Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian

[2015] NSWSC 1204

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

Hearing dates:

16 – 20 March 2015

Date of orders:

27 August 2015

Decision date:

27 August 2015

Jurisdiction:

Equity

Before:

Robb J

Decision:

(1) The plaintiffs are to bring in short minutes of order within 14 days of the delivery of judgment that will reflect a division of the deceased's estate, after payment of all costs and expenses, in the following proportions: each of the plaintiffs shall receive 30% and each of the two beneficiaries under the will of the deceased will receive 20%.

 

(2) Subject to order 4, the costs of each of the plaintiffs are to be paid out of the deceased's estate on the ordinary basis.

 

(3) Subject to order 4, the costs of the defendant in both proceedings are to be paid out of the deceased's estate on the indemnity basis.

 

(4) The parties are given leave to make any submissions they wish to make that the costs orders should be different to those set out in orders 2 and 3 within 14 days of the delivery of judgment.

 (5) Exhibits and subpoenaed documents may be returned forthwith in accordance with the rules of the court.

Catchwords:

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances

 

SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased

  SUCCESSION – family provision and maintenance – principles upon which relief granted for son –
the deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308
Aubrey v Kain [2014] NSWSC 15
Bladwell v Davis [2004] NSWCA 170
Burke v Burke [2014] NSWSC 1015
Butler v Morris [2012] NSWSC 748
Dodds v Dodds [2013] NSWSC 1933
Ford v Simes [2009] NSWCA 351
Gardiner v Gardiner [2014] NSWSC 435
Gorton v Parks (1989) 17 NSWLR 1
In the Estate of the late Anthony Marras [2014] NSWSC 915
Jordan-Watt v Riordan; In the estate of Jordan [2013] NSWSC 1132
Kay v Archbold [2008] NSWSC 254
Lo Surdo v Public Trustee [2005] NSWSC 1186
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Nicholls v Hall [2007] NSWCA 356
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Raiola v Raiola [2014] NSWSC 967
Scott v Scott [2009] NSWSC 567
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Walker v Walker [1996] NSWSC 188

Texts Cited:

JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Mirta Lilian Lado Causillas (plaintiff)
NSW Trustee and Guardian (defendant)

  Marcel Lucien Bentancor Lado (plaintiff)
NSW Trustee and Guardian (defendant)

Representation:

Counsel: J Armfield (plaintiff)
A Hill (defendant)

 

Counsel: Dr C Ward (plaintiff)
A Hill (defendant)

  Solicitors: Navarro Associates (plaintiff)
NSW Trustee and Guardian (defendant)
Gordon Cavanagh (plaintiff)
NSW Trustee and Guardian (defendant)

File Number(s):

2013/49894 2013/49905

Publication restriction:

None

Judgment

1. These proceedings involve separate but related applications by each plaintiff, Mirta Lilian Lado Causillas, and her son, Marcel Lucien Bentancor Lado, for family provision orders under s 59 of the Succession Act 2006 (NSW) (the Act) in respect of the estate of the deceased, who was respectively her husband and his father.

2. For convenience, and without meaning any disrespect, I will refer to the plaintiffs and the witnesses by their first names.

The deceased

3. The deceased, Luciano Angel Bentancor was born on 21 May 1944 at Montevideo, Uruguay. Without meaning any disrespect, I will also refer to the deceased as Luciano.

4. Luciano died on 23 February 2012 at the Huntingdon Nursing Home, Bexley. He was then 67 years of age. He had resided in Australia for a period of 42 years.

5. Luciano’s death certificate records that he had suffered with early onset dementia for a period of three years. His actual cause of death was a suspected malignancy, but no investigation was undertaken.

6. The death certificate recorded Luciano’s marital status as being divorced. That was not correct. The informant for the death certificate was Ms Teresita Velasco, who was one of Luciano’s sisters.

The deceased’s will

7. Luciano left a will dated 16 January 1981. He appointed what was then the Public Trustee as his executor. In due course, probate of the will was granted to the NSW Trustee and Guardian, as successor to the Public Trustee. I will refer to the executor, which is the defendant in these two proceedings, as the NSW Trustee.

8. Luciano’s will is simple and was apparently prepared using a standard form. Clause 5 was added. Relevantly, Luciano left his estate to his sisters Maria Julia Repetto and Teresita Velasco, then called Bentancor, and if either of the sisters was not living at his death, Luciano left the sister’s share to any of her children who attained the age of 18 years.

9. The will makes no provision for Mirta or Marcel, and does not acknowledge their existence.

10. The terms of Luciano’s will are curious, as even though Luciano did not live regularly with Mirta after late 1977, he did not become entirely estranged from her and Marcel until 1988. At the time he made his will, Luciano was still in relatively regular written communication, albeit occasional, with Mirta. He also communicated from time to time with his son, Marcel. There is some evidence that Luciano began to see other women in 1979. Luciano visited Mirta and Marcel in Montevideo for short periods in 1986 and 1988, and resumed a semblance of a fleeting family relationship with them.

11. The evidence provides no explanation as to why Luciano left Mirta and Marcel out of his will in January 1981. That is particularly inexplicable in the case of Marcel, as the evidence discloses no reason at all why Luciano would, at that time, in the event of his death, have wanted to provide nothing for his son. As it must be assumed on the evidence that Luciano intended his will to have the effect of excluding Mirta and Marcel from his testamentary bounty, the conclusion must be drawn that Luciano had formed the intention to abandon them financially as early as 1981, when Marcel was about three years old. I note, however, that Mirta gave evidence that, between 1986 and 1988, Luciano sent 8 remittances of US$100 each to Mirta for her upkeep and that of Marcel.

The available estate

12. By an updated affidavit sworn on behalf of the executor on 10 February 2015, the NSW Trustee has estimated that the gross value of the assets of the estate is $2,100,005.52. From this sum must be deducted liabilities of $175,993.81, and the NSW Trustee's commission of $18,850.11, and an estimated taxation liability for the year ending 30 June 2013 of $6000. The net distributable estate, without making allowance for the costs of the proceedings, is therefore $1,899,161.60.

13. The principal assets in the estate are real properties at 18 Pimsoll Street San Souci and 10/35 Gannon Avenue Dolls Point, and a substantial nursing home bond.

14. The NSW Trustee's costs and disbursements of the proceedings, calculated on an indemnity basis, are estimated at $193,026.79. Mirta's costs and disbursements, calculated on the ordinary basis, are estimated at $130,208. Marcel's costs and disbursements, calculated on the same basis, are estimated at $112,840.73.

15. Accordingly, if the costs and disbursements of the parties to the two proceedings are paid out of Luciano's estate on the usual basis, the remaining value of the estate will be $1,463,086.08.

16. That calculation assumes that the real properties are sold for their estimated value, and does not make any allowance for the costs of realising the properties, such as agents' commissions and legal costs.

17. As the principal assets in the estate are unrealised real properties, the court cannot be certain that the calculations that have been set out above on an estimated basis will accurately reflect the final realised value of the estate. I will return to the significance of this issue, if I determine that a family provision order ought to be made in favour of one or both of the plaintiffs.

Mirta’s evidence

18. It will be convenient to begin with a consideration of the evidence given by Mirta. Mirta affirmed her principal affidavit on 8 February 2013. She affirmed two affidavits in reply to the affidavit evidence filed by the NSW Trustee, and an updating affidavit on 9 March 2015.

19. A number of aspects of the evidence given by Mirta were contentious. Mirta said that she reached a mutual agreement with Luciano in September 1977 that she would return to Uruguay for the imminent birth of their child, as she could be cared for properly by her family, whereas, if she stayed in Australia, Luciano would have to go out to work, and there would be no one to care properly for Mirta and their child. The NSW Trustee suggested that, in fact, Mirta did not want to live in Australia any more, and her decision to return to Uruguay was unilateral and permanent. Secondly, Mirta said that, although Luciano bought her a return air ticket between Sydney and Montevideo, before Mirta left to return to Uruguay, Luciano in fact agreed that he would travel to Montevideo at a suitable time in order to assist Mirta to return to Australia with their child. Mirta said that she extended the duration of the return ticket on a number of occasions, and ultimately cashed it in because she was in need of money to care for Marcel. Mirta added in cross-examination that, at the time, it was originally contemplated that she would return to Australia, but she was unable to do so because the wound from her Caesarian section had opened. Again, the NSW Trustee suggested that the couple did not agree that Luciano would travel to Montevideo to accompany Mirta and Marcel back to Sydney. Rather, it said, Mirta unilaterally decided to remain in Uruguay, because that suited her more than living in Australia. Thirdly, Mirta said that, when Luciano returned to Uruguay for short periods in 1986 and 1988, he stayed with Mirta and Marcel in Mirta’s villa, and the couple lived there effectively as man and wife, including in engaging in sexual intercourse. This was only for a matter of weeks on the first occasion, and days on the second. She also said that the family attended a birthday function for one of Luciano’s family, as if the couple were man and wife. The NSW Trustee’s case was that Luciano did not act as if he was married to Mirta, during the brief occasions when he returned to Montevideo.

20. The NSW Trustee was not in a strong evidentiary position to contradict Mirta’s evidence. Its counsel cross-examined Mirta on these matters, but counsel was properly circumspect, given the limitation on his instructions.

21. I will consider the limited correspondence written by Luciano that has survived below. However, I observe, at this stage, that in my view Luciano’s own statements do not suggest that it was his belief that Mirta had unilaterally left him, or that she was residing in Uruguay against his will. As Marcel, his son, was living with his mother in Montevideo, which had the effect that Luciano was entirely deprived of access to his son, it is highly likely that Luciano would have complained in his correspondence with Mirta, if he believed that Mirta’s conduct conflicted with her obligations to him as his wife. He did not do so. Rather, he suggested from time to time that he was looking forward to being able to recommence an ordinary family life with Mirta and Marcel, whether that be in Sydney or Montevideo.

22. As I have said, it was Mirta’s evidence that she welcomed Luciano back into her home in 1986 and 1988, albeit for short periods, in accordance with Luciano’s wishes, and they lived briefly as husband and wife. Mirta said in her principal affidavit that she has not established a relationship with any other man, and she has not lived with any other man ever since she returned to Uruguay in 1977. She said that “I loved Luciano very much. His death and having to initiate these legal proceedings have been painful to me. I have had to relive painful episodes of my life and confront Luciano’s conduct towards me and our son. I have spent all available time to me in raising and looking after Marcel. For many years, I thought that my husband would return to Uruguay and to us”.

23. That evidence was not contradicted in cross-examination. That may be understandable, as it would be a difficult subject for cross-examination. However, it was not put in submissions that I should not accept the evidence.

