Le v Angius; Angius v Angius

[2024] NSWSC 924

Supreme Court

New South Wales

Medium Neutral Citation:

Le v Angius; Angius v Angius [2024] NSWSC 924

Hearing dates:

9–20 October 2023, 26 October 2023,
15–16 November 2023, 13–14 December 2023
02 February 2024

Date of orders:

01 August 2024

Decision date:

01 August 2024

Jurisdiction:

Equity - Succession & Probate List - Family Provision

Before:

Richmond J

Decision:

See [434]-[437]

Catchwords:

SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship at time of death

SUCCESSION — Family provision — Claim by grandchild for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether dependent at any time on the deceased — Whether factors warranting

Legislation Cited:

Conveyancing Act 1919 (NSW)

Evidence Act 1995 (NSW)

Family Law Act 1975 (Cth)

Interpretation Act 1987 (NSW)

Succession Act 2006 (NSW)

Property (Relationships) Act 1984 (NSW)

Cases Cited:

Angius v Salier [2019] NSWSC 184

Angius v Salier (No 5) [2023] NSWSC 678

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chisak v Presot [2022] NSWCA 100

Dridi v Fillmore [2001] NSWSC 319

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895

Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24

Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gianna (Jenny) Angius v Gordon Albert Salier [2018] NSWSC 995

Gordon Salier v Robert Angius [2015] NSWSC 853

Hayes v Marquis [2008] NSWCA 10

Lalic v Lalic [2022] NSWSC 31

Lodin v Lodin [2017] NSWCA 327

McCarthy v Tye [2017] NSWCA 284

Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5

NSW Trustee and Guardian v McGrath [2013] NSWSC 1894

Page v Page [2017] NSWCA 141

Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

Piras v Egan [2008] NSWCA 59

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Quijarro v Robson [2008] NSWSC 818

Re Fulop Deceased (1987) 8 NSWLR 679

Robert Angius v John Angius [2018] NSWSC 1772

Robson v Quijarro [2009] NSWCA 365

Saravinovski v Saravinovska [2017] NSWCA 85

Sheen v Hesan; the Estate of Zaheer [2023] NSWSC 468

Smoje v Forrester [2017] NSWCA 308

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Steinmetz v Shannon (2019) NSWLR 687; [2019] NSWCA 114

Sulliman v Sulliman [2002] NSWSC 169

Tarbes v Taleb [2023] NSWSC 565

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Vaughan v Hoskovich [2010] NSWSC 706

Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

Zahra v Francica [2009] NSWSC 1206

Category:

Principal judgment

Parties:

Proceedings 2022/41064
Thi Quy Le (Plaintiff)
Jenny Angius (Defendant)

Proceedings 2023/31399
Natalie Angius (Plaintiff)
Jenny Angius (Defendant)

Representation:

Proceedings 2022/41064

Counsel:
L Ellison SC / V Culkoff (Plaintiff)
M Painter SC / E Picker (Defendant)

Solicitors:
AKN Legal (Plaintiff)
Mills Oakley (Defendant)

Proceedings 2023/31399

Counsel:
M Pesman SC (Plaintiff)
M Painter SC / E Picker (Defendant)

Solicitors:
Bay Legal (Plaintiff)
Mills Oakley (Defendant)

File Number(s):

2022/00041064
2023/00031399

Publication restriction:

Nil

Table of Contents

The claims

Rulings on supplementary evidence

Factual chronology

Events from the 1990s to Laura’s death in 2012

Events from 2012 to John’s death in 2022

The deceased’s testamentary intentions

The deceased’s estate

Statutory regime

Principles relevant to each plaintiff’s claim that she is an eligible person

De facto relationship

Wholly or partly dependant – s 57(1)(e)

Close personal relationship – s 57(1)(f)

Factors warranting

Approach to evidence

General observations on credit

Ms Le and witnesses called by her

Natalie and witnesses called by her

Jenny and the witnesses called by her

The evidence of witnesses called by Ms Le

Ms Le’s evidence

Lisa Reid

Matthew Reid

Alvin Johnson

Lesley Johnson

Austin Smith

Kolena Denis

Neil Johnston

Evelyn Moses

Jacqueline Varela

Ba Duc Hoang

Ba Thang John Hoang

Recordings of conversations

The evidence of witnesses called by Jenny

Kevin Batten

Nick Pappas

Jason Bates

Medical records

The evidence of witnesses called by Natalie

Natalie’s evidence

Silvana Salvatore

Domenic Dodaro

Francis Devine

Determination of Ms Le’s Eligibility

Plaintiff’s submissions

Defendant’s submissions

Consideration

De facto relationship

(a) The duration of the relationship

(b) The nature and extent of their common residence

(c) Whether a sexual relationship exists

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them

(e) The ownership, use and acquisition of property

(f) The degree of mutual commitment to a shared life

(g) The care and support of children

(h) The performance of household duties

(i) The reputation and public aspects of the relationship

Close personal relationship

Factors warranting Ms Le’s application

Determination of Natalie’s eligibility

Provision to be made

Relevant principles

Consideration

Consideration of s 60(2) matters for Ms Le’s claim

The relationship between Ms Le and the deceased: s 60(2)(a)

The nature and extent of any obligations or responsibilities owed by the deceased to Ms Le or to any other claimant or to any beneficiary: s 60(2)(b)

The deceased’s estate: s 60(2)(c)

Ms Le’s financial resources and needs (including earning capacity) and age: s 60(2)(d), (e) and (g)

Any physical, intellectual or mental disability of Ms Le: s 60(2)(f)

Any contribution (financial or otherwise) by Ms Le to the deceased’s estate or his welfare: s 60(2)(h)

Any provision made for Ms Le by the deceased during his life or from his estate: s 60(2)(i)

The deceased’s testamentary intention, including evidence of statements made by him: s 60(2)(j)

Whether Ms Le was being maintained by the deceased: s 60(2)(k)

Whether anyone else is liable to support Ms Le: s 60(2)(l)

Ms Le’s character and conduct: s 60(2)(m)

Conduct of any other person before and after the deceased’s death: s 60(2)(n)

Conclusion regarding Ms Le’s claim for provision

Consideration of s 60(2) matters for Natalie’s claim

The relationship between Natalie and the deceased: s 60(2)(a)

The nature and extent of any obligations or responsibilities owed by the deceased to Natalie, to any other person in respect of whom an application for family provision has been made or to any beneficiary: s 60(2)(b)

The deceased’s estate: s 60(2)(c)

Natalie’s financial resources (including earning capacity) and needs, and age: s 60(2)(d), (e) and (g)

Any physical, intellectual or mental disability of Natalie: s 60(2)(f)

Any contribution (financial or otherwise) by Natalie to the deceased’s estate or his welfare: s 60(2)(h)

Any provision made for Natalie by the deceased during his life or from his estate: s 60(2)(i)

The Deceased’s testamentary intention, including evidence of statements made by him: s 60(2)(j)

Whether Natalie was being maintained by the deceased: s 60(2)(k)

Whether anyone else is liable to support Natalie: s 60(2)(l)

Natalie’s character and conduct: s 60(2)(m)

Conduct of any other person before or after the deceased’s death: s 60(2)(n)

Any other matter considered relevant: s 60(2)(p)

Conclusion regarding Natalie’s claim for provision

Conclusion and orders

JUDGMENT

1. These proceedings concern two claims brought under the Succession Act 2006 (NSW) (the Act) for provision from the estate of the late Giovanni (John) Angius (John or the deceased). In proceeding 2022/41064, the plaintiff is Thi Quy Le (Ms Le) and she claims provision on the basis that she was, at the time of the death of the deceased, living with him in a de facto relationship or, alternatively, in a close personal relationship. In proceeding 2023/31399, the plaintiff is Natalie Angius (Natalie), a granddaughter of the deceased and she claims provision on the basis that she was wholly or partly dependent on him. The common defendant to both proceedings is Gianna (Jenny) Angius (Jenny), who is the deceased’s daughter, the administrator of his estate and the sole beneficiary under his last will.

2. Although the two claims were brought in separate proceedings, they were heard together with evidence in one to be considered evidence in the other. For convenience and without intending any disrespect, I will refer to the members of the Angius family by their first names as was the course adopted during the hearing.

3. The nature of the claims brought by the plaintiffs require analysis of a significant portion of the deceased’s personal life and the broader family dynamics of the Angius family. Unfortunately, this means that private aspects of the lives of the deceased, the plaintiffs, the defendant, and other actors are canvassed in this judgment.

4. The structure of these reasons is that I will first outline the nature of the claims brought by each plaintiff, explain certain rulings on evidence made during the hearing, set out by way of background certain uncontroversial facts, and then outline the statutory regime that governs the plaintiffs’ claims. Following this I will deal with the evidence led by each of the plaintiffs and the defendant. I will then turn to determine the issues concerning each plaintiff’s eligibility and the quantum of any order for provision to be made.

The claims

5. Neither Ms Le nor Natalie were named in the deceased’s will, which left the entirety of his estate to Jenny. Both make claims for provision pursuant to chapter 3 of the Act.

