Larkin v Leech-Larkin

[2017] NSWSC 1418

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Larkin v Leech-Larkin [2017] NSWSC 1418
Hearing dates:	19, 20, 21 July 2017; final written submissions received 14 August 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Equity - Family Provision List
Before:	Parker J
Decision:	Proceedings dismissed
Catchwords:	Succession – family provision – estate left to son of deceased – plaintiff older son of deceased – mature and independent adult – no provision made for plaintiff – plaintiff estranged from deceased – unreasonableness of deceased’s attitude towards plaintiff – beneficiary’s contribution to assets and welfare of deceased – beneficiary’s expectation of inheriting property – financial mismanagement – whether provision for plaintiff is “proper”
Legislation Cited:	Succession Act 2006 (NSW), ss 57(1)(c), 59(1)(c), 59(2)
Cases Cited:	Bruce v Greentree [2015] NSWSC 1611 Evans v Braddock [2015] NSWSC 249 Kohari v NSW Trustee and Guardian (No 2) [2017] NSWSC 1080 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Stott v Cook (1960) 33 ALJR 447
Category:	Principal judgment
Parties:	Julian Dee Larkin (Plaintiff) Lucien Francesco Leech-Larkin (Defendant)
Representation:	Counsel: MB Evans (Plaintiff) TJ Morahan (Defendant)   Solicitors: Cohen & Krass (Plaintiff) MH Peoples & Co (Defendant)
File Number(s):	2016/54177
Publication restriction:	Nil

Judgment

1. This is an application for provision out of the estate of the late Wilma June (known as “June”) Leech-Larkin. The plaintiff, Julian Dee Larkin, is her son. The deceased was born in July 1926. In November 1948 she married Barnett Larkin. In March 1970 they separated. He died shortly after property settlement proceedings between them were finalised in 1983.

2. The deceased and Barnett Larkin had six children, with four sons surviving into adulthood. The plaintiff is the eldest son; he was born in June 1949. The defendant, Lucien Francesco Leech-Larkin, is the second son, who was born in October 1952. There are two younger sons, Vincent Aquinas William Leech-Larkin and Adrian Justin Leech-Larkin. For convenience and without disrespect, I will refer to each of the deceased’s sons by his Christian name.

3. The substantial asset in the deceased’s estate is a property at Springwood in the lower Blue Mountains which before the deceased’s death consisted of two lots, numbered 3 and 4. A house stands on lot 3. The rest of lot 3 and lot 4 had been developed as an extensive French-style garden known as “Francesca Park”. The house was the former matrimonial home of the deceased and Barnett Larkin, and was the deceased’s home after they separated. Lucien has also lived there for nearly all his life.

4. The deceased was diagnosed with cancer in 2012 and died in February 2015 at the age of 88. By her last will, made in March 2013, she left her estate to Lucien. Neither Vincent nor Adrian has made any claim against the estate. Probate of the will was granted to Lucien in February 2016.

5. Since the grant of probate, lot 4 has been sold. Lot 3 remains unsold. Lucien continues to live there together with Adrian.

Factual findings

6. Julian, Lucien and Mr Peoples, the solicitor for Lucien, gave evidence at the hearing. Mr Peoples has known Lucien since about 1998, having been instructed by Lucien in relation to a claim for sexual abuse when he was a pupil at St Aloysius’ College, which is referred to below. He also acted for the deceased in preparing her 2003 and 2013 wills, and for Lucien in applying for probate.

7. The background to the acquisition of the Springwood property was given in a judgment delivered in the Family Court of Australia in August 1983. The parties were content for me to rely upon the judgment as evidence of the facts stated in it.

8. Barnett Larkin was a World War II veteran who later found work with Sydney City Council as a town planner. Apart from a short period of paid employment early in the marriage, the deceased was occupied full-time as a homemaker.

9. The Springwood property was acquired as the site for the Larkins’ family home. Lots 3 and 4 were acquired in 1962 in the name of Barnett Larkin. A further lot in the subdivision, lot 10, was acquired in 1962 in the name of the deceased. A house was built for the Larkins on lot 3, and in 1963 they moved in. The purchase of lot 3 was financed with a mortgage from the Defence Force Homes Corporation (a benefit from Barnett Larkin’s war service). There was no finding as to how the purchases of lots 4 and 10 were financed.

10. Barnett Larkin left the family home in about March 1970. Subsequently, orders were made by the Court of Petty Sessions for him to make maintenance payments. He was also obliged to pay the rates on lots 3 and 4 and mortgage instalments. The payments fell into arrears.

11. The deceased borrowed $2,000 from the Rural Bank of New South Wales (later known as the State Bank of New South Wales) in 1969 and a further $2,000 in 1971 which was found to have been for necessary household expenditure. These borrowings were secured by a mortgage over lot 10 in favour of the Rural Bank. The deceased made the repayments from her own resources.

12. The deceased had been entitled to a war pension as a benefit of Barnett Larkin’s war service. She also received social security payments. In 1979 the deceased received an award of $9,000 in damages for a personal injury she had suffered, of which she applied $6,500 towards house and garden improvements.

