anne's life and her relationship with James and Sarah, evidence was given at trial by Beth, James's wife, two actuaries, a property valuer, a real estate agent, a chartered accountant who gave share valuation evidence and four consultant medical practitioners (Clinical Professor Jonathon Foster, Dr Malcolm Roberts, Dr Lawrence Terace and Dr Keith Grainger). The actuaries gave their evidence concurrently, as did the medical practitioners. As a result of pre-trial conferral there were no issues on which the actuaries disagreed and there was a large measure of agreement between the medical practitioners.
James and Sarah advanced their claims on the basis that it was possible to make adequate and proper provision for them out of the Estate without disturbing the pecuniary legacies to Mrs Purcell and Ms Rigg.

Composition and value of the Estate

The validity of the gift of the Bushby Road property to John

By cl 5 of the Will Anne purported to leave a property at Bushby Road, Albany to John. When Anne died she was neither the registered proprietor of the Bushby Road property nor did she hold a beneficial interest in it.[3] On that basis James and Sarah contend that the Bushby Road property was not property that was within Anne's power to dispose of by will and the purported gift to John was ineffective.
[3] In the course of opening, counsel for the first defendants submitted that Anne held an equitable interest in the property but that submission was not pressed - ts 77 and ts 526.
The registered proprietor of the Bushby Road property was Mere View Pty Ltd (Mere View). Anne was the sole shareholder and director of Mere View. It was the trustee of the Mere View Superannuation Fund established by a deed dated 1 October 2005. Anne was the sole member of the Mere View Superannuation Fund and under the terms of the deed she was entitled to a 'Member's Benefit' representing her interest in the fund that equated, for all practical purposes, to the entirety of the fund. At the date of Anne's death, the value of the assets of the Mere View Superannuation Fund was $2,902,556.90. The assets comprised:
(a) 1,854,366.60 units in the BT Wholesale Enhanced Cash Fund WFS0377AU valued at $1,970,079.07;
(b)the property at 54 Bushby Road, Albany, Western Australia (the Bushby Road Property) valued at $900,000;
(c) cash at bank of $812.95; and
(d) shares and securities valued at $31,664.88.
Anne had not made a binding nomination in respect of her Member's Benefit and it was open to Mere View to pay Anne's Member's Benefit to her personal representatives or to hold it on trust for her dependants.[4] James and Sarah qualified as Anne's dependants.[5]
[4] Rule 31(1)(a) of the Mere View Superannuation Fund Deed.
[5] Superannuation Industry (Supervision) Act 1993 (Cth) s 10 is not limited to infant children.
Having obtained a grant of probate on 24 September 2014 the executors became the directors of Mere View. On 22 October 2014 in their capacity as directors of Mere View the executors resolved to pay Anne's Member's Benefit to themselves as Anne's personal representatives.[6] Mere View transferred the Bushby Road property to the executors in specie.
[6] Exhibit D18, 18.
The executors and John maintain that the gift of the Bushby Road property to John is effective. They rely on principles applicable to the construction of wills, especially wills made without professional assistance. It is unnecessary to refer to the principles in detail. The point the executors and John make is that the court should construe Anne's will to give effect to the plan conceived by Anne for dealing with her estate and should not take an unduly legalistic or technical approach.[7] The executors and John argue that it is clear from the terms of her will that Anne intended that John should benefit by receipt of the Bushby Road property. It was submitted on John's behalf that once the Bushby Road property was transferred to the executors the terms of the will should govern its disposition and the Bushby Road property should be transferred to him.[8]
[7] Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 274 (Isaacs J); Perrin v Morgan [1943] AC 399, 420 (Lord Romer); Walsh v Sloan [2019] WASCA 107 [24].
[8] ts 529 - 530.
Section 6(a) of the Wills Act 1970 (WA) states that a person may, by a will executed or made in a manner required or permitted by this Act dispose of property (whether acquired before or after the making of the will) to which at the time of the person's death the person is entitled either at law or in equity.
I do not accept the submissions advanced by the executors and John. In my view the resolution to this issue is straightforward. The Bushby Road property was not Anne's property to dispose of by her will. She was not entitled to it at law or in equity. The gift was a nullity. It was ineffective and no question of construction of the will arises. When the assets of the Mere View Superannuation Fund were transferred to the executors they formed part of the residue of the Estate but they did not form part of the Estate on Anne's death.

The value of the shares in John Windsor

The executors attributed a value of $1,000 to Anne's shares in John Windsor Pty Ltd in the statement of assets and liabilities filed in accordance with Rule 9B of the Non-Contentious Probate Rules 1967 (WA). On instructions from the executors Mr Andrew Gilmour, a chartered accountant, prepared a report dated 8 November 2017 in which he valued the shares at the date of his report as falling in the range of $340,000 to $385,000.[9] In a further report dated 11 September 2019 Mr Gilmour valued the shares at the date of that report as falling in the range of $455,000 to $526,000.[10]
[9] Exhibit D14, AJG1 (Gilmour Report).
[10] Exhibit D15.
James and Sarah do not accept Mr Gilmour's valuations. In summary they contend that the reliability of the valuations is undermined by the limited nature of the information that was available to Mr Gilmour and that in arriving at his valuations Mr Gilmour applied minority interest and lack of marketability discounts that are not applicable in circumstances where the reality was that John was likely to be the only buyer.[11]
[11] ts 612.
The background is as follows. Evan and John are the directors of John Windsor. The shares in the capital of John Windsor were divided into different classes but for present purposes it is sufficient to state that Anne held 20% of the shares and the remaining 80% were held by John and a company, Kingslane Pty Ltd, controlled by John and his wife.
John Windsor's only assets are a $50,000 receivable owed by the Estate and 50% of the shares in Cranston Pty Ltd. Cranston Pty Ltd is the registered proprietor of 2,631 hectares of farm land in the Shires of Wandering and Williams on which it conducts farming operations. It grows oats and runs sheep. The remaining 50% of the shares in Cranston Pty Ltd are owned by two cousins of John who each own 25%. John and his two cousins are the directors of Cranston Pty Ltd.
Mr Gilmour was required to prepare his reports without the benefit of the financial statements of Cranston Pty Ltd. The directors of Cranston Pty Ltd declined to provide the executors with any information relating to Cranston Pty Ltd and refused to allow a land valuer onto its property. The only financial information about John Windsor's financial circumstances provided to Mr Gilmour was a profit and loss account and balance sheet for the financial year ending 30 June 2015. Evan and John refused to permit any other information about John Windsor to be provided to Mr Gilmour.
Mr Gilmour was provided with valuations of the land owned by Cranston Pty Ltd obtained by the executors' lawyers. For the purpose of his November 2017 report Mr Gilmour was provided with a valuation report that gave a range for the market value of Cranston Pty Ltd's land holdings of between $7.5 and $8.5 million. For the purpose of his September 2019 report he was provided with a valuation report that gave a range of between $9.5 and $10.5 million.
In cross-examination John stated that Cranston Pty Ltd's farming operation was carried on by a professional manager under the direction of the Board. He stated that Cranston Pty Ltd had a number of sheep on the property. He said he could not recall how many sheep there were and when asked for an estimate he said, 'less than 10,000'[12] and that they were probably worth between $70 and $80 each. I infer from the size of Cranston Pty Ltd's land holding and the number of sheep to which John referred that the company conducts a substantial farming operation on its land.
[12] ts 494.
Mr Gilmour valued Cranston Pty Ltd and John Windsor on a net asset basis - subject to the limitation that the only asset of Cranston Pty Ltd of which Mr Gilmour was aware was its land holding. In valuing John Windsor's interest in Cranston Pty Ltd Mr Gilmour applied a discount of 5% to reflect that John Windsor did not have full control of Cranston Pty Ltd.
Mr Gilmour considered that a discount in the range of 9% to 14% was appropriate to reflect that Anne's shares represented a minority interest in John Windsor. He considered that a discount in the range of 40% to 45% should be applied to reflect the lack of marketability of Anne's shares. It was on this basis that Mr Gilmour held the opinions that in November 2017 and September 2019 the value of 20% of the shares in John Windsor fell within the ranges of $340,000 to $385,000 and $455,000 to $526,000 respectively.
Counsel for Sarah submitted that the relevant inquiry was: what is the value of the shares to John? In Sarah's written trial submissions it was submitted that it is not appropriate to discount the value of the 20% shareholding for lack of control or marketability/negotiability given that if the gift is undisturbed John will control the affairs of John Windsor because he will own directly or indirectly 100% of its shares. Sarah submits that the value of the shares should be determined on the basis of a pro rata valuation of the net assets.

