Kouroutis v Kouroutis

[2023] NSWSC 608

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kouroutis v Kouroutis [2023] NSWSC 608

Hearing dates:

10 May 2023

Date of orders:

9 June 2023

Decision date:

15 June 2023

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Plaintiff awarded further legacy of $118,000, in addition to the legacy provided for in the will. Order that the legacies in the will to the deceased grandchildren be reduced to $20,000 and to the deceased’s great grandchildren to $3,000. Order that the defendant’s costs be paid out of the estate on the indemnity basis. Order that the plaintiff’s costs be paid out of the estate on the ordinary basis.

Catchwords:

SUCCESSION – family provision – claim by one of two children, an adult daughter, for provision from the estate of her deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased’s will leaves his estate substantially to his surviving son, the defendant, and his grandchildren and great grandchildren, providing a legacy of $100,000 to the plaintiff – the plaintiff had a troubled childhood, became involved in drugs and was imprisoned for drug related offences – the plaintiff lived distant from the deceased – the plaintiff’s brother, the defendant, spent more time with the deceased in the final years of his life than the plaintiff – whether the plaintiff was estranged from the deceased – whether the plaintiff’s relationship with the deceased precludes making an award of further provision for the plaintiff out of the deceased’s estate – whether on discretionary grounds the Court should not make further provision for the plaintiff out of the deceased’s estate – whether the plaintiff needs further provision from the deceased’s estate for her proper maintenance, education and advancement in life and if so, what is the appropriate quantum of such provision – how the defendant’s financial needs should be balanced in making any award to the plaintiff.

Legislation Cited:

Family Law Act 1975, s 79

Succession Act 2006, ss 57, 59, 59(1)(c), 65, 66(2)

Uniform Civil Procedure Rules 2005, r 42.4

Cases Cited:

Camernik v Reholc [2012] NSWSC 1537

Christie v Edward [2012] WASC 265

CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CR 98

In the Estate of Lee (1986) 84 FLR 268

James v James [2006] NSWSC 1151

Rathswohl v Court [2021] NSWSC 356

Saunders v Vautier (1841) CR & PH 240

Taylorv Farrugia [2009] NSWSC 801

Texts Cited:

J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia [23-08] – [23-12] (8th ed, 2016, LexisNexis)

Category:

Principal judgment

Parties:

Plaintiff: Asmina Kouroutis
Defendant: Peter Kouroutis

Representation:

Counsel:
Plaintiff: L. Clarke
Defendant: P. Bolster

Solicitors:

File Number(s):

2022/148600

Publication restriction:

No

Judgment

1. Dimitios Kouroutis (‘the deceased’) died on 25 May 2021 aged 93. He was survived by his two children, the plaintiff Asmina Kouroutis and the defendant, Peter Kouroutis. The plaintiff claims that adequate provision was not made for her in the deceased’s last will. She brings an application under s 59 of the Succession Act2006 for further provision out of the deceased’s estate.

2. The hearing was set down for two days, 10 and 11 May 2023. The efficient conduct of the hearing by the legal representatives allowed the matter to be completed within one day. Ms L. Clarke of counsel, instructed by Segelov Taylor Lawyers, appeared for the plaintiff. Mr P. Bolster of counsel, instructed by McGrath Solicitors appeared for the defendant.

3. The parties referred to one another and to other close family members by their first names. Without intending any disrespect to any party or witness, the Court will do the same in these reasons.

4. The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy this narrative does not always include reference to versions of the facts that have been rejected.

The Deceased

5. The deceased was born in Greece in 1927. He married Anna Kouroutis (“Anna”) in 1952 and they migrated to Australia in 1957. The deceased and Anna had three children. From oldest to youngest they were Kasiani (known as “Kathy”), Peter and Asmina. Only Peter and Asmina survived him. Anna died in 2012 and Kathy died in 2019.

6. Kathy had two children, Terry and Konstantina (known as “Tina”). Terry and Tina each have children. Combined their families comprise seven children. The deceased’s son, Peter, has two children, James and Chantelle. Asmina has no children of her own. Thus the deceased and Anna in total had three children and nine grandchildren.

7. The deceased created two testamentary instruments, first in 2013 (‘the 2013 will’) and another on 7 August 2019 (‘the 2019 will’).

The Wills

8. 2013 will. The 2013 will appoints all three of the deceased’s children as the executors of his estate. It gives all the deceased’s furniture and personal effects to Asmina for her own use and benefit, $100,000 to the deceased’s eldest daughter, Kathy, and the residue of the estate to Asmina and Peter, as tenants in common in equal shares.

9. 2019 will. When the deceased’s eldest daughter Kathy died in 2019, the deceased wished to provide for her children and grandchildren. The deceased arranged for a change in his will. The 2019 will appoints Peter as the executor and provides for the following:

1. a gift of $100,000 to Asmina – the deceased noted in the 2019 will that he has not provided more than this for Asmina because “she provides no assistance for my care, has not visited me in the Nursing Home for over 12 months, and did not attend the funeral of her mother or her sister”;

2. a gift of $25,000 to each of four of the deceased’s grandchildren, James and Chantelle (Peter’s children), and Tina and Terry (Kathy’s children);

3. a gift of $10,000 to each of the deceased’s 14 great-grandchildren, “who survive me and if more than one as tenants in common in equal shares”; and

4. a gift of the remainder of the estate to Peter – the deceased noted that “Peter visits me everyday in the Nursing Home and brings me food and has been helping and caring for me for years”.

Assets of the Deceased’s Estate

10. The deceased’s principal asset was a residential property in Parramatta. When the deceased moved into a nursing home in 2019 the Parramatta property was sold, prior to the deceased’s death. The sale settled in June 2021 generating gross proceeds of $1,205,000. Peter received $1,178,687.32 from the proceeds of sale as executor of the deceased’s estate.

11. With these funds Peter made an unsecured loan to his son, James, which was used to acquire a property in the joint names of James and his wife. Although the Court received assurances at the hearing this unsecured loan would be repaid, the position seemed unsatisfactory and fraught with the possibility of future litigation. It was important for this dispute to be quelled. The Court indicated to Mr Bolster that a clear commitment was needed that the $500,000 would be available in the future administration of the estate and for giving effect to any orders of the Court.