13. By the time of the property settlement proceedings, the debt due to the Defence Force Homes Corporation was $5,400 and the debt due to the Rural Bank was $380.

14. For the purposes of making a property settlement, the Family Court treated all three lots as part of a common venture. The Court determined that, having regard to the respective contributions of the parties to the marriage, the properties should be allocated as between the deceased and Barnett Larkin in 60/40 shares. After allowing in favour of the deceased for the arrears of maintenance, Barnett Larkin’s superannuation and other entitlements, the Court determined that his share was worth $30,580. This was less than the value of lot 10. Accordingly, the Court ordered that lots 3 and 4 be transferred to the deceased, and provided for the deceased to purchase Barnett Larkin’s share of the matrimonial assets for $30,580, failing which lot 10 was to be sold with that figure being paid to him and the deceased receiving the balance.

15. The deceased proceeded to buy out Barnett Larkin in accordance with the Family Court’s orders. According to Julian, the settlement took place in December 1983. According to Lucien, he and Adrian assisted with financing the payment to Barnett Larkin. There was no documentary evidence about the settlement or how it was funded.

16. The transfer of lot 3 to the deceased would presumably have required the refinancing by the deceased of the Defence Force Homes Corporation mortgage. But there was no evidence of what mortgage arrangements were made in this regard.

17. Documentary evidence did show that in May 1984, a caveat was lodged on lot 10 by a company called Action Home Loan Pty Limited (“Action”). In September the previous mortgage to the Rural Bank was discharged and replaced with a mortgage to Action. The amount secured was $17,000 and the mortgagor was shown as the deceased and Adrian (Adrian being described as “Borrower”). But on the same date that mortgage was transferred to one Eric Ross Campbell Flew. In November 1985, Mr Flew, exercising a power of sale under the mortgage, sold lot 10 to a couple whose name was Grammeno.

18. The evidence did not explain how this happened. The borrowing from Action post-dated the property settlement by six months (on Julian’s evidence; he also said Barnett Larkin died in January 1984). It is not clear whether the borrowing from Action was undertaken to pay Barnett Larkin or was part of some later transaction. Lucien said that lot 10 was later “sold wrongly” and the deceased later received compensation, but it was a “fairly small” amount and no further detail was given.

19. There is no evidence that the deceased engaged in paid work after the divorce settlement was finalised. She may have continued to receive social security entitlements. Later she received an aged pension.

20. There is reference in the evidence to members of the family staying at a unit in Sydney from time to time while the sons were at school. But the evidence does not contain any detail about these arrangements, and it would appear that by the 1980s the deceased was living full-time at Springwood. Lucien has never owned a home of his own and he appears to have lived at Springwood except when staying for short periods at the unit in Sydney. There is no evidence about when Adrian and Vincent moved out of the Springwood home.

21. Lucien had a very close relationship with this mother. They shared many common interests, including Roman Catholic church history and doctrine, writing and literature, antiques and gardens.

22. According to Lucien’s evidence, the decision to develop the garden on lots 3 and 4 was made by him and the deceased in about 1988 or 1989. It was a very extensive undertaking, involving the construction of pergolas, sandstone and gravel paths, a glasshouse, the restoration and installation of gates and fences, and the planting of “thousands of different plants”. Lucien’s evidence was that he funded the development from his employment earnings. He also said that he paid for various repairs and improvements to the house.

23. The garden was opened to the public in about 1999. For a period of time the garden was operated as a business under a business name of “Francesca Park”, which was registered to Lucien. The operation was also registered under an ABN and Lucien returned the income and claimed deductions for it as a business in his personal tax return. As a business it was never profitable. Lucien’s tax returns were not in evidence, but he said that the losses each year were in the tens of thousands of dollars. These losses operated as a substantial reduction of, but did not eliminate, his taxable income.

24. Also around 1999, Lucien made a claim against his former school, St Aloysius’ College, concerning sexual abuse he had suffered while a pupil there in the 1960s. Lucien said that he borrowed substantial funds from private lenders (including, it appears, finance organised through his solicitors) on the basis that he would be able to repay them on receiving a settlement, and that these funds were used for the continued development and operation of the garden.

25. Eventually, Lucien did receive a substantial settlement (more than $1 million) in 2005. Much of it appears to have been spent on repaying debt. There were also substantial purchases made of antiques for the house at Springwood. According to Lucien, the deceased had built up a modest collection of antiques for the house at Springwood over previous decades. The antiques bought after 2005 were, on Lucien’s evidence, paid for by him; in some cases they were selected by him, but in other cases they were selected by his mother and purchased by him.

26. Later the garden ceased to be open to the public and the business was wound up. A number of the antiques were sold and, according to Lucien, a substantial loss was realised.

27. Lucien retired from his employment at the State Rail Authority in about January 2013. He received a substantial superannuation payout which, on his evidence, was also devoted towards repaying debt, purchasing antiques, and on the house and garden.

28. The only asset disclosed in Lucien’s affidavit as executor was the Francesca Park property which was given an estimated value of $1.6 million.

