Limberger v Limberger; Oakman v Limberger

[2021] NSWSC 474

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Hearing dates:

8-11 March 2021

Date of orders:

6 May 2021

Decision date:

06 May 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons

Catchwords:

SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will

Legislation Cited:

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Cases Cited:

Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176

Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Bartlett v Coomber [2008] NSWCA 100

Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100

Bkassini v Sarkis [2017] NSWSC 1487

Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86

Bondelmonte v Blanckensee [1989] WAR 305

Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Burke v Burke (No 2) [2015] NSWCA 195

Camden v McKenzie [2007] QCA 136

Carey v Robson (No 2) [2009] NSWSC 1199

Chan v Chan (2016) 15 ASTLR 317

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

Christie v Manera [2006] WASC 287

Crossman v Riedel [2004] ACTSC 127

de Angelis v de Angelis [2003] VSC 432

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54

Evans v Braddock [2015] NSWSC 249

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Goodsell v Wellington [2011] NSWSC 1232

Gorton v Parks (1989) 17 NSWLR 1

Grey v Harrison [1997] 2 VR 359

Harkness v Harkness (No 2) [2012] NSWSC 35

Hawkins v Prestage (1989) 1 WAR 37

Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Hobson v R [1998] 1 Cr.App.R 32

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

Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160

Hunter v Hunter (1987) 8 NSWLR 573

In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135

Jodell v Woods [2017] NSWSC 143

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

Kogan v Martin [2019] EWCA Civ 1645

Kohari v Snow [2013] NSWSC 452

Liprini v Liprini [2008] NSWSC 423

Lumb v McMillan [2007] NSWSC 386

Lynch v Cadwallader [2021] EWHC 328 (Ch)

MacGregor v MacGregor [2003] WASC 169

Marks v Marks [2003] WASCA 297

McCann v Ward & Burgess [2012] VSC 63

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

McGrath v Eves [2005] NSWSC 1006

McKenzie v Topp [2004] VSC 90

McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717

Meres v Meres [2017] NSWSC 285

Olsen v Olsen & Ors [2019] NSWCA 278

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52

Rawson v Studholme [2018] NSWSC 1764

Re Buckland (dec’d) [1966] VR 404

Rondel v Worsley [1969] 1 AC 191

Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42

Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473

Sangha v Baxter [2009] NSWCA 78

Sarant v Sarant [2020] NSWSC 1686

Saravinovska v Saravinovski (No 6) [2016] NSWSC 964

Sgro v Thompson [2017] NSWCA 326

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Slack-Smith v Slack-Smith [2010] NSWSC 625

Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297

State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stern v Sekers; Sekers v Sekers [2010] NSWSC 59

Stott v Cook (1960) 33 ALJR 447

Sung v Malaxos [2015] NSWSC 186

Taylor v Farrugia [2009] NSWSC 801

Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316

Thomas v SMP (International) Pty Ltd [2010] NSWSC 822

Verzar v Verzar [2012] NSWSC 1380

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Webb v Ryan [2012] VSC 377

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Yee v Yee [2017] NSWCA 305

Texts Cited:

Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5

Category:

Principal judgment

Parties:

2019/17122 – Joseph Victor Limberger v Steven George Limberger
Joseph Victor Limberger (Plaintiff)
Steven George Limberger (Defendant)

2019/21207 – Catherine Philomena Oakman v Steven George Limberger
Catherine Philomena Oakman (Plaintiff)
Steven George Limberger (Defendant)

Representation:

Counsel:
2019/17122 – Joseph Victor Limberger v Steven George Limberger
Mr K Morrissey (Plaintiff)
Mr D Liebhold (Defendant)

2019/21207 – Catherine Philomena Oakman v Steven George Limberger
Ms E Elbourne (Plaintiff)
Mr D Liebhold (Defendant)

Solicitors:
2019/17122 – Joseph Victor Limberger v Steven George Limberger
Szabo & Associates Solicitors (Plaintiff)
Walsh & Blair Lawyers (Defendant)

2019/21207 – Catherine Philomena Oakman v Steven George Limberger
LHD Lawyers (Plaintiff)
Walsh & Blair Lawyers (Defendant)

File Number(s):

2019/17122; 2019/21207

Judgment

1. HIS HONOUR: Maria Limberger (the deceased) died on 22 January 2018 aged 90 years. She left surviving her, three, now adult, children, being Joseph Victor Limberger, the Plaintiff in the proceedings numbered 2019/17122; Catherine Philomena Oakman, the Plaintiff in associated proceedings numbered 2019/21207; and the Defendant, named in both proceedings, Steven George Limberger. These reasons relate to both proceedings.

2. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased and other family members, after introduction, by his, or her, first name, respectively.

3. Joseph and Catherine each seeks a family provision order out of the estate, or notional estate, of the deceased, under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. (In fact, in this case, the relevant objects are maintenance and advancement in life). The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Each also seeks an order for costs of the proceedings.