12. Mr Bolster obtained instructions from James and the defendant about the advance. James and his wife are now separated and are going through matrimonial proceedings. James has indicated that he will sever the joint tenancy and provide a charge for the benefit of the estate over his share to secure the amount of $500,000. He will also give a charge in favour of the estate over any other of his jointly owned matrimonial property, which is said to include other unencumbered land.

13. The Court foreshadowed at the hearing that it would give the parties liberty to apply should it be necessary for this charge to be formalised by making ancillary orders under Succession Act s 66(1). Although a formal undertaking to give such a charge was not given to the Court, the proceedings were conducted based on the instructions conveyed to the Court on behalf of Peter and James about their willingness to give the charge. The grant of liberty to apply will cover all contingencies that might arise in relation to this issue.

14. In the defendant’s final submissions the financial position of the estate was summarised. From the net proceeds of sale of the Parramatta property of $1,178,687.32, expenses incurred and paid by Peter on account of the funeral of $19,500 need to be brought to account, leaving a subtotal of $1,159,187.32. Other estate expenses are due to be paid of $3000, leaving a balance of $1,156,187.32.

15. From this balance the specific bequests of $340,000 must be deducted together with the professional legal costs and disbursements of the parties and probate costs. As indicated elsewhere in this judgment the professional legal costs have been capped so that these costs total $165,133. This leaves a balance in the estate of $651,054.32.

The Kouroutis Family

16. Asmina. Asmina was born in February 1963 and was 60 at the time of the hearing. She had a troubled start to life. Her early hardships still have an impact on her. She grew up in the family home in Parramatta with her parents and two older siblings.

17. The deceased and Anna worked at two jobs, which occupied their time late into the evenings. Asmina recalls, and the Court mostly accepts, she spent much of her life from the age of 10 alone at home after school. Peter disputes this. He claims Anna was houseproud and committed as a mother to all of her children, cooking and caring for her family every evening. The truth lies between these two versions. There is little doubt that the deceased and Anna were very committed to their children and that Anna was house proud. But it is also likely that driven by financial necessity to provide a stable and financial environment for the children that Anna or the deceased were not always present at the house in the evenings. But those circumstances are not the explanation for the misfortunes that later befell Asmina, which can be traced to specific events.

18. By the age of 14 Asmina displayed athletic potential. This was recognised by her school. When Anna disallowed Asmina’s participation in an interstate athletic carnival, Asmina says, and the Court accepts, she absconded from the family home and travelled to Queensland. She did not return home for three months but only did so after her parents searched for her in Queensland. But when she returned she abandoned her education. By then she had been drawn into using illicit drugs. The lack of parental supervision as a result of her absconding seems to have been the direct cause of her being introduced to drugs.

19. By the age of 17, Asmina had developed an addiction to heroin. She was soon charged with offences relating to shoplifting and soliciting drugs. By 19 she was diagnosed with an epilepsy-related disorder. Whether this was related to her drug taking is unclear. At 21 Asmina began a methodone program, in which she still participates. Her methodaone dose has reduced over the years.

20. Asmina’s behaviour distressed her parents. But she says the deceased and Anna remained unwavering in their love and support for her. Regrettably Asmina relapsed into offending and was imprisoned several times. The deceased and Anna visited Asmina in prison. They accepted her back into the family home when her prison sentences were complete.

21. The deceased and Anna were determined to assist their daughter to escape from her cycle of offending and drug taking. In 1983 they moved back to Greece, bringing Asmina with them, to take her away from the malign influences on her life here. She was 21 at the time. They did not work in Greece. They lived from their savings and the income produced through renting out the Parramatta property. Their main focus was to support Asmina.

22. The deceased and Anna said to Peter at this time, “we are taking your sister over there to get her away from the company that she is hanging around with and the drugs she is taking. We hope that she might meet someone in Greece and settle down”. After 14 months abroad, Asmina and her parents returned to Australia. They had reached the limits of their financial capacity to sustain a life in Greece. The deceased and Anna both returned to work. But thwarting her parents’ careful plans, Asmina began to use heroin again back in Australia.

23. Asmina continued to live at home with her parents. She assisted them with domestic duties such as washing, cooking, cleaning and gardening. She believes she always had a close and affectionate relationship with both her parents.

24. Peter disputes this description of family harmony. He claims Asmina never helped around the home and had a bitter relationship with the deceased, who he believes resented Asmina for stealing from him. Sharon, Peter’s wife, also claims the deceased was very bitter towards Asmina and said words to her to the effect, “Mina used to take money from me” and “Mina has never been there for me”.

25. Once again this evidence presents a mixed picture in which there are elements of truth on both sides. The efforts that Anna and the deceased made to find Asmina in Queensland, to visit her in prison, to accommodate her at home all imply a strong and continuing commitment to her welfare as their youngest daughter. This commitment clearly came through to Asmina as demonstrating their affection, as it undoubtedly did.

26. But Peter is also correct that this was not a perfectly harmonious family. The emotional and financial cost to the deceased and Anna of supporting Asmina through her addiction would be a challenge in any child/parent relationship. The testing times that Asmina’s conduct had thrust upon Anna and the deceased must often have been frustrating for them, leading to emotional overflows of resentment. The kinds of comments that Peter and Sharon refer to were undoubtedly made by Anna and the deceased. But the comments are more an expression of frustration that the parental love that they were showing Asmina was not effective in changing her behaviour. But in the Court’s view, neither of them gave up on their daughter, Asmina.

27. Robyn and Asmina. In 1985, Asmina met her life partner Robyn, when they were both in prison together. They commenced an intimate personal relationship.

28. They have been together ever since. Asmina claims Robyn was welcomed into the family home, visiting Asmina frequently. She says this allowed Robyn to spend some time with the deceased and Anna. Asmina claims the four of them had a pleasant relationship and were together from time to time. She denies ever hiding her relationship with Robyn from her parents.