29. Lucien contended in these proceedings that the monies he expended on the Francesca Park property and losses suffered on the sale of the antiques purchased by him after 2005 were liabilities of the estate. According to Lucien’s contention, they were loans by Lucien to the deceased which had to be repaid out of the estate, thereby reducing its value to, or below, zero.

30. I reject this contention. There is no credible evidence of the deceased acknowledging liability to reimburse Lucien for his expenditure on the property, or for his purchases of the antiques. The contention that the expenses of operating the garden represented the loan of monies by Lucien to his mother is also inconsistent with Lucien having claimed them as tax deductions in his personal tax return. In cross-examination, Lucien said that he would have regarded his mother as free to give away the antiques he purchased at her request. Even if it is correct to regard her as having been the owner of such antiques, that does not mean that she had any obligation to reimburse him for their purchase. If the correct analysis is that she was the owner, then that is because Lucien purchased them and then gave them to her. The alternative analysis, which I prefer, is that they remained Lucien’s property, although had the deceased wished to give them away it is likely he would have agreed, thereby effecting a gift on her behalf at that point.

31. Although the evidence might have provided a basis for contending that Lucien had some form of interest in the property by way of proprietary estoppel, counsel for the plaintiff did not pursue any such contention. The proceedings must be decided on the basis that the deceased was the legal and beneficial owner of lots 3 and 4 despite expenditure by way of construction of the garden (and on the house) by Lucien. I consider below whether that expenditure nevertheless should be taken into account in considering whether the will made adequate provision for Julian.

32. At the time of the deceased’s death, lots 3 and 4 were subject to a mortgage in favour of Westpac Banking Corporation. The mortgage itself was not in evidence and the evidence did not identify what borrowings were undertaken from Westpac and when the mortgage was entered into. The amount secured by the mortgage was not disclosed in the application for probate, but according to Mr Peoples was $430,000 in November 2016. There was no evidence as to where this debt came from. It is possible that some of it went back to the Family Court property settlement. But I assume that most of it was attributable to the development of Francesca Park, and that it was borrowed by, or at the instance of, Lucien, although presumably with the deceased’s consent.

33. Mr Peoples’ evidence was that contracts were exchanged on the sale of lot 4 in November 2016. At settlement, $292,000 was paid to Westpac to discharge the mortgage over the lot; the net proceeds after payment of outstanding rates and expenses of sale were approximately $240,000. Lucien was said to have reimbursed himself approximately $110,000. This was said to have included funeral and testamentary expenses of approximately $22,000; $3,500 in real estate advertisements for lot 4; property outgoings and maintenance, including garden maintenance of $6,000; and mortgage interest payments of $71,000. According to Mr Peoples, $120,000 remained (a figure which leaves $10,000 out of account).

34. The evidence before me makes it clear that at least some of the antiques at Francesca Park were originally purchased by the deceased before the large scale purchases by Lucien which took place after 2005. These antiques were not referred to in the deceased’s inventory of assets nor is there any evidence to identify them or to determine their value.

35. The deceased would presumably have had her own bank account, if only for receipt of her pension payments. This account was not disclosed in the inventory of assets either, nor is there any evidence about what amounts were contained in it at the time of the deceased’s death. Prior to her death, the deceased had apparently given Lucien a power of attorney and a signatory entitlement over the account, and it seems likely that the money was expended on household expenses.

36. The mortgage to Westpac remains outstanding. The amount outstanding is said to be approximately $131,000. Lucien’s total legal costs for these proceedings are estimated to be approximately $62,000.

37. There was a valuation in evidence for lot 3. The valuation treats the house as adding little value to the land and ascribes a value for redevelopment purposes of $750,000. Counsel for Julian argued that lot 3 has a greater value than is attributed to it by this valuation. Counsel pointed out that the house is apparently sound, and questioned why the property would have been thought to have value only for redevelopment. He submitted that the property could readily be subdivided so as to allow Julian a share of it and still leave a sufficient amount for Lucien to live on.

38. These submissions were made by reference to material obtained from real estate websites. No rival valuation evidence was put forward, and there was no expert evidence to establish that the subdivision of lot 3 was feasible or, if it was, what value such subdivided lots would have. I do not think I can act on counsel’s submissions in these circumstances.

39. Based on the valuation evidence, the remaining gross assets of the deceased’s estate total $870,000 ($750,000 for lot 3 plus $120,000 left over from the sale of lot 4) with remaining liabilities of $190,000 (the amount owing to Westpac and the costs of the proceedings), a net figure of $680,000. To this must be added the value of any of the antiques acquired by the deceased still left at Francesca Park at the date of her death.

The deceased’s relationship with Julian and her testamentary intentions

40. Julian completed his schooling at St Aloysius’ College at the end of 1966. Subsequently, he trained as a nurse. After he left home and following his parents’ separation, Julian lived in Sydney in shared accommodation with friends.