24. Mirta’s evidence on this issue requires careful consideration. The fact is that Mirta remained married to Luciano for the rest of his life. There is no basis for the court to reject her evidence that she did not establish a relationship with any other man. The issue was not explored in the cross-examination of Marcel.

25. Mirta’s evidence was that she and Luciano were friends and neighbours from their teenage years in Montevideo. They lived in the same street. She said that the couple became boyfriend and girlfriend in 1968. At that time Mirta was at technical school, and Luciano was working in the machine room of an oil tanker. Luciano was a fitter and turner.

26. Luciano moved to Australia in the late 1960s or early 1970s. He was away for about one and a half years.

27. When he returned Mirta and Luciano resumed their relationship as boyfriend and girlfriend, and spent a lot of time together, almost every day. Luciano spent several months in Uruguay. He returned in about August 1974, and the couple resumed their relationship. Mirta said that she continued to be in love with Luciano and welcomed him with open arms.

28. A couple of days after his return, Luciano proposed to Mirta, saying: “Would you like to marry me and live in Australia with me?” Mirta accepted his proposal.

29. The couple married on 21 October 1974, and they left for Australia on 5 December of that year. The couple commenced cohabitation on the day of their wedding. Mirta had a small amount of savings from her work, which she gave to Luciano, who managed the finances.

30. For the first 2 to 3 months after they came to Australia Mirta and Luciano stayed with one of Luciano’s sisters, Maria, who lived at Mascot with her husband.

31. They then rented a furnished unit in Edith Street, Leichhardt, to be closer to Luciano’s work as a fitter and turner in a factory.

32. Mirta engaged in home duties, and enrolled in English classes at Leichhardt. She then began an English course for which she received $36 per week financial assistance from the Australian government. She gave most of that money to Luciano.

33. Mirta said that soon after the couple moved to Leichhardt, she and Luciano started attending government auctions at which they purchased goods for resale. Mirta assisted Luciano with that business by entering the goods into a book, packing them for resale, and attending markets and fairs where Luciano on sold the goods.

34. A few months after moving to Leichhardt, Mirta secured work in a sweets factory, working 6 to 8 hours per day, Monday to Friday, and occasionally on Saturdays. Luciano managed Mirta’s salary, as well as his own, and all of the earnings from sales at fairs and markets.

35. After a while, Mirta secured better paid work in a factory manufacturing traffic lights. She was employed as a process worker on a full-time basis.

36. Most of the couple’s spare money was paid into a bank account in the name of Luciano, so that the couple could save to purchase a home.

37. Mirta said that she and Luciano liked Australia. They planned to live in Australia for many years, learn English, work, save money, and eventually return to Uruguay for good.

38. During the couple’s third year in Australia they decided to start a family. Mirta became pregnant in early 1977. She was retrenched from her job. After that Mirta took care of all household duties at home, and continued to work with Luciano at fairs and markets.

39. When Mirta was about 18 weeks pregnant, in late August 1977, she and Luciano agreed that Mirta should have their child in Uruguay, as her mother and brothers were there, and she could stay with them, whereas in Sydney she had no one to assist her before and after the birth. Mirta said that the following conversation occurred:

Luciano:   It would be good for you and the baby to have your mum there to help you. I’ve got to continue working so that we can buy our house; I won’t be able to be around much for you. Once our child is born, you will come back here or I’ll go over there to get you both, and will travel back to Australia together”.

Me:   “Yes it’s a nice idea. I miss my family, but you must come and get us soon”.

Luciano:   You can stay in Uruguay for a few months until the doctors say its okay for the baby to travel to Australia”.

40. Mirta and Luciano bought a return ticket with Alitalia, which was open for one year. The price of the ticket was paid out of the couple’s savings, and Mirta took with her US$2000 to cover initial expenses.

41. Mirta left Australia on 16 September 1977, and arrived in Uruguay on 19 September 1977. From then on she lived with her parents. Her parents’ home did not have a phone; a phone was a luxury at the time, and communication overseas was normally done in writing.

42. Before Marcel’s birth the couple communicated regularly and affectionately, normally by aerogram. Just before Marcel’s birth, Mirta received an audio cassette tape from Luciano. The tape contained messages to Mirta and other members of the family. It ended:

… I have explained to Mirta why I am not able to go (this time) as I am working, but there will be other opportunities. For you Negra [a term of endearment for Mirta], hugs and kisses, be strong, particularly as you are waiting for our heir. Imagine that we are together, like we have been for the last 3 years. Merry Christmas, we’ll have another opportunity to spend time together, let’s not worry about this occasion. Let’s see what happens and I might be there shortly.

43. These statements suggest that the couple expected that Luciano would travel to Uruguay, but he said he could not do so because of his work.

44. Marcel was born via Caesarean section on 24 December 1977.

45. Mirta’s family advised Luciano immediately about the birth. Earlier Luciano had suggested the name Marcel if the baby was a boy. Mirta said that she chose as Marcel’s second name the name Lucien, because it was the French version of Luciano’s name.

43. Following Marcel’s birth, Luciano sent a telegram and a card. The card contained the words: “Happiness is a baby boy” and said: “Dear Negra and Marcel. I send this card to tell you that I am very happy by the arrival of the boy of the house and I hope that 1978 brings health and happiness for us in our home. Bye. Luciano”. “Negra” translates as darling, or sweetie.

44. Mirta paid for her six-day stay in hospital with Marcel with part of the money that she had brought from Australia.

45. Mirta said that Marcel’s birth was a time of joy, and Luciano and she wrote to each other regularly. Aerograms, letters and postcards were the normal way of communicating at the time. Neither Luciano nor Mirta had a phone at home, and international calls were expensive.

46. Mirta also said that she has not retained all of the aerograms and letters sent by Luciano, as she moved homes after arriving in Uruguay, and her current home suffered water damaged twice, and she had to dispose of many documents that were damaged.

47. After Marcel’s birth she received an aerogram from Luciano that included the statement “as soon as I can, I’ll come over to get you”. Mirta no longer has the aerogram. She said that a paediatrician recommended that she should not travel with Marcel until he had all of his vaccinations. She said that Luciano continued to communicate with her, saying among other things, that he would come and get her and Marcel after he had sorted out some things, that he was looking for a house, and he was working a lot. In mid-1978 Luciano said in a letter that he had “bought our house at 11 Clement Street Guildford”. Mirta asked when Luciano would be coming to collect her and Marcel, and asked Luciano to send some money. Luciano replied: “At the moment I can’t send any money. Why don’t you come over with our son”?

48. Mirta said that she was unwilling to return to Australia with Marcel by herself, and needed Luciano to accompany her. At that time there were several stopovers in various countries; her English was very limited, and Marcel was very young.

49. By the time of Marcel’s first birthday, when Luciano sent him a postcard, Luciano’s letters started arriving about once a month.

50. Luciano did not send any money to Mirta, save for an amount of US $500, which was Mirta’s tax refund for the last year she worked in Australia.

51. Mirta and Marcel lived with Mirta’s parents, and the parents and her brothers met all of the needs of Mirta and Marcel. Mirta had spent all of the US $2000 that she took with her to Uruguay a, primarily on Marcel’s needs after his birth.

52. When, on a couple of occasions, Mirta asked Luciano: “Why aren’t you sending any money for Marcel?”, and said that they needed his help, he eventually replied: “I’ve got enough problems with paying for the house; I can’t send any money now”.

53. Mirta said that Luciano confirmed to her in the late 1970s that the house at Guildford was their family house: saying on at least one occasion: “The location of the house is very good. It is in a quiet street and Marcel can ride his bike there without any trouble. It has a garden and plenty of room to store goods I will buy at actions”.

54. Mirta said that she extended the validity of the return air fare with Alitalia as much as she could until, on 7 May 1979 she requested a refund of the unused portion to assist her to cover Marcel’s upkeep. She was reimbursed US$349. She said that, until this time, she had her and Marcel’s suitcase packed at all times, ready to travel to Australia when her husband came to collect them. The evidence included a receipt that proved the refund.

55. Mirta said that, as time passed, she continued to reside with her parents, who helped her to raise Marcel, and she and Luciano continued to correspond, although his letters did not come as often as in the early years. She said that she resigned herself to the fact that she would have to wait until Luciano was ready to come over to collect her and Marcel.

56. When Marcel was 3 years old, Mirta obtained employment with Montevideo’s Local Council, initially as a very junior clerk, working 5 days per week, Monday to Friday. Her wages were low, and not enough to live on her own with Marcel.

57. Luciano wrote to Mirta in an irregular fashion, and his letters became short and less warm.

58. As I have noted above, Luciano made his will on 16 January 1981. He did not leave any of his estate to Mirta or Marcel.

59. After Mirta’s father’s death in 1981, Mirta’s family home was in due course sold, and Mirta’s mother and her brother, Rodolpho, assigned their share of the house proceeds to Mirta, which enabled her to purchase her present home on 24 November 1984. It is a one-bedroom villa at Camino Castro 481/483 Villa 04, Montevideo. Mirta’s mother moved in with Mirta and Marcel, until her death on 27 March 1985.

60. Thereafter Mirta had significant difficulties in managing work and Marcel’s before and after school care. He was 7 years old at the time.

61. From about 1986, Mirta managed to secure some overtime. That enabled her to pay half of the cost of Marcel’s private primary school, and Rodolpho paid for the other half. Rodolpho also bought the family groceries every week.

62. Mirta became a full-time Council Inspector, which is the position that she has held to the present day, although her duties have changed recently because of health problems.

63. In about February 1986, Luciano visited Uruguay unannounced, with a traditional Uruguayan dance troupe from Sydney, called Murga La Bacana, of which he was a member. Mirta said that Luciano said to her: “Mirta I can see you’ve spoken well about me to Marcel. I made such a big mistake in letting you come over here on your own and pregnant”. Luciano spent every afternoon with Mirta and Marcel for about 5 days in a row, and then he asked whether he could stay with both of them until he had to leave. Before Mirta could reply, Marcel asked her to let his father stay. Mirta said that Luciano lived with them for the following 2 to 3 weeks, and they had a happy time together.

64. Mirta recounted the following conversation:

Me:      “What happened, why did you wait 8 years to meet our son?”

Luciano:   “I made a mistake Mirta, but I’m on my way to the US to visit Teresita who lives there, then I’ll return to Australia, sell everything and come here to live with you and Marcel on a permanent basis. These weeks together have been very beautiful”.

68. Mirta said that, on Luciano’s departure, he said that he would send her some money as soon as he could.

69. The evidence includes a part of a Murga La Bacana program, which Luciano signed for her and Marcel. It contains the statement: “To Marcel and Mirta. With much love, Luciano, February 1986”, (written in Spanish).