29. Peter recalls Robyn and Asmina’s relationship differently. He also claims that the deceased and Anna disliked Robyn and would called her by a Greek expression meaning ‘old man’. Asmina admits that Robyn was eventually not permitted to stay the night with Asmina in the family home.

30. The parties and witnesses’ evidence about the relationship between Robyn and Asmina is grealy coloured by the perspective from which their evidence is given. The Court accepts that Anna and the deceased were relatively conservative parents, who would have had difficulty in adjusting to Asmina’s same sex relationship with Robyn, at a time long before the introduction of marriage equality for same sex relationships in Australia. Anna and the deceased were as accepting of the relationship as they could be but they clearly had persisting disquiet about it. They must have known to stay connected with Asmina they needed to accept Robyn and that is what they did.

31. But the circumstances in which Asmina met Robyn, in prison, is also likely to have caused a degree of bitterness on their part which would explain some of Peter’s evidence about name calling of Robyn. But fundamentally the Court accepts Asmina’s evidence that she and Robyn were welcomed at the Parramatta property, during the day. But the deceased and Anna occasionally demonstrating discomfort with the relationship may well have driven Asmina and Robyn to live more distantly from Asmina’s parents. But the evidence the Court accepts does not support the inference that either the deceased or Anna on the one side or Robyn or Asmina on the other, ever cut off ordinary family communications from one another.

32. Asmina last used heroin in 1989. She has generally managed on her methodone program since then. Over the long term she has reduced her methadone dosage from 200mgs daily to 40mgs daily. She is likely now to stay on the methodone program.

33. Asmina manages many health challenges. Some of these are related to her long term opiate addiction. She has paranoia schizophrenia, uncontrolled epilepsy, hepatitis C, cirrhosis of the liver, emphysema, and experiences migraines, and chronic back and knee pain. A medical report from Dr Patricia Jungfer confirms for the Court Asmina’s diagnosis of paranoia schizophrenia, polysubstance use disorder and a possible neuro-cognitive disorder. All of these conditions will require monitoring and treatment in the long term. Asmina and Robyn are provided an income through the National Disability Insurance Scheme.

34. Anna’s death and funeral. Anna first became seriously unwell in 2007, when she began to exhibit a rare neuromuscular disorder. Asmina, Robyn, and the deceased cared for Anna. Asmina took over many of her mother’s domestic duties. Because her mother was disabled by her illness, Asmina cooked for the deceased and washed his clothes. But Asmina and the deceased were unable to provide the level of care Anna required.

35. Anna needed care in a nursing home. She was admitted to a residential care facilty in 2010. Asmina and her brother each claim to have visited their mother in the nursing home everyday. They both also claim the other rarely visted. Once again, the truth lies somewhere between these two versions. In the Court’s view they both visited Anna at the nursing home, although probably not as often as each of them claimed.

36. Anna died in 2012, with her family around her. Asmina attended her funeral and was attentive to the funeral arrangements. But Kathy did not attend the funeral, for reasons which are unclear.

37. Asmina and the deceased. The 2013 will supports the inference that Asmina and the deceased maintained a good relationship, despite her convictions and drug addiction. The 2013 will gives Asmina all the deceased’s furniture and personal effects for her own use and benefit, and half of the residue of the estate, less the legacy of $100,000 given to Kathy.

38. The 2019 will contains an error about Asmina’s relationship with the deceased and Anna. As indicated above, the will leaves only $100,000 to Asmina, because Asmina “provides no assistance to my care, has not visited me in the Nursing Home for over 12 months and did not attend the funeral of her mother or sister”. This is not correct. Both parties have no issue with the finding that Asmina attended her mother’s funeral in 2012. This error is likely to have informed the deceased’s consideration of his bequest to Asmina. But the fact that Kathy did not attend her mother’s funeral suggests that in making the mistake about Asmina not attending the funeral, the deceased was confusing Asmina with Kathy. These matters are discussed further in these reasons under the heading, “Consideration”.

39. Asmina concedes that she had not seen the deceased since about December 2017. She says the reason for that is a bad fall which left her with severe bruising and facial injuries requiring surgical intervention. After Asmina was discharged from hospital she says she returned to the Parramatta property. But she says she found the deceased’s home vacant. He had been taken to a nursing home in North Parramatta. Asmina claims she wanted to see her father. But she says she was reluctant to do so. She says she thought she might scare the other residents in the facility due to her physical state after her fall. So she decided not to visit him. There is no evidence of her visiting him in the logs for his aged care facility.

16. But this evidence is unsatisfactory. Peter’s case on this issue is powerful: whatever Asmina’s initial reasons for not seeing the deceased whilst he was in a nursing home, there is little excuse for her not attempting to find out where he was and visit him after that. Asmina faced the obstacle of distance that she needed to overcome and the difficulty of making accommodation arrangements for herself in order to visit her father. On these matters she could predict that Peter would be uncooperative. And Asmina is very close to Robyn and would have had difficulty in leaving her overnight to travel to see her father were it required. In addition Asmina and Robyn’s budget is very tight, leading to the difficulties of visitation. The Court can accept that challenges in visiting her father in western Sydney from Towradgi were significant. Peter by then was settled into a routine of visiting his father and taking control of the situation to the exclusion of Asmina.

17. But there is little doubt that Asmina could have done more than she did to visit her father. His comments in his will were justified on this issue and her neglect continued between the time of his will in August 2019 and his death in May 2021. In contrast, the aged care facilty logs show objectively how much the deceased appreciated and enjoyed the visits from Peter.

18. Asmina’s living arrangements and assets. Asmina and Robyn currently reside in a two-story town house which forms part of a complex of 24 Housing Commission townhouses in Towradgi, a beachside suburb just north of Wollongong. Asmina and Robyn feel unsafe in their home due to frequent criminal activity around the complex. Asmina cites many instances of drug possession and supply, theft, intimidation and assault. These activities frequently require police intervention and de-escalation. Asmina has no assets of value and survives on her fortnightly NDIS pension.

19. Peter. Peter was born in August 1957. He was about 65 at the time of the hearing. He was a boiler maker by trade and operated his own fabrication business between 1995 until 2010. But after suffering a spinal injury, Peter was unable to continue active work in this trade and his business failed.