41. After his separation from the deceased, Barnett Larkin lived with Julian for a time. He also maintained friendly relations with the deceased’s brother, Ronald (“Ron”) Leech. Julian also apparently did so. At one point Julian was living in the same apartment building as Ron. At some stage the deceased fell out with Ron.

42. The affidavits filed in these proceedings raked over the breakdown of the marriage between the deceased and Barnett Larkin. Many of the unpleasant details which they contained were not pressed. There is still enough to show that the separation was an exceptionally bitter one. There is in evidence a will made by the deceased in December 1972. The will provided for the deceased’s estate to be given in three equal shares to Lucien, Vincent and Adrian. There was no provision for Barnett Larkin or for Julian. The will stated:

3.   I DECLARE that my husband BARNETT LARKIN who deserted me and his family and brutally ill-treated me should not benefit in my will in any way whatsoever.

4.   I FURTHER DECLARE that my son JULIAN DEE LARKIN who has failed to stand by me should not benefit in my will in any way whatsoever. HOWEVER his brothers might assist him depending on their own financial circumstances.

43. It is clear that Julian refused to sever contact with his father after such contact had been severed by his mother and, apparently, his brothers (I assume it was at this time that the deceased adopted the surname “Leech-Larkin” which Lucien, Vincent and Adrian also adopted, whereas Julian has maintained the “Larkin” surname). In Julian’s affidavit, he defended his father and portrayed the deceased as neurotic and controlling. Although Lucien responded, the parties did not suggest that I could, or should, determine the accuracy of the accusations and counter-accusations which were made.

44. There are in evidence four letters written by the deceased. The first is a letter addressed to Ron but posted to Julian in December 1998. The other three letters are to Julian, dated February 1999, April 2003 and June 2007 respectively.

45. I bear in mind that the letters do not necessarily represent how the deceased thought throughout the period, and that the way some people write does not always convey what they are really like. Even so, the letters make for depressing reading. They are censorious and hectoring. They are full of criticism of Julian and of Ron. Fifteen to twenty years after his death, the deceased continued to blame Barnett Larkin for his conduct during the marriage and after the separation. The letters also suggest enmity between the deceased and two of Barnett Larkin’s brothers, John Larkin (who had been the Vice Rector of St Aloysius’) and McGregor Larkin (a Jesuit priest).

43. An idea of the tone of the letters comes from the beginning of the February 1999 letter where the deceased wrote:

I am writing to attempt to help you gain a little more insight into your problems of many years standing.

I did tell you when you called that until you realise your need and desire to accept help from someone who cares about your body, mind and spiritual health you cannot recover.

47. The letter included the following:

There is no way that you will be able to contest my will, so spare yourself those machinations. It is a Trust Will, drawn up by close lawyer friends, following a classic case.

In any case, it is my property, not a family property, if I chose to marry tomorrow, my husband would benefit.

48. It is not clear from the evidence whether the “Trust Will” to which the deceased referred was her December 1972 will or some later will.

49. The letter ended:

When you feel a flicker of genuine remorse for your ingratitude and callous treatment towards your mother, you can ring me and not before!

Hoping for some improvement.

Your Mother

50. The deceased’s letter to Julian of April 2003 was largely concerned with a police statement which Julian had apparently made in connection with Lucien’s allegations of sexual assault while a student at St Aloysius’ College. At this time, Lucien’s civil claim against the College was still pending. A letter from Lucien to Julian dated October 2004, which was also in evidence, dealt with the same subject. It was also referred to in the deceased’s letter to Julian of June 2007, by which time the civil proceedings had been settled. It is clear from the letters that the deceased believed that the hierarchy at the College had sought to cover up the activities of the priest who had perpetrated the abuse of Lucien and that Julian was assisting the hierarchy in this regard.

51. The deceased suggested that Julian, in his statement, had deliberately concealed what he knew. The deceased saw this as spite towards Lucien, but went on to suggest that it might expose Julian himself to prosecution for perjury or conspiracy. It was put to Julian in cross-examination that his statement was false, but the allegation was put in a rolled-up way and was rejected at a similar level of generality.

52. The evidence on this subject in the proceedings was not such as to enable me to resolve the conflict. There was no direct evidence to identify when the abuse occurred and what was done about it. Julian’s statement itself is not in evidence; some material purporting to be an extract of the statement, together with Lucien’s commentary on it, was initially included in the Court Book but was not ultimately pressed. I am left with the material in the letters, which is often difficult or impossible to understand without any context.

53. Julian did not reply to the letters. He had little contact with his mother. He did not ring her; on occasion she would ring him but he said that the conversation would turn to the deceased criticising his father or his uncle and he would either hang up or leave the phone on the bench and do something else. Julian visited Francesca Park on a couple of occasions but they were awkward. In the deceased’s letter of February 1999, written after Julian brought his children to visit, the deceased upbraided him for his conduct as a parent and asked him not to bring the children again. Julian appears to have had no contact with the deceased during her final illness or indeed for the last eight or so years of her life.