70. Mirta said that, while Luciano lived with her in the villa, they behaved like any loving couple. Mirta cooked for Luciano, washed his clothes, attended to all his whims. They had sexual intercourse. Mirta was hopeful that they could resume their life as husband and wife on a permanent basis. She said that she loved him then, and still loves him now.

71. Luciano sent a postcard to Mirta and Marcel a few days after he returned back to Australia. He said that he “remembered the happy time spent together” and that he hoped he could “sort out (his) affairs in Australia and return to live with (us) in Uruguay”.

72. An aerogram sent by a Luciano dated 15 April 1986 included:

Negrita and Negrito

Miss you

Making plans to see you again

Had very happy times with you

I tell you I want to be with you on a permanent basis

…

We talked about me returning to Uruguay or you coming over or buying a block of land. I said that once back in Australia I could think about it. I see that we have to be together, us three. It’s the best for Marcel, you and I, and perhaps the girl you wanted when I was with you. Let me have your thoughts on this.

…

Dad misses you [Marcel] a lot, every day. I remember when we played, walked around and ate (Uruguayan bread)

Many kisses to both.

73. There are a number of photographs in evidence from this time which depict Luciano with either Mirta or Marcel, apparently participating in ordinary family activities.

74. Time passed, and Marcel became sad and depressed because his father did not return.

75. Luciano sent Mirta a total of US$800 for her and Marcel’s upkeep in 8 remittances of US$100 each.

76. Marcel began to suffer from gastritis and anaemia. Mirta arranged to telephone Luciano by borrowing a phone at a friend’s house. The call took place on 3 April 1987. Mirta told Luciano that Marcel needed him and that she needed money. Luciano said that he could not do anything about it as “I’ve got such serious problems myself. I’ve got problems with taxes”. He said: “I can’t send you any money now. As soon as I can, I’ll go over there, I can’t do it now. Give him a kiss for me and another for you. Bye”.

77. Mirta continued to struggle to make ends meet, particularly concerning the costs associated with Marcel’s diet and medical care.

78. Luciano send an aerogram to Mirta and Marcel on 23 September 2007, which was primarily addressed to Marcel. Luciano asked Marcel how everything was going, how school was, and whether he was preparing for exams. He advised: "Study hard so you can get good marks and Dad will be happy". After discussing a number of subjects which appear to have been of personal interest to Luciano and Marcel, the aerogram ended: "Ok Marcel, a big kiss from Dad".

79. In mid to late 1987, Mirta wrote to Luciano seeking confirmation that he would be coming. The evidence includes an aerogram dated 12 November 1987. It said:

Dear Marcel and Mirta,

Wishing time goes quickly to be close to you again. I got a letter from you, it made me happy.

So Marcel was sick…

You are asking me to tell you the date and flight number (for my trip). I want to make is (sic) a surprise.

I’ll spend summer with you.

Okay at work, should be okay with airfare.

I’ll be there by January.

Kisses for both of you until next (letter)

Bye, Luciano

80. The aerogram also included a message addressed to Marcel which ended with” “Kisses, Dad”.

81. Luciano sent a birthday card to Marcel for his 10th birthday on 24 December 1987. It included: As a gift, daddy will give you a surprise at the beginning of the coming year. A big kiss, bye, Dad”.

82. In January or February 1988, Luciano returned to Uruguay for a visit which lasted many weeks. When he was not visiting relatives, he lived with Mirta. The relationship was initially hesitant, but, Mirta said, after a short while Luciano started behaving like any husband would towards his wife and son. They lived together as man and wife, and had intercourse several times.

83. One day Luciano said that he would “be leaving soon”. She confronted him. The following conversation occurred:

Me:      “Are you coming back to live with us, as you promised?”

Luciano O:   “No, I won’t, listen to me; a son won’t tie me down and he shouldn’t tie you down either. Do the best you can on your own”.

Me:   But he is our son; it's the father and mothers role to provide love and financial support to him. Will you help me pay for his schooling?

Luciano, with disdain:   What is he going to study here Mirta? You work for the Local Council, don't you? Maybe Marcel can work as a garbage collector?

Me:   Look Luciano; if Marcel wants to study when he grows up, and become a professional or a technician, I'm going to help him. What an ugly thing to say; being a garbage collector is as dignified as any other job. Do you believe that you have fulfilled your obligations as a father by sending $800 in two years? Do you believe this is enough contribution as a parent?

Luciano got angry and said:   “I’m not coming back to live in Uruguay for good”.

84. Mirta said that that day Luciano left the house without saying goodbye to Marcel or her. They did not see him again.

85. As Luciano had refused to assist Mirta and Marcel financially, Mirta sought legal advice, and applied for an order of a court in Uruguay to prevent Luciano from leaving the country until he agreed to pay maintenance for Marcel. Mirta said that she believed a restraining order was granted by a court, but Luciano still left Uruguay.

86. The evidence includes a translation of what appears to be an application made by Mirta to a Family Court in Uruguay, in which she applied for an amount of no less than US$500 per month for maintenance for Marcel, as well as an order preventing Luciano from leaving the jurisdiction until he had provided a guarantee to support his maintenance obligation in a manner satisfactory to the court.

87. It appears that, on the 3 March 1988, an order was issued from the office of a judge of the Family Court, called a prevention of departure order, and summoned both parties to a hearing as a matter of urgency, which appears to have been fixed for 21 March 2018.

88. There is another document in evidence that was translated from Spanish, which I infer was addressed by the Director of the Migration Department to the Family Court judge, which advised that, on 7 March 1988, an order had been issued to prohibit Luciano's departure from the country.

89. In September 1988, Mirta sought advice from the Australian Embassy in Buenos Aires, Argentina, as to whether she could apply for child maintenance for Marcel in Australia. She was advised that it would be necessary to commence proceedings in the Family Court of Australia. Mirta was advised by the Uruguayan Foreign Affairs Department that she could not commence proceedings in Uruguay for an order for maintenance against Luciano, because Uruguay did not have an agreement with Australia that would have permitted the enforcement of any maintenance order. Mirta realised it would be impossible for her to prosecute maintenance proceedings against Luciano in Australia, because she did not have sufficient money to pay for the application.

90. There is in evidence a translation of a letter that Luciano apparently wrote to his brother, Ricardo, on the 2 November 1988. The letter contains references that are not easy to understand out of context. It included the following:

… Ricardo, from now on if you receive any official documents send them back because you are under no obligation and you are nobody's messenger. The only thing I would ask you is, if I need any papers from there please send them, and remember you do not need to give your brothers' addresses to any one and if you need to contact anyone you can contact Theresa. And in relation to the solicitors you saw, thank you for what you asked. I already have a solicitor here so you can disassociate yourself from me; if anything comes up I will try to resolve it from me…

On 26/9/88 I sent you a letter addressed to Pocha sent to the PO Box and with it I also sent a cheque for 100 [currency illegible due to photocopy] which I hope you can use to help you resolve the thing with a solicitor. If you did not receive it write to me straight away and I will recall it from here.

I'll repeat: do not mention anything to anyone over the air war over here. NO ONE except for Theresa.

Someday I will be able to tell you the reasons.

I have the receipt for the return trip that I paid for her and if they check her passport they will see she has an entry visa so they can be sure she has not abandoned her home.

One more thing: I was helping her from 85 until I went on that last trip and it happened because she kicked me out of the house and did not let me say goodbye to the kid.

And the thing where they say I fled, [illegible] came on 21/03/88 and I left on 14/3/88. If you want I can send you a photocopy…

91. Mirta gave evidence that the condition of Marcel’s health made it necessary for her to devote herself to her work and looking after Marcel. In around 1987 Marcel was found to be suffering from depression and anxiety. Mirta paid for Marcel’s treatment and medication. She was also depressed but she had no money or time to seek treatment for herself. She concentrated on Marcel’s health. In around 1988 or 1989 Marcel was in hospital with pneumonia for a week. In around 1989 Marcel was diagnosed as suffering from phimosis (tightening of the prepuce) and right criptorchidism (non-descending testicle), which required surgical intervention for both conditions.

92. Mirta’s wages were not enough to pay for Marcel’s needs. Even with financial assistance from Rodolfo, Mirta did not have enough to pay for their basic health, food, clothing and educational needs. They did not go on holidays for many years. Mirta relied on credit cards, short-term loans and advances on her future wages to pay bills for healthcare, electricity, water, taxes, clothing, food and Marcel’s schooling. Mirta’s level of indebtedness grew, and in 1990 she had to remove Marcel from his private school, and enrol him in a public secondary school, which provided a lower level of education than he had previously enjoyed. From time to time Mirta was forced to sell household goods such as furniture, personal clothes and white goods, to make ends meet.

93. In around 1993, Marcel was also diagnosed with scoliosis and his doctor prescribed swimming. Mirta therefore paid for Marcel’s membership in a health centre for close to 5 years.

94. From 1992 onwards, Marcel has required ongoing dental and ophthalmic care, and has worn prescription glasses since that year.

95. I will deal with Marcel’s educational achievements when I consider the evidence that he has given in his case. It is sufficient to note for the present that Marcel has always lived with his mother in her villa. He apparently sleeps in the single bedroom, and Mirta sleeps in the dining room. Mirta said that, with her limited income, she has supported Marcel financially and emotionally throughout his studies. She paid for Marcel’s education from preschool to university. While enrolment in the university was free, Mirta had to pay for his books and equipment. Mirta also paid for the English courses that Marcel needed for his degree between 1998 and 2002.

96. Mirta apparently did not attempt to contact Luciano directly after he left Uruguay in 1988. She had a telephone installed in her villa in 1994. Thereafter, she would call or receive calls from relatives of Luciano in Australia about twice a year, and would regularly ask about her husband.

97. Early in that period one of the relatives said to Mirta: “From time to time we visit him at Guildford. Once he was on his own, working on his car, and I said to him: “Why don’t you fix this situation with your wife and son? You wouldn’t have to be on your own then’ and he told me: ‘Mind your own business’”.

98. In around 2006 or 2007 the same relative said to Mirta: “We’ve heard nothing from Luciano for some time. We haven’t seen him and don’t know where he lives. He has moved out.”

99. Luciano’s relatives in Australia did not tell Mirta that Luciano had been living in a nursing home for the last three years of his life, or that he was suffering from Alzheimer’s disease.

Mirta’s present circumstances

100. For the last 20 years or so of her employment with Montevideo’s Local Council, Mirta has worked an average of 12 hours a day, including most Saturdays.

101. In her affidavit dated 9 March 2015, Mirta said that she continues to be employed as a Council Inspector for Montevideo Local Council on a full-time basis. However, as she suffers from dysphonia her duties have changed, and since mid-2013 she has worked within the Council premises and does not do outdoor inspections, because she cannot communicate verbally with the public on a prolonged basis.