6. Ms Le claims that she is an eligible person under s 57 of the Act as a person living with the deceased in a de facto relationship at the time of the deceased’s death, or alternatively as a person living with the deceased in a close personal relationship. The defendant disputes eligibility on either basis and the amount of provision claimed if Ms Le is eligible.

7. Natalie claims that she is an eligible person under s 57 of the Act as she is the deceased’s grandchild and was at one time wholly or partly dependent on him. The defendant disputes eligibility and the amount of provision claimed if Natalie is eligible.

Rulings on supplementary evidence

8. Ms Le called evidence from a number of witnesses who deposed that they considered the deceased and Ms Le to be in a de facto relationship. Evidence of this kind is relevant to the public aspects of the relationship between a claimant and the deceased: McCarthy v Tye [2017] NSWCA 284 at [49]. Having ruled as inadmissible statements by a number of witnesses of that kind where the basis of the opinion was unexplained, I indicated to Mr Ellison SC, senior counsel for Ms Le, that I would give him leave to adduce oral evidence from each witness setting out the basis for the opinions subject to proper notice in writing being given to Ms Painter SC, senior counsel for the defendant, as to the nature of that supplementary evidence. Mr Ellison SC indicated that he would provide supplementary statements for the relevant lay witnesses to Ms Painter SC by Sunday, 15 October 2023.

9. Nine supplementary statements were provided by that time, prior to the cross-examination of the relevant witnesses, and those supplementary statements were admitted without objection.

10. At the end of the sixth day of the hearing (Monday, 16 October 2023), Mr Ellison SC indicated that he was proposing to rely on a further supplementary statement from each of the plaintiff’s two sons who had already provided affidavits, being Ba Duc Hoang (Duc) and Ba Thang John Hoang (Thang). They had each previously prepared an affidavit filed in the proceedings which included a statement ‘I know that my mother was in a de facto relationship with John Angius’, but with no basis given for this statement in the affidavit. Each statement had been objected to and ruled inadmissible by me on the basis that it was unfounded opinion evidence. The proposed supplementary statements were said by Mr Ellison SC to set out the basis of their opinions.

11. Ms Painter SC objected to Mr Ellison SC seeking to rely on the proposed supplementary statements as she had not been provided with them (even in draft form) by the end of Sunday 15 October 2023, and I indicated I would uphold her objection, but would read back in the original statements by each son (that ‘I know that my mother was in a de facto relationship with John Angius’) if Ms Painter SC agreed not to press her original objection, which she did agree to. Mr Ellison SC then acknowledged that the leave that he may have had was withdrawn (T397).

12. On the seventh day of the hearing (Tuesday 17 October 2023) when Thang was called to give evidence, Mr Ellison SC handed up a two-page statement made by the witness dated 17 October 2023 which was marked for identification but not admitted into evidence. On the next day, when Duc was called to give evidence, Mr Ellison SC handed up a two-page statement by the witness dated 17 October 2023 which was also marked for identification but not admitted into evidence. My reasons for not admitting the two supplementary statements are as follows.

13. Ms Le commenced these proceedings by summons on 11 February 2022. At a directions hearing on 25 March 2022, the orders made by Sackar J noted that the plaintiff’s evidence in chief was complete. On 29 April 2022 a direction was made for the plaintiff to have leave to file further evidence by 13 May 2022. On 8 September 2022, the matter was set down for hearing. On 7 September 2023, there was a pre-trial directions hearing before me at which directions were made for Natalie to adduce further evidence of a medical nature. No mention was made in that directions hearing that Ms Le wished to file further evidence in her case. It would have been apparent to Ms Le’s legal representatives at that time that the affidavits of Duc and Thang filed in the proceedings were defective in failing to set out any basis for the opinions stated in them about their mother being in a de facto relationship.

14. No attempt was made to cure that obvious defect until the end of the sixth day of the hearing, at a time when Ms Painter SC was fully engaged in cross-examining Ms Le’s remaining witnesses and then moving immediately to cross-examine the witnesses in Natalie’s case. The terms of the leave to rely on additional statements by Thang and Duc previously given by me had not been taken advantage of. There was clear prejudice to Ms Painter SC in expecting her to deal with the new evidence to be relied on in the two statements which were only served on the defendant after the conclusion of the sixth day of the hearing. The only person responsible for the failure to remedy the defect in the evidence for Ms Le on this topic was her legal representatives. Further, the delay in leading evidence of a similar nature from nine other witnesses was part of the reason why the case suffered from a significant overrun in hearing time. In light of these matters, I considered it to be inconsistent with the just, cheap and quick resolution of the proceedings to allow the two further statements to be relied on.

Factual chronology

15. John Angius was born on 18 or 19 October 1936 in Italy, and married Laura Angius (Laura) in 1957. They emigrated to Australia in 1958. The couple had two children, Jenny Angius (the defendant) born in 1964 and Robert Angius (Robert) born in 1961. Laura died on 4 January 2012. Robert did not give evidence in these proceedings.

16. Jenny has two children, Gabrielle and Sean. Gabrielle gave evidence in these proceedings. Robert has six children: four (including Natalie) with his first wife Silvana Salvatore (Silvana), and two with his partner, Jacqueline Varela (Jacqueline). Both Silvana and Jacqueline gave evidence in these proceedings.

17. The family home of John and Laura from the 1990s was a house located at 2 Denning Street, South Coogee (the Coogee property). Laura lived there until her death.

Events from the 1990s to Laura’s death in 2012

18. John operated a smash repair business from commercial premises he owned at 6 Allen Street, Waterloo under the name ‘Waterloo Smash Repairs’.

19. Next door to John’s smash repair workshop, but located on the same land, was a mechanical work repair shop operated by Nick Pappas under the name ‘Advance LPG’. Both premises were closed in 2008 when the land at 6 Allen Street, Waterloo was redeveloped and Mr Pappas relocated to Roseberry. Mr Pappas gave evidence in these proceedings.

20. As at January 2008, John and Laura were the registered proprietors as joint tenants of 6 Allen Street, Waterloo and John also owned the adjoining property at 2-4 Allen Street, Waterloo. They both entered into a joint venture agreement with a third party in January 2008 to redevelop those parcels of land and the adjoining land at 8 Allen Street, Waterloo owned by a third party for the construction of retail/commercial premises and residential apartments on the land, which was undertaken over the period from that date to August 2010: Angius v Salier [2019] NSWSC 184 at [15]; CB 947.

21. Ms Le first met John in around 2000 while taking her car for repairs at his smash repair business and they became friends. Ms Le who is Vietnamese, was born on 3 March 1963 and gives evidence that she and John commenced an intimate relationship in March 2003 (when she was 40 years old and John was 67 years old). Ms Le’s previous marriage was dissolved in October 2001.

22. On 3 June 2001, Ms Le entered into a Residential Tenancy Agreement for premises owned by the NSW Government at 75 Philip Street, Waterloo (which will be referred to as the Redfern property). She benefited from a governmental rental subsidiary and paid a rent of $300 per week. She retained this residential tenancy agreement until June 2021.

23. In the period from around September 2005 to early 2008, Ms Le managed a pool hall business at premises located at Alfreda Street, Coogee. It appears that the premises were jointly owned by John and Laura.

24. In February 2007, an altercation occurred at the pool hall premises which, according to the police report, involved an argument between John and Laura in which Laura alleged that John was having an affair with Ms Le.

25. On 30 March 2007, there was another argument between John and Laura regarding Laura’s allegation that John was having an affair with Ms Le. This occurred at the Coogee property and involved Laura suffering injuries as a result of a fall in the kitchen. Laura alleged that John had assaulted her which he denied. An apprehended violence order (AVO) was granted to Laura against John, and the police charged John with assault. It appears from the statement made by a Detective Chief Constable for the purposes of the inquest into Laura’s death that John was found guilty of the assault, but no conviction was recorded.

26. On 10 April 2007, Laura saw a family law solicitor, Ms Cathie Blanchfield of Blanchfield Nicholls Partners. Jenny was at the meeting. Laura told Ms Blanchfield of her concerns regarding Ms Le. Ms Blanchfield advised Laura to make a new will to protect her children if she died before John and drafted one for her to sign which she did on 13 April 2007 (although later, on 27 April 2007, she re-signed it following advice from Ms Blanchfield that the first execution was invalid). Under this will, Laura appointed Jenny and Robert as her executors and after payment of just debts, funeral and testamentary expenses, Laura left the residue of her estate to Jenny and Robert as tenants in common in equal shares: Estate of Angius; Angius v Angius [2013] NSWSC 1895 at [83]. Ultimately, Hallen J determined in those proceedings that a later undated document prepared by Laura was her last will.

27. On 13 April 2007, there was another incident at the pool hall in which Laura again alleged that John was having an affair with Ms Le. The police report indicates that Ms Le ‘admitted to being involved in a relationship’ with John.