20. Peter has no assets. He lives on a disability support pension of $904.00 per fortnight. He occasionally asks his son James for financial support to purchase medication and basic living essentials.

21. Peter and Sharon. Peter met his wife, Sharon when he was 17 years old. They married in 2002 and had two children, James and Chantelle. Peter and his family lived in Parramatta, a short drive from his parent’s residence. Peter admits he was a “terrible husband” to Sharon, often being unfaithful, and drinking and gambling heavily. Sharon held the family together. After many failed attempts to change his way of life, Sharon finally demanded that Peter leave their matrimonial home. He did in 2013, moving in with their adult son. Sharon has retained their matrimonial home. She sold that property in April 2017 for $1,950,000, and applied the proceeds to the purchase of a less expensive property for approximately $1.5 million and retained the balance to help her meet her financial contingencies.

22. Peter claims he does not wish to be divorced from Sharon. He says he is driven by fear of ‘what all the Greeks would say around Parramatta… gossip and all that’. Peter claims he is so guilt-stricken by his behaviour as a husband that were he and Sharon to divorce he would never seek a matrimonial property settlement from Sharon.

23. Peter explains that he did not think he would need to seek a matrimonial property settlement from Sharon, as he was certain his father was going to leave him the Parramatta property. Peter claims, and the Court accepts, that the deceased said to him words to the effect, “it’s your house Peter, do whatever you want with it”. This statement is consistent with what the deceased ultimately did in the 2019 will, giving Peter the residue of the estate which substantially represented the value of the Parramatta property. The Court’s findings in relation to a possible future matrimonial settlement between Sharon and Peter are discussed below.

24. Peter’s living arrangements. Since separating from Sharon in 2013, Peter has drifted between living at the deceased’s home in Paramatta and with his son, James. The Parramatta property was sold in June 2021 before the deceased’s death. The proceeds of sale were disbursed to Peter. As discussed above, Peter loaned $500,000 of the proceeds of sale to James in July 2021, to enable James to acquire commercial premises at Riverstone, which James occupies to operate his metal fabrication business.

25. After the sale of the Parramatta property, Peter asked James if he could reside in James’ family home again. But this proposal was not compatible with James’ domestic life. James persuaded his mother Sharon to allow Peter to occupy a spare room in her new home in Merrylands West, temporarily until other accommodation arrangements could be made.

26. Peter and Sharon both say they have not resumed married life since their 2013 separation. Peter describes their relationship as ‘we say hi, goodnight, that’s basically it’. Sharon states Peter’s occupation of her home is not going to be permanent. Sharon says that her reason for not divorcing Peter before now is her profound desire to be christened in the Greek orthodox church, so she can be buried with her children. She believes this cannot occur if she is divorced.

27. Peter and Sharon were each cross-examined on behalf of Asmina to suggest that their marriage relationship had not irretrievably broken down. Photographs tendered supported Asmina’s case theory that the marriage relationship continued. These photographs had been uploaded to Peter’s Facebook page. Some of the photographs were of Sharon and Peter standing next to each other in various affectionate situations: at Sharon’s 60^th birthday; holding hands at Cronulla beach in February 2020; and Peter with his arms around Sharon in her Merrylands West home.

28. Sharon explained that the photographs did not indicate a resumed relationship. The photograph relating to her 60^th birthday was accounted for as, “my daughter and my son came over and had a cake and they got their dad out of [his] room [so the photograph could be taken]”. The photo at Cronulla beach was described as “we’re all holding hands, my kids were beside him in that photo, they might have been cut out”. It is clear on closer inspection of this photograph that other persons, probably children are in the photograph and have been cut out. And Sharon said of the photo at her Merrylands home, “Peter puts his arms around everyone when he takes a photo”. And this photograph is consistent with that description, as Sharon is being relatively passive in relation to Peter in the photograph but smiling for the camera.

29. Peter was questioned about his physical closeness to Sharon in the photographs. Peter justified the couple’s poses in the photos, saying ‘so what. We take photos, show the kids. It’s better than being grumpy all the time’.

30. At first glance the photos might be thought to show affection and connection between Sharon and Peter. But closer inspection of the photographs and Peter and Sharon’s evidence show it is mostly Peter who is performing for the camera. The context is that Sharon is participating in family photos with little spontaneous enthusiasm. She wanted to maintain an appearance of unity and civility for the benefit of her children and grandchildren.

31. Peter’s relationship with the deceased. Peter says he had a close relationship with the deceased throughout his life. He remembers his parents enjoyed fresh fish and prawns from the Flemington markets, which he cooked for them. He says he visited his father frequently at the Parramatta property, assisted his father in caring for Anna after she became unwell, visited Anna every morning with the deceased in the aged care facility she lived in, and often drove his father to meet up with his friends at a Harris Park coffee lounge. Peter’s evidence on this is to be accepted in relation to the deceased although the Court does not find he visited Anna as often as he claimed.

32. The deceased was admitted to Westmead Hospital in August 2017 with hyperglycaemia and hyperthermia. He underwent an ACAT (aged care assessment) by a social worker at the Hospital on 17 October 2017. He was accompanied by his son Peter and an interpreter. The deceased had been referred for assessment by the social worker at Westmead Hospital, where he had been admitted.

33. The referral was part of routine hospital discharge arrangements. The deceased wanted to be discharged back home to the Parramatta property. But he recognised it was not a “safe option” given his recent admission to hospital, given his past medical history of atrial fibrillation, type 2 diabetes, a subdural haematoma in 2012, hypertension and parotid SCC with surgical resection.

34. Peter admitted the deceased into an aged care facility in October 2017 on medical advice. By then the deceased’s diabetes needed close observation and management. Peter observed the deceased’s health improved upon admission, as did his social life. And the deceased made friends with other facility residents and enjoyed frequent, mostly daily visits from Peter, as the facility logs show.

35. Kathy’s Funeral. Kathy died in March 2019. Asmina did not attend her funeral. But Asmina was living in Wollongong and was not contacted at Kathy’s death about the funeral. She can hardly be blamed for her non-attendance. Peter said in evidence that “everyone tried to call her” but “there was no answer”. Then he explained “my niece got hold of her and she said she would turn up for the funeral but she never”. Peter disclaimed any knowledge of where Asmina lived.