There is no room to criticise Mr Gilmour's approach to the valuations he was asked to undertake. He adopted an orthodox approach to the valuation of a minority interest in a proprietary company. Any limitations in the assistance his valuations provide the court are a reflection of the limitations in the instructions provided to him and nothing in the following paragraphs should be understood as a criticism of Mr Gilmour or his approach to the valuations.
It is unsatisfactory that the information as to the assets and liabilities of Cranston Pty Ltd required to enable an accurate and fully informed valuation of Anne's shares in John Windsor was not obtained. The refusal on the part of the directors of Cranston Pty Ltd and, for that matter, on the part of John Windsor, to provide information to the executors was regrettable but it could have been overcome by the simple expedient of issuing subpoenas compelling production of the documents required to obtain an understanding of Cranston Pty Ltd's financial position.
I accept Mr Gilmour's evidence that a discount of 5% should be applied to the value of John Windsor's interest in Cranston Pty Ltd to reflect the fact that John Windsor did not have a controlling interest in Cranston Pty Ltd. It was submitted on Sarah's behalf that Mr Gilmour did not have the information to determine whether in a practical sense the directors of John Windsor were able to control decisions in Cranston Pty Ltd. It is true that the evidence was limited but there was evidence that John was one of three directors of the company and self-evidently was not in a position to exercise board control of Cranston Pty Ltd. This evidence provides support for Mr Gilmour's approach.
For the purposes of establishing the value of Anne's 20% shareholding in John Windsor the shares must be valued on the basis that it is a minority interest with limited marketability and I accept Mr Gilmour's opinion as to the ranges of discounts to be allowed in respect of these factors.
There is no evidence of the value of the shares at the date of Anne's death. The land valuation reports containing the valuation of Cranston Pty Ltd's land holding that are incorporated in Mr Gilmour's reports suggest that in the years preceding the valuations land values in the Shire of Wandering had increased after a number of years of relatively static market conditions. On that basis, and in the absence of any other evidence, I find that the value of Anne's shareholding in John Windsor at the date of her death was at least $340,000. I have selected the bottom of the range of the November 2017 values to take into account the evidence of the increase in land values in the locality and taking the bottom of the range allows for an increase in the value of Cranston Pty Ltd's landholding between April 2014 and November 2017.
On the basis of Mr Gilmour's September 2019 valuation I find that the value of the John Windsor shares at the date of the trial was $490,500 being the mid-point in the Mr Gilmour's range of $455,000 to $526,000.
For the purpose of assessing the benefit to John of the gift of Anne's shares in John Windsor in my view the shares should be valued without any minority interest or lack of marketability discounts. In closing oral submissions counsel for John accepted that this was the correct approach.[13] On that basis the benefit to John of receiving the gift of Anne's shares fell within the following range: at least $712,500 to $807,500 on the basis of the November 2017 valuation and at least $855,000 to $945,000 on the basis of the September 2019 valuation.[14]

The value of the Estate

[13] ts 531 - 532.

[14] In each case the figures are 20% or 45% of the upper and lower ranges of land values.

In the statement of assets and liabilities filed in accordance with r 9B of the Non-Contentious Probate Rules the executors stated that the value of the assets of the Estate was $7,495,171.41 and that the liabilities were $1,809,345.36.[15] On the basis of these figures the net value of the Estate was therefore $5,685,826.05. The assets included in the Rule 9B statement, however, included the assets of the Mere View Superannuation Fund valued at $2,902,556.02.
[15] The figures incorporated assets both in and outside of Western Australia.
In the table below I set out the assets of the Estate and the assets of the Mere View Superannuation Fund and their values at the date of death and immediately prior to the hearing. With the exception of the John Windsor shares I have adopted the values set out in the executors' affidavits. I have valued the John Windsor shares in accordance with the findings set out earlier in these reasons. I have also set out in the table the liabilities of the Estate both at the date of death and immediately prior to the hearing.

Value at the date of death

Value at hearing date

Assets

6/70 Mount Street, West Perth

$2,250,000.00

$1,720,000 (amount due on settlement of sale)

16 Nanarup Road (Coraki Cottages)

$2,200,000.00

$1,900,000

2009 Mercedes Benz Sedan E250

$40,000.00

Nil - transferred to beneficiary

Jewellery and personal effects

$70,000.00

$20,000

Shares in John Windsor Pty Ltd

$340,000

$490,500

Cash in various bank accounts

$31,613.51

$1,466,983.43

Units in BT

$1,970,079.07

Nil

(redeemed and money paid into Estate bank account)

Mere View's cash at bank

$812.95

Nil

(transferred to Estate bank account)

Mere View's shares and securities

$31,664.68

$23,296.00

Bushby Road

$900,000

$517,500

Value of assets

$7,834,170.21

$6,138,279.43

Liabilities

Debt due to Westpac on interest only facility secured against 6/70 Mount Street

$1,774,877.41

$1,819,562.93

Miscellaneous debts

$34,467.95

$75,401.67

Debt due to John Windsor

$50,900.00

$50,900.00

Tax

To be ascertained

Total liabilities

$1,860,245.36

$1,945,864.60

Net value

$5,973,924.85

$4,192,414.83

Some explanatory observations are required.
(a)The Mount Street property had been sold. The sale price was $1.9 million. A deposit of $180,000 was paid and this was applied in reduction of the debt secured by the mortgage over the property. Settlement was delayed for 12 months but possession was given immediately and $100,000 was paid in advance in respect of rent for the period ending on the settlement date.
(b)The Bushby Road property was valued in the accounts of the Mere View Superannuation Fund for the year ending 30 June 2014 at $1,050,000. According to Mrs Purcell the property was the subject of a market reappraisal immediately prior to the trial that placed its value within a range of $500,000 - $535,000.
(c)Coraki Cottages are holiday cottages located in the south west of Western Australia.
(d)A number of items of jewellery and personal effects were destroyed in a fire. An insurance claim was made and $47,500 was paid on the claim by the insurers.
(e)Up to 12 September 2019 the executors had incurred legal costs and disbursements of $327,000. This figure includes the costs incurred by the executors in relation to the present claims.[16] On 12 September 2019 $16,000 was held on trust by the executors' solicitors.
(f)Mrs Purcell's evidence was that the Estate had carried forward tax losses and she had no knowledge of any significant tax liability.[17]
[16] ts 422, 429.
[17] ts 434.
Counsel for James submitted that an allowance of $65,000 should be made to cover the cost of selling the remaining assets of the Estate. I consider that estimate is conservative and an allowance of $75,000 should be made.
In round terms the Estate comprises cash or assets that may be readily converted into cash of $3,906,500. Those assets are:

Coraki Cottages

$1,900,000

Cash at bank

$1,466,000

Shares

$23,000

Bushby Road property

$517,500

The actual and prospective liabilities of the Estate amount to approximately $300,000 calculated as follows:

Balance of debt secured on Mount Street property after application of proceeds of sale (estimated)

$99,562

Miscellaneous debts

$75,400

John Windsor debt

$50,900

Costs of selling remaining assets

$75,000

The pecuniary legacies of $250,000 to each of Ms Rigg and Ms Purcell bear interest. The executors propose that the general rule be applied, that is, that interest will begin to accumulate after the expiration of the executor's year and that the interest to be paid should be the same as the interest earned on the funds held on term deposit that notionally represent the legacies.[18] There was no opposition to this course.
[18] Executors' outline of submissions for trial filed 9 September 2019 [27] citing Ellis; Re Ellis v Ellis [2015] WASC 77 [30] (Heenan J).
After making allowance for the pecuniary legacies my assessment is that there is between $3,000,000 and $3,100,000 to meet the Family Provision claims. This assessment accords with the assessment made by James's counsel.[19]
[19] ts 643.

Assessment of the credibility of the lay witnesses

General observations

With two exceptions, being the statement in the Will and emails exchanged between Sarah and Anne in late 2013 and early 2014 referred to in more detail at [235] ‑ [240], there are no contemporaneous documents to which recourse can be had to make factual findings and to assist in assessing the reliability of the evidence given by the witnesses.
Mrs Purcell, John and Sharne (Anne and John's sister) gave evidence of a number of statements made by Anne about her relationship with James and Sarah and why she made no provision for them in the Will. Subject to the satisfaction of certain conditions s 21A of the Act facilitates the admission into evidence of statements made by Anne in her lifetime. Section 21A(8) provides that in estimating the weight to be attached to evidence of a statement tendered under the section regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement including, the recency or otherwise, at the time the deceased made the statement of any relevant matter dealt with in the statement, and, the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement.
Hearsay evidence has inherent shortcomings and courts must proceed cautiously before accepting it. In this case the inherent limitation in not being able to test Anne's statements is compounded by the fact that the statements attributed to her were made no more recently than five years ago and in some instances between eight and 17 years ago. Human memory of what was said in a conversation is fallible and the degree of fallibility increases with the passage of time. At [107] - [108] I refer to an aspect of John's evidence that highlights the need for a cautious approach.
In Belgravia v Lowe Pty Ltd [No 6] I set out a number of principles that guide the assessment of evidence in cases involving conversations with persons who have since died and to evidence of events that occurred long before the witnesses are called to give evidence.[20] In assessing the evidence in this case I have been guided by the same principles.

James

[20] Belgravia v Lowe Pty Ltd [No 6] [2019] WASC 5 [26].

James's evidence‑in‑chief comprised five affidavits sworn by him.[21] The disclosure of James's financial circumstances in his early affidavits was incomplete and further disclosure was given progressively and, at least in part, in response to questions raised by John's solicitors about matters that James had not disclosed in his earlier affidavits. Although such progressive disclosure was explicable as being due to the cognitive impairment from which James suffers, to which I refer in more detail below, it was unsatisfactory and did not engender confidence in the reliability of his evidence overall.
[21] Exhibits P3, P4, P5, P6 and P7.
There are a number of other reasons why I approach James's evidence with caution. First, James's own evidence is that he suffers from cognitive impairments that affect his memory. Second, James was tested by a lengthy and probing cross-examination. Though occasionally combative,[22] he answered many questions directly. When cross-examined, however, on aspects of his conduct towards Anne which might be thought not to be favourable to him, I had the impression that James was evasive. In these instances his evidence was unconvincing. One example was his evidence about whether Anne was invited to his wedding. I set out the relevant part of the cross‑examination at [87]. Another example was his evidence in response to the proposition that he had 'largely' nothing to do with Anne. I refer to this evidence in more detail at [90]. When cross‑examined as to whether following his illness he was upset with Anne about the location of some family photograph albums he deflected the questions.[23] Third, James gave evidence that was contradicted by Beth. He said that he swam laps in a 50 m swimming pool every three weeks.[24] Beth's evidence was that James was not a swimmer and never swims at the pool. James gave evidence that he helped Beth make beds and clean the cottages on their property that are let out for holiday rentals.[25] Beth's evidence is that James does not do anything to help her prepare the cottages.[26]
[22] ts 91.2, 92.1, 107, 101.10.
[23] ts 111.
[24] ts 210.
[25] ts 208.
[26] ts 260
In considering James's evidence generally I have borne in mind that the cognitive impairments from which he suffers may have impaired his ability to express himself as well as he would wish.