54. It was put to Julian in cross-examination that on one occasion he left Francesca Park saying that those who lived there were all “in a rut”. Julian denied saying this but I have no doubt that it reflects the way he felt. Something similar appears in one of the deceased’s letters to him. It is clear that there was mutual disrespect between the deceased and Julian. The deceased sought to impose conditions on Julian if she was to communicate with him. For his part, he apparently did not share her interests and made little or no effort to communicate with her.

55. There is in evidence a will made by the deceased in October 2003. The will gave a legacy of $5,000 to each of Julian, Vincent and Adrian and the residue of the deceased’s estate to Lucien. In the event of Lucien not surviving the deceased, the residue of the estate was to be equally divided by such of her other sons who survived her (including Julian).

56. As already mentioned, by her March 2013 will, the deceased left the whole of her estate to Lucien. In the event that he did not survive her, the estate was left to Vincent and Adrian in equal shares. There was a final gift over in the event that neither of them survived the deceased in favour of a cousin of the deceased “so that he may help his children as he wishes”.

57. Mr Peoples gave evidence that during the deceased’s last illness he raised with her the question of one of her other sons making a claim against her estate. She responded with words to the effect:

[T]hey would not dare make a claim against my estate, they know what Lucien has done for me and that he is entitled to everything that I leave. Julian in particular has done absolutely nothing for me over the last 20 years. Lucien knows that I have left the property to him and he trusts me implicitly.

Plaintiff’s circumstances

58. After completing his education, Julian became a registered nurse and worked full-time for the NSW Department of Health from 1979 to 1994. He then worked casually. From 2008 to the beginning of 2017 he worked primarily on night shifts and claims to have worked between 30 and 50 hours each week, although in cross-examination Julian conceded that it is possible he worked less than this in 2016. In his affidavit of 16 February 2016, he said he was earning $2,000 per month. Julian said he had also conducted a technology business from 1971. However, his business partner died in 1992 and although he continued on as a sole trader, he has since had his GST registration and business name cancelled because of his failure to lodge tax returns and business activity statements. Julian has limited job prospects at his age. He said that although on the books at the hospital, he has not received any assignments since January 2017.

59. Julian is now 68 years old. He suffers from morbid obesity and has a permanent disability in his left knee, from a motorcycle accident when he was 18 years old, and may need a total knee replacement in some years. Julian also needs dentures, having lost all of his teeth over time, and to upgrade spectacles for short-sightedness. He claims to be suffering from cellulitis, fluid retention and lymphedema.

60. Julian has two children; a daughter who is 26 years old and a son who is 25 years old. He is currently living in an apartment in Sydney with his children. At present, he is subsisting with the support of his children and both of them contribute to rent and household expenses. Julian claims to have given one of his cars, which he valued at $3,000, to his son in return for his subsidising of Julian’s living expenses. In cross-examination, Julian also said that he was paying off his debts by instalments with the assistance of his children.

61. Julian owns a block of land on the Central Coast, valued at approximately $260,000. He estimates his other assets, including office equipment, electronics, furniture and vehicles, to be worth approximately $70,000. A payslip for the period ending 6 August 2017, provided after the hearing, shows long service leave entitlements in the sum of $15,000 (before tax). A superannuation account statement as at June 2017 shows superannuation of approximately $2,500. Julian said he was in the process of re-applying for the aged pension, having had his initial application rejected.

62. The total amount Julian owes to banks and credit unions is about $85,000. This includes a line of credit of $75,000 with the Commonwealth Bank of Australia apparently secured on his land, which he appears to have characterised as a mortgage; a cheque account approximately $600 in overdraft; a MasterCard liability of about $7,000; and a $2,000 liability with the Credit Union of Australia. Julian also says he owes $12,500 to FeeLink, which funded some of his legal fees, and about $4,000 to his accountants. He estimates his monthly living and vehicle expenses to be about $2,500 and the monthly rates and tax on his property to be approximately $150 per month.

Defendant’s circumstances

63. Lucien worked for the State Rail Authority for 27 years, retiring in 2013, and claims to have regularly worked overtime two or three days each week over that period. He apparently was earning $90,000 annually by the end of his employment. For about two years post-retirement, prior to receiving an invalid pension, Lucien received a carer’s payment for being the principal carer for his mother.

64. Lucien gave evidence that “in the 1990s” he planned to purchase a home unit at Elizabeth Bay near his work. He said that his mother dissuaded him from doing this, saying:

[Y]ou don’t need the property in Sydney this is your home and when you have finished it, it will be yours and you will be so proud of it.

65. He said he received constant reassurances of this type.

66. This evidence is self-interested and cannot now be answered by the deceased. For those reasons, it must be considered with caution: see Evans v Braddock [2015] NSWSC 249 at [67]-[71].

67. I am not persuaded that reassurances from the deceased were necessarily the reason that Lucien did not pursue the purchase of a unit at Elizabeth Bay. To the extent that monies for the Francesca Park project may have been borrowed under the deceased’s mortgage over lots 3 and 4, Lucien was apparently in control of that process. The bulk of the monies appear to have been provided by Lucien himself. I have no doubt that Lucien threw himself into the project, and financed it, because he himself was enthusiastic about it. The pace of the project and the level of expenditure on it was controlled by Lucien. The choice to plough money into the project was his choice and, had he wished to purchase a unit for himself, I think he would have done so. Both Lucien and the deceased also believed that the development of the garden would add a great deal of value to the property, so that it would be recouped on the sale. It was not until the deceased fell ill that Lucien began to think that the property had been over-capitalised.