102. Mirta's gross wage is 23,328 Uruguayan pesos, which is about US$945 per month. She also receives an additional allowance for the number of years she has been working at the Council (35 years) and an allowance for working on Saturdays. In order to make ends meet, she works an average of 10 hours a day now plus Saturdays and some overtime, and her earnings vary significantly from month to month. Mirta currently receives an average wage of US $1881 per month after taxes and deductions, but this is variable.

100. As I have noted above, Mirta and Marcel have resided in Mirta’s villa in Camino Castro, Montevideo, continuously since approximately 1984.

101. Mirta’s and Marcel’s salaries are, according to Mirta, insufficient to cover their cost of living, so they are compelled to pool their resources together to pay their frugal living expenses. Marcel and Mirta are, by necessity, inter-dependent on each other. Mirta does not wish to continue to live in this manner, as Marcel is an adult who needs to establish his is own home and family.

102. Marcel’s net salary is currently US$838 per month. At present he also receives a scholarship of US$814 per month. In addition, Mirta’s brother, Rodolfo, regularly provides Mirta with approximately US$200 per month to meet the shortfall between earnings and expenses. The total amount received by Mirta and Marcel per month is therefore about US$3688.

103. Mirta listed the total joint monthly expenses of herself and Marcel as being US$3028. The expenses look reasonable (as much as it may be possible for me to assess the reasonableness of expenses for two people living a frugal existence in Montevideo). The NSW Trustee did not suggest that the expenses were unreasonable. No allowance was made for public transport for Mirta (whilst she is employed by the Council for the next 3 years), for dental care for Marcel, for prescription glasses for Mirta or Marcel, and nothing was allowed for holidays.

104. Mirta said that she and Marcel have managed to save some funds for emergencies, by depriving themselves of other basic needs. However, they had spent US$31148.90 for their legal expenses up to the time the hearing commenced. As at the date of her final affidavit, Mirta and Marcel had US$2003.44 in their bank accounts.

105. As a result of surgery to her thyroid, Mirta suffers from hypothyroidism and hypoparathyroidism. She suffers from type 2 diabetes, and she is not able to retain calcium in her body. She also suffers from chronic diverticulitis, arthrosis, diabetes, osteoporosis and laryngeal polyps. As she loses calcium easily, Mirta cannot exert herself much or otherwise she perspires and loses calcium through perspiration, which results in dehydration and loss of calcium. This can lead to muscular paralysis as her body contracts severely and her muscles become stiff. Due to hormonal changes related to her age and her medical condition, Mirta's skin is sensitive to the sun and deteriorates quickly. She has to be treated by a dermatologist on a regular basis, and requires medication. On 12 January 2015 Mirta saw her ophthalmologist, and paid the equivalent of US$113 from her own funds for the consultation. She has not been able to change her glasses due to the cost involved.

106. Mirta’s doctor has recommended that she do exercises and attend the gym, but she cannot afford the fees charged by gyms.

107. Since mid-2012 Mirta has been suffering from dysphonia which has become more and more severe. This is an impairment in the ability to produce voice sounds. She has consulted an ear, nose and throat specialist, who referred her to a speech therapist. The speech therapist believes that Mirta’s loss of voice has an emotional component. Mirta attends weekly therapy sessions with her speech pathologist, as not being able to speak properly prevents her from carrying out her work as a Council Inspector and that, in turn, places her employment at risk.

108. Mirta believes that she also suffered from depression following Luciano’s second trip and that she should have had treatment. She did not do so, as she could not afford to pay for the treatment.

109. Mirta’s current health conditions restrict the number of hours that she is able to work; therefore she only does some overtime. She fears that once she retires at age 65, her standard of living will deteriorate further as she will have less income and more expenses due to her health needs. At age 65, Mirta will have to rely only on the retirement pension provided by the government of Uruguay, which will be significantly less than her current monthly wages.

110. Mirta’s villa is comprised of a bedroom, a dining area, a bathroom and kitchen. There is no car space or storage area. The total area of the villa is 32 m².

111. Mirta and Marcel have converted the dining room into a bedroom for Mirta. Marcel occupies the only bedroom.

112. Mirta and Marcel cannot entertain at all at home, as Mirta’s bed is located in the dining area.

113. The villa is affected by severe dampness on all walls and floors; there is extensive cracking of the walls and the rendering is falling off; there are broken roof tiles and a leaking toilet.

114. Mirta estimates that, in its present condition, her villa is worth approximately US $19,500.

115. Mirta also estimates that she would require about US$265,000 to purchase an existing two-bedroom unit in a better condition and in a more secure suburb. Mirta provided evidence of two two-bedroom units of about 70 m² with asking prices of US$245,000. Mirta would like to have two bedrooms so that her son and his possible future family could come to stay with her, and she could look after future grandchildren.

116. Mirta would like to have a small car to move around independently, do her shopping, and go to work and travel. She cannot carry heavy loads, and having a car will allow her to transport her shopping effectively. A small hatchback would cost between US$20,100 and US$22,800.

117. The transaction costs for buying a new home unit would be about US$19,000.

118. Mirta provided the following estimate of her needs to the age of 85 years, which totalled US$746,878.20 as at 8 February 2013. Mirta said in her 9 March 2015 affidavit that these expenses have been increasing over and above the inflation rate of 8.5% per annum.

1. Purchase of an existing two-bedroom unit US $259,700 including legal expenses and duties.

2. Ongoing maintenance and council rates and taxes over 23 years: US$7027.65.

3. Funds for medical expenses (medication, medical investigations, private health care, dental care, optical care, emergency care) for 23 years: US$199,225.55.

4. Funds to cover retraining to assist with a career change to a less strenuous job, in administration or computer work: US$4000.

5. Funds to cover a basic English course for work purposes: US$4805.

6. Funds for a holiday every two years within Uruguay or to bordering countries for the next 23 years: US$41,400 at US$1800 each year.

7. Funds to cover her funeral services: US$8000.

8. Funds to invest to supplement her age pension during her retirement, as there is no superannuation scheme in Uruguay: US $70,000.

9. Public transport for the next 23 years: US$13,800.

10. Motor vehicle (including taxes) for an initial outlay of US$22,000-US$23,000 and to be replaced once: US$46,000.

11. Ongoing maintenance of the vehicle including registration and fuel for 23 years: US$33,120.

12. Funds for social outings at US$50 per week; approximately US$59,800 for the next 23 years.

122. Mirta said that, when she retires, she will become entitled to a pension of 30,000 Uruguayan pesos per month. At an exchange rate of 1 US$ equals 1363 pesos, the pension is about US$1360 per month.

Effect of Uruguayan Court order in 1993

123. Initially, there was an issue between Mirta and the NSW Trustee as to whether an order made by a Family Court in Uruguay on 20 March 1993 had the effect of dissolving the marriage between Mirta and Luciano. As I have recorded above, the NSW Trustee abandoned this argument on the first day of the hearing.

124. Nonetheless, the NSW Trustee maintained an issue concerning the effect of the order made by the Family Court.

125. Hallen J made an order appointing Ms Luz Calvo de Gross, a Uruguayan lawyer and lecturer, as joint expert to report to the court on the following questions:

(a)   Whether or not the legal effect of the documents (annexed hereto and marked as A, B and C, respectively), under Uruguay in law, is to effect a divorce between the plaintiff and the deceased; and

(b)   Whether or not there was a property settlement between the plaintiff and the deceased, and if so, the nature of that property settlement.

126. I note that the letter of instruction written by the NSW Trustee to Ms de Gross dated 21 May 2014 asked questions (a) and (b) in the order made by the court as questions 1 and 2, and then asked the following additional questions:

3.   Do the documents affect the property rights of the deceased and [Mirta]?

4.   If the documents affect the property rights of the deceased and [Mirta] in what way are they affected?

5.   If the documents do not affect the property rights of the deceased and [Mirta] then what is the purpose of such documents?

127. Ms de Gross provided a report addressed to Hallen J dated 27 June 2014, which materially said:

Before answering the questions item by item, I consider it illustrative to make a brief review of the marital regime in Uruguay.

Our system sets forth that the property regime can be established as agreed by the parties before the marriage. This, is called marriage articles, prenuptial agreement, by which the property regime is set to take effect in the future marriage.

Should this not be established, in a supplementary manner, the legal regime of participation in marital property is in force. This will last from the time the marriage is celebrated until the dissolution of the marital partnership, which, according to Section 1999 of the Civil Code can operate due to the death of one of the spouses and divorce (when the marriage is also dissolved) and physical separation, judicial separation of property and declaration of absence (those cases where marriage subsists).

Either party may request the dissolution of the marital partnership (change of marital regime of community for the regime of absolute separation of property) through judicial separation of property, pursuant to Section 1985 of the Civil Code…

The judgment dissolving the marital partnership terminates the regime of community provided for by law, in which case the marital regime changes to absolute separation of property.

The dissolution of the marriage for judicial separation of property only has to do with the property regime of marital property and in no way affects the other effects that the marriage produced, which are as valid as before.

128. Ms de Gross answered question 1 by saying that the documents that were the subject of her advice do not mean that Luciano and Mirta dissolved their marriage by divorce.

129. I will paraphrase the answer to question 2 by noting that Ms de Gross said that if, as in the present case, a couple gets married without a marriage contract, then "the legal regime governing is that of community property". She said that the law allows spouses to request the modification of the regime of community property to that of separation of property. Uruguayan law allows either spouse to request, without explanation, "the dissolution of the marital partnership". Ms de Gross explained the process whereby notice of the application is given to the other spouse, and notice of the application is published so that creditors of the community property can appear on the application. If they do not appear to satisfy their claims out of the community property, they can only subsequently prosecute their claims against the separate property of the spouse who has contracted the obligation.

130. Ms de Gross said, in answer to question 3, that the marital property regime between the spouses was modified.

131. She said, in answer question 4, that the marriage continued to exist for all purposes. Up until the order made by the Uruguayan court the property of the spouses "was a marital community partnership and from then on the system of absolute separation of property".

132. Ms de Gross effectively repeated the answer to question 4 in her answer to question 5.

133. Apparently, following comments made by Hallen J at a directions hearing on 4 July 2014, Ms de Gross was asked to give a more specific answer to question (b) contained in the previous orders of the court, as to whether there was a property settlement between Mirta and Luciano, and if so, the nature of that property settlement.

134. Ms de Gross provided a supplementary report dated 29 July 2014. She explained again that, under Uruguayan law, “if there is no prenuptial agreement … the equity property system governing the marriage is … a legal community property regime”. However, one or both spouses can, by a court filing, change that regime to that of separation of property, as was done in this case at the request of Mirta. She said that there was no agreement regarding the spouses' assets.