36. Peter did not make great efforts to find Asmina. The obvious course of going through the NSW Police or other relatives who might have known where Asmina was, was not pressed with the vigour that might be expected of a genuine attempt to find Asmina urgently. Peter’s evidence about his attempts to contact Asmina through third parties was unsatisfactory. The Court gained the impression that he did not put much into the task of finding Asmina.

37. The deceased was correct in the 2019 will that Asmina did not attend Kathy’s funeral. But the circumstances of her non-attendance hardly warrant the taking of a negative view about her either by the deceased, or by the Court.

38. Peter’s health. Peter too has significant health issues. He suffers from osteoporosis, uncontrolled epilepsy, asbestosis, coronary artery disease and chronic pain. Peter was an alcoholic for decades. The Court accepts he stopped drinking alcohol in approximately 2019.

39. The parties accommodation needs. The parties both have accommodation needs. Pursuant to the court’s directions during the hearing the parties cooperatively provided a range of property searches of available properties for Asmina in the Wollongong area and for Peter in the Merrylands area. The Court accepts, because of this evidence and the parties’ submissions, that it would cost Asmina in the order of $400,000 to $475,000 to acquire a two-bedroom apartment in the North Wollongong area and it would cost Peter in the range of $400,000 to $600,000 to acquire a suitable apartment in the Merrylands area.

Legal Principles

64. It is not in issue that Asmina is an eligible person under Succession Act, s 57, as a daughter of the deceased. The test of whether an order for provision should be made in any case is provided for in Succession Act, s 59(1)(c):-

“(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

…

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

65. There are many judicial statements summarising the operation Succession Act, s 59 and its statutory predecessors. It is described in the authorities as a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:-

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

66. Other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". These authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC1067 at [153], [154], [155], [158] and [160], which relevantly provides:-

“[153]   Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

[154]   In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:

"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

[155]   In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

…

[158]   Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

…

[160]   In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:

"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."”

67. The matters for consideration now are whether an order for provision should be made in Asmina’s favour and, if so, what is an appropriate order for provision in this case.

Asmina’s Submissions

68. Asmina’s submissions accept that the authorities state the community does not expect a parent in ordinary circumstances to provide an unencumbered house for their able-bodied children under their will. But those submissions point out that there is no rule that proper provision for an adult child and a presently able-bodied child does not extend to providing them with a house or money to buy one: Rathswohl v Court [2021] NSWSC 356. Asmina’s submissions make the point that she is not able-bodied and does not have resources to purchase her own accommodation or any real capacity to improve her current dire position. The submissions point out that she has distinct financial needs and does not have stable accommodation.

69. The plaintiff submissions approach the issue of need by looking at the combined accommodation requirements of Peter and Asmina, at $937,500, using the mid-point of each range: that is, $500,000 being the mid-point of Peter’s range of $400,000 to $600,000 and $437,500 being the mid-point of Asmina’s range of $400,000 to $475,000. Asmina’s submissions accept that there are not sufficient funds in the estate to meet the aspirations of both Asmina and Peter and maintain all other legacies, although it is accepted that changing the legacies of the grandchildren, the great grandchildren would further close the gap.

70. Asmina submits the Court should order further provision (in addition to her existing legacy of $100,000) to her in the sum of $333,500 plus her costs of $96,000 and she would then have up to a further $437,500 to purchase a unit.

71. Asmina submits that if an order for further provision of this category was made that after the payment of other legacies (totalling $240,000) and the estate’s costs (estimated at $85,000) such an order would leave Peter $301,687.32 from the estate. Asmina submits that Peter could build on this sum by making an application for a matrimonial property settlement under the Family Law Act 1975 which she submits “the Court could assume would be worth more than $300,000”, and the submissions point out that Sharon has already access to $200,000, being the proceeds of sale of the matrimonial property. Asmina submits that the remainder available to Peter could be increased by a reduction in legacies to Peter’s children and grandchildren (their combined legacy as being having a value of $120,000). The plaintiff made three other points in her final written submissions, which are set out below:

“8.   The plaintiff makes three other points in respect of remedy. Firstly, she offers to execute a deed whereby on the sale of the property $200,000 (or 50% of the sale price, whichever is greater) will be paid to Peter, or to others nominated by the Court or Peter. Such an arrangement would not require any ongoing contact between the parties, or complex legal arrangements. A draft deed is attached.4

9.   Secondly, while alternate accommodation arrangements for Asmina were raised at the hearing, none are an adequate solution. An alarm, or similar improvement to the current property is not an answer. As recently as August last year, Asmina’s partner (“Robyn”) was assaulted by a neighbour, who despite a conviction for the assault, remains in the complex. Asmina describes persistent drug dealing, crime and violence among her neighbours. Further, Robyn is the Housing Commission tenant and Mina has no rights in the event of Robyn’s death or the relationship breakdown. Alternate Housing Commission properties are also not a solution. The offered change to a Housing Commission property close by with the same criminal issues was rejected on safety grounds. There is no certainty. A long term rental property would continue her vulnerability as it is always capable of termination by the landlord.

10.   Finally, if the Court was not minded to make sufficient provision for her to purchase property, then there remains demonstrated need for additional funds to assist her in life, which Dr Jungfer in her report identifies as “appropriate shelter, nutrition, and medical care” and “stable and secure accommodation” among others (CB 1 page 112 par 14).

11.   The plaintiff submits that provision of a further $200,000.00 would be a minimum for such care.”

72. Peter has an asbestos disease which causes him disability due to his employment at the James Hardie’s factory at Camellia. Although he is aware of his potential rights for compensation in respect of that disease, he has not followed them up. Asmina submits he should be credited with the value of these rights. The value of these rights is uncertain on the state of the evidence before the Court but the Court takes them into account as having some indefinite value.

73. Asmina submits Peter and Sharon’s property in Parramatta that was sold mortgage free for $1.95 million in April 2017 was purchased by them as a couple for about $200,000. It was sold mortgage free. Peter says he did contribute financially to paying off the property over the years until about 2008 when he became physically incapable of work.