28. On 12 May 2007, an incident occurred at John’s smash repair business at 6 Allen Street, Waterloo. According to the police report, while Ms Le was having her car serviced at the premises, Robert approached Ms Le and said ‘Get out of the shop in Coogee. If you don’t get out, I’ll put you in the ground’. As a result of this incident, an AVO was granted to Ms Le against Robert.

18. On 7 June 2007, Ms Le was granted an interim AVO against Laura, which became a final order for a period of two years on 19 November 2007.

19. On 6 November 2007, Laura’s solicitor, Ms Blanchfield, sent a letter to John’s solicitors which stated relevantly:

Our client instructs us that the parties are considering entering into a joint venture for the development of the properties at Allen Street Waterloo. We understand that a request has been made for Mrs Angius to attend your office tomorrow to sign a document for that development to proceed, although we are uncertain of the exact nature of that document.

We are instructed to advise you that our client will only agree to the execution of that document on the following conditions:

1. That on 1 February 2008 Mr John Angius (“the husband”) will serve a Notice to Quit on Mrs Lee to vacate the pool hall premises at Alfreda Street, Coogee, with the period in which Mrs Le is to vacate being 4 weeks from that date. Thereafter neither Mrs Le nor any member of her family is to be involved in the business of the pool hall.

2. That on the 30^th of each month, the husband and the wife shall be entitled to draw a cheque in the sum of $10,000 each. In addition the wife shall be entitled to a further cheque in the sum of $3,150 being one half of the rent on the pool hall, with additional condition that the husband sign that cheque.

3. That the parties share the expenses for 2 and 46 Denning Streets, and the costs of Gabrielle’s education at St Clare College, equally.

4. In the event the pool hall business is sold, the wife shall be entitled to one half of the sale proceeds.

5. In relation to the Waterloo property, upon completion of that development:

5.1 the husband and the wife shall retain an independent valuer to value each of the apartments and shops (“the units”) in that development;

5.2 the wife shall be entitled to one half of the parties’ interest (the whole of which is represented, as we understand it, by 12 apartments and 4 shops) based on the value of the respective units, and the husband and the wife will do all things necessary to transfer those units to her;

5.3 thereafter the wife shall be entitled to those units absolutely and may deal with them as she pleases.

6. Upon completion of the Waterloo property, the wife shall be entitled to one half of the gross rental income from all other properties and shall be liable to pay from her share of the rental income one half of the outgoings including mortgage repayments, and her tax.

We understand these terms have been discussed and agreed between our respective clients and it may only require appropriate formal documentations. In the first instance however we request an acknowledgment of your client’s acceptance of these terms signed by him by return facsimile. Upon receipt of same our client will execute the documents you hold.

In the event there is no such agreement we are instructed our client will approach the Court for appropriate orders by way of property settlement pursuant to the Family Law Act.

Please let us have your response by 12 noon tomorrow Wednesday.

31. The copy of the letter of 6 November 2007 in evidence indicates that John signed it. It can be inferred from the terms of this letter, the very strained relationship between Laura and John at this time, and the fact that the development of the properties at Allen Street, Waterloo (Waterloo development) commenced in 2008, that Ms Le had ceased to manage the pool hall business in Coogee by early 2008.

32. On completion of the Waterloo development in around August 2010, John and Laura became the registered proprietors of a number of the residential units and retail/commercial properties at 8 Allen Street, Waterloo including Shop 3 referred to below: Angius v Salier [2019] NSWSC 184 at [15].

33. On 27 February 2011, Jenny and Robert had an argument at John’s office at Shop 4, 8 Allen Street, Waterloo in which (according to the police report) Robert punched Jenny in the mouth, causing a cut to her bottom lip during an argument about the sale of a family property.

34. On 10 May 2011, a separation agreement was executed by John and Laura, recording that they had separated on 30 September 2010. On 6 October 2011, John and Laura entered into another separation agreement, which was varied on 15 and 16 November 2011. These agreements set out arrangements for the sale of their respective interests in the properties resulting from the Waterloo development so that they would ultimately each own particular properties solely in their own names.

35. On 19 November 2011, Ms Le was granted an AVO against Laura at Waverley Local Court.

36. On 3 December 2011, Jenny and Jacqueline had an argument in front of Laura, which (according to the police report) involved a claim by Jenny that Jacqueline was trying to get Laura’s money and Jenny allegedly scratched Jacqueline. An AVO was granted to Jacqueline against Jenny.

37. From 2011, Laura and John lived apart: Laura at the Coogee property and John at Unit 23, 8 Allen Street, Waterloo (referred to by the parties as the ‘penthouse apartment’) (Waterloo apartment). John ultimately sold the Waterloo apartment in 2016.

38. From around 2007 or, at the latest, the time of the separation, there was a significant rift in the Angius family between those supporting Laura and those supporting John. Jenny and her family were aligned to John’s side in this dispute, and Robert and his family were aligned to Laura.

39. On 1 August 2011, John and Laura (as lessors) executed a lease of Shop 3, 8 Allen Street, Waterloo (Shop 3) in favour of Ms Le (as lessee) for a term of five years commencing on 1 August 2011 and terminating on 31 July 2016 at a rent of $26,000 per annum (including GST), subject to adjustment, with an option to renew for a further five year term. The lease was registered. On 26 August 2011 Ms Le registered a business name ‘Waterloo Laundry Mat’ showing the principal place of business as Shop 3R, 8 Allen Street, Waterloo, the address of service of documents in relation to the business name was shown as the Redfern property. Ms Le conducted a laundromat business from Shop 3 throughout the period from 2011 to John’s death. It is not in dispute that Ms Le did not, and was never required to, pay the rent under this lease. It is also not in dispute that John gifted to her the fit out of the premises.

40. In September 2011, Laura commenced proceedings against John and Jenny (2011 proceedings) which related to the Coogee property and another property in the same street in which Jenny lived. The 2011 proceedings were resolved by a Deed dated 15 November 2011. Final orders determining the 2011 proceedings were made, by consent, on 18 November 2011: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (Estate of Laura Angius) at [56].

41. Laura died on 4 January 2012 at the Coogee property. Robert alleged that his father was involved in her death, and wrote to the coroner regarding his suspicions: Estate of Laura Angius at [20]–[22]. There followed protracted litigation regarding Laura’s estate and other family matters between Robert and John: see eg. Estate of Laura Angius; Robert Angius v John Angius [2018] NSWSC 1772.

42. On around 31 January 2012 John and Laura, as lender, and Ms Le as borrower entered into the instrument entitled ‘Security interest in goods’ securing a loan of $41,000 made to Ms Le, secured over certain equipment used in the premises.

Events from 2012 to John’s death in 2022

43. On 13 May 2012, John filed a Notice of Death and became the sole proprietor of the Coogee property. Ms Le deposed that from around this time until May 2017, when he was required to vacate the property John lived in the Waterloo apartment and not at the Coogee property. Jenny disputes that John lived solely at the Waterloo apartment in this period and says that he divided his time between the Waterloo apartment and the Coogee property. In the period from May to August 2017 he appears to have lived principally at the Burradoo property referred to below.

44. On 14 September 2012, John made a will (see [73] below). Ms Le was not a beneficiary under this will, but Natalie was.

45. On 3 December 2012, John purchased 21 Links Road, Burradoo (Burradoo property). He appears to have treated this property as essentially a holiday home. John and Ms Le spent Christmas 2012 at the Burradoo property and were joined there by Jenny and her family.

46. On 21 December 2012, John commenced proceedings (2012/396544) in which he sought to set aside the consent orders and the deeds which had resolved the 2011 proceedings (2012 proceedings). There were also contested probate proceedings in relation to Laura’s estate which were heard and determined in December 2013 by Hallen J (see Estate of Laura Angius) and contested proceedings relating to the construction of Laura’s will, determined by Ball J (see Gordon Salier v Robert Angius [2015] NSWSC 853).

47. On 1 April 2014, an independent solicitor, Mr Gordon Salier (Mr Salier), was granted letters of administration in relation to Laura’s estate with a copy of the will annexed. The estate was given a value in excess of $23 million.

48. On 4 November 2015, Hallen J made orders in the 2012 proceedings which included an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) that Mr Salier and another person be appointed joint trustees to affect the sale of the Coogee property by auction. After contested proceedings by the trustees to obtain possession of the Coogee property, John vacated the property on 1 May 2017, and it was sold by the co-trustees at auction. John was the successful bidder paying $6 million for the property and settlement of the purchase occurred on or around 2 August 2017.

49. In an affidavit sworn by him on 26 October 2014 in the 2012 proceedings, John said (emphasis added):

181.    I live by myself at the Matrimonial Home but I have been sleeping at unit 23, where I slept when completing building works to the units, as I can no longer bring myself to sleep in the Matrimonial Home and a continuing desire to reduce the debt secured against family assets has led me to wish to sell the Matrimonial Home but I anticipate no balance remaining after costs of the sale, discharge of the mortgage and reimbursement to me of money I advanced to reduce the mortgage prior to sale.