135. Ms de Gross was questioned by the parties during the hearing by video conference. She adhered to the evidence that she had given in her reports. She said that Uruguayan law recognised prenuptial agreements. In the absence of a prenuptial agreement, when the parties to a marriage acquire assets, they do so communally. The parties did not explore the relationship between communal ownership and what is known as joint ownership under New South Wales law. Either party can unilaterally and at will terminate what Ms de Gross described as "conjugal society", by making an application to a Family Court, and without necessarily giving prior notice of the application to the other party to the marriage. After the order is made, any property acquired by a party to the marriage with that party's own money is owned by that party separately. New property that is acquired with money that remains subject to community of assets will also be owned in common.

136. The order does not affect the continuation of the marriage. It does not affect the obligation of one spouse to provide maintenance to the other. There is no connection between the issue of community or separate ownership of assets on the one hand, and the continuation of the marriage and the maintenance obligation on the other.

137. Partners to a marriage do not have complete testamentary freedom under the law of Uruguay. The surviving spouse may have a right to receive part of the property owned separately by a deceased spouse. That right depends upon the application of what Ms de Gross described as "a complex mathematical equation". The application of the equation depended in part on the value of the assets of the surviving spouse. The amount to which the surviving spouse becomes entitled is the difference between the amount calculated by applying the formula and the value of that spouse's own assets. Ms de Gross said: "And if that person does not have anything, that person is entitled to the entire asset".

138. Mirta's evidence was that she purchased her villa on 24 November 1984. She said that she was advised by her lawyer to make the application to the Family Court in 1993 in order to ensure that the ownership of the residence was not at risk if, to use my words, Luciano became insolvent as a result of his business activities. She pointed in particular to the business that she had assisted him to operate while she was in Australia whereby he bought items at auctions and resold them at fairs.

139. It was my impression that the effect of Ms de Gross's evidence was that an order for separation of property only worked prospectively. If that is so, then the making of the order in 1993 would not have affected the community of property in relation to an asset purchased in 1984. The parties did not explore this issue in detail with Ms de Gross.

140. I am satisfied that this issue is immaterial to the matters that I am required to decide in these proceedings. It is now accepted that the order did not have the effect of dissolving the marriage between Mirta and Luciano. It was not a final settlement of matrimonial property. It did not affect Luciano's obligation to provide maintenance to Mirta and Marcel. While it appears that the order had the effect that Mirta now has sole title to her villa, that is simply one factor to be taken into account in the application of ss 59 and 60 of the Succession Act.

Marcel’s evidence

141. Although Marcel has instituted separate proceedings to Mirta, the evidence in one case has been treated as evidence in the other. Marcel affirmed his principal affidavit on 8 February 2013. He prepared two affidavits in reply and an updating affidavit on 14 March 2015. Marcel and Mirta have dealt with many of the same issues in their principal affidavits. I will approach the evidence given by Marcel on the basis that, where possible, I will avoid duplicating some aspects of Marcel's evidence that have been dealt with in Mirta's evidence. Some degree of repetition is, however, inevitable.

142. The evidence presented by both Marcel and Mirta is entirely consistent. I attribute that consistency primarily to the fact that I regard both witnesses as having told the truth. I have borne in mind, however, that Marcel had to assist his mother in preparing her affidavits in English. The plaintiffs had to prepare their affidavits primarily in Uruguay, and their straitened financial circumstances did not permit them to engage independent interpreters.

143. Marcel noted in his primary affidavit that his father's death certificate is incorrect, because it fails to disclose his existence and the fact that, at the time of his death, his father was still married to Marcel's mother. That discovery must have been hurtful to Marcel.

144. Marcel is the only child of Mirta and Luciano, having been born on 24 December 1977.

145. On about 18 September 1978, Luciano provided an authority to the Consulate of Uruguay in Sydney for a passport to be issued to Marcel as a minor, so that he could travel outside of Uruguay without him.

146. I have set out above the extracts from Luciano's correspondence to Marcel and Mirta that are principally relevant to the issues in this matter. I will not repeat them, although I note that Marcel has referred to them in his affidavit.

147. Marcel claimed, particularly by reference to the audio cassette, that Luciano sent to Mirta in December 1977 that Luciano referred to Marcel as his heir. He made that statement in the context that he had recently become aware that Luciano's will made in 1981 did not include Marcel as a beneficiary. Marcel gave evidence of his first meeting with his father in 1986, when Marcel was 8 years old. Luciano knocked on the door of Mirta's villa unannounced.

148. Marcel said that he can recall his father spending just under a month with his mother and himself living with them during that visit to Uruguay. Luciano took Marcel to meet some of his friends and to visit Marcel's uncle, Ricardo Bentancor. They also attended a cultural event where Luciano was singing and dancing with a carnival troupe called "Murga La Bacana". Marcel referred to the program that Luciano had given him, on which Luciano had written: "For Marcel and Mirta with much love. Luciano".

149. Marcel said that he started his third year of primary schooling at the time of his father's visit, and that Luciano took him to, and collected him from, school several times. Marcel was very proud of being able to introduce his father to his friends. Marcel said:

As an adult, I believe the pride and happiness I felt at the time must have been because up to then there was emptiness in my life. My mother worked hard at being both mother and father to me, and my maternal uncle Rudolfo tried to play the role of the father figure, but I wanted my father to be part of my life; I wanted him to be actively involved in my life and when he came, I enjoyed his company thoroughly and he enjoyed my company and that of my mother. We were a family. Once I met my father, I felt my life would improve in every sense.

150. After Luciano returned to Australia, Marcel kept in touch with him via letters. Marcel understood that his father intended to return to Uruguay to live with Marcel and his mother on a permanent basis.

151. Luciano included in his letters statements written in capital letters intended for Marcel, as Marcel was not then capable of reading cursive writing.

152. Marcel said that, from 1986 until approximately 1988, he sent his father between 30 and 40 letters, and received a similar number of letters to himself and his mother. Marcel has only been able to find a couple of those letters.

150. When Luciano visited Uruguay 1988, Mirta allowed him to take Marcel to visit Luciano's friends at Carmelo, a city in the hinterland of Uruguay. Marcel said that once again this visit by his father was full of activities, and he and his father spent a lot of time together, taking rides on trains, dining out, teaching Marcel to ride a bike, and once again Luciano stayed at the villa with Marcel and his mother.

151. Marcel gave evidence of an incident in which he recalled his mother asking his father to purchase a small electric hot water element so that she could warm up water for Marcel's bath. There was no hot water at the villa, and Marcel used to bathe in a tin container, and Mirta would pour warm water on him using a jug. Luciano did not purchase the electric hot water element. Marcel said that he could recall his father constantly saying words to the effect: "It is important to save and not to spend anything unnecessarily". Marcel gave evidence of another incident in which the family went to the butcher, and Mirta wanted to buy a good quality cut of meat for Marcel. Luciano said: "The other cut (which was the cheaper and a lower quality) will do".

152. Marcel said that, after Luciano stopped being in contact with Marcel and his mother, particularly after his second visit, Marcel felt a great loss and felt betrayed by his father and abandoned. Marcel could not understand why his father seemed to be so happy when they were together, but afterwards he would not return to see Marcel or live with him.

153. In approximately March 1988, at the end of his second visit, Luciano left without saying goodbye to Marcel, and Marcel had no contact with him since. Marcel said that he has never been able to understand why his father was not interested in keeping in touch with him, and helping him or his mother, as even a letter from time to time and a small amount of child maintenance would have made Marcel's life much better and eased the burden of bringing Marcel up that fell on Mirta.

154. Marcel related a number of illnesses that he has suffered, which he partly attributed his to being abandoned by his father.

155. In approximately 1986, Marcel started having stomach pains. He lost significant weight after his father's first departure, and Mirta took him to a paediatrician. Marcel was diagnosed with anaemia and chronic gastritis. Marcel felt like he had a fist stuck in his stomach, and sharp pain in the area. The pain could be so severe that he had difficulty breathing and he would frequently vomit. He did not have any appetite for food, and he was a very skinny child. Marcel was on a special diet for many years, prescribed by a dietician. Marcel could not have any fried foods, fast foods, sweets, soft drinks, citric food or drinks. Mirta had to cook fresh food every day, using steamed and roasted liver, chicken, fish each at least once a week; eggs, dairy products, creams, jelly etc. Marcel's diet was very restrictive and expensive to maintain for any worker in a society where the staple food was pasta and where meats were expensive.

156. All of Marcel's basic needs were met by his mother as a child, but his special diet and ongoing medical treatment put extra financial demands on Mirta, s she had to pay for additional medical services. Marcel had radiological investigations, medication, frequent medical consultations with general physicians, paediatricians and nutritionists and other health professionals.

157. Marcel said that, at the same time as he was having these medical problems, he started to become sensitive and teary and cried frequently, and eventually became deeply sad. This was followed by strong headaches. Marcel was required to have a series of tests including a CT scan and an electroencephalogram.

158. During the school years in 1987, 1988 and 1989 Mirta was on many occasions called to collect Marcel from school, as he was suffering from severe headaches. He did not feel like eating, and his weight was below the minimum weight for his age.

159. Marcel was referred to an urologist, and then to therapy with a psychiatrist, who was also a psychologist. He was treated for depression, migraines and anxiety linked to a digestive disorder. He was severely underweight, and was prescribed medication. All of the treatments were paid for by Mirta. In 1988 Marcel was hospitalised with pneumonia. He was looked after in turn by his mother and his uncle Rodolpho.

160. Marcel's chronic gastritis slowly improved over the years. He ceased treatment in late 1989, although he has not completely recovered. The cost of treatment was a heavy toll on Mirta.

161. In his teenage years Marcel was diagnosed with scoliosis of the back. His doctor prescribed regular swimming as a treatment. Mirta paid the fees to a health centre where Marcel had access to a pool. Marcel attended the centre regularly for about 5 years, but Mirta could not afford the fees any longer, so he stopped.

162. Mirta financed all of Marcel's medical, educational and personal needs on her limited earnings. She would often obtain loans or rely on a credit system which did not use credit cards, as she was unable to pay for all their basic monthly expenses from her wages. She relied heavily on credit cards, multiple loans and private credit. She obtained advances against future wages, she got food and other items on credit from the local grocer, chemist and kiosk, and uncle Rodolpho frequently contributed money. From time to time, Mirta would sell pieces of furniture, clothes and bits and pieces they had at home to cover the cost of utilities. On weekends, Mirta and Marcel used to go to uncle Rodolpho’s house for lunch and dinner. Rodolpho would also provide some food and groceries to take home for the week.