4. There were associated proceedings, numbered 2019/215586, being proceedings for rectification of the duly executed Will made by the deceased, which were also listed for hearing, but these proceedings were settled by the parties. After consideration of the evidence in those proceedings, and without any opposition by any of the parties in the remaining proceedings, orders were made, and were recorded on the court’s computerised court record system, JusticeLink, on 9 March 2021. It will be necessary to refer to the orders made in those proceedings later in these reasons.

5. All three proceedings were listed for concurrent hearing, for 4 days, commencing on 8 March 2021. At the commencement of the hearing of the two family provision matters, an order for a concurrent hearing of both proceedings, which had been anticipated when the matters were set down for hearing, was made, without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) r 2.1 (UCPR), which provides that the Court may, “at any time, and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that “it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…”.

6. There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were relevant to each proceeding, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the deceased’s estate has also been put to less expense in having only one set of hearings, rather than two; the just, cheap and quick hearing of all of the matters in dispute were facilitated; all parties participated in the proceedings; and the most efficient, and expedient, use of resources, for the parties, and, by implication, the Court, was achieved.

7. For those reasons, it was not only “desirable”, but also “convenient”, to make an order that the proceedings be heard consecutively, with the evidence in one being evidence in the other.

8. The Court followed the Supreme Court’s most recent updated Coronavirus (COVID-19) announcement of 12 February 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation.

Some formal matters not in dispute

9. Joseph commenced the family provision proceedings by Summons filed on 17 January 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

10. Catherine commenced the family provision proceedings by Summons filed on 21 January 2019, that is within the time prescribed by the Act.

11. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of the parties is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

12. However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (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 …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

13. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

14. A family provision order may be made in relation to property that is not part of the deceased’s estate but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

15. No party suggested that there was any property that was able to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by each of Joseph and Catherine, respectively, neither, ultimately, sought an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased’s estate that has been distributed, other than amounts that have been paid on account of the costs of Steven, to whom Probate of the deceased’s Will was granted. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

16. The only eligible persons are the children of the deceased. The husband of the deceased had predeceased her. The deceased had other children to whom reference will be made who also predeceased her. As will be read, the estate is to be divided, as to one-half, to Steven, and as to the other half, between five grandchildren of the deceased. There was no suggestion that any of the grandchildren is an eligible person.

17. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. In the family provision proceedings, it will be necessary to refer to the interest of each beneficiary, respectively, later in these reasons.

Some background facts

18. There were five children of the marriage of the deceased to Silvester Limberger, they being John Steven Limberger, who was born in January 1950 and who died in 2016; Phillip Limberger, who pre-deceased the deceased, who was born on a date not disclosed in the evidence, and who died in 1968; Joseph, who was born in May 1952 and who is almost 69 years of age; Steven, who was born in December 1959 and who is now 61 years of age; and Catherine, who was born in December 1968 and who is now 52 years of age.

19. The deceased’s husband, Silvester, pre-deceased her, having died on 27 June 1989. By his Will, Probate of which was granted on 30 May 1990, a copy of which was Ex D7, he left the whole of his estate to the deceased, but in the event that he did not survive her, to be divided equally between John, Steven and Catherine.

20. The deceased, by a previous relationship, had given birth, in March 1947, to a daughter, Natalija (also known as Natasha), in Yugoslavia, who also pre-deceased her. As will be read, her two children were Defendants in the rectification proceedings. They have not participated in the other proceedings, but an agreement was reached, in the rectification proceedings, that they would receive a lump sum (in total $100,000), and an agreed lump sum costs order ($45,000), out of the estate of the deceased.

21. Each of Joseph and Catherine consented to the orders and notations made in the rectification proceedings.

22. By her duly executed, and professionally drawn, Will, as rectified, made on 28 September 2006, the deceased appointed Steven and John as her executors. She left a legacy of $300,000 to Catherine upon trust for her life, with the remainder being given to her two children, Tristan and Reagan. The deceased left the remainder of her estate equally to "her children" Steven and John.

23. As John had predeceased the deceased, his half-share of the residue of the estate, passes, pursuant to Clause 11.4 of the deceased’s Will, equally, to his 5 children with his wife, Flavia, being Damien Limberger, who was born in 1979; Michael Limberger, who was born in 1981; Briana Limberger, who was born in 1983; Anthony Limberger, who was born in 1985; and Laura Limberger, who was born in 1990.

24. Each of John’s children gave evidence, by affidavits, which were read in the proceedings, about a number of matters, including his, and her, financial resources and needs, respectively. None of John’s children were cross-examined.

25. In the Will, the deceased stated:

“11.7 I have not made provision for my son JOSEPH VICTOR LIMBERGER having regard to him having instituted proceedings in the Supreme Court against my late husband and myself.

11.8 I have made the provision aforesaid for my daughter CATHERINE PHILOMENA OAKMAN as she and I have been virtually estranged for a number of years following her leaving home when she was still a minor and without notifying my late husband or myself as to her whereabouts, and her subsequent conduct caused great heartache to both my late husband and myself.”