Beth Kiernan

Beth is married to James. Her evidence‑in‑chief was constituted by two affidavits.[27] She was cross-examined at some length. In the course of the cross-examination there were a number of occasions on which Beth tried to volunteer information that was not required for the purpose of answering the question and this was frustrating for the cross-examiner. My impression, however, was that this was due to a combination of nervousness and unfamiliarity with the process of cross-examination. It did not reflect adversely on Beth's credit. I formed a good impression of Beth as a witness. She answered questions put to her fully and was not evasive. Of course, she has an interest in the outcome of James's claim and, for that reason her evidence must be scrutinised with care, but subject to that, I find Beth to be a witness on whose evidence I can rely.

Sarah

[27] Exhibits P10 and P11.

Sarah's evidence in chief was constituted by five affidavits sworn by her.[28] There are four reasons why I have reservations about the reliability of Sarah's evidence. First, there is an inconsistency in the evidence given by Sarah of her relationship with her husband at the time of Anne's death. In her first affidavit sworn on 13 March 2015 no indication was given that the relationship was troubled. In fact the impression was given that Sarah expected the relationship to flourish.[29] In her affidavit sworn on 30 July 2015 she gave evidence to the effect that she and her husband had decided to focus on their family and that was the reason she had 'concluded' her contract of employment and her husband had stopped working in private practice.[30] In her affidavit sworn on 14 June 2019 her evidence was to the effect that at the time of Anne's death the relationship was deeply troubled. The inconsistency was acknowledged by Sarah's counsel but, as he pointed out, Sarah was not cross-examined about the inconsistency. By way of an explanation, counsel submitted, in effect, that relationships are complex and people in troubled relationships may be prone to undue optimism. Moreover, counsel submitted that it is not unreasonable to suppose that Sarah may not have wished to disclose her perception of the state of the relationship in a document that her husband may well have read.[31] Whilst I accept that there is some force in Sarah's counsel's submissions the inconsistency in her evidence cannot be overlooked. It is a reason to consider her later evidence about the state of the marital relationship, and indeed her evidence generally with caution. Second, when she was cross-examined by John's counsel, Sarah did not respond directly to questions but included qualifications in her answers for no apparent reason. She did this even when responding to factual propositions taken directly from her affidavit evidence.[32] This tendency was particularly pronounced at the beginning of the cross-examination. It may have been a reflection of nervous anxiety coupled with a degree of defensiveness. It was, however, a tendency that did not engender confidence in her as a witness. Third, as I explain at [234] my impression is that in her affidavit of 13 March 2015 Sarah overstated the steps that she had taken to renew her relationship with Anne. Fourth, Sarah has, of course, an interest in the outcome of her claim.

Mrs Purcell

[28] Exhibits P12, P13, P14, P15 and P16.

[29] Exhibit P12 [6].

[30] In her oral evidence, however, Sarah was at pains to make the point that her contract was a temporary 'maternity leave contract' - ts 281; Exhibit P13 [2].

[31] ts 581.

[32] ts 275 cf [21] of Exhibit P15, ts 276, ts 280, ts 281 cf Exhibit P12 [13] and Exhibit P13 [2], ts 283.

Mrs Purcell's evidence‑in‑chief was constituted by six affidavits, one of which she swore with her joint executor, Evan.[33] Much of Mrs Purcell's evidence was concerned with the composition and value of the Estate. For the purpose of this application the most contentious and critical evidence was that contained in Mrs Purcell's affidavit of 15 March 2016 in which she gave evidence about her friendship with Anne and various statements made by Anne about her relationship with James and Sarah. The effect of Mrs Purcell's evidence about those relationships was that James and Sarah had excluded Anne from their lives. When she was cross-examined Mrs Purcell answered questions put to her fully and without any equivocation. Although I have a reservation about the reliability of Mrs Purcell's evidence of one interaction between Anne and James witnessed by her to which I refer at [83], overall my assessment was that she was a truthful witness on whose evidence I can rely.

Evan, John and Sharne

[33] Exhibits D16, D17, D19, D20, D21 & D22.

Evan's evidence is not critical to the determination of any issue and it is unnecessary to make any observations about the reliability of his evidence. Ultimately the evidence of John and Sharne was not critical to the determination of any issue. It is unnecessary to make any general findings about their credibility. Where relevant I have commented on aspects of their evidence in the course of making the factual findings.

Anne's personal history and circumstances

Anne was born on 10 September 1949 and was 64 years of age when she died by her own hand between 2 and 4 April 2014. Anne had three siblings: John, Sharne and Richard. Richard predeceased Anne.
Anne's family lived in rural Western Australia and Anne completed most of her secondary schooling as a boarder at the College. This was the genesis of her affection and support for the College.
Anne married Michael Kiernan in 1972. James was born on 20 April 1974 and Sarah was born on 9 August 1977. The family lived in Perth. When James and Sarah were children Michael spent much time away from home working. James also spent time away from home at boarding school. Anne was close to her parents and to her siblings and their families.
In 1984 Anne met Mrs Purcell and they became friends. They met or spoke regularly. Anne confided in Mrs Purcell and sought her advice on some financial issues (Mrs Purcell was a consultant geologist who also ran the accounting and business side of her practice).

At some stage when James and Sarah were children Anne and Michael acquired a farm. In about 1997 Anne and Michael sold the house that had been the family home and moved into an apartment. They retained the farm.
Anne and Michael's marriage had its difficulties. Sarah gave evidence about those difficulties which I accept. One difficulty was that Michael's business activities created financial instability that caused stress for Anne and conflict between them. In February 2001 Anne left the apartment which had been the matrimonial home. She gave no notice of her intention to leave Michael to James and Sarah.
Between 2001 and 2004 Anne and Michael were involved in proceedings in the Family Court concerning the division of matrimonial assets. In circumstances described more fully later in these reasons Anne joined James and Sarah to the Family Court proceedings. This caused a rift between Anne and each of James and Sarah that continued in varying degrees until Anne died.
Indeed it is not in dispute that following the separation between Anne and Michael Anne had very little involvement in the lives of James and Sarah or their respective families. She was not invited to James's wedding and did not attend Sarah's wedding. She did not visit their homes and they did not visit hers. They did not celebrate special or family occasions together. Anne never met any of her grandchildren.
Both Sarah and Beth gave evidence to the effect that Anne had suffered from mental health difficulties and that she was psychologically fragile.[34] Their evidence was not challenged. I find that Anne did suffer from mental health difficulties, including depression, and that she was psychologically fragile.
[34] Exhibit P12 [20]; Exhibit P15 [26] - [29]; Exhibit P10 [25], [26].
John and his wife provided support to Anne at the time of the separation and divorce and in subsequent years, in particular at the time of Sarah's wedding which Anne did not attend.[35]
[35] Exhibit D34 [11].
Following her divorce from Michael Anne acquired significant wealth and was financially secure. She acquired real estate assets in Perth and in rural Western Australia. She established a charitable trust, the Anne Cranston Charitable Trust, to which she transferred over $1 million. Anne or the trust donated $5,000 to the College building fund in July 2001 and $50,000 to the College's building fund in October 2006. Anne enjoyed a comfortable standard of living.
Until March 2013 Anne lived in Western Australia but between March and about June 2013 and again between September 2013 and March 2014, Anne lived in Melbourne. Shortly before returning from Melbourne to live in Perth in 2014 Anne had a falling out with a friend in Melbourne.[36]
[36] ts 447.
In July 2013 Anne had an operation on her knee and developed a pulmonary embolism which required immediate surgery. Anne spoke to Mrs Purcell regularly after her operation. Mrs Purcell observed that Anne struggled emotionally until her death in April 2014.

James's personal history and circumstances

James's personal history

When James was a child the family lived in the Perth suburb of Churchlands. He was educated at Guildford Grammar School which he attended as a boarder until his final year. He obtained a bachelor of economics degree from Murdoch University. After completing his degree James obtained employment in stockbroking and corporate financing and was successful. James's career in the corporate world came to an end in November 2010. Beth previously worked as an administrator but has not worked full time since the birth of their second daughter. James and Beth's daughters are now aged 15, 13, 11 and 10. At the date of Anne's death they were aged 9, 8, 5 and 4 respectively.

The relationship between James and Anne prior to February 2001

James's unchallenged evidence was to the effect that he and his mother had a close relationship before she and Michael separated in 2001. James described Anne as being 'a wonderful mother' during his childhood and teenage years, who 'could not have shown more love and support' for him. Beth deposed that she had a 'very close' relationship with Anne until the separation.[37] I find that before his parents separated in February 2001 James had a strong and loving relationship with his mother. I infer from that finding that neither Anne nor James wanted the relationship between them to deteriorate as I find it did.

The relationship between James and Anne between February 2001 and November 2010

[37] Exhibit P5 [13].