182.    I continue to give financial assistance to my two children in the form of accommodation in family owned properties free of payments of rent or mortgage and allowing them to collect rent from family owned properties. This is so even where such properties having been purchased by money I placed in my and Laura’s names and where I continue to pay the bills for these properties. I also provide money to Robert and his children and Jenny and her children when they need it and from time to time by giving them cash or paying their bills. I have not exercised any right to demand payment under the mortgages in my favour over the properties I placed in their names. My children have the use of properties and businesses which Laura and I provided without Laura and I receiving any or adequate consideration.

50. It is not in dispute that the ‘Matrimonial Home’ is a reference to the Coogee property.

51. In 2015, John made a gift to Ms Le of a second hand Toyota Aurion motor vehicle.

52. On 11 January 2016, John entered into a new lease of Shop 3 in favour of Ms Le for a term of five years which included an option to renew for two further periods of five years each (with a maximum period of the tenancy under the lease and permitted renewals being 15 years). The rent payable remained unchanged. It is not in dispute that Ms Le did not, and was never required to, pay the rent under this lease.

53. In August 2016, John sold the Waterloo apartment and moved back to live permanently at the Coogee property. Ms Le says that she lived there with him from that time, but this is disputed by Jenny.

54. Having vacated the Coogee property in May 2017, as noted above, John lived at the Burradoo property during the period from May to August 2017, and then moved back to the Coogee property in August 2017 and remained living there until his death. Ms Le deposed that she lived with John both at the Burradoo property from May to August 2017 and then at the Coogee property until his death, but Jenny disputes this.

55. On 31 May 2018, Robert was joined as a defendant to proceedings brought by John in 2016 against Mr Salier and various companies of which John and Laura had been directors which owned a number of income-earning properties. The joinder of Robert was permitted because the orders which were sought by John would directly affect his rights as the principal beneficiary of Laura’s estate. Robert subsequently filed a cross-claim against John which involved an allegation that John caused the defendant companies’ funds in excess of $4 million to be paid into account which he controlled.

56. Following the appointment by the Court of a tutor for John, the substantive claims in the proceedings were settled in May 2020, apart from certain issues arising under Robert’s cross-claim which were deferred until the taking of accounts by the receiver of the defendant companies: see Angius v Salier (No 5) [2023] NSWSC 678 at [28]-[34], [76]. Robb J records at [45] that the receiver’s amended report of 22 September 2020 disclosed that the total amount of some $2.89 million had been paid by the company defendants to John.

57. There was other litigation between John and Robert after Laura’s death: see Robert Angius v John Angius [2018] NSWSC 1772. There was also a family provision claim brought by Jenny in 2013 against Laura’s estate for which Mr Salier as administrator of Laura’s estate was the defendant which was ultimately resolved by orders made in 2019.

58. On 21 April 2021, John made his last will (see [69] below). Neither Ms Le and/or Natalie were a beneficiary under this will.

59. On 8 June 2021, Ms Le had a conference with AKN & Associates, the solicitors representing her in these proceedings, seeking advice regarding her ‘situation’ in relation to the deceased. On the same day, Ms Kolena Denis (a witness for Ms Le in these proceedings) signed a statutory declaration at the offices of AKN & Associates supporting Ms Le’s claim that she was in a de facto relationship with John. Shortly after this, Ms Le relinquished her subsidised tenancy of the Redfern property and changed her nominated address for her bank accounts, credit card statements, insurance, driver’s licence and car registration, taxation office and mail from the Redfern property to the Coogee property.

60. John spent lengthy periods in hospital in 2021 for issues related to his heart, including in January (admitted on 26 January and stayed seven days), March (admitted on 28 March and stayed nine days), June (admitted on 15 June and stayed two days), July (admitted on 19 July and stayed one month) and September (admitted on 6 September and stayed three days and also on 28 September). The admission on 19 July 2021 was to Royal Prince Alfred Hospital (RPA) for heart surgery.

61. On 24 June 2021, John was taken by Jenny for a consultation with Associate Professor Tuly Rosenfeld, a consultant geriatrician and physician following a brain scan which he had organised for John. Professor Rosenfeld saw John on his own, with Jenny remaining in reception throughout the consultation. Relevant parts of the report prepared by Professor Rosenfeld are set out later in these reasons.

62. On 6 November 2021, John’s drivers’ licence was suspended.

63. On 20 December 2021, John met with a solicitor, Mr Francis Devine, at his home during which he gave instructions for the preparation of an enduring power of attorney and the appointment of an enduring guardianship, but ultimately, they were not signed.

64. John spent Christmas Day 2021 at the Coogee property and had Christmas there with Jenny and her partner, Kevin Batten, and her children, Gabrielle and Sean. Ms Le spent the day with her family at the Bankstown property, although she deposed that she returned to the Coogee property in the evening of Christmas Day and had dinner with John there alone with him.

65. John tested positive to COVID-19 on 23 January 2022 and died on 31 January 2022, aged 85 years. His funeral was on 5 February 2022. Both plaintiffs attended.

66. On 10 February 2022, Jenny arranged for Mr Jason Bates, an asset manager, to go to the Coogee property, to remove Ms Le and her son, Duc, who were staying there.

67. On 11 February 2022, six days after the funeral, Ms Le commenced her proceedings by summons, supported by her first affidavit sworn on the same day.

68. On 30 January 2023, Natalie commenced her proceedings by summons.

The deceased’s testamentary intentions

69. John left a will dated 21 April 2021 naming Jenny as his executor and sole beneficiary. If Jenny did not survive the deceased, he directed that any of her children who attained the age of 25 years should share equally in his estate.

70. The 2021 will did not name any other persons, and in particular made no provision for Ms Le (or any other of the deceased’s employees or caregivers), nor did he make any provision for his son Robert, or Robert’s children, including Natalie.

71. The 2021 will was made after the conclusion of the Supreme Court proceedings brought by Robert concerning Laura’s estate, as a result of which Robert was the sole beneficiary of her estate, net distributable value of which was estimated by Mr Salier (the Administrator) to be in excess of $13 million but by Robert to be considerably larger: see Gianna (Jenny) Angius v Gordon Albert Salier [2018] NSWSC 995 at [23] and [30].

72. Natalie gave evidence that John said to her when she visited him in hospital on 16 June 2021 that he had recently changed his will because he didn’t want her father, Robert, ‘to have any more control over anything’, that this new will had been ‘rushed through’, that it was ‘temporary’ and ‘I need to change it’. There is some further evidence regarding John’s testamentary intentions in the last months of his life referred to later in these reasons.

73. The deceased had only one previous will, executed on 14 September 2012. By that will he appointed as executors his daughter Jenny Angius and his granddaughter Gabrielle Angius. In summary, the substance of the will was as follows:

1. he gave the family vault and his interest as tenant in common in 46 Denning Street, South Coogee to Jenny (cll 5 and 6);

2. he gave the benefit of any loan payable to him at the date of his death by Jenny or Robert to Jenny or Robert (cl 7);

3. he made seven pecuniary legacies. Each of the pecuniary legacies was indexed (cl 8):

1. $200,000 to each of Sean Batten, Stephany [sic] Navarro, Natalie Navarro [sic], Melissa Navarro [sic], Jacqueline Navarro [sic];

2. $1,000,000 to Gabrielle; and

3. $1,000,000 to Robert.

4. he gave the balance of his estate in equal shares to Jenny and Gabrielle (cl 9).

74. The 2012 will gave a legacy to Natalie and each of his other grandchildren (except for Robert’s children with Jacqueline) but did not mention Ms Le and made no provision for her.

The deceased’s estate

75. Probate was granted on 23 May 2023. The estate consists of real property (some owned as tenant in common), cash at bank, shares, two low value motor vehicles and a small amount estimated in connection with home contents.

76. The estate has a gross value of $38,096,481 million and after liabilities is estimated to have a net value of $29,588,261 (Joint Agreed Schedule of Assets and Liabilities). The figure of $29,588,261 does not take into account the costs said to have been incurred (or to be incurred) by the plaintiffs (Ms Le’s costs estimated at $439,120 on a party/party basis and $548,000 on an indemnity basis, and Natalie’s costs estimated at $350,000 on an indemnity basis but no estimate provided of the party/party estimate).

77. The defendant was not challenged during cross-examination on any aspect of either the size of the estate or the administration of it. No contrary evidence has been tendered and the Court can proceed on the basis that the estate is as described in the executor’s affidavits.

Statutory regime

78. Chapter 3 of the Act governs the making of a ‘family provision order’ being an order made by the Court ‘in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of life of an eligible person’ (s 3(1)).

79. Persons eligible to apply for family provision orders are set out in s 57(1) of the Act, which provides as follows:

(1)     The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a)  a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b)  a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c)  a child of the deceased person,

(d)  a former spouse of the deceased person,

(e)  a person—

(i)  who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)  who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f)  a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Note—

Section 60 sets out the matters that the Court may consider when determining whether to make a family provision order, and the nature of any such order. An application may be made by a tutor (within the meaning of the Civil Procedure Act 2005) for an eligible person who is under legal incapacity.

Note—

‘De facto relationship’ is defined in section 21C of the Interpretation Act 1987.