68. Nevertheless, I see no reason not to accept that the deceased did tell Lucien that he would inherit the property, and that he committed large sums of money to the Francesca Park project on this understanding. Lucien’s evidence of what he was told by his mother is consistent with her testamentary intentions as reflected in her will. It is also consistent with the evidence of Mr Peoples, which was not contested.

69. Lucien is now almost 65 years old. He suffers from various health problems, including Parkinson’s disease, chronic asthma, type 2 diabetes, bi-polar disorder, arthritis, and similar dental problems to Julian. Lucien claims to also need a knee replacement, having had knee surgery himself.

70. Lucien’s invalid pension is currently $874 per fortnight (approximately $23,000 per annum). He has no other source of income. His brother, Adrian, also lives at the house and may make some contribution to the expenses.

71. Lucien acknowledged that not all of the antiques which he purchased (whether for himself or the deceased) have been sold. He estimated the value of the antiques remaining at Francesca Park (which would include those previously purchased by the deceased and therefore belonging to the estate) at $70,000. But there is no independent evidence of their value.

72. Throughout the proceedings, Julian’s solicitors pressed for substantiation of Lucien’s claim that he was owed money by the estate. Eventually there were prepared and tendered 13 folders of financial documents. The folders were accompanied by a summary in schedule form, which claimed a total expenditure by Lucien of approximately $1.4 million. Many of the documents consisted of expenditure records for the Francesca Park garden, covering both development and maintenance, with one folder indicating, for instance, over $16,000 spent on machinery and mower repairs and another folder evidencing $91,000 spent on plants, seeds, soils and landscape supplies. Also included in the documents were records said in the summary to demonstrate about $470,000 in expenditure on antiques and collectables, $2,400 in expenditure on pet care and veterinary bills, $27,500 in expenditure on nursery items, and $31,400 in healthcare payments made by Lucien for the deceased. There were also bank statements said to show monies totalling approximately $2.6 million deposited by Lucien into the deceased’s account and into joint accounts of the deceased and Lucien.

73. Counsel for the plaintiff cross-examined Lucien on some of this documentary material, apparently seeking to demonstrate that the records did not evidence monies loaned by Lucien to the deceased. I have already said that I reject Lucien’s contention in that regard. But no analysis was presented which would allow findings on how much in total was spent on the garden or indeed on other items of expenditure. There is also a lack of information about where the funds used for the Francesca Park project came from. There was no attempt to analyse what came from the deceased (including what came from borrowings on lot 3) and what came from Lucien. As I have mentioned, Lucien’s tax returns were not in evidence. Requests were made for those tax returns, but the excuse offered was that the tax agent was in hospital. Without the tax returns, it is not possible to verify how much Lucien earned or the tax benefit that he obtained by claiming deductions for some of the Francesca Park expenses. Nor has any calculation been presented of the total amount incurred by way of interest and fees, or what part of that related to the project. In saying this, I have not myself sought to review the folders of documents to see whether that sort of information could be extracted from the bank statements or otherwise from the material before me.

74. Documents tendered at the hearing showed antique sales of $104,000. On the strength of this, and the fact that $470,000 was spent on acquiring antiques, counsel for the plaintiff submitted that the remaining antiques were worth at least $300,000. That does not follow; it would be necessary to reconcile the antiques sold with the antiques purchased so as to determine the losses on the antiques sold. And even if the purchase price of the antiques which remain unsold could be determined, that still would not necessarily indicate what those unsold antiques are now worth.

75. Where a defendant in a family provision application raises his or her own financial needs as an answer to the plaintiff’s claim, the onus lies on that defendant to establish his or her financial position. If the evidence presented by that defendant is inadequate, the Court may disregard that defendant’s financial need as a relevant factor: see Bruce v Greentree [2015] NSWSC 1611 at [168]-[171]. This principle, does not, however, apply to all of the documentary deficiencies which I have identified. The past record of expenditure on the Francesca Park project is not directly relevant; it could only be relevant if, and to the extent, that it threw light on Lucien’s current financial position. I do not accept the excuse offered for Lucien’s failure to produce his tax returns, but while that is unsatisfactory, it does not directly bear on his current financial position.

76. Counsel for Julian did not suggest to Lucien in cross-examination that he had any remaining assets or sources of income which he had not disclosed. Despite the deficiencies in the documentary record, I think I must accept that, as a matter of practical reality, all of the money which Lucien did receive from his settlement, from his salary, and from his superannuation, has been expended. Whether that was as a result of being directly expended on the Francesca Park project, or indirectly, as a result of interest and other financing charges, does not matter. I am satisfied that there is nothing left apart from the property and the unsold antiques (in part belonging to the deceased’s estate, and in part what is left over from the purchases by Lucien after 2005). While the failure to identify those antiques and provide an independent estimate of their value is unsatisfactory, they are not the sort of assets which can readily be sold and I doubt that they represent a store of value of sufficient size to affect the result in this case.