74. Asmina submits and accepts that Sharon’s new property at Merrylands was purchased for $1.475 million in March 2017 in Sharon’s name alone and of the approximate $500,000 excess, about $300,000 was used for renovations and improvements and to pay down credit card debt so that $200,000 remains in a bank account in her name earmarked for contingencies.

75. Peter undoubtedly has rights to claim under Family Law Act 1975, s 79. Asmina’s submissions point out that the factors to be taken into account in relation to a property settlement order relate to the contributions of the parties to the property and the welfare of the family, the state of health of the parties, the financial resources of each party and a standard of living that is in all the circumstances reasonable. Asmina’s submissions also point out that Peter’s potential matrimonial property claim is not limited to the proceeds of sale of the Parramatta property but would extend to other assets owned by Sharon, such as her bank account and superannuation. Asmina submits the Court could assume the martial property pool is more than $2 million and likely substantially more.

76. Asmina’s submissions then go on to draw the following conclusions:

“45.   In considering any order, the length of the relationship (at least 25 years), Peter’s financial contribution to the property, his poor health and lack of earning capacity, his need to have a standard of living that is in all the circumstances reasonable, along with Sharon’s ongoing ability to generate income would be factors considered by the Family Court.

46.   The Court would comfortably conclude that he would receive at least 25% (and probably closer to 50%) in the event of a property settlement. In numbers, he would receive at least $500,000 and potentially in excess of $1,000,000 in any property order.

47.   Peter’s evidence is that he will not make such a claim. While that is his right, he should not be permitted to rely upon that choice as the reason why the Court would not provide Asmina the accommodation she so desperately needs.”

77. Peter’s submissions need not be separately set out, as they are considered below during the Court’s analysis of whether an order for provision should be made and if so in what amount.

Consideration

78. The Court will make an order for provision under Succession Act, s 59 in Asmina’s favour. Several considerations justify Court’s intervention here.

79. The first consideration is that the 2019 will shows internal evidence that at the time it was made the deceased misapprehended the longer term aspects of his relationship with Asmina. His incorrect statement in the 2019 will that Asmina “did not attend the funeral of her mother”, shows that the deceased’s appreciation of these longer term features of his relationship with Asmina had become clouded. How broad the deceased’s misapprehension was is difficult to say. But making a mistake as fundamental as accusing one’s own child of not attending her mother’s funeral is a significant error. And he was prepared to act on that error rather than be cautious about what he could remember. This causes the Court disquiet about the deceased’s broad appreciation of his relationship with Asmina and and up to about the time of Anna’s funeral.

80. A second consideration arises when the error concerning Asmina’s attendance at her mother’s funeral is corrected. Leaving aside for a moment Asmina’s non-attendance at Kathy’s funeral, the deceased’s other reason for providing a limited legacy to Asmina principally relates to Asmina not visiting him in the nursing home for 12 months. As the findings above show, the Court only accepts Asmina’s evidence about visiting the deceased in the nursing home to a limited extent. She says that she did a number of times. The Court finds that she probably visited a few times. But that means that even this part of the deceased’s reasons for downgrading benefits to Asmina is wrong as well.

81. But even if this statement were true, it relates to very recent events and does not involve positive misconduct towards the deceased on Asmina’s part. The deceased’s did not say in the will that he was estranged from Asmina, that Asmina had been violent towards him or rejected him, indeed he does not say anything about the wider long-term relationship between father and daughter. It is understandable that her lack of visitation to the nursing home would have aggravated the deceased because the dislocation he had suffered from moving out of the Parramatta property and the few visits that he had. But it is to be remembered by that stage Asmina was in her mid 50s and the deceased’s relationship with her had existed for over half a century before this. And although Amina was a constant worry to her parents throughout their mutual lives, some connection between them was always maintained, though it varied in quality over time. And there was in fact no formal rupture in their relationship as the Court sometimes sees in estrangement cases.

82. These two matters lead to a third consideration: there is a degree of disproportion in the 2019 will, which also founds an inference that the deceased did not soundly evaluate Asmina’s claims upon his testamentary bounty. It can be accepted that because Peter was there for the deceased in the last years of his life, constantly visiting him in the nursing home that the deceased would wish to benefit him generously. The residue of the estate given to Peter comprises some $820,000. But of the legacies totalling $340,000, Asmina receives less than one third, with the children and the great grandchildren receiving more than two thirds. The relative size of these gifts shows a low recognition of Asmina’s claims on the deceased’s testamentary bounty, compared with what the Court might expect on the known facts. A legacy less than between one-sixth and one-eighth of Peter’s and less than one-third of the children and grandchildren’s gives little credit for over half a century of a father-daughter relationship, which though often tested by disappointment, riven by misunderstanding, and sidetracked by wider forces, was nevertheless one that was maintained on both sides with expectations of loyalty and affection.

83. But Peter argues that Asmina caused her father immense grief. She did. But so did Peter. Peter’s self-confessed drinking, adultery, antisocial behaviour and unreliability meant that he was not only a disappointment to his wife, Sharon, but must have been both troubling to both his parents. This aspect of the case can be overlooked. But when Peter attempts to argue that his parents were stressed and humiliated by Asmina being periodically imprisoned, he overlooks the constant stress and humiliation they must have suffered from his public mistreatment of his own wife. The deceased and Anna appear to have been hard working family minded people who must have found Peter’s marital and drinking behaviour profoundly disturbing.

84. But Peter was able to assist and care for his father towards the end in a way that Asmina did not. For these reasons any provision for Asmina should be assessed as considerably lower than for Peter.

85. But there is also disproportion with the grandchildren and great grandchildren. The deceased clearly had a fruitful relationship with them and their recognition in his will is to be expected. But given Asmina’s financial needs, the gift to her which is less than the combined give to all the great grandchildren also appears to be disproportionate given the proven circumstances of this case.

86. All these above matters support the inference that the deceased did not give appropriate weight to his relationship with Asmina. And the nature of the relationship between Asmina and the deceased is of central importance in this case, because the claims that each of Asmina and Peter had upon the deceased’s testamentary bounty were competitive with one another. Both of them have very limited financial resources. Both of them will suffer hardship if they do not have stable accommodation. Both of them face substantial medical issues. Both of them have limited resources.

