Lucas v Salman

[2022] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation:

Lucas v Salman [2022] NSWSC 1301

Hearing dates:

1-4 November 2021

Decision date:

28 September 2022

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Plaintiffs succeed in estoppel and are entitled to $211,892.84 plus interest.

Catchwords:

CONTRACTS – Formation – Uncertainty – Intention to contract – Promissory estoppel – Testamentary promise – Detrimental reliance – Remedies

SUCCESSION – Family provision – Claim by stepchild as alleged member of household and dependant for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – Whether eligible person – Whether a member of household – Whether a dependant – Notional estate – Where property of the estate distributed – Joinder of third parties

SUCCESSION – Family provision – Claim by adult child – Application made out of time – Whether ‘sufficient cause’ pursuant to Succession Act 2006 (NSW) s 58(2)

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Ashton v Pratt (No 2) [2012] NSWSC 3

Bassett v Cameron [2021] NSWSC 207

Bovaird v Frost [2009] NSWSC 337

Chisak v Presot [2022] NSWCA 100

Chu v Ngar [2015] NSWSC 1505

Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32; [1958] HCA 2

DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728; [2011] NSWCA 348

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Estate of Late Bryan [2022] NSWSC 965

Grant v Roberts; Smith v Smith; Roberts v Same; Curtis v Same [2019] NSWSC 843

Galaxadis v Galaxadis [2004] NSWCA 111

Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252

Howling v Kristofferson (1992, Supreme Court of NSW, Equity Div, unreported)

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Low v Bouverie [1891] 3 Ch 82

Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146

Maynard v Maynard [2018] NSWSC 1961

McBride v Sandland (1918) 25 CLR 69 at 94; [1918] HCA 32

Moore v Aubusson [2020] NSWSC 1466

Nicholls v Michael Wilson & Partners Pty Ltd [2012] NSWCA 383

Pavlis v Pavlis [2021] NSWSC 1117

Phillips v James [2014] NSWCA 4

Queensland v Masson [2020] HCA 28

King v Adams [2016] NSWSC 1798

Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324

Re Fulop (Dec’d) (1987) 8 NSWLR 679

Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274

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

Sreckovic v Sreckovic [2018] NSWSC 1597

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

Stewart v McDougall (Supreme Court (NSW), Young J, 19 November 1987, unreported)

Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572

Varma v Varma [2010] NSWSC 786

Vukic v Grbin [2006] NSWSC 41

Walton v Walton (1994, Court of Appeal, Civ Div, unreported)

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

Wilson v Arwon Finance Pty Ltd [2020] WASCA 137

Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106

Category:

Principal judgment

Parties:

Paul Lucas (First Plaintiff)
Karl Lucas (Second Plaintiff)
John Salman (First Defendant)
Jodie Daniele Salman (Second Defendant)
Joanne Kylie Lee (Third Defendant)
Paul Michael Salman (Fourth Defendant)

Representation:

Counsel:
JE Armfield (Plaintiffs)
L Ellison SC with S Clemmett (Defendants)

Solicitors:
Maurice Blackburn (Plaintiffs)
Sydney Law Group (Defendants)

File Number(s):

2020/106879

Publication restriction:

No

Judgment

Summary

1. Mr George Salman died on 10 April 2019 at the age of sixty-one. This judgment concerns an agreement that was allegedly made prior to George’s death regarding the division of his assets and the assets of Jill Salman, his wife who predeceased him. It also concerns an application by George’s stepsons for family provision orders under the Succession Act 2006 (NSW) (the Act).

2. Paul and Karl Lucas (the Plaintiffs) are George’s stepsons from his marriage to Jill.

3. The Defendants are:

1. John Salman, who is George’s brother and was the nominated executor of his estate (the First Defendant);

2. Jodie Salman, who was George’s wife at the time of his death (the Second Defendant); and

3. Joanne Lee (née Salman) and Paul Salman, who are George’s biological children from his first marriage (the Third and Fourth Defendants).

4. Without intending any disrespect, in this judgment the parties will be referred to by their given names.

5. By their amended statement of claim filed on 10 November 2020, the Plaintiffs seek:

“1. An order pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b) that the First Defendant be appointed to represent the estate and notional estate of the late George Salman (“the deceased”) and the late Jill Caroline Salman (“Jill”) for the purpose of these proceedings.