26. There is a dispute by each of Joseph and Catherine as to the truth of the statements made by the deceased about him, and her, respectively. Later in these reasons, it will be necessary to deal with the relationship of the deceased with each of them.

27. It should be remembered, that, although the statements made by the deceased in her Will are admissible pursuant to s 100(2) of the Act, the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements, particularly if denied by the applicant, respectively, or where there is other evidence that casts doubt upon its accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally. Unfortunately, the truth, or accuracy, of the statements made cannot be tested by cross-examination. Thus, the deceased's statements must, like any other evidence, be subject to a degree of consideration and scrutiny and must carefully consider the weight to be attached to them.

28. That this is so is clear and s 100(9), subject to s 100(11), of the Act, which is not applicable in this case, where evidence of a statement of a deceased person is admitted under this section, specifically permits evidence to be given for the purpose of destroying, or supporting, the credibility of the deceased.

29. Also, s 100(10) permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made, at any time, by the deceased.

30. There are often difficulties faced by a trial judge grappling with evidence about disputed allegations that are contained in such statements.

26. In Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134 at 150; [1979] HCA 2, Gibbs J wrote:

“... in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones [1921] NSWStRp 66; (1921) 21 SR (NSW) 693, at p 695; In re Smith [1928] SAStRp 14; (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased [1930] NSWStRp 5; (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court.”

32. Whilst the Court will consider any explanation given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanation does not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27] (Ball J). What such an explanation by the deceased may do is cast light on the relationship between her, or him, and that person, at least from the deceased's perspective. The explanation is not, necessarily, conclusive. Yet, where the truth of the explanation made by the deceased is admitted, or where the facts asserted in the explanation are corroborated by other evidence, due weight should be given to the explanation.

33. In relation to statements made by the deceased, the Court should bear in mind, also, what was written by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141; [1950] NZGazLawRp 121 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd at 152):

“If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator.”

The estate of the deceased

34. On 21 October 2020, the Court directed the parties to provide, in hard and soft copy, an Agreed Schedule that contained:

1. the assets and liabilities of the estate and notional estate at the date of death;

2. the assets and liabilities of the estate and notional estate at the date of the schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and

5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.

35. At the hearing, a final version of the document was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

36. The gross value of the deceased’s estate, at the date of death, was estimated to be $10,183,371. After paying some of the liabilities ($22,856), the estate was said to have a value, at the date of death, of $10,160,515.

37. The gross value of the deceased’s estate, at the date of the hearing, was agreed by the parties to be $9,335,894. However, there was a dispute about property of the deceased that Catherine asserted had a total value of $511,231.

38. At the date of the hearing, the deceased’s estate comprised:

1. two parcels of real estate in Pearson Street, Wagga Wagga ($8,000,000 and $520,000 respectively); and real estate in Kooringal, a suburb of Wagga Wagga ($460,000);

2. cash held in the trust account of Steven’s solicitors ($352,894);

3. a car ($3,000);

4. 51 fully paid shares at $1.00 in Rivcrete Pty Ltd (nil value). (There was dispute about this attributed value);

5. one unit in Rivcrete Unit Trust (nil value). (There was dispute about this attributed value); and

6. a debt due by Rivcrete Pty Limited ($449,442) which is unlikely to be recovered. (There was dispute about whether this debt was recoverable, as part of it was shown in the records of the Trust owed by Steven and another part, as owed by John).

39. Counsel for Steven stated, from the bar table, without objection, that he, and the other residuary beneficiaries, had agreed that the lump sum of $300,000, in which each of Tristan and Reagan has an equal remainder interest, would be paid to them out of the residue of the estate of the deceased following the resolution of the proceedings no matter what the result of Catherine’s claim. Of course, that is a matter entirely for them. (It is a credit to all of the residuary beneficiaries that they have adopted this course as they could have submitted that any provision made for Catherine, should be provided, in whole, or in part, out of that part of the estate: s 65(1)(c) of the Act.)

40. The parties agreed that the liabilities and other amounts to be paid out of the estate (excluding the costs of the proceedings) were:

1. the amount due to the Defendants in the rectification proceedings ($145,000);

2. the capital gains tax and associated expenses of sale of the parcels of real estate ($1,135,710); and

3. the amount of $300,000 to be paid to Tristan and Reagan as agreed by the parties.

41. I shall use these amounts to reach an estimated net value of the estate (excluding the costs of the proceedings), which is $7,755,184.

The Costs of the Proceedings

42. In relation to the family provision proceedings, Joseph’s costs, calculated on the ordinary basis, were estimated to be $140,604. His costs, calculated on the indemnity basis, were estimated to be $155,000. He has paid $828 on account of disbursements.

43. In an affidavit, sworn on 16 February 2021, by Mr G Szabo, Joseph’s solicitor, the Court was informed that “The plaintiff has entered a conditional costs agreement with my firm for our professional fees and all disbursements and expenses, including counsel’s fees” and that “The costs agreement does not include any uplift fee”.