87. Asmina forcefully submits that Peter cannot plead that he is impecunious in the face of his voluntary decision not to pursue a matrimonial settlement from Sharon. If pursuing that settlement was cost free and there were no countervailing considerations, this submission would be very powerful.

88. But Peter faces a difficult moral dilemma. He admits that his conduct towards his wife throughout their marriage has been shameless. He says he feels guilt now. His feelings are genuine, although their depth is difficult to assess. He is undoubtedly remorseful about his decades of mistreatment of Sharon.

89. Peter does not wish to make an application for property settlement. He says this and the Court accepts it. The Court assesses him as genuinely feeling that he owes Sharon at least two things which he can deliver by not bringing proceedings against her in the Family Court for property settlement. First, he can relieve her of the stress, tension, and aggravation of such proceedings. Second, he can leave her with the financial security that she already has in the Merrylands property as at least some limited compensation for his long-term misconduct.

90. Asmina’s submissions look at this issue too narrowly and in purely financial terms. Peter could pursue this claim. He may get one quarter of the matrimonial assets. But were that to occur it seems at least on the cards that Sharon would contest his claim and would argue that Peter’s alcoholism, gambling and womanizing misconduct has been very costly to the family over the long term. In such a proceeding she would probably also claim that she is very settled in her current property at Merrylands, would have to downsize once again after having renovated and put a small nest egg aside and had conducted her affairs based on indications from Peter that he would not make a claim.

91. Two considerations arise. First, the facts of this case are sufficiently unusual that it is difficult to predict with a satisfactory degree of probability what financial benefit Peter would derive from seeking a matrimonial settlement under the Family Law Act. No expert evidence has been called on either side about the probable outcome of such an application. But it is easy to see that expert evidence may only be of limited value for such a purpose.

92. Second, Asmina’s submissions are too narrowly focused. Peter’s position cannot be assessed on merely financial terms. His decision to make peace with his wife and his conscience is a reasonable one, which is understandable in human terms beyond the financial. It is reasonable for him to decide not to cause further financial pain to his spouse who has already borne so much during their marriage. This is the position in which he finds himself. The Court will not judge him now upon the basis that he could breach that peace with his wife and his conscience, merely because it may advantage him and Asmina financially. Many situations can arise in which a person may have demonstrable earning or wealth creating capacity, which they do not utilise because of reasonable countervailing considerations. In family provision proceedings they will not automatically be judged as if they had exercised that unutilised capacity. This is just one example of that type of situation.

93. As the Court has already found, Asmina has substantial financial needs. The Court’s jurisdiction to make an order for provision is enlivened by her poor financial circumstances. She wants to acquire a new property so that she can escape a crime beset neighbourhood to acquire a property for herself. She wants a financial cushion to assist her coping with her many medical and psychological challenges. She has an arguable claim upon the deceased’s bounty of the order of $400,000 to $500,000 and possibly more on this logic.

94. But the problem here which the Court faces, which is similar to the one that the deceased faced, is balancing the respective claims of Asmina and Peter upon the deceased’s testamentary bounty when making an order for provision. The Court cannot make an order for provision out of the estate which would provide the kind of accommodation for Asmina and Peter which they both desire. Even if the legacies to the grandchildren and the great grandchildren totalling $240,000, were adjusted to nil under the Court’s powers under Succession Act, s 66(2), there still would not be enough money to meet the claims for accommodation that each of Asmina and Peter make as well as meeting the costs of these proceedings.

95. So a choice must be made. Should the Court make an order provision that would accept Asmina’s claim for accommodation, or Peter’s claim for accommodation, or the claim for accommodation of neither of them? Keeping the appropriate statutory task in mind, the Court takes into account the fact that the deceased clearly wished to give preeminence to Peter’s needs, because Peter was there for him in the last stages of his life. Whilst making an appropriate order for provision for Asmina, the Court’s task is not one to rewrite the 2019 will but rather to respect as far as possible his wishes to provide accommodation for Peter. Creating a situation where neither Peter nor Asmina has any possibility of gaining secure permanent accommodation would serve no obvious utility. The available residue on the assumption of $891,054.32 ($240,000 plus $651,054.32) would be less than the $937,500 combined purchase based on the parties’ midpoint accommodation estimates.

96. Moreover, there is no requirement for the Court to provide accommodation for an adult child such as Asmina the plaintiff: Taylor v Farrugia [2009] NSWSC 801 at [57] and [58]; Camernik v Reholc [2012] NSWSC 1537 at [159]. But Asmina undoubtedly needs a greater financial support than she currently receives to provide her with a better cushion against the significant viscisitudes of life that she faces and to improve her current living environment.

78. In the Court’s view this can be achieved by a little more than doubling the provision to Asmina out of the deceased’s estate. This will give her a greater flexibility in her financial choices in the future. And it should not affect her pension entitlements on the available evidence. But substantial increases beyond an approximate doubling of Asmina’s benefits are likely to cause significant hardship to Peter and should be avoided.

79. Peter’s entitlement should be preserved. It will give him enough to purchase reasonable accommodation and leave a little over for contingencies. Asmina’s entitlements should be increased. This can be achieved by reducing the legacies to the grandchildren and the great grandschildren. These legacies should not be extinguished, because they represent genuine claims on the deceased’s bounty.

80. The grandchildren’s and great grandchildren’s legacies should be reduced sufficiently to give Asmina a little over double her current legacy. But the grandchlidren’s legacies should be reduced less than the great grandchildren. This approach will be taken because the grandchildren are likely to have more immediate needs for their legacies than the great grandchildren, who can use the sum they receive to invest and grow in the longer term. But in each class the reduction should be equal within the class. It is undesirable to try and distinguish among the grandchildren and great grandchildren of the deceased when this exercise takes place.

81. The grandchildren’s legacies will be reduced from $25,000 to $20,000 and the great grandchildren’s legacies from $10,000 to $3,000.