James and Beth gave evidence that was unchallenged that on the day that Anne left the matrimonial home she had dinner with them in the apartment in which they were living. Anne told them that she had left Michael. James and Beth told Anne that she had their support. I accept the account given by James and Beth of this event.
There was some tension between the evidence of James and that of Beth about their ability to contact Anne following the separation. James's evidence was to the effect that after the separation Anne stayed with her parents and that when he tried to contact Anne through his grandmother she would not give him any contact details. James said that his grandmother told him to wait for his mother to contact him. Beth, however, deposed she made contact with Anne by telephone on a couple of occasions and met her for coffee two or three times. On those occasions Anne refused to tell Beth where she was living and said that she was fearful of Michael and that she did not want James or Beth to be 'in the middle'.[38]
[38] Exhibit P5 [13].
Sarah's evidence corroborated that of James and Beth. Her evidence was that after Anne left the matrimonial home she did not know where Anne was living. She said that her Aunty Sharne was in contact with Anne and through her a dinner was arranged at James and Beth's home. Sarah said on that occasion Anne refused to give them her telephone number or disclose where she was living.
I find that following the separation Anne considered it was necessary to distance herself from her children and I infer from the statements made by her that she did this to prevent Michael from finding out where she was living and so that her children should not be caught 'in the middle'.
It was not in dispute and I find that before the separation James had a good relationship with John and Sharne and Anne's parents. I find that after the separation those relationships deteriorated. James's perception was that the Cranston family 'severed connection' when his parents split up.[39]
[39] ts 91.
Unfortunately for the relationship between her and James and Sarah, however, Anne joined both James and Sarah as parties to the Family Court proceedings. Anne gave no notice of her intention to join James and Sarah to the proceedings and the papers were served on James one evening when James and Beth were having dinner with Beth's father and sister. James (and Sarah) were obliged to instruct a lawyer to act on their behalf.
The Family Court proceedings were resolved by an agreement made on the day the trial was due to commence in February 2004. I infer from the terms of the minute of consent orders in which the agreement was recorded that James and Sarah were joined as parties to the Family Court proceedings because they held units in a unit trust on behalf of Michael.
In cross-examination counsel for John suggested to James that when he attended the Family Court for the trial upon being greeted by Anne with 'hello' he responded by saying 'fuck off'. James denied this and said he would never address his mother in that way.[40]
[40] ts 101.
In her affidavit evidence Mrs Purcell stated that she attended the Family Court with Anne on 2 February 2004.[41] Her affidavit evidence was as follows:
I attended Court with Anne on the day of the final hearing of the Family Court proceedings which is when she agreed to the settlement.
[41] Exhibit D17 [17].
When cross-examined by John's counsel (after she had been cross‑examined by Sarah's counsel and James's' counsel) Mrs Purcell said that when she and Anne arrived at the Family Court they both said 'hello' to James and he responded by telling them to 'Eff off'.[42] In response to an earlier question from Sarah's counsel Mrs Purcell said that some matters that she had originally proposed be included in her affidavit were not included because it was considered that they involved 'far too much detail'.[43] There was, however, no explanation for the omission from the account given by Mrs Purcell in her affidavit of the language she said was used by James in response to his mother's greeting. It is certainly not an omission that can be adequately explained on the basis that the use of such language by a son to his mother was part of the 'too much detail' that it was considered unnecessary to include in the affidavit.
[42] ts 452.
[43] ts 445.
I am not prepared to make a finding that James used the words attributed to him by Mrs Purcell in the episode described in the preceding paragraphs. The absence from Mrs Purcell's affidavit evidence of any reference to James telling Anne to 'eff off' on this occasion which occurred some 15 years before she gave evidence and some 12 years before she first deposed to the event gives me cause for concern about the reliability of Mrs Purcell's evidence on this most serious allegation. If Mrs Purcell had a reliable recollection that James used the language attributed to him I would have expected it to have been included in her affidavit. My reluctance to accept Mrs Purcell's evidence on this point does not detract from my general assessment that she was a truthful witness.
James deposed that his relationship with his mother became 'difficult' as a result of the Family Court proceedings.[44] In cross‑examination James said that he did not think that he had any contact with his mother in the period between being served with the Family Court proceedings and the date fixed for the trial of the Family Court proceedings.[45] I find that this was the case.
[44] Exhibit P3 [20].
[45] ts 95.
In that intervening period James and Beth became engaged and subsequently married in March 2002. They did not invite Anne to the engagement party or to the wedding ceremony;[46] Michael attended both events.
[46] ts 226.
In the course of cross-examination by John's counsel James said that he had an invitation to the wedding for his mother but he could not track her down. His evidence continued as follows:[47]
Right?‑‑‑I had an invitation for her and I had a candle with her name on it, like all the rest of the guests. And I had put my father on the other ‑ other side of the room at Meads, and I had her on a table with. . . who are friends of Mum's.
So you're saying you gave her that invitation or you never found her to give it ‑ ‑ ‑?‑‑‑No. I never got it – never got it to her. I couldn't find her. She was the most elusive person you've ever come across.
And ‑ ‑ ‑?‑‑‑Because nine times out of 10 – well, not nine times out of 10. 100 per cent of the time, I get told nothing. The Cranstons would tell me nothing. I was completely cut off. I was completely ostracised.
[47] ts 106.
James's evidence to the effect that he could not find his mother and was thus unable to give her an invitation is difficult to reconcile with evidence given by him at an earlier stage in the cross-examination to the effect that he had his mother's mobile telephone number.[48] It was unconvincing.
[48] ts 94.
In the course of her cross-examination Beth confirmed that Anne had not been invited to the engagement party or to the wedding. I find that Anne was not invited. I find that the fact that Anne was not invited to the engagement party or wedding caused her hurt and sadness and contributed to the deterioration in her relationship with James.
James's affidavit evidence about his relationship with Anne prior to his illness in 2010 was limited to the evidence referred to above to the effect that as a result of the Family Court proceedings his relationship with Anne became difficult. In the course of cross‑examination by John's counsel James cavilled at the proposition that he 'largely had nothing to do with' his mother between the date his parents separated and his illness in 2010. His evidence was as follows:[49]
Is it – from until your illness in 2010, I want to put to you that you largely had nothing to do with your mother. Do you agree with that? From the time of the separation of your parents?‑‑‑Define largely.
Okay. Well, virtually no contact with her?‑‑‑No. I had contact with her. Not virtually no contact. I had contact with her. I – I have actually just remembered right now. I pulled up at the lights at Kings Park Road and she pulled up behind me and I had just bought a Porsche Boxter and she dialled and it came through and I said, 'Hello,' and she goes, 'I'm behind you.' She goes, 'Nice little red Beetle,' and I said, 'it's a Porsche.'
And when was that?---That was when I was young. That would have been three, four years into the divorce.
[49] ts 105.
Mrs Purcell's affidavit evidence was to the effect that Anne had told her that she had virtually no contact with James in the period between the joinder to the Family Court proceedings and James's illness save for a communication with James two days before his wedding in which she gave him her best wishes. Mrs Purcell said that Anne had told her that James attended Anne's father's funeral in December 2007 but did not speak to or acknowledge her.
Beth's evidence of her contact with Anne was not challenged in cross‑examination and it was as follows:[50]
[50] Exhibit P10.
18.I rarely saw Anne after her separation from Michael in 2001. She would occasionally text me but otherwise cut off any contact. I tried to telephone her on a number of occasions but she wouldn't take my calls.
…
20.After my second daughter, Poppy, was born in 2006 James and I moved to Vaucluse Street in Claremont. On regular occasions Anne would sit in her car outside the house but would not come in. I would go out to try to speak to her. Sometimes she would say hello but otherwise she would drive off.
21.I told our au pair at the time not to worry if they saw a lady in a Mercedes following them to parks or shops. Anne would send me texts saying things like 'the girls are growing', 'Poppy's walking' or 'Molly needs a haircut'.
22.On several occasions between 2001 and her death, I bumped into Anne at cafés in Nedlands and Subiaco. She always asked me to join her and whoever she was with. When I could I would sit down and talk to her. I do not recall the names of the people she was with on those occasions but she would always introduce me as her daughter-in-law and behave as if we were not estranged. On none of those occasions had I previously met the person or people she was with even though I knew her old friends.
23.When Molly, my eldest daughter, was about three years old I bumped into Anne at Matilda Bay Restaurant. She was with a man I didn't know but I walked up the table and said hello. I told Anne I was taking Molly out to see the ducks and asked her if she would like to join us but she refused. I stayed outside for some time in the hope that she would come out but she did not. I left in tears. She sent me a text that night saying how lovely it had been to see me.
24.James and I attended the funeral of Anne's father in or about December 2007. We sat with Anne through part of the funeral and she seemed very pleased that we were there. Again, after this time I tried to continue contact through text messages and telephone calls but Anne didn't respond.
. . .
28.At times neither James nor I would hear from Anne for six months and then she would send James or me a flurry of text messages over several days. She would occasionally ring me early in the morning (at about 5:30 am with some parenting advice and then she would hang up). I became used to having the phone ring at that sort of time and I knew it was her.
29.When each of our daughters were born Anne sent congratulatory text messages to me and I sent text messages back thanking her. She told me that she had bought each of our daughters an ornament and said she hoped to give them to them one day.
I accept Beth's evidence and I find that she had contact with Anne as described by her. I find that Beth tried to re-establish and develop a relationship with Anne and involve Anne in James and Beth's family's life.
James was cross-examined about whether he had invited Anne to dinner at his house in the period between February 2004 and his illness in 2010. His response was to the effect that Beth had invited Anne and his marriage was a 'traditional marriage' and, by implication, it was not for him to invite Anne.[51] This was a strange explanation for not inviting his own mother to his home.
[51] ts 107.
There was no evidence that James had personally taken any step to end the estrangement and I make a finding that he did not take any step to bring it to an end.
Anne's reluctance to respond positively to Beth's overtures and the fact that she maintained her distance in the manner described is difficult to reconcile with the feelings she expressed to Mrs Purcell and others that she was excluded from the lives of James and his family. It may be that the reason for Anne's reticence was that the initiative was not taken by James. It may be that Anne's psychological frailty was a factor or it may be that her reticence was due to a combination of factors. To attempt to make a finding on such a difficult issue would be to stray into the realms of conjecture.
In about 2010 James, Beth and the children moved their family home to a property near Margaret River that they had previously used for holidays. James commuted on a weekly basis to work in Perth.
I find that James's relationship with Anne between the date on which James was joined to the Family Court proceedings in 2001 and the date of his hospitalisation in November 2010 contrasted starkly with the loving relationship that had previously existed between them. Whilst the evidence supports a finding that there were occasional direct communications between them they did not engage with each other as they had done in the past. As described earlier they did not share or celebrate any special occasions together. There is no doubt they were estranged.
The evidence of who was responsible for the estrangement was contradictory:
(a)On the one hand the effect of the evidence of James and Beth (corroborated by Sarah) is that following the separation and Family Court proceedings Anne removed herself from their lives and did not respond positively to Beth's attempts to re-establish a relationship. John's counsel submitted, in effect, that Beth's efforts to communicate with Anne should be discounted because James could not 'delegate' the function of maintaining a relationship with his mother to his wife. This submission might be viewed as bringing an overly legalistic perspective to family relationships. It is not uncommon for fractured relationships between parent and child to be re-established with the assistance of the spouse or partner of one of the parties. The submission does, however, highlight the point that James personally took no steps to bring the estrangement to an end.
(b)On the other hand the effect of the evidence of Mrs Purcell, John and Sharne is that James (and Sarah) were hostile towards Anne and that this was the cause of the estrangement. No evidence was provided by those witnesses that shed light on why Anne did not respond positively to Beth's attempts to re‑establish a relationship. This observation is not made critically as I accept that there may have been no evidence that they were able to give.
To assess the relationship between James and Anne fairly, account must be taken of the effect on James of Anne distancing herself from him in the immediate aftermath of the separation, of his subsequently being joined without notice as a party to the Family Court proceedings and of Anne's apparent reluctance to respond positively to Beth's attempts to re-establish the relationship. These observations should not be interpreted as a subtle insinuation that responsibility for the breakdown in the relationship should be attributed to Anne. They simply emphasise the need to take a balanced view.