44. In relation to the family provision proceedings, Catherine’s costs, calculated on the ordinary basis, were estimated to be (using the mean of the range provided) $217,000. Her costs, calculated on the indemnity basis, were estimated to be $293,500. She has not paid any costs or disbursements.

45. In an affidavit sworn on 8 February 2021 by Ms P Barry, Catherine’s solicitor, the Court was informed that “the Plaintiff has entered a conditional costs agreement with LHD Lawyers for their professional fees”; that “There is no uplift factor”; and that “The conditional costs agreement excludes all disbursements, expenses and outlays including counsel’s fees”.

46. It is hard to comprehend how costs, totalling almost $360,000 (calculated on the ordinary basis) and almost $450,000 (calculated on the indemnity basis), have been incurred in what are, essentially, relatively straightforward family provision proceedings, each by an adult child of the deceased.

47. In relation to the rectification proceedings, Steven’s costs, calculated on the indemnity basis, were estimated to be $37,600. The balance of his costs, calculated on the indemnity basis, of the two family provision proceedings, and the rectification proceedings were estimated to be $47,823: Tcpt, 9 March 2021, p 40(34-38). (There was evidence that some of Steven’s costs, totalling $166,777, have already been paid out of the estate.)

48. Counsel agreed, and all submitted, that the Court should not determine, as part of these written reasons, how the costs of the proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne. Furthermore, the issue of the quantum of each Plaintiff’s costs will have to be determined following the conclusion of the hearing.

49. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

50. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

51. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

52. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

“... To exclude from consideration the diminution in the estate and hence [the applicant’s] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court ‘is determining whether or not to make such an order’.”

53. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

54. Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs or balance of costs ($405,427) will be payable out of the estate ($7,755,184), the total amount of the available estate out of which an order for provision could be made for each of Joseph and Catherine, is in the order of $7,349,757.

55. Counsel for Steven, from the Bar table, stated that the manner in which the provision is to be provided (if, in the case of Joseph, provision is made) should be by lump sum, and in the case of Catherine, by way of lump sum in lieu of the provision made for her in the Will of the deceased. Counsel also stated that the part of the estate out of which any lump sum is to be provided is the residue of the estate and that it will be borne in the proportion to which each residuary beneficiary is entitled.

The duty of legal representatives

56. There are two aspects of the duty of legal representatives to which it is necessary to refer in this case. The first relates to the affidavits that were read in the proceedings.

57. One whole Court day, effectively, was spent dealing with objections to parts of the affidavits of witnesses, particularly the evidence of each of the parties. This requires comment for the simple reason that time, and costs, were taken dealing with those affidavits (even though counsel, for the most part, did not spend a lot of time arguing about the paragraphs, or parts of the paragraphs, to which objection was taken).

58. In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, Pembroke J, at [19], wrote:

“It is common for some litigants to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings. That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent. This duty is a legal duty, not merely a rule of practice or etiquette: Teece, The Law & Conduct of the Legal Profession in New South Wales, second edition, Law Book Co, pages 30-35 and 41-44.

Counsel’s duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense.”

59. In Olsen v Olsen [2019] NSWCA 278, the Court of Appeal dealt with complaints about some comments expressed by the trial Judge about the nature and length of the Plaintiff’s affidavits. At [64] – [65], White JA (Meagher JA and Emmett AJA agreeing at [1] and [91] respectively), wrote:

“The primary judge also expressed the following concern (Judgment at [45]):

‘[45] When I complained about the plaintiff’s affidavit evidence being unhelpful and far more extensive tha[n] it needed to be, junior counsel disavowed responsibility. She said ‘The plaintiff insisted on drawing his own [affidavits]’. She added ‘We did not have control. It was a difficult situation’. This is, I am afraid, an abdication of the responsibility of the plaintiff’s legal representatives. No matter how determined a plaintiff may be to unburden himself of memories of real or imagined distant family events, his solicitor and counsel are duty-bound to restrain his enthusiasms.’

Nor does this paragraph give rise to any apprehended, let alone actual, bias against the plaintiff. The primary judge’s concern was legitimate. His statement that solicitor and counsel were duty-bound to restrain the appellant’s enthusiasm to unburden himself of his memories was correct. The appellant’s principal affidavit dealt not only with his relationship with the deceased, but also in irrelevant detail with property purchased by the deceased for his half-siblings and stepmother and with the maintenance paid by the deceased to the plaintiff’s mother when he was a child. By way of example, the appellant deposed that when he became interested in girls (apparently sometime after he was 12) he was often embarrassed about his state of dress.”

60. The second matter to which I wish to make reference is, at least, partly, related to the first. During the course of the hearing, I informed counsel that I would be asking each what he, and she, respectively, would be submitting was “adequate and proper” provision in all the circumstances of the case. Ms E Elbourne, counsel for Catherine, indicated, when it was first mentioned, that she was not prepared to answer that question. She referred to the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rule 44 which provides that a barrister must not make submissions, or express views, to a court on any material evidence or issue in the case, in terms which convey, or appear to convey, the barrister’s personal opinion of that evidence or that issue.