82. A Trust for Asmina. The Court’s findings show that Asmina has been addicted to opiates for a long time. Although most intense and uncontrolled phase of her heroin addiction is behind her, she has never shaken off her dependency on opiates and continues on her methadone program. Successful though this appears to have been in the long-term, the provision of a large sum of money in the form of a legacy to the plaintiff is fraught with risks, namely the temptation to succumb to drugs, as McCready AsJ recognised in James v James [2006] NSWSC 1151 when dealing with another plaintiff with a long-term drug addiction.

83. Asmina through her counsel has indicated an awareness of these risks. The hypothetical wise and just testator would structure the gift to the plaintiff in a manner that requires control of gifted funds to be shared with some responsible trustee. In Asmina's case this is particularly important, not just because of her continuing methadone treatment but because her current residential environment which evidences casual criminal activity. She complains of this and distance herself from it, but it is her current situation. Should other people become aware that Asmina has a fund of just under $220,000 available to her as result of this judgment, she may become the victim of criminal activity, seeking to pressure her to transfer those funds for the benefit of others. It is therefore in her own best interests that these funds not be under her sole control. This is a common solution to this issue. It was addressed in James v James. Asmina the plainitff should find a responsible trustee to fulfil this role through her solicitor. In may create unnecessary pressures if this person were Robyn. It is better that it is someone independent of both of them.

84. The 2019 will does not make provision for funds to be held on trust nor managed by an appropriate third-party for Asmina but as the Court is intervening under Succession Act, s 59 to provide a further legacy the Court may make other changes to the will, setting terms and conditions for the order for provision. The power to impose conditions on family provision orders is provided for in Succession Act, s 65. In this case, the increase (more than doubling, the overall legacy to the plaintiff) warrants additional precautions being taken in the plaintiff's own interests concerning the management and protection of the fund given to her. Such an approach is well justified on the basis that a wise and just parent wishing to make adequate provision for a child such as Asmina would not vest money in her without some form of protection against it being immediately squandered in drugs. Such observations have long been made by the courts in such circumstances: see for example Christie v Edward [2012] WASC 265 at [27].

85. It is common in setting up such trusts to avoid the consequences of the rule in Saunders v Vautier (1841) Cr & Ph 240; 49 ER 282. The High Court explained in CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98, the rule in SaundersvVautier permits an adult beneficiary such as Asmina who has an absolute vested and indefeasible interest in the capital and income of property to require the transfer of the property to her at any time and may terminate the trust. But the authorities are equally clear that the application of the rule in Saunders v Vautier may be avoided, for example, providing for a gift over in the event of the death of Asmina: In the Estate of Lee (1986) 84 FLR 268. Other mechanisms to avoid the rule could be examined: J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia [23-08] – [23-12] (8th ed, 2016, LexisNexis). 

86. The plaintiff shall bring in short minutes order within the next seven days. Therefore, a responsible person should be identified rapidly and the terms of any trust set up. This will reduce costs to the estate associated with further delay in its administration.

Conclusion and Orders

106. The plaintiff has been successful for the reasons given. The Court must deal with the question of costs. The parties have each provided evidence of the costs incurred in the proceedings up to the end of the hearing. Affidavits of cost were presented on both sides which appear to the Court to be reasonable. The Court decided to make a cost capping order under Uniform Civil Procedure Rules 2005, r 42.4 in respective amounts claimed. In the plaintiff’s case the total costs claimed are the cost cap was $96,000. In the estate’s case the cost cap was $60,892 in respect of the proceedings. In addition to that the estate has incurred probate costs of $8,241.

107. But Mr Bolster indicated that there may be other issues as to costs depending upon the outcome of the proceedings. The Court indicated a willingness to make specified gross sum costs orders instead of assessed costs and foreshadowed that these would be in the respective amounts indicated above for the plaintiff and the defendant. But in the meantime, the course that the Court will take is to make the usual orders following the event in a case such as this. These are that that the defendant will pay the plaintiff’s costs of the proceedings on the ordinary basis and the defendant’s costs will be paid out of the estate on the indemnity basis. The parties should be mindful that unsuccessful costs arguments that are not reasonably brought by a party may be at that party’s risk as to costs.

108. The Court is willing to make a specified gross sum costs order instead of assessed costs in these respective amounts, as no opposition was indicated to that by either party. But it may not be necessary. The Court will leave it on the basis that if either party wants such an order made, then it can be done in chambers.

109. It is highly desirable that issues of costs be resolved consensually without the parties generating further costs in their resolution. If there are arguments, for example, concerning offers of compromise or Calderbank letters, then the Court should be able to deal with these in chambers and the parties will be directed to contact my Associate in relation to costs issues.

110. For these reasons the Court makes the following orders and directions:

1. Order pursuant to Succession Act, s 59 that a legacy in the sum of $118,000 be provided out of the estate of the late, Dimitios Kouroutis, who died on 25 May 2021 aged 93 (“the deceased”) in addition to the benefits already provided to the plaintiff under the last will of the deceased dated 7 August 2019 (“the Will”).

2. Order pursuant to Succession Act, s 66(2) that the additional legacy the subject of order (1) shall be provided for by adjusting the legacies that are presently given to the grandchildren of the deceased pursuant to clause 2(b) of the Will and to the great grandchildren of the deceased pursuant to clause 2(c) of the Will, by substituting.

1. in clause 2 (b) of the Will the sum of $20,000 in place of the sum of $25,000, and

2. in clause 2 (c) of the Will the sum of $3,000 in place of the sum of $10,000.

3. Order that the defendant’s costs of these proceedings be paid out of the estate of the deceased on the indemnity basis.

4. Order that the plaintiff’s costs of these proceedings be paid out of the estate on the ordinary basis.

5. Grant liberty to apply for 120 days (which liberty may be exercised by approaching the Associate to Slattery J) in relation to

1. the bringing in of short minutes of order to establish a trust for the administration of the legacies granted under the will and by these orders to the plaintiff,

2. the recovery of unsecured monies loaned by the estate, and

3. any issue related to costs.

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Amendments

16 June 2023 - [104] and coversheet

correct reference to text added

Decision last updated: 16 June 2023