It is very difficult to make findings that attribute responsibility to either James or Anne for the breakdown in their relationship 18 years after the events that triggered the breakdown. It is very difficult because the evidence is limited - there is no relevant documentary evidence and I have already commented upon the limitations of the evidence given by the witnesses.
My assessment is that James and Anne each contributed to the progressive deterioration in their relationship: Anne by distancing herself from James and by joining him without warning to the Family Court proceedings. On James's part the failure to invite Anne to his engagement party or to his wedding and the fact that although Beth communicated with Anne in an attempt to re-establish a relationship with Anne, he personally did not do so, are matters that contributed to the breakdown becoming an estrangement.
Anne's conduct in observing her grandchildren in the manner described in Beth's evidence was a clear indication that she cared for her son and his family, and inferentially, wanted to be involved in their lives. It was not to James's credit that he did not take any steps to bring the estrangement to an end. In making this observation I do not overlook Anne's apparent reluctance to engage with Beth but notwithstanding this I consider that a dutiful son would have taken some positive steps to bring the estrangement to an end especially after the matrimonial proceedings had been concluded.
I have no doubt that the estrangement was the cause of emotional anguish on Anne's part. I infer she felt the emotional effects of the estrangement more acutely than James as she had fewer distractions in her life whereas James had a young family and a busy career.

Anne's care for James when he was in hospital

James was an in-patient in Royal Perth Hospital between 5 and 18 November 2010. The principal diagnosis was bilateral pneumonia with type 1 respiratory failure. He suffered oxygen desaturation down to a level of 88-89% and was intubated.[52] On discharge from Royal Perth Hospital James was admitted as an in-patient in St John of God Hospital Subiaco. The evidence does not establish how long James remained in St John of God Hospital.
[52] A normal oxygen reading is usually between 95% - 100%.
On the basis of Beth's unchallenged evidence I find that when James was at Royal Perth Hospital Beth telephoned Anne four or five times a day to update her on James's condition. Anne would not come to the hospital when anyone else was visiting James. Beth sent text messages to Anne to inform her when she (Beth) was leaving the hospital. Anne told Beth that she visited James in hospital and sat with him. Mrs Purcell's evidence was to the effect that Anne told her that she sat by James's bedside every night. I make a finding to the effect that Anne did visit James in hospital as both Beth and Mrs Purcell described.
John's evidence about what Anne had told him about visiting James in hospital illustrates the inherently unreliable nature of hearsay evidence. This is not a criticism of John personally. In his affidavit John deposed as follows:[53]
Anne told me that she learned that James became ill and was in hospital in November 2010. Anne told me that she used to visit the church at the St John of God Hospital in Subiaco and that she had become friendly with one of the nuns there. My recollection is that Anne told me that one of the nuns had told her that James was in hospital and that one of the nuns would tell her when Michael had left James's hospital room so that Anne could go into the room and sit with James. James was in a coma at the time.
[53] Exhibit D34 [14].
The description of Anne's hospital visits is inconsistent with the undisputed objective fact that when James was in a coma he was in the Royal Perth Hospital. Anne's account to John was either untrue or John's recollection is mistaken.

The relationship between James and Anne between November 2011 ‑ April 2014

Anne visited James when he was an in-patient in St John of God Hospital and they met for coffee on a few occasions after he had been discharged from hospital.[54]
[54] ts 111; Exhibit P3 [24]; Exhibit D17 [32(p)].
Beth's evidence was that James was 'thrilled' to have had Anne attend to him whilst he was in hospital.[55] On the basis of that evidence I find that James was happy that Anne had shown such care for him when he was unwell.
[55] ts 229.
Beth's unchallenged evidence was to the effect after James left hospital she telephoned Anne and said, 'we have come this far why can't you come and meet the kids?' James was recuperating in Perth and Beth suggested that she and Anne could meet in a park. At first Anne said 'yes' but on several occasions when Beth tried to organise a meeting Anne cancelled.[56] I find that Beth proposed to Anne that they should meet as described in her evidence.
[56] Exhibit P10 [31].
Mrs Purcell deposed that Anne had told her that James had said to Anne that he would have her charged with assault because she had touched him while he was in a coma and that Anne took this threat seriously. In cross-examination James denied this allegation and said:[57]
No. That is absolutely false and that is another manufactured story. Why would I charge someone with assault who came and sat by me, washed me, looked after me every night for just about 10 nights?
[57] ts 111.
John gave evidence about a threat by James to take action against Anne. His evidence was as follows:[58]
Some time after James left hospital, Anne told me that she had tried to contact James. Anne told me that she had a discussion with James and he said that he was going to take legal action against her for assault on him while he was in a coma in hospital, so she stopped trying to contact him any further.
[58] Exhibit D34 [15].
It is difficult to determine the truth of the allegation that James said that he would have Anne charged with assault. The evidence is conflicting and there is no evidence of the immediate conversational context in which the statement was allegedly made and there is no evidence of how long after the statement was said to have been made that Anne told Mrs Purcell, and separately John, about it.
On the one hand it seems inherently improbable that Anne would tell Mrs Purcell and John that James had made such a statement if he had not done so. On the other hand the alleged threat was inconsistent with Beth's evidence that James was thrilled to have been cared for by his mother in hospital.
The threat is, however, consistent with Beth's description of the change in James's general behaviour after his illness and his tendency after the illness to be angry and aggressive. I refer to this change in more detail in the next section of these reasons.
I find that James did make a statement to Anne that he would have her charged with assault because she had touched him while he was in a coma. I make this finding because the making of the threat is consistent with Beth's description of James's angry and aggressive behaviour. Whilst the statement would most certainly have upset Anne it was not the event that brought the attempted reconciliation to an end. Mrs Purcell's evidence was that after the statement had been made Anne and James met on 'a number of occasions' and that Anne told her that she stopped contacting James after a while because he had become aggressive and abusive towards her over the whereabouts of some family photo albums. When cross-examined on this point James did not respond directly to the questions put to him. The cross-examination went as follows:[59]
And was there an occasion when you got very upset about the whereabouts of some family photo albums?‑‑‑My father had them.
You didn't get upset with your mother about the whereabouts of family photo albums?‑‑‑My father had them.
Well, how did he get them? Because I thought you said all he was left with was a towel?‑‑‑I have no idea. She probably dropped them to – to him or ‑ ‑ ‑
[59] ts 111.
Beth's evidence was that James had not said anything to her about a discussion with Anne about family photo albums.[60]
[60] ts 229.
James denied in forceful terms other allegations made against him but James did not deny the allegation that he had been upset with his mother over the family photo albums. This fact coupled with Mrs Purcell's account of what Anne had said to her about James's conduct towards Anne in relation to the family photo albums leads me to find that James did have one or more discussions with his mother over the family photo albums during which he was upset and which in turn upset Anne and discouraged her from meeting James.
I have referred earlier to Mrs Purcell's evidence that Anne sent mobile text messages to James on special occasions such as birthdays or Christmas but her messages either went unanswered or were responded to with aggressive words of rejection including 'Fuck off''.[61] In cross‑examination by John's counsel Mrs Purcell said that Anne showed her one text message from James to Anne that stated 'fuck off' and Anne described this as 'his usual response'. I accept Mrs Purcell's evidence that she saw a text message that read 'fuck off' from James to Anne on Anne's telephone.
[61] Exhibit D17 [34] - [36].
I find that Anne and James met on a number of occasions whilst James was recovering from the effects of pneumonia and being in a coma. I find that these meetings took place over a limited period measured in weeks and that thereafter there were no further face to face meetings between the two and no further conversations between them. The effect of this finding is that at the date of Anne's death there had been no substantive contact between James and Anne for over three years.
The starting point of my assessment of relationship between James and Anne in the 2011 - 2014 period is that James was pleased that Anne had visited him in hospital as was described by Beth. I find that both attempted to re-establish their relationship and I find that Beth assisted in that process by offering to meet with Anne and introduce her to her grandchildren. I find, however, that James did communicate with Anne in a manner that was aggressive and abusive. Mrs Purcell gave examples of such communications. Having regard to Beth's evidence I find that James's conduct towards Anne was a manifestation of the change of personality described by Beth and of the aggression that he showed to those around him, including his children. I find that whilst James's conduct was a very unfortunate consequence of his illness it was also a significant reason why he and Anne were unable to re‑establish their relationship.
There is no evidence that Anne was aware of the extent to which James's mental health had deteriorated following his illness. I infer that she did not know of James's mental health difficulties.
I find Anne's reluctance to take up Beth's invitations to meet her grandchildren puzzling and in this respect I can only repeat what I said at [96].