61. Initially, I pointed out that I was not seeking counsel’s personal opinion, but rather her, and his, professional opinion. However, I did not take it further then, stating that I would return to the topic later in the proceedings.

62. Late on the third day of the hearing, when it was too late to start the cross-examination of Catherine’s husband, Phillip, I raised the topic again. This led to the following exchange with counsel for Catherine at Tcpt, 10 March 2021, p 211(34)-212(39):

“HIS HONOUR: Ms Elbourne. If you don’t wish to answer me … based upon what you told me yesterday that’s a matter entirely for you.

ELBOURNE: Your Honour I can indicate my client’s instructions.

HIS HONOUR: No I don’t want to know the client’s instructions. I know what the client wants. The client wants as much as she can get.

ELBOURNE: Well with respect your Honour.

HIS HONOUR: Well she does Ms Elbourne. Ms Elbourne there’s no point gilding the lily. She’s put on evidence that her needs total in excess of $1.3 million.

ELBOURNE: In fact your Honour if one totals the maths it equals $2.3 million.

HIS HONOUR: Well that’s even worse Ms Elbourne.

ELBOURNE: Plus a set of costs. Now I have also had a discussion and the figure I’m instructed to put is $1.1 million plus costs.

…

HIS HONOUR: Now I’ll note that you were not prepared to tell me Ms Elbourne.

ELBOURNE: I’m not in a position your Honour to do that.

HIS HONOUR: Well Ms Elbourne I don’t know what that means. Do you mean that your plaintiff has given you specific instructions to not tell me what your estimate of what is proper and adequate in all the circumstances of the case is. Is that you’re telling me?

…

ELBOURNE: … I have consulted two senior counsel about this matter, one works in this jurisdiction.

HIS HONOUR: Who’s that Ms Elbourne?

ELBOURNE: I don’t have permission to give one of the two names.

HIS HONOUR: I see. All right. Well tell me what senior counsel has told you Ms Elbourne.

ELBOURNE: The other has sat on a professional conduct committee and also on bar council, both have advised me the same thing which is that in the absence of instructions from my client to put a figure to your Honour I’m obliged to tell your Honour what my client instructs me to put and nothing further.”

63. I stated to counsel, because I considered this to be a matter of some importance, particularly in cases involving a claim for a family provision order, that I would deal with it in these reasons.

64. I mention that Ms Elbourne was exquisitely polite in responding to my questions, and the fact that she had conferred with two senior counsel demonstrates that she had considered the topic before responding in the way that she did. In what follows, I do not intend any criticism of Ms Elbourne who, for the reasons she provided, took the course that she did. However, in my view, her submission is unsupported by authority.

63. The reasons for Catherine not wishing Ms Elbourne to make a submission on counsel’s professional opinion on what was adequate and proper in all the circumstances of the case remains obscure.

64. There are a number of reasons for asking the question that I asked of counsel. These include:

1. A claim for a family provision order is one where logical, rational, or reasonable minds might differ in respect of the conclusions to be drawn from the evidence and might adopt different reasoning to reach the result; the answer to the question exposes the basis of counsel’s submissions on the topic not only to the Court but to the other party or parties.

2. As one would expect, the legal practitioners should have already considered the question and should have provided advice to the party she, or he, represents about the range of provision that may be made by the Court. The question posed by the Court enables counsel to reconsider the position, if that is necessary, during the course of the hearing.

3. The response by counsel may provide assistance to the court, and to the other party or parties, by clarifying the parameters of what is to be decided, particularly, in cases where there is no dispute that, 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.

For example, if counsel for each party responds by providing a similar range of what is considered to be adequate and proper provision, it may result in the resolution of the proceedings without further costs being incurred. Efficiency is particularly important in expeditiously managing the court’s many applications for a family provision order.

4. Obtaining the response, also provides the Court, and the other party, or parties, with the range of the quantum of provision that counsel, particularly counsel with experience in this area (as each counsel appearing in this case was), submits is adequate and proper. The Court is able to then enquire how the estimate of quantum of the provision stated has been reached, and ventilate the features identified that are relied upon in reaching that quantum. In so doing, the Court is able to consider different processes of reasoning and come to properly understand the true force of the submissions on how the case should be decided. In addition, the Court may avoid what may be a wrong method of approach in determining what result should follow from the application of the provisions of the Act to the facts of the case.

5. Whilst the range suggested by counsel does not bind any of the parties, or the Court, it enables the Court to consider whether any preliminary evaluative assessment of the nature and quantum of provision, is within, or outside, the parameters of the professional opinion of experienced counsel. It also enables the Court to consider whether, in reaching any preliminary assessment, there has been some misapplication of facts or of principle. It enables counsel to make submissions that will lead to the correction, or modification, of any preliminary assessment and enable the other party or other parties, during final submissions, to be heard in response to the submission on quantum.