80. Ms Le relies on s 57(1)(b) and, in the alternative s 57(1)(f). Natalie relies on s 57(1)(e).

81. In relation to s 57(1)(b), s 21C of the Interpretation Act 1987 (NSW) is relevant, which provides:

(1)    Meaning of “de facto partner” For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if—

(a)  the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b)  the person is in a de facto relationship with the other person.

(2)    Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a de facto relationship with another person if—

(a)  they have a relationship as a couple living together, and

(b)  they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3)    Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case—

(a)  the duration of the relationship,

(b)  the nature and extent of their common residence,

(c)  whether a sexual relationship exists,

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e)  the ownership, use and acquisition of property,

(f)  the degree of mutual commitment to a shared life,

(g)  the care and support of children,

(h)  the performance of household duties,

(i)  the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

(4) Meaning of “related by family” For the purposes of subsection (2), 2 persons are related by family if—

(a)  one is the child (including an adopted child) of the other, or

(b)  one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or

(c)  they have a parent in common (including an adoptive parent of either or both of them).

(5)  Subsection (4) applies—

(a)  even if an adoption has been declared void or is of no effect, and

(b)  to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.

(6)  Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.

82. Applications for family provision orders must be made within 12 months of the date of the death of the deceased: s 58 of the Act. This is not in issue in either proceeding.

83. Family provision orders may be made pursuant to s 59, which provides relevantly:

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

(a)  the person in whose favour the order is to be made is an eligible person, and

(b)  in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

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

(2)  The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

Note—

Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.

84. Therefore, Natalie must demonstrate that there are ‘factors warranting’ her claim for provision in accordance with s 59(1)(b), and Ms Le must only demonstrate that there are ‘factors warranting’ her claim in respect of her alternative claim for eligibility under s 57(1)(f).

85. Under s 60(1), the matters to be considered in determining whether there are ‘factors warranting’ the claim and also whether to make an order and the nature of any such order, are set out in s 60(2) which provides:

(2)    The following matters may be considered by the Court—

(a)     any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)     the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)     the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)     the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)     if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)     any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)    the age of the applicant when the application is being considered,

(h)     any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)     any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)     any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)     whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)     whether any other person is liable to support the applicant,

(m)     the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)     the conduct of any other person before and after the date of the death of the deceased person,

(o)     any relevant Aboriginal or Torres Strait Islander customary law,

(p)     any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Principles relevant to each plaintiff’s claim that she is an eligible person

De facto relationship

86. Ms Le relies on s 57(1)(b) which requires that she was living with the deceased in a de facto relationship at the time of his death. Two persons will be in a de facto relationship at a particular time if they have a relationship as a couple living together, and whether that is so is to be determined having regard to all the circumstances, including the matters listed in s 21C(3) of the Interpretation Act. As noted by Hallen J in Sheen v Hesan; the Estate of Zaheer [2023] NSWSC 468 at [485], there are nine circumstances referred to, which may be grouped in to ‘private’ ((c), (d), (e) and (f)) and ‘public’ ((a), (b), (g), (h) and (i)) factors. None of these factors are exclusive. In Piras v Egan [2008] NSWCA 59, Campbell JA (Giles and Tobias JJA agreeing) said at [146]:

It should be recalled that the list of ‘circumstances’ in section 4(2) [of the Property (Relationships) Act 1984 (NSW)] are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in section 4(1) [of the Property (Relationships) Act 1984 (NSW)]. If two people do not ‘live together as a couple’ they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various ‘circumstances’ listed in section 4(2) [of the Property (Relationships) Act 1984 (NSW)].

87. The ‘circumstances’ to which reference is made in this passage are the same as the circumstances listed in s 21C(3) of the Interpretation Act, set out above.

88. The concept of ‘living together’ as a couple, which is the essence of a de facto relationship, does not require that two persons share the same residence exclusively or on a full-time basis. In NSW Trustee and Guardian v McGrath [2013] NSWSC 1894, Young AJ said:

[13]    Human relationships cover a wide spectrum. The cases show that there have been many situations other than the situation where a man and a woman share the one residence and live as if they were man and wife for the whole week where a de facto relationship has been held to be made out….

[18]    However the concept of living together does not relate to sharing a particular residence but rather what Murphy J said in Jonah v White whether a couple manifests a relationship of “coupledom” which involves the merger of two lives.

89. In Vaughan v Hoskovich [2010] NSWSC 706, White J (as his Honour then was) said at [53]:

In my view, the fact that they lived together only for a small part of each week does not mean that they cannot be said to have lived together as a couple. Whether they lived together as a couple, must of course take into account all of the circumstances, including those listed in subs (2). But it seems to me that the maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to “living together”. Parties can live together for part of a week and also live apart, for part of a week. Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are “a couple”. I accept that the phrase “living together as a couple” connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home (Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd [2009] NSWSC 938 at [27]–[29] and cases there cited.) In the present case, as indicated in paras [10] and [12], the parties treated the plaintiff’s Turramurra property as one of the deceased’s homes.

90. In Smoje v Forrester [2017] NSWCA 308 at [42] Meagher JA (Basten and Macfarlan JJA agreeing) said:

Whilst the state of living “together” does not require that the living occur at and from a single place, or that the two adults spend all of their time together at the same time, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description.

91. In Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18 the High Court considered the meaning of ‘living together’ in the context of the expression ‘a relationship as a couple living together on a genuine domestic basis’ in s 4AA(1) of the Family Law Act 1975 (Cth), which is in the same terms as s 21C of the Interpretation Act. The Court said at [33] and [39] (footnotes omitted, emphasis added):

Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.

…

The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).

92. An important factor in determining the question whether two persons share life as a couple, and hence can be said to live together as a couple, is whether they have a mutual commitment to a shared life. In Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 at [11], Barrett J said the following regarding the expression ‘living together as a couple’:

It is nevertheless pertinent to remember that, as Windeyer J pointed out in Hooper v Winten [2002] NSWSC 1071, de facto relationships, like marriages, will not be perfect all the time. While the romantic characteristic to which Gzell J referred will typically exist at inception, a diminution in its intensity in a shared residential setting will not of itself mark the end of living “together as a couple”. The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living “together as a couple”. This central concept has recently been explored by McLaughlin AsJ in Delany v Burgess [2006] NSWSC 1420.

93. Barrett J’s observation regarding the central concept of a de facto relationship was endorsed by McColl JA (Beazley JA agreeing) in Hayes v Marquis [2008] NSWCA 10 at [83].

94. As Barrett J noted in the above passage, the required commitment to a shared life as a couple does not require emotional or romantic love: see also Vaughan at [49] and Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5 at [3].

95. Basten JA in Robson v Quijarro [2009] NSWCA 365 (Ipp and McColl JJA agreeing) made the following observations at [59] regarding the relevance of a mutual commitment to a shared life to the existence of a de facto relationship:

Although, in accordance with s 4(3), a degree of mutual commitment to a shared life is not an essential element of a de facto, it is difficult to envisage two persons living together as a couple without some degree of mutual commitment to a shared life. Thus, in most cases, satisfaction of that criterion, at least to some degree, will be a significant factor in the overall assessment of the relationship. However, the concept of a commitment to a shared life is not one which is rigidly defined and clearly may need to be applied with a degree of flexibility, depending on the circumstances. Similarly, the concept of “mutual” commitment is one which can accommodate a degree of flexibility and variation over time and having regard to the relevant circumstances.

96. It is necessary to keep in mind that ‘relationship as a couple living together’ is a composite expression or concept which should not be dissected into discrete elements: Hayes v Marquis [2008] NSWCA 10 at [73] per McColl JA (Beazley JA agreeing). What is required is an evaluative assessment of all the relevant circumstances.

97. The following observations of Hallen J in Sheen v Hesan [2023] NSWSC 468 at [504] and [514] are apposite:

Common sense dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

…

It can be seen, from what has been set out above, that the concept of a de facto relationship is complex. It should not be construed on “narrow, formal, pedantic, or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex”: Dow v Hoskins [2003] VSC 206 at [32]. Yet, it should be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also, from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. But it is not to be judged only against the static model of persons living together full-time, sharing fully domestic, financial, and other responsibilities.

Wholly or partly dependant – s 57(1)(e)

98. Natalie relies on s 57(1)(e) under which, as a grandchild of the deceased, she must establish that she was at a particular time wholly or partly dependant on the deceased.

99. It is clear that the word ‘dependent’ in s 57(1)(e)(i) is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact in light of the whole relationship between them: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [68].

100. In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Meagher JA (Basten JA agreeing) said at [109]–[110]:

Dependency in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346–347. Nor is it restricted to requirements of basic necessity and the standard or measure of satisfaction of any need is not to be determined by reference to any minimum or subsistence standard. In each case, the measure is the standard set by the parties: Ball v Newey (1988) 13 NSWLR 489 at 492.

Dependency may exist irrespective of whether the dependent person is financially or physically able to support himself or herself: Ball v Newey at 492. However, the reasons for and circumstances of the dependency are relevant when considering what claims the dependent has on the bounty of the testator…

101. In Page v Page [2017] NSWCA 141 Sackville JA (Leeming JA agreeing) set out a summary of the relevant principles regarding the construction of s 57(1)(e) at [101] (footnotes omitted):

1.   The word “dependent” is an ordinary English word and whether a person is wholly or partly dependent on another is a question of fact.