James's illness and its consequences

Beth's evidence

Other than in one respect Beth's evidence about the deterioration in James's health following his illness was not challenged. I accept Beth's evidence and make findings in accordance with it. Beth described James's condition after his illness as follows:[62]
35.After his illness James was slower to process things, got angry very quickly (especially with the children with whom he had never been angry before), kept forgetting things and could not complete menial tasks. Based upon the changes in his general behaviour I knew that his personality had changed. He had gone from being a very confident and social person to being aggressive, reclusive and depressed.
36.Over a period between late 2010 and early 2011 I received a number of calls from people in the town of Margaret River saying that James was in their shop or business and was confused and upset about something.
[62] Exhibit P10.
In her affidavit evidence Beth gave a number of examples of episodes of James's confused, distressed and aggressive behaviour.
In her oral evidence Beth said that '[James] at the drop of a hat, would lose his temper'. She said he could not remember anything and 'cried all the time'.[63] Beth said that James went into a 'downwards spiral' shortly after his illness (a period she described as 'the very early stage') and started to drink to excess.[64]
[63] ts 263.
[64] ts 263.
Beth said that she sought counselling from a psychologist who asked to speak to James and this led to James being admitted on 18 March 2011 to Perth Clinic under the care of Dr Roberts. Beth said that James improved after he was discharged from Perth Clinic (on 29 March 2011) though there were lengthy periods during which James would not get out of bed.[65]
[65] ts 264.
I turn now to the aspect of Beth's evidence about James's condition that was challenged. Both James and Beth gave evidence of an occasion on which James went to Las Vegas. James's evidence was as follows:[66]
20.I lived an extravagant lifestyle after I received the [disability insurance payout] and during periods of extravagant behaviour. For example, one afternoon I decided to fly to the United States of America so booked a first-class flight to Las Vegas for that night. I stayed in the United States, the United Kingdom and France for approximately one month on my own and without thought for my family who remained in Western Australia. When I returned to Australia I was so mentally unwell that I was admitted to Perth Clinic following day where I remained for 3 weeks.
[66] Exhibit P5 [20].
Beth's evidence was as follows:[67]
46.James was put on a lot of medication at that time. There were periods when he would come off his medication with dire consequences. He would become out of control. At one time I couldn't find him and then he contacted me from Las Vegas. He left me and the children on several occasions without telling me where he was going and would turn up at the Burswood Casino.
[67] Exhibit P10 [46].
James and Beth's evidence about James's trip to Las Vegas was challenged by John's counsel.[68] It was put to James that he had told Dr Roberts in May 2011 that he was 'going to the USA on 13 June 2011 to 30 June 2011' and that his affidavit evidence that he booked a first class flight to Las Vegas and travelled on the same night was untrue. James maintained that his evidence was true and that after staying in Las Vegas he travelled to see Sarah who was living in Guernsey at the time and together he and Sarah took a trip to France.
[68] James: ts 171 - 174; Beth: ts 232 - 235.
Beth was cross-examined on the issue as follows:
The – and you – this occasion when he – you couldn't find him, and he contacted you from Las Vegas, was that just completely out of the blue?‑‑‑Yes.
You had, what, no idea he was going to travel?‑‑‑There was all sorts of different scenarios at different times.
What do you mean by that?‑‑‑He would disappear for days on end and I couldn't find him and ‑ ‑ ‑
I'm asking you about the Las Vegas occasion, which you refer to in your affidavit. Was that just suddenly he has gone ‑ ‑ ‑?‑‑‑I'm trying to remember if that's the same trip that he went when he visited Sarah, but I think they were separate ones. So the Las Vegas, America's one, I knew nothing about at all.
Have you – is this something that he has spoken to you about in the last – today? Have you spoken to James about his evidence?‑‑‑No. We've been told not to.
. . .
. . .
What I'm putting to you is that, you're saying there that you had no idea he was off to Las Vegas, and he just turned up and rang you from Las Vegas. Is that what you're saying?‑‑‑I am. He might have rung me from Singapore and said – I can't remember exactly, but I was not aware of the trip he was taking, and he was gone, and then ‑ ‑ ‑
And you weren't aware of him planning a trip to Las Vegas?‑‑‑At the time, James was so out of control, he could have been planning all sorts of things and ‑ ‑ ‑
Go on?‑‑‑I – I never knew where he was at, so it was a – it was a very difficult time. At that – I presume that's – I'm just looking at the dates – I do get confused with dates, and things like that. I can't even remember when he went to Las Vegas, so – now I do. Okay. So he ‑ he was in a – he was in a very manic state.
When are you talking about?‑‑‑During – around that Las Vegas time, because I'm just ‑ ‑ ‑
So we're talking about in 2011?‑‑‑Yes. It must be because that's – it says that – here – so the day after he got back from Las Vegas, I had him admitted straight back into Perth Clinic ‑ ‑ ‑
. . .
. . .
‑ ‑ ‑ how many trips to Las Vegas has he done?‑‑‑I – one, maybe two. I don't know if he also went there after he saw Sarah, so I'm not sure.
So you think that when he saw Sarah, was a different Las Vegas trip to the one you're talking about in your affidavit, are you?‑‑‑I can't confirm that. I'm really sorry. I don't know.
The evidence of when James made the trip in question to Las Vegas is somewhat contradictory. James's evidence is that the trip was after he had received the insurance payout which was in 2012 but both James and Beth gave evidence to the effect that on James's return to Australia he was admitted to the Perth Clinic and this admission was in March 2011.
I do not attach a great deal of significance to the possibility that in May 2011 James or Beth told Dr Roberts that James was planning a trip to the United States in June 2011. The making of a statement to this effect does not negate the possibility that James had travelled to Las Vegas without first telling Beth as described in James and Beth's evidence. Ultimately neither the date of the trip nor whether James or Beth had told Dr Roberts that James was planning a trip to the United States is central to the evaluation of this episode of James's post-illness conduct. The central point is the erratic, impulsive and inconsiderate nature of the conduct and in this respect I found Beth's evidence that she did not know about James's trip to Las Vegas until after he had left convincing and I find that is what occurred.
Beth's evidence was to the effect that after James took up a role at a stockbroking firm, Greenwich Equities, in the circumstances referred to later in these reasons, he became sick again with respiratory problems that required operative treatment. I infer from the history recorded in Clinical Professor Foster's report that James underwent a thoracotomy and decortication in the first six months of 2014. Based on a note dated 27 November 2014[69] that forms part of Dr Roberts's clinical records I find that James had a slow post-operative recovery and that it took him several months to recover from the thoracotomy and decortication.
[69] Exhibit D7.
Beth said that James became increasingly reclusive when it became apparent to him that he could not work and she put this as occurring 'in 2013 to - about 2014' during and after the period that James became involved with Greenwich Equities. When asked by John's counsel what she meant by describing James as a recluse, she said that he 'very, very rarely leaves the house'.[70]
[70] ts 269.
Beth described James's present condition in the following terms:[71]
Well, he – he has balance issues. He has little strength. He has short-term memory loss. He is very depressed. He doesn't function. He doesn't socialise. He has about two or three friends who he would see, you know, a couple of times a month who are very kind to him and come and see him. He – he's a recluse, basically, and, you know, he has eccentric behaviour I think you would call it. Like, if people didn't know – if people had never met him before, you wouldn't automatically go, 'Okay. He has got a brain injury.' But then things happen and people – I can often hear people saying, 'You realise James isn't well,' and because of – his behaviour is sometimes, you know, odd and ‑ ‑ ‑

The relevance of estrangement

[181] Taylor v Farrugia [2009] NSWSC 801 [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 [121]; Salmon v Osmond [2015] NSWCA 42 [109].

[182] Taylor v Farrugia [58].

[183] McCosker v McCosker (1957) CLR 566; (1957) 31 ALJR 779; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, 45; Taylor v Farrugia [58].

[184] MacGregor v MacGregor [2003] WASC 169 [179] ‑ [182]; Crossman v Riedel [2004] ACTSC 127 [49].

[185] Marks v Marks [2003] WASCA 297 [43].

[186] Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 [17].

[187] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 149.

[188] Grant v Roberts [2019] NSWSC 843.

As was emphasised by Pullin JA (with whom Buss JA and Le Miere AJA agreed) in Lathwell v Lathwell the word 'estrangement' does not describe the conduct of either party:[189]
It is merely the condition which results from the attitudes or conduct of one or other or both of the parties. If the estrangement is entirely caused by the unreasonable conduct or attitudes of the testator and sustained by the unreasonable conduct of the testator, then the estrangement alone could not amount to disentitling conduct on the part of the applicant.
[189] Lathwell v Lathwell [2008] WASCA 256 [33].
In Underwood v Gaudron,[190] Hallen J identified a number of considerations that are relevant when a claimant has been estranged from the testator. His Honour referred to Pullin JA's observation on the nature of estrangement in Lathwell and proceeded to identify the following considerations as relevant:
(a)The nature of the estrangement and the underlying reason for it is relevant to an application under the Act.
(b)There is no rule that, irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, the claimant is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(c)The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility'.
(d)Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration.
(e)The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made.
(g)Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered.

Disentitling conduct

[190] Underwood v Gaudron [2014] NSWSC 1055 (citations omitted). Appeal dismissed in Underwood v Gaudron [2015] NSWCA 269.