(It is well established that the Court reaching, and even expressing, tentative views, is not an indication of “ineradicable apprehension of pre-judgment”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] – [14]. As counsel may be assisted by hearing the tentative opinions of the trial judge, and being given an opportunity to deal with them, so will the trial judge be assisted by hearing the professional opinion of counsel and being given the opportunity to consider it.)

6. The response to the Court’s question does not require the disclosure of any confidential information. Nor does it provide any information upon what may be, or may have been, the subject of settlement discussions. The Court is not seeking a response based upon a compromise, but rather upon what, in all the circumstances of the case, as then known, is submitted to be the answer to the question which the Court, ultimately, must decide.

7. It is common, for example, in cases in which an approval of a settlement is required, for the Court to obtain the views of counsel who are appearing upon whether the amount of the settlement is, or is not, adequate.

8. Making a response based upon the instructions of the party does not assist the Court because the party is unlikely to be aware of the terms of s 60(2) of the Act and the matters to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order. The party will not have the legal knowledge, expertise and skill, or the capacity for dispassionate assessment, that counsel will, or should, have.

67. On this topic, it seems to me that one should start with recalling that the Legal Profession Uniform Conduct (Barristers) Rules r 23, states that “A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice” and r 4(a), “barristers owe their paramount duty to the administration of justice”.

68. In addition, a barrister “must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently”: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 42.

69. These requirements of professional conduct are not new. In Rondel v Worsley [1969] 1 AC 191 at 227, Lord Reid wrote:

“[Counsel] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests …”

70. Similarly, Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 556-557, regarding counsel being the mere mouthpiece or messenger of the client, said:

“The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary … the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only on the client’s success, but also to the speedy and efficient administration of justice. … In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party's case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.”

71. In Hobson v R [1998] 1 Cr.App.R 32, at 35, Rose L J stated:

"Counsel's job, in the proper performance of his or her duties to the client and to the court, is to exercise judgment and discretion as to the way in which the client's case can best be presented, and to give such advice, if necessary, in forceful terms, as in his, or her, view, the circumstances required. Because a client wishes a particular question to be asked, point to be made, or witness to be called it does not follow that the question must be asked, the point made, or the witness called. Still less does it follow that counsel is in dereliction of duty if he or she fails to ask the question, make the point, or call the witness. It depends on all the circumstances of the particular case, including what has passed by way of advice or otherwise between client and counsel."

72. More recently, in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717, at [30], Pembroke J wrote:

“It needs to be emphasized that the efficient conduct of commercial litigation, indeed all litigation, can only be assisted by restraint, moderation, sensible co-operation and sound judgment by counsel. Indeed, the due administration of justice demands it… The duty of counsel in this regard is part of the wider duty to the court to which I referred in Thomas & Ors v SMP (International) Pty Ltd [2010] NSWSC 822 at paragraphs [19]–[22]. It is also a manifestation of the statutory duty imposed on practitioners by Section 56 of the Civil Procedure Act, 2005 (NSW).”

73. In Rawson v Studholme [2018] NSWSC 1764, Pembroke J revisited the topic, at [55]:

“Responsibility requires the exercise of independent judgment. It should not be overlooked that Section 99 of the Civil Procedure Act permits the Court to disallow the whole or part of the costs in the proceedings between a solicitor and his client. The power to do so arises, among other things, where costs have been incurred without reasonable cause ‘in circumstances for which a legal practitioner is responsible’. If a client is foolish, irrational or unreasonable, the solicitor or barrister, as the case may be, has a duty, where possible, and within reason, to correct the client’s behaviour; to disabuse him or her of their misapprehensions and false expectations; to ensure that the case is limited to the real issues in dispute; and to act consistently with the ‘overriding purpose’ of civil litigation in this Court. What the legal practitioner must not do is simply give the client her head, take her money and roll on – knowing that the ordinary rule in these cases is that the applicant for an order pays the costs.”

74. In Sarant v Sarant [2020] NSWSC 1686, I wrote, at [39] – [41]:

“If the submission was based only on the specific instructions of one, or both, of the Defendants, it is necessary to remind the legal profession that lawyers must be mindful not to act solely as a ‘hired gun’ for a client, but rather must exercise independent judgment. In this regard, what was stated by Sir Igor Judge P, in R v Ulcay [2008] 1 WLR 1209 at 1217 [27]; [2007] EWCA Crim 2379 at [27] is useful to remember:

‘The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say.’”

75. It is inevitable that a legal practitioner will be obliged to advance her, or his, party’s interests, but she, or he, must only do so whilst, simultaneously, observing her, or his, duties to the court and should prefer that overriding duty to any other.

76. It seems to me that no instructions from a party, and no degree of concern for the party’s interests, can override the duty which counsel owes to the Court. At the heart of, and the justification for, this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly, and necessarily, puts in all counsel who appear before it.