Family provision claim

77. Julian is an eligible person: Succession Act 2006 (NSW), s 57(1)(c). The first question is, therefore, whether the failure to make any provision for Julian in the deceased’s will is inadequate “for the proper maintenance, education or advancement in life” of Julian: s 59(1)(c). If this condition is satisfied, the Court may make an order for such provision as “ought” to be made for Julian’s maintenance, education or advancement in life: s 59(2).

78. Julian is a mature adult who has lived his whole adult life independently of the deceased. In Kohari v NSW Trustee & Guardian (No 2) [2017] NSWSC 1080 at [83]-[85], I discussed some of the authorities on provision for independent adult claimants. In summary, the fact that the claimant is an independent adult does not prevent the Court from making an order in his favour, but the Court’s approach must be different from the approach the Court would take in the case of a dependent child or surviving spouse, and the focus of the Court’s attention should be on “advancement” rather than “maintenance” or “education”. In that case, the claimant was a middle aged man who still had several decades of potential working life ahead of him, unlike Julian. But in my view, the same approach applies. Julian had been independent of the deceased for more than 40 years; the deceased had no obligation to maintain or educate him and the question is whether, having regard to all relevant factors, the deceased owed an obligation to provide in some way for him by way of advancement against his old age.

79. It has frequently been pointed out that the Court is rarely in as good a position as the testator to assess and weigh the factors which go to determining what provision is “proper” among various persons who might have a claim to the testator’s bounty and that, accordingly, unless it appears that the testator has misused his or her advantage, or the circumstances existing at the time of the hearing were not reasonably foreseeable for the testator, the Court should be reluctant to depart from an apparently reasonable judgment on the part of the testator: Stott v Cook (1960) 33 ALJR 447 at 453-454; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127].

80. In this case, the Court is not well-placed to determine the rights and wrongs of the breakdown in the relationship between the deceased and Julian. As I have mentioned, the evidence on this subject is sparse and generally unhelpful. Nevertheless, it is necessary for the Court to make its best judgment on the evidence as to the reasonableness of the deceased’s testamentary provisions so far as they concern Julian.

81. I have already referred to the provisions of the deceased’s 1972 will. Julian was only a teenager when his parents’ marriage began to fail; he was only 20 when his parents separated in March 1970, and he was only 22 when the will was made cutting him out of any inheritance. It is, of course, possible that the deceased’s treatment of Julian was deserved. But, unfortunately, it is all too possible that, in her bitterness with her husband, the deceased could not forebear from trying to make her sons take sides, or from punishing Julian when he refused to do so. Even if the deceased’s complaints against Barnett Larkin were justified (and there is no independent evidence that they were), her behaviour towards Julian would only be justified in the strongest case of misconduct on his part, amounting to complicity. There is no independent evidence at all to support this. In fact, the suggestion in the 1972 will that Julian’s brothers might provide for him suggests that the deceased may have recognised, however imperfectly, that Julian could not fairly be blamed for failing to take sides. It appears that although she could not bring herself to benefit him directly, she accepted that he was still entitled to some consideration.

77. Similar observations apply to the attitude disclosed in the deceased’s letters which I have set out above. The dominant theme is that Julian must confess his errors, real or imagined, as a condition of being readmitted into the deceased’s favour. But there is no independent evidence to sustain the deceased’s critical judgments.

78. I have already quoted the deceased’s statement in her February 1999 letter that the Springwood property represented the fruit of her labours so that she was morally free to dispose of it as she wished. But this ignores the finding in the Family Court (contrary to the submissions made to that Court on behalf of the deceased) that Barnett Larkin made the main financial contribution to acquiring the properties. In the same letter, the deceased harped on his failure to make his maintenance payments. But the fact is that the deceased eventually received the benefit of those payments through the Family Court property settlement. The deceased was wrong to ignore Barnett Larkin’s contribution to the properties and to treat them as if she had acquired them exclusively out of her own assets and earnings.

79. In her June 2007 letter, the deceased said:

I lost Lot 10 which I bought for the four boys to inherit. It was in my name for that reason.

85. The deceased went on to blame Barnett Larkin for this but what she said is impossible to follow and it is not easy to see how it could have been his responsibility. The refinancing in May 1984 which resulted in the mortgagee sale in November 1985 appears to have had nothing to do with him (indeed, on Julian’s evidence, he had died in January 1984). In any event, misconduct by Barnett Larkin would not have been a valid reason to depart from the deceased’s earlier intention of benefiting her sons.

86. There are hints in the evidence that Julian has led a somewhat chequered life. The deceased referred to his being denied access to his children when they were young, and to his being in trouble with the police over an alleged assault. But there is no real evidence of misconduct on the part of Julian towards the deceased once one puts aside the deceased’s apparent insistence that he take sides with her against his father.