As recorded earlier s 6(3) of the Act allows the court to attach conditions to, or refuse to make, an order for provision on the ground that the character or conduct of the claimant disentitles him or her to the benefit of such an order. The onus of proving the existence of the disentitling conduct rests on the defendants.[191]
[191] Lathwell v Lathwell [2007] WASC 83 [16] (Sanderson M).
Conduct amounting to disentitling conduct must refer to character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator.[192]
[192] Lathwell v Lathwell [33] (Pullin JA, Buss JA & Le Miere AJA agreeing).
The question whether conduct is sufficient to disentitle an applicant to relief must depends on both the nature of the conduct itself, and to some extent on the strength of his need or claim to provision from the estate. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit in any provision.[193]
[193] Hughes v National Trustees Executors and Agency Co of Australia Ltd (156).

Disposition

No adequate provision for James

In the course of evaluating whether the absence of any provision for James in the disposition of the Estate by the Will was not such as to make adequate provision for him I have had regard to the matters to which I refer in the following paragraphs.
First, at the date of Anne's death James had no capacity to support himself and his family. He was, in effect, living off his capital by drawing down on the Westpac Facility and thereby reducing the equity in the family home. He may not have appreciated it at the time but he was on the path to financial destitution.
Second, though it is implicitly recognised in accepting that James had little or no capacity to support himself, James's ill health is a matter that is relevant in itself. Ill-health carries with it the risk that as James ages he will require greater financial support.
Third, the Estate is substantial. With the exception of Sarah's claim there are no other claims based on competing need. Provision may be made for James without causing any financial hardship to John or to the College.
Fourth - the totality of the relationship between Anne and James ‑ this expression embraces a number of different factors.
(a)For the 27 years that preceded the 13 years of estrangement, Anne and James had a happy and loving relationship. The 27 year period included the years before the separation during which James lived independently and had what might be considered a normal mother-son relationship. They saw each other each week and there was no evidence of any ill-feeling between them.
(b)The relationship between Anne and James suffered the misfortune of two calamitous events. The first was constituted by the separation and the consequences that flowed from it - the Family Court proceedings, Anne's withdrawal from James's life and the subsequent rift between them which, as I have found, neither of them wanted and which no doubt caused pain to both of them. The rift led to the estrangement in the period up to the date of James's illness. As I have found, it is not possible for me to attribute responsibility for the initial rift to either party ‑ they both contributed to it. The second calamity was constituted by James's illness and the consequences that flowed from it - his hospitalisation, the change in his personality and the impairment to his cognition.
(c)James did not take any positive steps to bring the estrangement to an end in the period before November 2010.
(d)The care and concern shown by Anne towards James whilst he was in hospital and James's appreciation of that care was evidence that the bond between them had been damaged by the estrangement that preceded it but it was not broken.
(e)I am satisfied that the attempt made at a reconciliation as James was recovering from his illness failed because of James's conduct. I consider his moral responsibility for that conduct was significantly diminished by the effects on him of his illness. Anne was not aware of the extent to which James had been adversely affected by his illness and it is understandable that she was alienated by James's conduct.
(f)That Anne sent messages to James on special occasions is an indication that she still held maternal love for him.
Fifth, Anne's testamentary wishes are important. It was Anne's wish that John should benefit from her Estate no doubt in recognition of the support he had provided to her during and following her divorce. I have not commented in any detail on the support provided to Anne by John and his wife and by Mrs Purcell because it has not been necessary to do so. It should not be thought, however, that the importance of this support to Anne's well-being and her desire to recognise it in the disposition of the Estate is a matter that does not weigh heavily in the evaluative process - it does. Anne's gift of her residuary estate to the College reflected her lifelong affection and support for the College.
Sixth, Anne's reasons for not making provision for James must also be taken into account. The weight, however, to be attached to these reasons is diminished because her primary reason for not making provision for James did not have a foundation in fact at the date of her death. The Will speaks from the date of death and at that date, though she did not know it, Anne's belief that James did not require provision to be made for him was mistaken. At that date James had no capacity to provide for himself, he had not received any inheritances or expectations and there was no prospect that he would do so. Although this is not a finding necessary for the purposes of the statutory test, had Anne known of James's circumstances I consider it is likely that she would have made provision for him.
Seventh, in the course of stating the applicable principles I have referred to the importance of community standards or expectations. The wide variety of circumstances in which claims for provision are made, and the diversity within the community mean that it is difficult to determine with confidence what the applicable community standard is in the particular - and often unique - circumstances of any given case. In the case of a claim by an adult child who is estranged from a testator I consider that in many cases the community expectation would be that the testator's wishes be respected and upheld by the court. That said I consider that there is an expectation that a parent, who has the means to do so, will provide for an adult child who has fallen on hard times or faces financial insecurity. This expectation is more compelling when the child's difficulties are caused by ill health or when the child would otherwise be dependent on government benefits (ultimately derived from the community) in order to avoid destitution.
Eighth, although Anne had the considerable misfortune to be estranged from her children and their families, she enjoyed a comfortable standard of living. I infer that she would not want her son (and his family) to live in straitened financial circumstances and her expectation was that he would never be required to do so. Expressed in the (rather outmoded) phrase used in family provision cases James's 'station in life' was not one which involved him being dependent on government benefits.
In the preceding paragraphs I have identified the particular matters that bear upon the evaluative exercise that is to be undertaken. They are matters that are not to be considered in isolation, they overlap and bear upon each other. In those circumstances it is difficult to identify particular matters that are decisive. In this case, however, James's distressed financial circumstances and his ill-health are matters to which I have attached particular weight. In my judgment adequate provision for James's proper maintenance, support, education or advancement in life was not made by the Will. James remained the natural object of Anne's testamentary bounty. In my judgment Anne had a moral duty to provide for him.
It is implicit in the conclusion that I have reached that I am not satisfied that, having regard to the totality of the relationship between him and Anne, James conducted himself in a way that disentitled him to provision. There are two features of that relationship to which I have already referred upon which I place particular reliance. First, James was not solely responsible for the events that led to the initial rift between Anne and him. Second, James's moral responsibility for his conduct following his illness was reduced by the consequences flowing from the illness and the treatment received by him.

No adequate provision for Sarah

Sarah's circumstances are materially different to those pertaining to James. In the course of evaluating whether the absence of any provision for Sarah in the disposition of the Estate by the Will was not such as to make adequate provision for Sarah I have had regard to the matters referred to in the following paragraphs.
First, at the date of Anne's death Sarah was able to meet her financial needs from her own resources. She and her husband had the capacity to earn a combined annual income of over $300,000 as was demonstrated by the well-paid employment they secured following their return to Australia in 2014. Sarah owned the house in which she lived with her family and it was worth at least $1,420,000. The combined net asset position of Sarah and her husband was at least $872,000. Principle dictates that those sound financial circumstances must, however, be evaluated with the advantage of hindsight if the events that subsequently occurred are within the range of reasonable foresight. Thus I must take into account my finding that at the time Anne died Sarah's relationship was an unhappy one and the breakdown of her marriage was foreseeable. Applying the same reasoning the possible consequences flowing from a breakdown of her marriage must also be taken into account. Those included the possibility that Sarah's financial security might be adversely affected by the marriage breakdown and she might become a single mother with primary responsibility for the care of her daughter.
Second, apart from James's claim, there are no other claims based on competing need. I address the significance of James's claim in the context of Sarah's claim later in these reasons. The Estate is substantial.
Third, I take into account the totality of the relationship between Anne and Sarah. As with James this includes the estrangement but also the close and loving relationship between Sarah and Anne in Sarah's childhood and adult years to the age of 23. Again as with James, responsibility for the initial rift between them cannot be attributed solely to either Sarah or Anne. As I have found, however, Sarah did not take any positive steps to bring the estrangement to an end until the email exchanges in late 2013 and early 2014 (initiated by Sarah's invitation to Anne to meet her grand‑daughter). The fact that Anne responded promptly to Sarah's emails with emails which themselves evidenced the love and affection held by Anne towards Sarah and demonstrated the continued existence of a maternal bond. The emails evidenced a desire on Sarah's part to re-establish her relationship with Anne and to involve her in her grand‑daughter's life.
Fourth, Anne's testamentary wishes are important and, in this respect, I refer to what I have said in the context of analysing whether adequate provision was made for James.
Fifth, account must be taken of Anne's reasons for not making provision for Sarah. Different considerations apply to Sarah's circumstances than those which apply in James's case. In Sarah's case the reasons stated in the Will for not making provision had a partial foundation in fact at the date of Anne's death. Sarah had received generous gifts from Michael that enabled her to buy her first home and she was at that time capable of meeting her needs from her own resources. The gifts she had received and her own earning capacity conferred a significant degree of financial security on Sarah. On the other hand, some of the grounds on which I infer Anne's belief that Sarah would be provided for in the future was based, were no longer supported by the facts. There was no prospect of further gifts or inheritances. Further, Anne did not know that Sarah's apparent financial security was threatened by the unhappy state of her relationship with her husband. Separate from, but in addition to those matters, the reason given by Anne to Mrs Purcell and Ms Ethell for excluding Sarah from the Will was no longer accurate. Sarah had taken steps to re-establish contact with Anne and to share with Anne some of the joy her daughter gave to her.
Sixth, the observations made in the context of James's claim about the difficulty in identifying community standards apply with equal force to Sarah's claim. At the date of death Sarah was in a comfortable financial position but her financial security was jeopardised because of the possibility that her marriage would break down. Her ostensibly comfortable financial position at the date of death does not compel the conclusion that the jurisdictional question should not be answered in her favour. The Act directs attention to the adequacy of provision for the proper maintenance etc of a claimant. What is proper involves a consideration of the circumstances particular to the testator and the claimant. Anne was wealthy. Her belief was that Sarah was insulated from the risk of financial insecurity whereas in fact she was not. That is an important aspect of the context in which the question of what is 'proper' must be considered. Assessed in that context I consider that adequate provision for Sarah was not provided by the Will and adequate provision for Sarah's advancement in life required a legacy of a capital sum to assist Sarah in managing events that might jeopardise her financial security.
Accordingly, in my judgment the disposition of the Estate in the Will did not make adequate provision for Sarah's proper maintenance, support, education or advancement in life.