163. Marcel said that a telephone was installed at home in 1994. Marcel called his uncle Elbio and his wife Mary, who lived in Sydney, and they telephoned Marcel and Mirta. Around 2006 to 2008, Marcel enquired about his father with his aunt Mary, but she said words to the effect: "We don't know where he lives and we haven't heard from him for a long time".

164. As a result of these proceedings, Marcel has learned that his father died in a nursing home and that at the time of his death, Marcel's aunt Teresita was his guardian. Teresita did not contact Marcel to let him know about Luciano's condition or death.

165. Marcel referred to the huge gap his father's absence has left in his life. Marcel believes that Luciano chose not to fulfil his obligations as Marcel's father, guide, mentor and companion.

166. When Marcel started his secondary schooling in 1990, Mirta enrolled him in a public high school, as she could not afford private school fees. Marcel completed his secondary education and university studies in public educational institutions. Marcel said that in Uruguay public education is of lesser quality when compared with private education; there are more students per classroom, fewer teachers, less resources, fewer subjects are offered and the infrastructure is poor.

167. With the exception of one textbook that Marcel was able to buy, all other books he needed to read as part of his secondary education were borrowed from various libraries, as Mirta could not afford to purchase them. In university, Marcel also relied heavily on books from libraries as he could not afford to buy them until later, once he started working part-time at university.

168. While he was in secondary education, Marcel put a great effort into achieving good marks at school. Generally, he was amongst the top 5% of students.

169. After he completed his secondary education, Marcel enrolled in Biochemistry at the University of La Republica in Montevideo, Uruguay. That is a public university. Since he completed his degree, Marcel has been required to make compulsory contributions to the University, which are paid into a fund to provide grants to other students.

170. Between 1998 and 2002, Mirta paid for several English courses for Marcel. That was essential as in Marcel's field of work. It is expected that any publications will be presented in English, particularly experimental results, and technical bibliographies are mainly in English.

171. Marcel completed his bachelor degree in Biochemistry in 2006. It took Marcel several years longer than for other regular students, as Marcel had to work whilst he was studying at university. Usually it takes five years to complete an undergraduate degree as a full-time student, and then additional time is required for practical laboratory work, and the preparation of a written thesis and oral examination. It took Marcel 10 years to complete his degree, as he had to work part-time. Marcel was also not able to commence intensive English classes until 2001. It took Marcel four years to complete the level of English required by scientists.

172. After completing his bachelor's degree in Biochemistry, Marcel commenced a Masters in Cellular and Molecular Biology, which he completed in 2009. Marcel is currently pursuing a doctorate of philosophy in Plant Molecular Biology at his university. Marcel has participated in national and international congresses, and published some articles in international scientific publications. The evidence includes a list of those publications.

173. Marcel said that he has been able to achieve a high degree of expertise and learning in his field of science. However, remuneration for academics and researchers is not commensurate with the degree of expertise achieved, but rather with the grade in which they work. Marcel said that he has a strong vocation with science.

174. Marcel said that he would like to complete his Ph.D. and live in Uruguay. He would like to pay back his mother for her support in educating him, as well as his country, Uruguay, through his work, for having given him the opportunity to become a professional.

175. The scientific community in Uruguay is very small, and it is necessary for Marcel to travel overseas to meet with colleagues and learn from them. In that context, in addition to several conferences, courses and research activities which he has attended in the bordering countries of Argentina and Brazil, Marcel has travelled for short periods of time to a number of other places. He was able to attend the conferences by competing with other candidates for scholarships which paid for those trips. In order to win the scholarships, Marcel was required to prepare a full and detailed schedule of his work and attendance at the conference, and then prepare and submit a report on his return for the approval of the sponsoring entity.

176. Marcel gave the following employment history. During his undergraduate years he commenced working at his University. In 1999, Marcel started working for his University on a permanent part-time basis. He worked less than a full week and had an employment contract which expired annually. Accordingly, each year he had to compete with other candidates for his job. Marcel was only paid for 4 hours per day, although his duties included laboratory work that might require him to spend on average between 6 and 10 hours per day, and sometimes more.

177. In 2001, Marcel moved to the plant molecular biology laboratory in the Science School of his University. In 2011, Marcel was able to secure a permanent part-time position at the University for 6 hours a day. Marcel described this as a Grade 2 position. He often worked between 7 to 10 hours a day in the laboratory, although he only gets paid for 6 hours a day Marcel had to compete for his position. Promotions are based on expertise and performance in practical and theoretical tests. Marcel's job involves research and teaching undergraduate students, postgraduate students and teachers who are upgrading their qualifications. Marcel also makes presentations on scientific topics.

178. Marcel is currently employed as a researcher with the University. He is a Grade 2 employee in a grading going from 1 to 5, with grade 1 being the least senior and lowest paid position, and 5 a senior and highest-paid position. Grade 5 is normally restricted to the highest authorities within the University, and only for those who have had a lengthy and most distinguished career.

179. There are few opportunities of promotion in Marcel's position as it is rare, in academia in Uruguay, for openings to occur. If the position is advertised, there are many applicants for the one position, and therefore any promotion is contested. Marcel's position expired in May 2013, but he won a reappointment. Marcel expects that his position will continue to be short term, and he will have to win regular reappointment.

180. It took Marcel 12 years to obtain promotion from Grade 1 to Grade 2, due to limited opportunities available. He was appointed Grade 2 on 16 May 2011.

181. Marcel's current monthly salary (as at the date of his 8 February 2013 affidavits) was US$838, after payment of taxes. Marcel does not receive any automatic increase in his salary, as the rate of pay is set by the University, and depends upon economic factors. In addition to receiving pay for working 6 hours per day, Marcel works overtime when he can, but overtime is not frequent. Marcel also receives a scholarship valued at an average of US$814 per month. Provided he satisfies the conditions to the receipt of the scholarship, Marcel will receive the scholarship from April 2014 to April 2016.

182. After paying his share of the legal costs for these proceedings to the commencement of the hearing, Marcel had US$288.52 in his bank account as at 14 March 2015.

183. Marcel is now 37 years of age. He lives, as he always has, with his mother, and since its purchase he has lived in the villa. The size and condition of the villa have been described above in recounting the evidence given by Mirta.

184. Marcel said that, even though he loves his mother, he would like to live in his own home, modest but dignified, but he does not have the financial resources to secure a home.

185. The villa has access to basic utilities such as water, electricity and phone. It does not have access to cable TV or gas. In winter Marcel and Mirta rely on a small electric heater. For the last 6 years Marcel has paid for access to the Internet. That is very important for his work and his postgraduate studies.

186. Marcel hopes to finish his Ph.D. within about two years. He does not expect to secure any work promotion for many years, as there is heavy competition from other scientists for limited positions.

187. Marcel has over his life suffered a number of health conditions, in addition to those that have been mentioned above.

1. In his teenage years he underwent two operations. First, in 1989 he underwent double surgery to correct a condition known as phimosis affecting the foreskin of the penis, and a non-descending right testicle. Subsequently, in 1998 he underwent surgery to treat varicose veins in the left testicle.

2. A test carried out on 23 December 1997 showed that he suffers from terato-asthenozoospermia Grade I-II. This condition is one of the major causes of infertility or reduced fertility in men.

3. Marcel has been advised that he will probably encounter difficulties in procreation, and he might need to resort to assisted fertilisation treatments. His present financial circumstances prevent him from using those treatments. Marcel has had a sperm count study which indicates low sperm count and poor quality sperm. In future, Marcel would like to have children, although he has not attempted this yet due to his limited financial standing. Marcel provided evidence that the cost of the treatment will vary but on average is about US$8000 plus the cost of medication. The rate of success of the treatment varies from 15% to 40%, so it is common for the treatment to be repeated twice or three times before conception is achieved.

4. Marcel has poor dental health and gum disease. He does not receive any dental care or financial assistance to fix this dental problem.

5. Marcel suffers from atopic dermatitis and seborrheic dermatitis. In particular, his skin flakes and he has red sores. His skin ducts become blocked and infected, and this infection is recurrent, especially on his eyeballs. When his eyelid becomes infected Marcel needs to seek surgical intervention with a skin specialist. Marcel has had this treatment a few times already.

6. Marcel depends mainly on the public health system, but he is sometimes able to consult private medical practitioners when he receives a voucher from his University employer. The number of vouchers Marcel receives is limited, and issued on salary pro rata basis. The vouchers enable Marcel to consult only those medical practitioners who accept these employer issued vouchers. Only generic medicine is issued on presentation of the vouchers.

7. Marcel wears prescription glasses and regularly needs to have his eyes checked and spectacles updated.

191. Marcel does not own a car. He would like to purchase a small car so that he could reduce his travelling time to work, which is currently three hours each day. Marcel would also like to take his mother for occasional holidays in Uruguay, as she has only taken one holiday in the last 20 or so years. Public transport at night in Montevideo is very unreliable, and taxis are too expensive.

192. Marcel would like to take an annual holiday each year, and travel to a beach or the hinterland in Uruguay. He estimates this would cost between US$2000 and US$4000 each holiday.

193. Marcel from time to time is able to attend conferences, courses and research activities overseas by securing subsidies and scholarships. He would like to be able to pay for such activities himself, and would need around US$6000 to pay for overseas courses of one or two month’s duration per year. That will be necessary for Marcel's professional development.

194. Marcel said that during his two visits, Luciano brought as presents for him some T-shirts, socks and some toys. He also paid for dinners when he took Marcel and Mirta to restaurants or on outings. He sent Marcel a raincoat and a pair of pyjamas from Australia. Marcel has received no other assistance or gifts or benefits from his father. He and Mirta have had to lead a frugal life due to their limited financial resources.

195. As at the date of his affidavit Marcel had assets with a total estimated value of US$3000.

196. Marcel gave evidence of his and Mirta's income and outgoings that is the same as the evidence given by Mirta.

197. Marcel gave the following evidence as to his future needs, and the claim that he makes on his father's estate. The total amount is US$924,261.

1. Marcel is required to pay a total debt of US$3020 over 25 years as a compulsory contribution to his university fund.

2. A three-bedroom house with a garage would cost approximately US$350,000 plus legal expenses and duties.

3. Ongoing maintenance and council rates and taxes over 25 years would cost US$10,000.

4. Three attempts at assisted fertilisation treatment plus medication would cost US $24,000.

5. Funds for medical expenses including healthcare insurance would cost US$40,000.

6. Work equipment would cost US$15,725.

7. The amount necessary to fund the advancement of Marcel's career by attending professional development conferences for the next 25 years would cost an estimated US$125,000.