77. I did not require Ms Elbourne to not follow her instructions. However, the approach adopted, in my view, was unhelpful as it did not enable me to debate with her, completely, the strengths and weaknesses of her professional opinion, as was able to be done with the other counsel.

78. The approach adopted, naturally, has not impacted upon my own evaluation of what order for provision out of the estate of the deceased ought to be made for Catherine’s maintenance or advancement in life having regard to the facts known to the Court at the time the order is made.

The Rectification Proceedings

79. It is not necessary to detail the evidence given in the rectification proceedings. It is only necessary to note the relevant orders that were entered in those proceedings on 9 March 2021:

“1. Notes the associated proceedings 2019/21207 and 2019/17122.

2. Notes that the parties in the associated proceedings do not oppose the making of these orders and notations in these proceedings.

3. Orders, pursuant to s 27(3) of Succession Act 2006 (NSW), that the period of time for making the application for rectification be extended up to, and including, 31 July 2019, the date of the filing of the Summons.

4. Declares that the Court is satisfied that the Will dated 28 September 2006 (‘the Will’) of Maria Limberger (‘the deceased’) does not carry out her intention because a clerical error was made.

5. Declares, pursuant to s 27(1) of the Succession Act, that the deceased intended that the expression “my children”, in the Will, to refer only to John Steven Limberger and Steven George Limberger and not to any other children of the deceased.

6. Orders, pursuant to s 27(1) of the Act that the Will be rectified by deleting, on page 3 of the will:

(a) The heading Meaning of “Children”; and

(b) Clause 11.6.

7. Orders the Plaintiff, as the executor of the estate of the deceased, to deposit, within 7 days, the original grant of Probate made on 16 July 2018, in the Probate Registry, together with a sealed copy of the rectification orders, marked to the attention of the Senior Deputy Registrar in Probate, to be placed in Court file 2019/215586.

8. Directs that the matter be remitted to the Senior Deputy Registrar in Probate to enable effect to be given to the direction of the court by attaching a sealed copy of the rectification orders to the original grant of Probate.

9. Orders that the Defendants’ costs and disbursements of the proceedings, (including GST), being a specified gross sum instead of assessed costs, agreed in sum of $45,000, be paid out of the estate of the deceased.

10. Notes the agreement of the parties that, in consideration of the settlement, the Plaintiff, within 28 days of the date of these orders and notations, will pay to the first and second Defendants, out of the estate of the deceased, a total sum of $145,000 as follows:

a.   $50,000 to the first Defendant;

b.   $50,000 to the second Defendant; and

c.   $45,000 in satisfaction of the order for costs and disbursements of the first and second Defendants referred to in Paragraph 9 above.

11. Notes the agreement of the parties, that if the settlement sum has not been paid within 28 days of the date of the making of these orders, interest on any unpaid part thereof, shall be paid, calculated at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from the 29^th day after the date of the making of these orders until such date as it has been paid in full.

12. Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

13. Notes that Jack Antoni Stan Kuda, who filed a Submitting Appearance on 17 February 2021, and who is a person who is, or who may be, affected by these orders and notations, consents to these orders and notations being made.”

The Evidence

80. The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come, which inform my findings of fact. Before turning to those facts, it is necessary to refer to some general principles which should be remembered.

81. In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that:

“... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”

82. His Honour’s observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State ofNew South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56].

83. I also refer to Lynch v Cadwallader [2021] EWHC 328 (Ch), at [49] – [50]:

“When assessing the reliability of the six witnesses seen and heard, I have in mind the researches and findings of the cognitive psychologist and expert on human memory Dr Elizabeth Loftus, and the criminal psychologist and researcher at University College London, Dr Julia Shaw. Human memory is not stable. It has a strong propensity to change over time, to provide false accounts and be susceptible to suggestion. In short, memory is malleable. A confident witness may be mistaken. Contemporary documents may provide a valuable guide to the truth: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd's Rep.1, at page 57 col. 1; Goodman v Faber Prest Steel [2013] EWCA Civ 153. In Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) Leggatt J (as he was) explained that the litigation process itself may lead to a witness's memory of events being based on documents and later interpretation rather than the original experience; all remembering of distant events involves reconstructive processes:

‘[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces."[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.’

496. The evidence also shows, in relation to each of Joseph and Catherine, that each has fallen on hard times. Each suffers from a number of disabling medical conditions, at least some of which will require the payment of medical expense, in whole or in part. Neither has a real earning capacity. Neither has been able to accumulate substantial superannuation, or make real provision for his, and her, retirement, respectively. Each has a need for a buffer against contingencies.

497. Furthermore, in this case, the value of the estate is large and is sufficient to make provision for all of the persons to whom the deceased owed some form of testamentary obligation.

498. I have come to the view that each of Joseph and Catherine has established that the deceased’s Will does not make adequate provision for his, and her, proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. (As well, considering some of Catherine’s submissions, a family provision order is not a means of obtaining compensation or assigning blame.)

499. It is not to be forgotten that each is one of only three surviving children of the deceased and, as is clear from the evidence, each shared, at times, with the deceased, a close mother-child relationship. A wise and just parent would recognise a claim in her children to maintenance or advancement in life.