2.   The factual question can be complex and involve consideration of many elements. Accordingly, different minds might well differ in their approach.

3. While a common form of dependence is dependence on another for the material necessities of life, this is not the only form recognised by s 57(1)(e) of the Succession Act. For example, where a parent or step-parent provides a child who has no independent financial resources with services essential to well-being, the child might be found to have been wholly or partly dependent on the parent or step-parent.

4.   Dependency involves the satisfaction of a need, but the need is not restricted to the requirements of basic necessities or sustenance.

5.   The word “partly” in the definition of “eligible person” is a word of “some elasticity”. It does not necessarily mean “substantially”, but rather “more than minimally” or perhaps “significantly”.

6.   Dependency is not necessarily correlative with a legal duty to maintain, although such a duty is a factor to take into account.  Nor are dependency and actual support necessarily correlative. Hence there may be cases where support has been provided without dependency, for example where the support is provided for a short time or for a particular purpose or where an adult child provides occasional domestic assistance to an aged parent.

102. In Chisak v Presot [2022] NSWCA 100, White JA (Macfarlan and Gleeson JJA agreeing) said at [47] that the phrase ‘partly dependent’ means at least ‘more than minimally’ and added at [57]:

I respectfully doubt that it is legitimate to read into s 59(1)(e) a requirement that partial dependency be “significant” rather than “more than minimal”. Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page , I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge’s reasons on this issue at J [329] quoted above.

Close personal relationship – s 57(1)(f)

103. Ms Le relies on s 57(1)(f) under her alternative claim. This requires that she was a person with whom the deceased was living in a close personal relationship at the time of his death.

104. The expression ‘close personal relationship’ is defined in s 3(3) of the Act to mean ‘a close personal relationship (other than in marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care’. Under s 3(4)(i), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care for fee or reward.

105. It will be seen that there are three requirements in order for s 59(1)(f) to be satisfied. First, the two people must be adults who are living together in a close personal relationship (other than marriage or a de facto relationship); second, one or each of them must provide the other with domestic support and personal care; and third, that domestic support and personal care must not be provided for fee or reward. In relation to the first two requirements, Macready M said in Dridi v Fillmore [2001] NSWSC 319 at [102]-[106]:

…

So far as the first requirement is concerned since we are not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home.

The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg. shopping for both parties, washing clothes etc

It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:-

(a)    Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.

(b)    Of or pertaining to one's person body or figure; bodily."

Accordingly, personal care connotes care taken in connection with such matters…

106. In Hayes v Marquis [2008] NSWCA 10, McColl JA (Beazley JA agreeing) said at [84]-[87]:

The question of whether or not one adult provides the other with domestic support and personal care sufficient to satisfy s 5(1)(b) will also turn on the nature and extent of that assistance. Thus if two adults lived together fulltime and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established.

While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with “personal care” within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105]–[106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one’s person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description.

Master Macready commented (at [108]) that he would not have thought that matters such as “emotional support” would “by themselves” fall within the expression “domestic support and personal care”. Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.

For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual’s well being. Psyche is just as much a personal attribute requiring sustenance as one’s physical self. The notion of “personal care” should not be confined to matters relating to physicality.

107. The third requirement that the domestic support and personal care must not be provided ‘for fee or reward’ was considered in Saravinovski v Saravinovska [2017] NSWCA 85 in the context of s 5(2)(a) of the Property (Relationships) Act 1984 (NSW). It may be noted that s 5(1)(b) and s 5(2)(a) of that Act are identical (following the amendment made to the Act in 2018) to s 3(3) and s 3(4) of the Act.

108. At first instance, Kunc J said of the words ‘for fee or reward’ (see [2016] NSWSC 964 at [375]-[376]):

I respectfully agree (to this extent) with Bryson AJ’s conclusion in White that on its proper construction the expression ‘… provides … domestic support and personal care … for fee or reward’ requires a ‘direct relation’ between the fee or reward and the provision of support and care. The factual question for the Court, to adopt Bryson AJ’s language, is whether ‘the fee or reward is produced by the provision of support or care’. The relationship must be causative or, putting it another way, be a quid pro quo. This requirement was captured in the observation of Mason J in Charles Moore (at 476) that ‘But for the expectation that it would receive a valuable benefit in the form of reciprocal reports, a department store would not provide a competitor with information about a customer’.

For the foregoing reasons, a party wishing to rely on s 5(2)(a) must satisfy the Court that there is a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care for the purpose of eliciting the identified fee or reward. So understood, such an arrangement might be seen as the origin of, or motive for, what would otherwise be a close personal relationship under the PRA. It is to be contrasted with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship.

109. Leeming JA (Beazley ACJ agreeing) in the Court of Appeal approved these observations and then added at [36]-[41]:

The contrast drawn by the primary judge may be illustrated by the distinction between, on the one hand, a nurse or housekeeper who lives with an aged or disabled person and is compensated (in money or board or both) and, on the other hand, a niece or nephew who lives with an older relative who is no longer self-sufficient. Even if it is made clear that the niece or nephew will receive free board and lodging and may have an expectation of an inheritance if the relative predeceases him or her, if the purpose of doing so is primarily based on family ties, then he or she will not be living together with his or her relative “for fee or reward”.

Those examples are more clear-cut than some of the relationships which will arise in real cases (an example is the family friend who was treated as a son considered in Ye v Fung [2006] NSWSC 243). It is to be expected that there will be many cases where domestic support and personal care are provided for motives that have elements of affection or familial duty, but also elements of an expectation of some benefit in return. However, it is not necessary in order to resolve this appeal to address cases where the position is more nuanced.

The appellant seized upon the words “direct relation” or “direct connection” in the primary judge’s formulation reproduced above, and contended that on the findings of fact made by his Honour, there was the requisite relation or connection. But there is, in one sense, a direct relation or direct connection between the provision of accommodation to both the nurse or housekeeper and to the niece or nephew in the examples mentioned above. It would however be wrong to disentitle a person merely because it could be shown that there was some causal connection between the fee or reward and the provision of domestic support and personal care. That is the point made by the primary judge in the passages reproduced above, with which I respectfully agree.

There is another matter to bear in mind. These questions will only arise if the two people are “living together” and not married or in a de facto relationship. If the purpose of the living together is primarily based on bonds of family or friendship, then it is likely that the provision of domestic support and personal care will not be “for fee or reward”. If the purpose of living together is primarily remunerative, then the provision of domestic support and personal care is likely to be “for fee or reward”.

There has been an understandable tendency to take the imprecise words of the statute and to impose glosses upon them. Thus it was said in Re Filomena Rodi (dec’d) [2016] NSWSC 1696 at [53] that “in context the expression ‘for fee or reward’ implies a commercial arrangement”. In White v O’Neill [2010] NSWSC 1193 at [47], there was reference to “a contractual arrangement in which the fee or reward is produced by the provision of support and care”.

It may be helpful to ask whether a relationship is properly characterised as “commercial” or “contractual”. If the relationship be “commercial” then it is likely that the domestic support and personal care will be provided for fee or reward. But ultimately the statutory language requires an examination of a question of fact: why did the person provide domestic support and personal care? I respectfully agree with the observation of the primary judge at [378] that placing a gloss upon the statute may ultimately distract from the task of applying the words of s 5(2)(a) themselves. I appreciate, of course, that there will be cases where the reason for providing domestic support and personal care is contestable. Motivations may be mixed, and may vary over time, as the facts in Ye v Fung demonstrate. Here, as Emmett AJA has observed, the board and lodging which Maria received were an incident of her close personal relationship with her father-in-law Chris, but were not the reason for her caring for him. It follows that there was no error in the primary judge’s conclusion that she was not disentitled by s 5(2)(a).

110. It follows from Saravinovski that in order for the exclusion in s 3(4) of the Act to apply the benefit which is said to constitute the relevant ‘fee or reward’ must have a causal nexus with the provision of the domestic support and personal care.

Factors warranting

111. If s 57(1)(e) (in the case of Natalie) or s 57(1)(f) (in the case of Ms Le) is satisfied, then it becomes necessary to determine if there are factors warranting the making of the application within the meaning of s 59(1)(b). In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J (as his Honour then was) said that these ‘factors’ are ‘factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased’.

112. In Lodin v Lodin [2017] NSWCA 327, Sackville AJA (Basten and White JJA agreeing) said at [114] (by reference to the examples of a former spouse or grandchild):

Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant.

113. Sackville AJA went on to observe at [126] that ‘care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting’ the claim of a particular applicant (in that case a former spouse), but ‘[s]omething more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition’. His Honour added at [129] that a ‘significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant’.