8. Fast Internet access necessary for Marcel's study and work for the period until his retirement in about 25 years would cost US $19,350.

9. There is no superannuation scheme in Uruguay. Uruguay only provides a low retirement pension, which is not income tested and is insufficient to cover living expenses. The amount estimated as necessary to cover Marcel's retirement is US$123,231.

10. The estimated cost of public transport for the next 25 years is US$27,930.

11. The cost of a motor vehicle is an initial outlay of US$22,000 to US$23,000, and it would be necessary to replace the vehicle every 10 years.

12. The estimated cost of ongoing maintenance of the vehicle including registration and fuel for 25 years is US$70,000.

13. Funds for social outings and holidays at $50 per week for the next 25 years are estimated at approximately US$65,000.

(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case."

Did Luciano make adequate provision for Mirta in his will?

353. At this stage, the question is whether Luciano made adequate provision for the proper maintenance, education or advancement in life of Mirta in his will, having regard to all relevant present circumstances?

354. It must be remembered that, while the answer to this question will involve a consideration of the rightness and appropriateness of Mirta’s and Luciano's conduct, based upon prevailing community standards, with the court acting as a proxy for the community, the question must be answered upon the basis of all considerations made relevant by the statute, and does not involve the enunciation of any general moral rules or principles of conduct. The answer to the question is sensitive to all of the relevant facts. For example, if Luciano's estate had a value of a quarter of what it in fact has, or Julia and Teresita were in grave financial difficulty, or Luciano had left a de facto wife and a number of infant children, it is most likely that the question would receive a different answer to that which it will be given on the facts of the present case. That would be so even though those changes in circumstances would have little bearing on the appropriateness of Mirta’s conduct.

355. In the present case, Luciano left a relatively substantial distributable estate of about $1.5 million, after allowing for expenses and legal costs. Although both of his sisters, Julia and Teresita, were worthy of Luciano's benefaction, as a result of their respective ages and relatively comfortable circumstances their needs were not so substantial as to prevent Luciano, having sufficient assets, to properly address the entitlement of Mirta to an adequate provision for her proper maintenance and advancement in life.

356. The obvious question is whether it was proper for Luciano to leave Mirta nothing in his will because, notwithstanding that he remained married to her, they had been separated and had no conjugal relationship since 1988, and relatively little association for the decade before that. This case does not involve the consideration, referred to by White J in Slack v Rogan, where the court should give respect to a capable testator’s judgment as to who should benefit from the estate, where it can be seen that the testator has duly considered the claims on the estate. Luciano made his will in 1981. At that time Marcel was 3 years old, and Luciano was not entirely estranged from Mirta, although they were living apart. On the evidence, Luciano’s failure to provide anything for his son, Marcel, is entirely inexplicable. It cannot be known why Luciano did not reconsider the terms of his will before the commencement of his dementia. The unexpected onset of Luciano’s dementia precluded him from giving due consideration to the claims on his estate.

357. In my view, the decisive factor is that Luciano chose to remain married to Mirta. The order made by the Family Court in Uruguay in 1993 did not dissolve the marriage. Although Luciano obtained a copy of the court's order, the evidence does not establish that Luciano believed that he had become divorced from Mirta, and there is no ground for the court to find that the wording of the order would have conveyed to a Spanish speaker that the marriage had been dissolved.

358. I accept Mirta’s evidence that, for the few years that she worked while she was in Australia, she gave all of her wages to Luciano. There is evidence that Luciano was very careful with his money. Mirta may not have contributed a large sum of money in absolute terms to the matrimonial property, but she did so at the beginning, some 40 years ago. While it cannot be known what Luciano did with the money contributed by Mirta, the contribution should not be regarded as insignificant, given the substantial inflation in Sydney real estate prices over the last 40 years.

359. There is no reason to believe that Luciano could not have obtained an order from an appropriate court dissolving his marriage to Mirta, if he had chosen to face that issue. However, it is almost certain that if Luciano had sought a divorce from Mirta, he would have had to subject himself to some order for separation of marital property and maintenance of Mirta and Marcel, or at least the latter.

360. Luciano did not enjoy the assistance of Mirta, even in the capacity of a homemaker, after he finally separated from her. Nor did he enjoy her company and support. All of this was a matter of Luciano's own choice.

361. The effect of Luciano's abandonment of Mirta and Marcel was that he unilaterally abrogated his duty to both of them, in Marcel's case from the day of his birth. Not only did that deprive Marcel of his father's support, but it consigned Mirta involuntarily to the need to devote her life as a single mother to supporting Luciano's son as well as herself. In doing that, she de facto made a considerable contribution to Luciano's financial circumstances by carrying the burden that was in large part Luciano's.

362. I consider that Mirta's entitlement to maintenance and advancement in life out of the will of Luciano should be approached on the basis that she was legally his wife, that it was Luciano's own choice not to avail himself of the benefits of his marriage to Mirta, and that Mirta by reason of her sole support and maintenance of herself and Marcel provided a substantial financial benefit to Luciano over the years, by carrying a burden that was properly Luciano's, and the release of Luciano from that burden must have facilitated his ability to acquire the assets that he did. Furthermore, the depletion of Mirta's own assets by reason of her unassisted expenditure on the support and maintenance of herself and Marcel will necessarily have contributed substantially to her present inadequate financial circumstances.

363. I would echo the sentiment expressed by Bryson J in Gorton v Parks, to which reference has been made above, when I say that moral obligations cannot be limited or escaped by steadfastly maintained repudiation or evasion.

364. Luciano made no provision at all for Mirta in his will. Given Mirta's present circumstances, as set out above, no provision is clearly not a proper or adequate provision. Accordingly, the requirements of s 59(1)(c) of the Act are satisfied.

Did Luciano make adequate provision for Marcel in his will?

365. It will be instructive to begin the consideration of whether Luciano made adequate provision for the proper maintenance, education or advancement in life of Marcel in his will, by revisiting the list of principles stated by Hallen J in Butler v Morris, which I have set out above. It will immediately become apparent that Hallen J has addressed the entitlement of an adult child to a provision from the parent's estate on the assumption that the parent has, during the child's upbringing, supported and maintained the child in a manner consistent with community expectations. Hallen J's principle (a) refers to the change in the relationship between parent and child when the child leaves home. That reflects the universal social expectation that the parent will have provided a home for the child. The reason why the relationship changes is a social expectation that, once the parent has provided nurture to the child during childhood, the child will be equipped to act independently in maturity.

366. It is worth restating Hallen J's proposition (b) in part, as it succinctly states the expectation that it would generally be expected that the community would have of a parent in respect of a child:

(b) Thus, it is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where he, or she, can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation (McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801).

367. It follows directly from this proposition, with which I respectfully agree, that Luciano's performance of his moral paternal obligation to Marcel was the antithesis of what the community would expect, and the opposite of that to which Marcel was entitled. Again, I respectfully adopt the observation of Bryson J in Gorton v Parks at 9: "The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age". I should observe that my reliance upon the observations made by Bryson J is not meant to suggest any general principle, but is merely a reflection of the extremity of the circumstances of the present case. Marcel was deprived by Luciano's conduct of virtually everything that a child is entitled to expect of a father, save perhaps for the child's existence.

368. The only thing that could be said against Marcel is that he did not take significant steps to find and establish a relationship with Luciano after Marcel achieved adulthood. In my view, in the present case, Marcel's conduct does not disentitle him to the level of provision that the available assets in the estate enable the court to make in his favour. Luciano chose to walk out of Marcel’s and his mother's life. It has plainly been a hard struggle for both of them, and the need to fend for themselves has obviously consumed most of their attention. Given the difficulties he has faced, Marcel's achievements are highly commendable. I do not think it can be expected of Marcel that he should have devoted any substantial time to attempting to establish a relationship with his father. It is understandable that Marcel would have thought ill of his father, not only because of his own total abandonment, but because of the suffering that Luciano inflicted on Mirta, which was constantly in Marcel's view. The evidence does not, in any event, establish to my satisfaction that Luciano, having abandoned Marcel, would have particularly valued receiving occasional correspondence from Marcel.

369. Luciano made no provision for Marcel in his will, and in my view that is inadequate for the purposes of s 59(1)(c) of the Act .

What order for provision should be made in favour of Mirta and Marcel?

370. It is necessary for the court to consider the orders, if any, that should be made in favour of Mirta and Marcel under s 59(2) of the Act at the same time, because in practical terms, the application by each of them is in competition with the other, and each is in competition with the provisions made by Luciano in his will in favour of Julia and Teresita.

371. It will be appropriate first to make some preliminary observations about the practical considerations that are involved in the present case in considering the questions raised by s 59(2) and s 60(2) of the Act.

372. First, the amount of the estate that will be available for distribution after the payment of the estate's expenses and the making of the usual costs orders, if Mirta and Marcel succeed on their applications, will be about $1.5 million. I have recorded above the claims that each of Mirta and Marcel has made, as well as the equivalent statements of present and future needs by Julia and Teresita. It is necessary to revisit the total amount of the respective claims (using an exchange rate of 75 US cents to the Australian dollar for the sake of comparison). The total claims are Mirta ($1,000,000); Marcel ($1,250,000); Julia, including Juan, ($1,355,000); and Teresita ($790,000). The total of these claims is $4,395,000. The total of the claims made by Mirta and Marcel is $2,250,000, which substantially exceeds the amount available for distribution.

373. As will be seen, I have formed the view that each of Mirta and Marcel has an entitlement to an order that makes a substantial provision in their favour, but as that is true for both of them, they are unavoidably in competition for the available assets. I have also found that, by reason of the love and support that Julia and Teresita gave to their brother during his lifetime, and particularly when he was in extremis in his final years, they are worthy beneficiaries of Luciano's bounty in his will. This is one of the many cases where the assets in the estate are not sufficient to make provision in favour of all proper claimants in satisfaction of their justifiable claims or entitlements.

374. To varying degrees, each of the items that compose the claims made by Mirta and Marcel may be justifiable; though some are plainly more essential than others. The same may be said for the needs expressed by Julia and Teresita. As the available assets are insufficient to support all of the claims and entitlements, there will be no point in the court attempting some minute analysis of the justification or quantification of all of the items that have been claimed. The reality is that, in each case, the amount of the provision that can be made will fall far short of the total that has been claimed, so that it will be a matter for each applicant to decide upon appropriate priorities in respect of how the amount that is received will be applied.

375. The amount of the provision that can reasonably be made for both applicants falls so far short of the total claimed, that it is not realistic for the court to attempt to justify the amount of the provision by an arithmetical consideration of the cost of legitimate components of the claims. Practical considerations limit the exercise to a broad attempt to determine the appropriate provisions by considering the primary requirements of the applicants.