87. The deceased’s letters of April 2003 and June 2007, as mentioned, accuse Julian of working to undermine Lucien’s claim against St Aloysius’. In fact, it is hard to see why the statement Julian made would have been of much importance. He had left school by the time the abuse of Lucien happened and his evidence could only have been of a corroborative nature, assuming of course that Lucien had confided in him. That in turn would only have been relevant if liability had been contested by St Aloysius’. Of course, it is possible that Julian’s conduct was as bad as the deceased seems to have thought, but there is no independent evidence for that.

88. It is all too easy for revulsion and anger towards a perpetrator of child sexual abuse to transform itself into a settled conviction that members of the institution concerned must have been complicit, and in turn that anyone who expresses scepticism towards, or is involved in testing, allegations of institutional misconduct is morally equivalent to the perpetrator. It is not possible to know whether the deceased fell into this misguided approach. All I can say is that I am not satisfied on the evidence that the deceased’s criticism of Julian was justified.

89. For these reasons, I am not satisfied that the exclusion of Julian from the deceased’s 1972 will, or the criticisms made of him in her letters, represented fair and rational judgments on her part. The only bases for the deceased’s views are the statements in the will itself and the letters, and they are too slender a foundation.

90. That, however, still leaves the deceased’s 2003 and 2013 wills for consideration. It is notable that in the 2003 will, shortly after the April 2003 letter, the deceased did not exclude Julian entirely but gave him a small legacy along with Vincent and Adrian. Lucien was the major beneficiary but Julian was not singled out from his other brothers. When the 2013 will made Lucien the sole beneficiary, that excluded not only Julian but also Vincent and Adrian. This change cannot be explained on the basis of animus towards Julian; so far as the evidence goes, there was no change in the relationship with Vincent and Adrian at the time.

91. The gifts of virtually the whole, and then the whole, of the estate to Lucien in the 2003 and 2013 wills would have been consistent with an appreciation on the deceased’s part of the closeness of her relationship with Lucien and of his involvement, both financial and emotional, in the development of the Francesca Park property. Julian was still (in my view, unreasonably) excluded from the gift over under the 2013 will, but as events have happened, that has proved irrelevant.

92. Julian may have been justified in seeing the deceased as hectoring and controlling and in declining to engage with her on such terms. But the fact remains that, although the deceased might bear some of the responsibility for it, Julian was estranged from the deceased for 40 years or more. Julian contributed nothing to the Francesca Park project, either financially or emotionally, and there is nothing to suggest that he would, if asked, have made any financial contribution. Lucien, on the other hand, shared the deceased’s life for over 40 years and was deeply involved in the project, which was obviously close to the deceased’s heart.

93. Counsel for Julian submitted that for all the money poured into the Francesca Park project, it had proved to be a folly. He submitted that on the evidence none of the expenditure appears to have increased the value of the property. He also pointed out how unsatisfactory it was that Lucien had failed to provide adequate evidence of how the expenditure was made up or of the current value of some of the assets of the estate.

94. These submissions have considerable force. Borrowing to fund the project was improvident, and all the more so when the borrowing was undertaken, in effect, against Lucien’s expected damages in the sexual abuse proceedings (no doubt at a high rate of interest). That situation continues with Lucien’s recent purchase of a car on a credit card. But, however financially wasteful the project was, the deceased was a willing participant and encouraged Lucien to believe that he could contribute his earnings and assets to it in the expectation of inheriting the property. I have already expressed the view that Lucien’s failure to produce documentary evidence is unsatisfactory, but I have nevertheless accepted that Lucien contributed the whole of his financial substance to the Francesca Park project (if one includes the antiques) and there is nothing else left over. I think it likely that, were a substantial share of the deceased’s estate now to be taken away from Lucien, there would be a real risk that he would be left with too little to be able to continue to live at the Springwood property, or at least to live independently, as the deceased evidently wished.

95. In my opinion, these circumstances provided a justifiable basis for the deceased’s decision to give the whole of the estate to Lucien. I am not satisfied, in the circumstances, that the failure to make provision for Julian was not “proper”. The result is disappointing for Julian, who might once have expected to inherit a share of the Springwood properties, to which both of his parents contributed. But the law imposes no obligation on parents, during their lifetimes, to provide advancement for their children or to safeguard assets so that such advancement can be provided by will. Nor can the power to make a family provision order under the Succession Act be exercised for the purpose of salving wounded feelings or indignation produced by the deceased’s behaviour during his or her lifetime. It is a matter for Lucien to consider when he makes his own testamentary arrangements whether any allowance from what is left of the family assets should be made for Julian and his children.

Conclusions and orders

96. For these reasons, I have concluded that Julian’s application for a family provision order fails.

97. I will hear the parties, if necessary, on costs.

98. The orders of the Court are:

1.   Proceedings dismissed.

2.   Grant leave to each party to apply with respect to costs, such application to be made within 28 days of today’s date.

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Amendments

12 February 2018 - 53. Changed "wife" to "uncle"

85. Changed "2004" to "1984"