114. In the case of a grandchild, Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] stated the following ‘general principles’ which his Honour recognised at [117] are merely guidelines, where the statutory provisions are being applied to a claim by a grandchild:

In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a)   As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

(b)   Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

387. Ms Le relies on recordings of conversations with the deceased in 2019 and 2021 referred to above. There is an indication in one of the conversations in June 2019 of an intention that she receive from his estate Shop 3, the Burradoo property and one unit, and possibly some money. I have indicated above why I treat those recordings with some reservation. I consider a more reliable statement of his testamentary intention to be the conversation he had with Natalie in September or October 2021 when he said that in the new will he was considering, Ms Le should receive Shop 3 and ‘a few hundred thousand dollars to say thank you’.

Whether Ms Le was being maintained by the deceased: s 60(2)(k)

389. Ms Le was being maintained in the sense of being financially supported, by the deceased before his death.

Whether anyone else is liable to support Ms Le: s 60(2)(l)

390. There is no one on whom Ms Le can rely for financial support.

Ms Le’s character and conduct: s 60(2)(m)

391. It is clear from the evidence that Ms Le did care for the deceased, particularly in the last six months of his life when he was suffering severe ill health. However, there are aspects of her conduct, before and after the death of the deceased which are unsatisfactory. First, she took advice regarding the potential to make a claim against the deceased in June 2021 and took steps to improve her case for a claim against him, including giving up the subsidised rental accommodation at the Redfern property and changing her address to the Coogee property. She was not entirely frank in her evidence as to this matter, as noted earlier.

392. Second, the recordings she made of conversations with the deceased in 2019 and 2021 are disturbing because of the way in which she harangues the deceased in circumstances where he is clearly seriously unwell.

393. Third, she taped a conversation with Gabrielle on 6 February 2022, knowing full well that Gabrielle objected to her doing so, and then sought to benefit from the recording by relying on it in these proceedings. For the reasons I have explained above, the recording does not support her claim to have been in a de facto relationship with the deceased and does no more than confirm, what is apparent from the other evidence, that she cared for the deceased during the period of serious ill health at the end of his life.

Conduct of any other person before and after the deceased’s death: s 60(2)(n)

394. It is not clear whether Ms Le criticises the conduct of either Jenny or Gabrielle before or after the deceased’s death. In so far as there is veiled criticism of Jenny’s conduct in arranging for Ms Le to be removed from the Coogee property on 10 February 2022, I do not accept that criticism is valid. Ms Le had already indicated to Gabrielle on 6 February 2022 that she had no intention of leaving the property, but in fact she had no entitlement to be there following John’s death.

Conclusion regarding Ms Le’s claim for provision

395. It is difficult to assess what is the adequate provision for the proper maintenance, education or advancement in life of Ms Le in all the circumstances of the present case. There is evidence of what she considers to be her needs, but the evaluative judgment required is not determined by the plaintiff’s needs, and also takes into account all the relevant circumstances including the matters set out in s 60(2) which have been discussed above and the other matters referred to in the authorities cited earlier in the discussion of the relevant principles to be applied. Two important matters to consider are the totality of her relationship with the deceased, and also the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or, put another way, what is considered to be the moral duty of the deceased. In relation to both matters the picture left by the totality of the evidence is complex.

396. On the one hand, Ms Le was clearly a divisive figure in the Angius family dynamic. Her affair with John caused or contributed to the acrimonious split in the family in around 2007, with a significant toll on all concerned, not least on Laura who was an entirely innocent party. John’s affair with Ms Le appears to have caused Laura considerable distress in the final years of her life. Further, there are a number of aspects of Ms Le’s conduct which I regard as unsatisfactory, to which I have referred above.

397. On the other hand, I am satisfied on all the evidence that John had a romantic (and sexual) relationship with Ms Le at least in the period from around 2003 to 2007. A relationship (which may not have been romantic or sexual) continued after that time until his death, although its precise character after 2007 is difficult to fathom. In particular, it is difficult to know why he refused to recognise her as his partner after Laura’s death when there was no apparent impediment to him doing so if she truly was. He was clearly equivocal about their relationship and was disrespectful to her and dismissive of her in various ways (eg. by calling her, and/or describing her to various people, as ‘Chinesa’ or the ‘Chinese lady’ or as his carer). But he was also reliant on her for care and support, particularly in the last six months of his life when he was very ill. John had many opportunities to spurn her evident affection for him after Laura’s death but, for whatever reason, chose not to do so. Similarly, she was free to leave at any time and while she says she stayed because she loved him, there were clear financial benefits to her in not doing so, including that he did not charge her the rent payable under the lease of Shop 3 (see [182] above).

398. I have attempted to understand the nature of John’s relationship with Ms Le, but have struggled to do so because of the conflicts in the evidence of the witnesses who knew them both. Bearing in mind that without the benefit of evidence from John, it is not possible to fathom the unfathomable, I have paid particular regard to what John said about his testamentary intention regarding Ms Le, and consider the most reliable evidence of this to be what he said to Natalie in September or October 2021 that when he made a new will he would give Ms Le Shop 3 and a few hundred thousand dollars cash to say thank you.

399. In all the circumstances, particularly the matters referred to in the consideration of the s 60(2) factors set out above, I am satisfied that the deceased made inadequate provision for Ms Le’s proper maintenance and advancement in life. I have taken into account the unsatisfactory aspects of her conduct referred to at [391]-[393] above in reaching that conclusion.

400. Taking into account all of these matters, I consider that a wise and just testator standing in the shoes of the deceased would consider it appropriate to give Ms Le Shop 3 and a sum of $250,000.

Consideration of s 60(2) matters for Natalie’s claim

The relationship between Natalie and the deceased: s 60(2)(a)

401. Natalie shared a close and loving relationship with the deceased, particularly towards the end of his life, which involved frequent visits (particularly after her diagnosis with multiple sclerosis in 2014), meals together, financial support, care and assistance.

The nature and extent of any obligations or responsibilities owed by the deceased to Natalie, to any other person in respect of whom an application for family provision has been made or to any beneficiary: s 60(2)(b)

402. For the reasons given earlier, I am satisfied that the deceased had a moral obligation or responsibility for Natalie in the particular circumstances of this case. I have dealt with the position in relation to the other persons referred to in s 60(2)(b) in the context of Ms Le’s claim.

The deceased’s estate: s 60(2)(c)

403. I have dealt with this matter in the context Ms Le’s claim.

Natalie’s financial resources (including earning capacity) and needs, and age: s 60(2)(d), (e) and (g)

404. Natalie is currently 34 years of age and single. She is no longer employed. She lives in a property owned by her mother, Silvana, and does not cohabit with another person.

405. Natalie’s income at the time of the hearing was $4,069 per month (after tax) in the form of workers compensation benefits relating to a repetitive strain injury. This benefit expired in April 2024. That income was sufficient to meet Natalie’s living expenses, but only because Natalie was limiting her consultations with specialists regarding her various medical conditions, and is no longer available to her.

406. Natalie’s assets are minimal comprising a 2006 Lexus GS 300 motor vehicle, with 235,000 km on its odometer, which is expensive to run and maintain in her current financial circumstances, bank accounts with relatively small balances and two superannuation accounts with a balance of $40,223. She has a HECS debt of $22,330. In light of her medical issues, I accept that her asset position is unlikely to improve significantly. I refer to the potential for assistance from her parents, Silvana and Robert below.

407. Natalie’s own assessment of her future needs are set out in one of her affidavits and revised in her closing submissions as follows: (a) a new motor vehicle at a cost of $50,000 (and a modified motor vehicle in the future with a cost of $100,000); a CPAP machine at a cost of $2,500, together with CPAP expendables of $500 per annum; (b) stem cell therapy at a cost of between $100,000 to $300,000; a two bedroom apartment, single level and NDIS compliant at a cost in the range of $850,000 to $900,000 which will need to be modified at a cost of approximately $71,752.

408. In addition, she seeks a sum based on recommendations of the occupational therapist, Mr Byrnes, on whose report she relied, and Dr Spies to account for her likely future needs comprising the following:

1. Therapy and intervention costs of $12,000 as one-off costs and annual costs of $7,339.20 (there being little doubt that Natalie will require life-long specialist care);

2. In-home assistance starting at 13.76 hours a week now ($810.89 per week) increasing to 50.34 hours per week at stage 2 in 2028 ($2,858.03 per week), and 108.1 hours per week from 2038 ($6,096.96 per week).

409. These estimates are consistent with the report prepared by the Menzies Institute for Medical Research, ‘Health Economic Impact of Multiple Sclerosis in Australia in 2021’ (published in February 2023) which estimates that the average direct and indirect costs for a person living in Australia with multiple sclerosis is in the order of $37,439 per annum.

410. Natalie does not contend that John’s estate should meet all the needs described above. Rather, it is submitted that applying a broad brush the Court should, standing in the deceased’s shoes, make a provision to significantly improve her life beyond mere survival which could be achieved by $950,000 for a suitably modified apartment, $100,000 for a suitably modified car and a sum sufficient to provide a buffer and income in relation to future medical and care needs.