376. It should be added that both Mirta and Marcel have provided to the court a list of items of need that they perceive will be required over the balance of their lives. Many of the items require recurrent expenditures in relatively small amounts or more substantial expenditures at various times in the future. The court has only been given an absolute total, and there has been no consideration in the evidence of the effect of investing the assets for the period of each applicant's life, and no account has been taken of the capacity for the investments to earn income.

377. Furthermore, I think it is necessary for the court to proceed upon the basis that Mirta's primary need is for more satisfactory accommodation than is afforded by the villa in which she presently lives with Marcel, and that any new residence, together with the remainder of any investments that she makes to provide income and a buffer against contingencies, that remains at her death, will be left to Marcel in Mirta's will. It is highly likely that at least a substantial part of the provision that may be made in favour of Mirta will ultimately be enjoyed by Marcel.

378. There was an incipient dispute in these proceedings concerning the suitability of the accommodation to which each of Mirta and Marcel aspired. Mirta wishes to acquire a two-bedroom home unit valued at about US$260,000 (AU$350,000) and Marcel would like to buy a three-bedroom house with a garage for about US$350,000 (AU$450,000). There were claims in the NSW Trustee's evidence that the accommodation that Mirta and Marcel wished to acquire consisted of property in the more salubrious parts of Montevideo, which were not in keeping with their proper entitlement for provision in Luciano's will. It is not clear to me how committed the NSW Trustee ultimately was to fight this issue, as there was no cross-examination in respect of the valuation evidence. I do not think it matters, as the amount that could be given to each of Mirta and Marcel out of Luciano's estate, while making appropriate provision for Julia and Teresita, to give some effect to Luciano's own wishes, will leave relatively little, if anything, over if Mirta and Marcel choose to acquire new accommodation. It is likely that each will have to make do with less than what they considered to be desirable, so there will be no point in the court trying to make essentially impossible judgments about the desirability of particular types of accommodation in Montevideo.

379. I add that, as seems to be common in family provision applications, the applicants in the present case have each identified a single type of desired property; they have provided a range of values solely for those types of property; and they have tried to justify the making of family provision orders that provide them sufficient funds to acquire the desired properties. They have not provided evidence of the cost of alternative, new accommodation, which may be less desirable than the preferred property. That has had the result in this case, as it generally does, that once the court reaches the conclusion that the available estate, and the legitimate claims of other eligible persons or beneficiaries, does not permit the court to make a family provision order that would allow the applicant to buy the desired property, the court is thrown on the need to engage in guesswork.

380. So far as Mirta is concerned, I am not satisfied that community expectation would have required Luciano in his will to treat Mirta as if she was not only his wife, but had been his life's companion from the date of their marriage to his death. Notwithstanding Luciano's separation from and abandonment of Mirta to look after their child, the fact remains that they lived separate existences for the best part of 34 years. Luciano's failing, from the perspective of community expectations, was that he did not face the need to divorce Mirta lawfully, and to comply with any legal requirements that may have been imposed upon him, as part of the divorce process, in respect of matrimonial property and maintenance, particularly in the case of maintenance in respect of Marcel. In a practical (though by no means legal sense) Luciano deferred his obligations. That is the legal effect of his remaining married to Mirta, so that she remained an eligible person under s 59(1)(a) of the Act at his death. At that time, although it is entirely impossible to measure the consequences in any arithmetical way, Mirta's personal and financial circumstances continued to reflect the consequences of Luciano's abrogation of his responsibilities as a husband and father. The period of 34 years is so long that even relatively small contributions by Luciano of capital and income over the period, particularly during Marcel’s childhood and student years, should have enabled Mirta to substantially improve her material circumstances when compared to those to which she is currently subject.

381. So far as Marcel is concerned, he is entitled to be treated as a son who has been completely abandoned by his father, and who has received none of the emotional and material assistance that is the due of any child. On an application such as the present, I believe the court is entitled to find on the probabilities that Luciano's abandonment of Marcel was at least a significant contributor to some of the health and medical difficulties that he has suffered. It is also of some significance that the need to support himself and his mother has caused a delay in Marcel's graduating in his university degrees. The absence of Luciano from Marcel's life, both in emotional and material respects, has probably affected Marcel's personal and material development in a myriad of ways that cannot separately be identified or valued.

370. The circumstances of the two applications for family provision orders that are before the court are relatively exceptional, which makes it difficult to apply the matters set out in s 60(2) of the Act in a conventional way. I will mention only the paragraphs in s 60(2) that have some apparent significance to the present case.

371. For the purposes of par (a), the applicants are respectively wife and son of the deceased. A consideration of the nature and duration of the relationship shows, as appears above, that the relationship in this case is almost the exact opposite of that which would usually be expected, so that Luciano's testamentary obligation to the applicants arises in proportion to his failure over some 37 years to perform his obligations to them.

372. The obligations or responsibilities that arise in this case, for the purposes of par (b) consist in practical terms of the reparation that the community would expect from Luciano for his failure to meet his obligations to the applicants.

373. I have already indicated, so far as the matter in par (c) is concerned, that Luciano's estate is sufficient to provide a significant provision to each of Mirta and Marcel, but not one that is fully commensurate with their needs, particularly considering the entitlement of the beneficiaries under the will.

374. I have, above, accepted the evidence given by Mirta and Marcel concerning their financial resources and needs, for the purposes of par (d), at least in general terms, as I have in relation to the beneficiaries under the will (save that I have not found that the evidence before the court justifies the amounts claimed by Julia and Teresita in respect of future nursing home costs).

375. Paragraph (e) has an application in the present case that may be inverted from that which would ordinarily be expected, because Mirta and Marcel are cohabiting with each other out of necessity, which is something that they should not have to do. At this stage in their lives they should not have to bear the burden of supporting each other.

376. All of Mirta, Marcel, Julia and Teresita have various physical disabilities, which have been considered above, and will require medication and treatment over time: par (f).

377. Mirta is near the age of retirement and is in need of some level of financial assistance to support her in retirement: par (g).

378. Mirta indirectly contributed to the acquisition of Luciano's estate by entirely carrying his obligation to provide maintenance and support to her and Marcel: par (h). Additionally, she gave him her wages for a number of years while the couple were living together in Australia.

379. So far as par (i) is concerned, Luciano has made no provision of any substance to Mirta since the beginning of 1978, and no provision to Marcel during his lifetime.

380. There is no person who is liable to support either Mirta or Marcel: par (l).

381. For the purposes of par (m), I find that there is no aspect of the character of Mirta or Marcel that would this disentitle them for any provision out of Luciano's estate, or reduce that entitlement.

382. I find in respect of each of Julia and Teresita that they are moderately comfortably off, albeit that they subsist on pensions. Each owns a home unit (in Julia's case jointly with Juan). In my view each is entitled to have a substantial fund to provide at least for the more important needs that each beneficiary listed, and to provide a buffer against contingencies. I would expect that each beneficiary's home could be used to support the payment of any deposit for any nursing home requirements. The evidence provided by Julia and Teresita in support of their claims that they would require nursing home deposits of $300,000 each (plus one for Juan) plus equivalent amounts in total annual nursing home fees, did not explain at all the basis for the calculation of those amounts.

383. I have decided that the only realistic way that is available to the court to determine the provision that ought to be made for the maintenance, education or advancement in life of Mirta and Marcel is to do so by means of a single legacy that should be provided to each of them out of Luciano's estate.

384. In Mirta's case, I have been influenced primarily by her stated need for better accommodation and a fund to assist her to make provision for her retirement. She wishes to buy a two-bedroom home unit, which she values at the equivalent of about AU$350,000. I frankly think that she will need to lower her expectations in respect of a new home. If she buys the home she wishes to acquire, she will have insufficient reserves.

385. The same problem arises in Marcel's case, albeit more acutely. He wishes to acquire a three-bedroom home with a garage which he estimates would cost him about AU$450,000. It will probably be necessary for Marcel to lower his aspiration, or to acquire a mortgage. In this respect, Marcel has the expectation, to which I have referred above, of ultimately inheriting his mother's estate.

386. I have come to the conclusion, having regard to the age of Julia and Teresita, and their relatively comfortable circumstances, but giving due weight to the length and strength of their relationship with their brother, that each should receive a fund of $300,000 out of Luciano’s estate, assuming that the property of the estate is sold for prices that have the result that the distributable estate is only slightly less than $1.5 million.

387. I have given considerable thought as to how the balance of the estate should be divided between Mirta and Marcel. There are arguments that can be made in favour of each having the greater call on Luciano’s bounty. However, I have come to the conclusion that each applicant has needs that are more than can be met out of the balance of Luciano’s estate, and that it would be invidious for the court to make a more favourable order to one than the other. I am confident that the mutual love and respect that exists between Mirta and Marcel will cause them, in any event, to reach some satisfactory arrangement concerning the use to which their shares of the estate are put.

388. Accordingly, the balance of the estate, after payment of the amounts that will be paid to Julia and Teresita, should be distributed equally between Mirta and Marcel, also upon the assumption that the distributable estate is about $1.5 million, which would lead to each receiving $450,000. As I have suggested above, a provision of this order may only provide modest but separate accommodation for Mirta and Marcel, and a relatively small amount to meet contingencies. Notwithstanding the strong case that each of Mirta and Marcel made concerning their needs for maintenance, education and advancement in life, the duration of their separation from Luciano was so long that prevailing community standards could not ignore, and reasonable members of the community would recognise the entitlement of Julia and Teresita to receive significant provisions, having regard to their family bonds with Luciano and their material circumstances.

389. It is notorious that Sydney real estate prices tend to rise significantly over relatively short periods. There is no way that the court can know what the ultimate distributable estate will be. I consider that the fairest and most reasonable course is for the court to make orders that will have the effect that the applicants and the beneficiaries all share proportionally in any increase in the distributable value of the estate (or decrease, if that should occur).

390. The orders should have the effect that the final distributable estate is distributed on the basis that Mirta and Marcel each receive 30% and Julia and Teresita each receive 20%.

391. The NSW Trustee’s costs should be paid out of the estate on the indemnity basis, and the costs of Mirta and Marcel should be paid out of the estate on the ordinary basis. My view as to the payment of costs is, however, provisional, and I will hear any submissions that the parties wish to make on costs.

392. Mirta and Marcel should submit short minutes of order to give effect to these reasons for judgment, after discussion with the NSW Trustee.

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Amendments

23 September 2015 - In matter 2013/49894 the plaintiff's solicitor firm name amended from Navorro to correct spelling

Navarro

17 September 2015 - Par 3 to read

The deceased, Luciano Angel Bentancor was born on 21 May 1944 ...

changed from 21 May 2014

Decision last updated: 23 September 2015