Provision for James

It was submitted on behalf of James that adequate provision for him requires that:
(a)he be provided with a capital sum sufficient to enable him to discharge the debts accumulated by he and Beth at the date of the hearing ‑ $1,539,537 ‑ which will, in turn, provide them with suitable permanent accommodation; and,
(b)a capital sum ‑ $1,143,700 ‑ to invest so that he will receive an annuity for the remainder of his life.
It was submitted that the capital sums should be ordered to be payable to a trustee to be determined by the Court and to be administered in accordance with the terms of the James Kiernan Trust referred to in amended originating summons.
James is now financially destitute. His liabilities exceed his assets and but for the financial support he has received from third parties and the forbearances extended to him by his creditors it is likely that he and Beth would have lost possession of the family home.
As I mentioned when discussing the applicable legal principles the jurisdictional issue and the discretionary issue involve a consideration of many of the same circumstances. In my judgment a wise and just testator would have regard to James's personal and financial history and present personal and financial circumstances and the totality of his relationship with Anne as described in earlier sections of these reasons. The estrangement between James and Anne presents a difficult issue. In my judgment a wise and just testator who knew of James's cognitive impairment and the difficulties to which these give rise would subordinate an understandable inclination to reduce the provision that might otherwise be made on account of the estrangement to the need to ensure that James was financially secure.
Having regard to the circumstances to which I have referred I consider that adequate provision for James requires that he be provided with a capital sum sufficient to enable him to discharge the debts that he and Beth have accumulated. This will serve the purpose of securing accommodation for James and his family. Allowing a margin of approximately $40,000 to cover contingencies a capital sum of $1.6 million will discharge James's accumulated liabilities. Provision should be made for such a sum.

I consider that a further capital sum should be made available to a trustee on James's behalf to invest and provide an annuity to assist with living expenses. This sum should be $600,000. How James and Beth's financial affairs are structured in the future is a matter for them but in settling on an amount of $600,000 I am guided by the actuarial calculations set out at [202] and [203] coupled with the evidence that a reasonable family home in the Margaret River area can be purchased for a sum in the region of $550,000. Provision in an aggregate sum of $2.2 million would enable James and Beth to purchase a comfortable home and, after the sale of the Bramley property (if that is what they decide to do), have available to them the approximate amount of capital required to invest in order to generate a 'fifth quintile level of expenditure' (on the 'including social security' assumption) - that is an annual income of $140,880.

Provision for Sarah

It was submitted on Sarah's behalf that adequate provision requires a sufficient sum to enable her to retain her current home in an unencumbered state, and provide a good standard of living for her and her daughter without having to compromise her role as her daughter's primary care giver. It was submitted that adequate provision would be a sum of approximately $1.5 million. This figure was calculated on the basis that it represented approximately 30% of the value of the Estate which by Sarah's counsel's calculations was to be valued at $5 million.
Sarah has the capacity to earn an income significantly higher than the average Australian income albeit that her responsibilities as her daughter's primary care giver may presently restrict her earning capacity. She received substantial gifts from Michael as a consequence of which she owns her own home and, even if that had to be sold to meet her present debts, she would be left with a capital sum of approximately $700,000. I acknowledge, however, that this sum would be subject to her husband's claim in the matrimonial property proceedings. These features of Sarah's history and circumstances distinguish her claim from that of James.
Each claim must be assessed separately. James's claim is more pressing. His circumstances are dire, his needs are greater and the evidence does not establish that he has been the recipient of any gifts. A consequence of recognising that James's claim is more pressing is that the amount of the Estate out of which provision may be made for Sarah is reduced to a sum of between $800,000 - $900,000.
A wise and just testator would have regard to Sarah's personal and financial history and present personal and financial circumstances and the totality of her relationship with Anne and to Anne's expectations of the standard of living that she would want Sarah to enjoy. In Sarah's case the generosity of a wise and just testator would, however, be tempered in recognition of the long period of estrangement.
I do not accept that provision in the sum of $1.5 million should be made for Sarah. Such a sum would enable Sarah to pay off her debts and, on the basis of the actuarial calculations, meet an annual level of expenditure of $146,320 per annum from investment income derived from the balance of $1.5 million after payment of her debts. Moreover, in so far as a claim for provision in the sum of $1.5 million rests on the proposition that it represents one third of the value of the Estate that is not a proposition that can be sustained by reference to the applicable principles.
I consider that a wise and just testator would make provision for Sarah that would aim to achieve two objects: first, help restore her financial security by enabling her to discharge her present debts and thereby reduce the prospect of her having to sell her present home; and second, provide her with a modest amount of additional capital as a buffer against the vicissitudes of life.
The provision I consider should be made for Sarah is as follows:
(a)payment of a capital sum to a trustee of $350,000 for the payment of debts; and
(b)payment of a further sum of $150,000 as a buffer against the vicissitudes of life.

Amendments to the Will required to enable provision to be made

As my findings as to the composition and value of the assets of the Estate at [40] - [47] demonstrate, provision in accordance with the conclusions I have reached cannot be accommodated without disturbing the gift of Coraki Cottages to John. Given that it was Anne's wish that Coraki Cottages should be left to John this is not an amendment to the Will that I countenance lightly. I have decided, however, that the Will should be amended to remove the gift of Coraki Cottages to John. In reaching this decision I take into account that John does not have a competing financial need and he will derive a substantial benefit from the gift of Anne's shares in John Windsor.
I will give the parties the opportunity to be heard in relation to the amendments to the Will required to make provision for the legacies to trustees on behalf of James and Sarah.
I do not intend that there should be any amendment to the disposition of residue of the Estate to the College. I have only limited information available to me about the quantum of the parties' legal costs. I cannot estimate with confidence what the quantum of the costs will be nor where the burden of those legal costs will fall. A reasonable working hypothesis is that the legal costs may reduce the value of the Estate by a figure of between $300,000 and $400,000. If that is so it may mean that the College receives no benefit from the Estate. In the light of Anne's affection for the College this is an unfortunate result but I fear it may be unavoidable.
I will hear the parties in relation to costs.

Appendix
This summons is issued upon the application of LAURENCE JAMES KIERNAN…and SARAH ELIZABETH KIERNAN…who claim:
1.an order, pursuant to s.6 of the Family Provision Act 1972, that the will of the late Frances Elizabeth Anne Cranston ('the Deceased') dated 21 August, 2008 be amended as follows:
(a)Clause 2 be replaced with the following:
'2. I give:
(a)such an amount as the Court determines to THE JAMES KIERNAN TRUST ("the James Kiernan Trust") for the benefit of my son, LAURENCE JAMES KIERNAN ("James") to be applied in accordance with the terms of the trust as set out in the Schedule 1 hereto; and
(b)$1,499,000.00 to THE SARAH KIERNAN TRUST ("the Sarah Kiernan Trust") for the benefit of my daughter, Sarah Elizabeth Kiernan ("Sarah") to be applied in accordance with the terms of the trust as set out in Schedule 2 hereto;
(c)the items of personal effect listed in the attachment to my will to James and Sarah as tenants in common in equal shares.

(b)by deleting from Clause 5 the words following 'Western Australia' and replacing them with the words 'my 1000 'D' class shares in John Windsor Pty Ltd'.
(d)Schedule 1 to the will of the Deceased shall be in terms approved by the Court at the final hearing of this application but would include provision for the trust to be known as "the James Kiernan Trust":
(i)to be administered by an independent trustee;
(ii)for the trustee to hold the fund for James's benefit and to apply such of the capital, net income or allocated net income of the fund for the maintenance, support, education, advancement or benefit of James and his wife and dependants;

(e)Schedule 2 to the will of the Deceased shall be in terms to be determined by Sarah prior to the final hearing of this application and will include provision for the trust to be known as "The Sarah Kiernan Trust":
(i) to be administered by an appropriate trustee; and
(ii) for the trustee to hold the fund for Sarah's benefit and to apply such of the capital, net income or allocated net income of the fund for the maintenance, support, education, advancement or benefit of Sarah and her dependants.

2.such further order or other declaration as the Court deems fit;
3.the costs of this application be paid out of the estate of the Deceased.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle
13 NOVEMBER 2019

Value at the date of death	Value at hearing date
Assets
6/70 Mount Street, West Perth	$2,250,000.00	$1,720,000 (amount due on settlement of sale)
16 Nanarup Road (Coraki Cottages)	$2,200,000.00	$1,900,000
2009 Mercedes Benz Sedan E250	$40,000.00	Nil - transferred to beneficiary
Jewellery and personal effects	$70,000.00	$20,000
Shares in John Windsor Pty Ltd	$340,000	$490,500
Cash in various bank accounts	$31,613.51	$1,466,983.43
Units in BT	$1,970,079.07	Nil (redeemed and money paid into Estate bank account)
Mere View's cash at bank	$812.95	Nil (transferred to Estate bank account)
Mere View's shares and securities	$31,664.68	$23,296.00
Bushby Road	$900,000	$517,500
Value of assets	$7,834,170.21	$6,138,279.43
Liabilities
Debt due to Westpac on interest only facility secured against 6/70 Mount Street	$1,774,877.41	$1,819,562.93
Miscellaneous debts	$34,467.95	$75,401.67
Debt due to John Windsor	$50,900.00	$50,900.00
Tax	To be ascertained
Total liabilities	$1,860,245.36	$1,945,864.60
Net value	$5,973,924.85	$4,192,414.83

Coraki Cottages	$1,900,000
Cash at bank	$1,466,000
Shares	$23,000
Bushby Road property	$517,500

Balance of debt secured on Mount Street property after application of proceeds of sale (estimated)	$99,562
Miscellaneous debts	$75,400
John Windsor debt	$50,900
Costs of selling remaining assets	$75,000