Any physical, intellectual or mental disability of Natalie: s 60(2)(f)

411. Natalie is currently in poor health, principally arising from her multiple sclerosis diagnosis in 2014. As she said in her evidence: ‘MS has changed my life completely and left me physically and emotionally distraught and alone’. As indicated earlier, Natalie’s evidence contains a large number of documents relating to her various conditions, and there is no suggestion that any of that material is in dispute.

412. Each of Dr Judith Spies (a neurologist) and Professor Cherry Koh (a colorectal and general surgeon) who are Natalie’s treating doctors, provided short reports summarising Natalie’s diagnosis and care. Each was cross-examined. There was no suggestion to them that their evidence ought to not be accepted.

413. Dr Spies is a neurologist who has been treating Natalie since her multiple sclerosis diagnosis in 2014. Her summary (in a report dated 14 August 2023) states that: (a) Natalie has had aggressive multiple sclerosis from the outset, with multiple predictors of long term disability; (b) Natalie has subsequently developed several other medical issues, including pericarditis after the Pfizer Covid vaccine, with ongoing chest pain, severe gastrointestinal dysmotility after a ruptured appendix and Hashimoto’s thyroiditis; (c) Natalie has aggressive multiple sclerosis that requires close monitoring of both the disease and potential side effects of her immunotherapies, and regular engagement with pain management services; (d) most patients with the sort of multiple sclerosis Natalie has (high lesion burden especially with brainstem and spinal cord lesions) will eventually enter a secondary progressive phase of the disease where disability progresses in the absence of further relapse. The time at which this occurs is impossible to predict in an individual, but multiple population studies indicate a median of approximately 20 years since first symptoms. Natalie is already 10 years post first symptoms; (e) many costs associated with multiple sclerosis are not covered by Medicare, most importantly physiotherapy; (f) stem cell therapy is available overseas at a cost of $100,000-$300,000, but is not available in Australia outside of clinical trials.

414. An earlier report by Dr Spies dated 16 June 2022 stated that Natalie is at a high risk of significant disability, and a higher risk of ending up in a wheelchair, being disabled and needing care, but her life expectancy is normal.

415. Dr Spies did not depart from that evidence in cross-examination. She confirmed that ‘there is no doubt about the diagnosis or the aggressive nature of it’ (T807.9); so far as prognosis is concerned she accepted it varies from individual to individual but said there are well-established predictive factors (T807.20-25); and agreed Natalie’s condition is currently stable but with residual deficits (T808.4) and continued ‘MS doesn't go away, it sort of stays there and you get accrual of things with new lesions’ (T808.11).

416. After the conclusion of the hearing, Natalie was given leave to reopen her case to tender (without objection by the defendant) a report of Dr Daniel Guilfoyle (in consultation with Dr Spies) following a further MRI scan which indicates that her multiple sclerosis is no longer stable and recommends ‘instituting further highly effective multiple sclerosis disease modifying therapy to try to regain control of her aggressive relapsing condition (particularly in light of her extensive burden of old disease)’. The report (Ex HH) sets out a revised treatment plan going forward with Natalie’s agreement.

417. Associate Professor Koh’s report dated 18 September 2023 describes Natalie’s onset of symptoms of gastrointestinal motility disorder as ‘atypical and the management of this has been challenging’. Although her view is that ‘it is difficult to be prescriptive about what Natalie will require’ she will need long term support and may require surgery. Her condition is presently stable, but fluctuating (T830.4-50).

418. Natalie has experienced the following symptoms caused by her multiple sclerosis: foot drop, trigeminal neuralgia and greater auricular neuralgia, optic neuritis in the left eye, severe vertigo and balance issues, bladder, issues causing incontinence, difficulties swallowing food, sensation of pins and needles throughout the left side of her body and fatigue. She has also suffered through pericarditis and post-inflammatory syndrome, having been diagnosed after receiving her COVID-19 vaccines in 2021, a variety of respiratory conditions (including sleep apnoea), carpal tunnel syndrome requiring surgery and gastrointestinal disorders.

419. Natalie’s age of 34 is significant because one aspect of her medical issues is that multiple sclerosis causes significant disability without significantly compromising life expectancy.

Any contribution (financial or otherwise) by Natalie to the deceased’s estate or his welfare: s 60(2)(h)

420. Natalie provided John with assistance over the last four or five years of his life in the following ways in the form of shopping, some light cooking, assistance with paperwork for court matters and emails to his accountant, phone enquiries by contacting the administrator and liquidator of his companies, and paying bills using his credit card, including making Natalie the contact person for his insurances.

421. The closeness of the relationship towards the end of John’s life is also supported by the deceased’s intention in December 2021 to appoint Natalie as one of his (joint) attorneys and guardians.

Any provision made for Natalie by the deceased during his life or from his estate: s 60(2)(i)

422. John made provision for Natalie in his lifetime as described earlier. John made no provision for Natalie in the 2021 will.

The Deceased’s testamentary intention, including evidence of statements made by him: s 60(2)(j)

423. That John regarded Natalie as a proper beneficiary of his estate is demonstrated by the specific bequest to Natalie of $200,000 in cl 8.2 of his 2012 will. This predates Natalie’s multiple sclerosis diagnosis in 2014.

424. In addition, Natalie gives evidence (which I accept) that John made regular statements to Natalie about his intentions, including:

1. in 2019 or 2020, John told Natalie that there was a trust fund for all his grandchildren with $250,000 in it for each of them;

2. in or around September or October 2021, John told Natalie that he would leave Natalie and her sisters the Burradoo property;

3. on 26 December 2021, John told Natalie and her sisters that he would give them each $250,000 plus property.

425. John’s intention to provide for all his grandchildren including Natalie is confirmed by his statements to his solicitor Francis Devine in the meeting on 20 December 2021 referred to earlier.

Whether Natalie was being maintained by the deceased: s 60(2)(k)

426. I have already dealt with the extent to which Natalie was partly dependent on the deceased.

Whether anyone else is liable to support Natalie: s 60(2)(l)

427. The only persons who might potentially support Natalie in the future are her parents, Silvana and Robert.

428. Silvana owns her house (which is unencumbered), she owns a half interest in the house next door (where Natalie presently lives in the unit upstairs with the ground floor rented out at $550 per week) and a property at Toukley (subject to a mortgage of $310,000) which is rented out at $350 per week. She has a modest income as a bank teller and no other significant assets. She has three other daughters and health challenges of her own.

429. Robert is clearly very wealthy, being the sole beneficiary of Laura’s estate. The only evidence suggesting that Robert might be willing to assist Natalie is an email he sent her on 5 October 2016 (Ex 15), asking whether she needed assistance. Natalie’s evidence was that she did not respond to this email because she is ‘terrified of my father. He destroyed my whole family. You don’t understand. He destroyed everyone. He’s dangerous. He’s never helped. I don’t want to know’ (T704). I accept Natalie’s evidence as it is consistent with the other evidence referred to above regarding Robert’s relationship with Silvana and Natalie. I do not accept that there can be a realistic expectation that Robert will assist Natalie financially.

Natalie’s character and conduct: s 60(2)(m)

430. I have dealt with Natalie’s relationship with the deceased and there is nothing in the evidence which in my view casts any doubt or justifies any criticism of her character or conduct.

Conduct of any other person before or after the deceased’s death: s 60(2)(n)

431. The parties did not identify any other relevant conduct.

Any other matter considered relevant: s 60(2)(p)

432. The parties did not identify any other matter considered relevant.

Conclusion regarding Natalie’s claim for provision

433. In my view, in all the circumstances, particularly the matters under s 60(2) addressed above, the deceased made inadequate provision for Natalie in the 2021 will. The appropriate order for provision to be made out of John’s estate for Natalie is to be inferred from her needs which are considerable. The claim for provision which Natalie makes, set out at [410], reflects the appropriate approach for estimating the amount for her proper maintenance, education or advancement in life. In my view, a sum sufficient to provide a suitable buffer and income in relation to her future medical and care needs is $1,500,000. That amount, conservatively invested, will generate sufficient income to meet her needs and provide the appropriate buffer sought. Accordingly, in my opinion an order for provision should be made from the deceased’s estate by a lump sum in the amount of $2,550,000.

Conclusion and orders

434. For the above reasons, I have concluded that Ms Le and Natalie are eligible persons and that the absence of any provision in their favour by the deceased in his 2021 will was inadequate for their proper maintenance, education and advancement in life. I have concluded that in all the circumstances, the appropriate provision which should be made in their favour is:

1. In the case of Ms Le, the transfer to her of Shop 3 and provision in the sum of $250,000;

2. In the case of Natalie, provision in the sum of $2,550,000.

435. I will make orders for provision to each of Ms Le and Natalie in the terms set out in the previous paragraph.

436. I note that Ms Le has been benefitting from an interim provision order made by Parker J on 18 February 2022 in the amount of $500 per week which should now be terminated. As to costs, the usual orders in light of the conclusion I have reached regarding each plaintiff’s claim is that the costs of the plaintiffs and the defendant of these proceedings should be paid out of the estate.

437. I direct the parties to bring in short minutes of orders to give effect to these reasons.

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Decision last updated: 01 August 2024