500. Of course, one should not forget the competing claim of the beneficiaries. Making some provision for each of Joseph and Catherine will not, unduly, affect the financial resources, and needs, of each of them. Each of the other beneficiaries will still receive substantial provision.

501. In my view, this is also a case where the general community, by which I mean the Court’s perception of what fair and reasonable members of the community would expect of a wise and just testator, knowing all the circumstances, would expect the deceased to have made provision more than she did for each of Joseph and of Catherine. That conclusion does not alter when the financial resources and needs of each are taken into account.

502. Taking into account all of the matters that I am required to consider, I am satisfied that each of Joseph and Catherine has established that adequate provision for his, and her, maintenance and advancement in life has not been made by the Will of the deceased.

503. As each has established the jurisdictional threshold, the next question is what provision ought to be made for each out of the estate of the deceased. In this regard, the role of the Court is to make “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.

504. I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order and the nature of any such order.

505. This is a more difficult question, in each case, and it involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, as earlier stated, similar considerations as are set out above often arise.

506. Despite what is written above, and even having regard to the size of the available distributable estate, the Court ought not make an order in the amount sought by each of them. To provide such a lump sum, in each case, would exceed what, in my view, is “proper”, in all the circumstances. To do so would also fail to afford enough weight to intentions of the deceased, as expressed in the contents of her Will as well as the competing claims of the beneficiaries. It would also fail to take into account that there is no legal obligation on a parent to maintain an adult child, particularly one who was fully emancipated and financially independent of the deceased for so many years before her death.

507. In determining the nature and quantum of any family provision order, the Court must have regard to, amongst other things, the degree to which the deceased had a duty toward each applicant. Furthermore, the conduct, particularly, of Joseph, and to a lesser extent, Catherine, does require some restraint in the amplitude of the provision that the Court ought to make. The competing needs of Steven and the grandchildren of the deceased, also inhibits the practicality of satisfying all of the so-called needs of each of Joseph and Catherine.

508. My evaluative judgment should be, and has been, “guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made”; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P).

509. I am of the view that it would be an unusual case in which a deceased parent has a duty or an obligation to provide such things as the cost of home cleaning, private health insurance, funeral expenses, and flights to visit family members, for the remainder of the applicant’s life, or for that matter, the costs of an unencumbered home. One would not, necessarily, expect such provision during the lifetime of a parent. The community would not expect such provision on the parent’s death out of her, or his, estate, particularly when one considers the facts of each case.

510. I have not forgotten the contribution, both financial and non-financial, in the case of Steven, and the non-financial contribution by each of John’s children, to the deceased’s estate and the legitimate claim of each, as a chosen object, upon the deceased’s bounty. I have also not forgotten the need to give due regard to “what the testator regarded as superior claims or preferable dispositions” as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ).

511. In my view, whilst the duty toward him is restrained on account of the lengthy period of non-contact, Joseph should receive a lump sum of $475,000 out of the estate of the deceased. Such a lump sum will provide for his maintenance or advancement in life. The lump sum, if he chooses to, can be put, in whole or in part, towards the costs of alternative accommodation, or what is more probable, in my view, be used, in part, to complete some renovations to the shed in which he lives to make it more comfortable, with the balance being used as a capital sum to provide for the exigencies of life.

512. In my view, Catherine should receive, in lieu of the provision made for her in the Will of the deceased, a lump sum of $825,000, out of the estate of the deceased. This amount will enable her to satisfy her share of all of the immediate debts that she and Phillip have; it will provide a lump sum which could be used, with the net proceeds of sale of their present home, for her share of the purchase of alternative accommodation that suits her needs; and will leave a reasonable capital sum for exigencies of life.

513. The total amount of the two lump sum totals $1,300,000. As the provision made for each Plaintiff should be provided for out of the residuary estate, Steven will bear half of the amount ($650,000) and the grandchildren of the deceased, will bear the burden of the other half ($650,000) equally between them. Using the estimated net distributable value of the estate, that will still leave, close to $6,000,000 in the residuary estate for distribution in accordance with the deceased’s Will.

514. In accordance with s 65(3) of the Act, since provision is to be made by payment of two amounts of money, the orders should specify whether interest is payable on the whole or any part of the amounts payable for the period, and, if so, the period during which interest is payable and the rate of the interest.

515. In my view, bearing in mind the amount involved and the nature of the deceased’s estate, a period of 3 months should be allowed to enable the lump sum, in each case, to be paid. If it is not paid within 3 months after the date of the publication of these reasons, interest should be paid on any unpaid part of the lump sum, respectively, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 29th day from the date of the making of these orders until the date of payment in full.

516. I am unable to determine the issue of costs. I shall make directions upon the delivery of these reasons for the parties to provide short minutes of order, and for the further conduct of the proceedings.

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Amendments

19 May 2021 - Coversheet amended.

Decision last updated: 19 May 2021