2. An order pursuant to s 91 Succession Act 2006 (NSW) that administration in respect of the estate and notional estate of the deceased be granted to the Plaintiffs for the purpose only of permitting their applications for a family provision order to be dealt with.

2A. An order pursuant to s 91 Succession Act 2006 (NSW) that administration in respect of the estate and notional estate of Jill be granted to the Plaintiffs for the purpose only of permitting their applications for a family provision order to be dealt with.

3. A declaration that the late George Salman entered into a valid and enforceable agreement with the Plaintiffs to leave, a quarter of his estate by Will to each of the Plaintiffs and take such steps as may be necessary to cause each of the Plaintiffs to receive a half of his Superannuation entitlements at death and a quarter of the proceeds of any life insurance policy he may have effected in respect of his life.

4. Alternatively a declaration that the deceased is estopped from denying that he would leave, a quarter of his estate by Will to each of the Plaintiffs and take such steps as maybe [sic] necessary to cause each of the Plaintiffs to receive a half of his Superannuation entitlements and a quarter of the proceeds of any life insurance policy he may have effected in respect of his life.

5. A declaration that the Defendants holds [sic] the deceased’s estate on a constructive trust as to one quarter of his estate to each of the Plaintiffs by Will, and to the extent that the following forms part of the deceased’s estate:

a) a half of his Superannuation entitlements at death to each of the Plaintiffs; and

b) a quarter of the proceeds of any life insurance policy he may have effected in respect of his life.

5AA. Orders and directions facilitating the tracing of assets distributed from the deceased’s estate to the First Defendant, Second Defendant, Third Defendant and Fourth Defendant and a declaration that the First Defendant, Second Defendant, Third Defendant and Fourth Defendant hold the assets so traced on trust for the Plaintiffs and consequential orders requiring them to satisfy any obligations to the Plaintiffs.

6. An order that the Defendants administer and distribute the deceased’s estate in accordance with the determinations made by the Court.

…

9. Alternatively, an order pursuant to s 59 of the Succession Act 2006 (NSW) that provision be made for each of the Plaintiffs’ maintenance, education and advancement in life out of the deceased’s estate and/or notional estate including orders extending the time for the Plaintiffs to make an application for a family provision order as against the Second Defendant, Third Defendant and Fourth Defendant and orders designating their property as notional estate of the deceased.

9A. An order pursuant to s 58 of the Succession Act 2006 (NSW) that the time or [sic] the making of the plaintiffs’ [sic] applications for a [sic] family provision orders out of the estate and/or notional estate of Jill being to the extend [sic] and including the date of this amended statement of claim was filed.

9B. Alternatively an order pursuant to s 59 of the Succession Act 2006 (NSW) that provision be made for each of the Plaintiffs’ maintenance, education and advancement in life out of the [sic] Jill’s estate and/or notional estate …”

6. In summary, the Plaintiffs assert four causes of action:

1. Breach of contract;

2. Estoppel;

3. Family provision orders in relation to George’s estate; and

4. Family provision orders in relation to Jill’s estate.

7. The Plaintiffs’ claims in family provision are put as alternatives to their claims in contract and estoppel.

8. For the reasons that follow, the Court has determined the Plaintiffs’ case succeeds in respect of their claim in estoppel because a representation was made by George to the effect that the Plaintiffs would receive his superannuation in exchange for not making a claim against Jill’s estate. The Plaintiffs are entitled to receive the balance of George’s superannuation, being $211,892.84 plus interest.

9. The Plaintiffs’ case fails on each of the other causes of action.

10. In respect of their claim in contract, the claim fails for want of certainty and intention to be legally bound.

11. In respect of the family provision claims, there are no factors warranting the application in relation to George’s estate because, as adult stepchildren with whom, whatever their earlier cordial relations, there was a tenuous relationship by the time of his death, they were not natural objects of testamentary recognition when George created his final will in October 2017.

12. The Plaintiffs’ family provision claims also fail in respect of Jill’s estate because the Court will not grant liberty to bring the claims out of time in circumstances where the Plaintiffs would do no better than what they will receive by reason of the success of their case in estoppel.

13. The Plaintiffs were represented by Mr J E Armfield of Counsel. Mr L Ellison of Senior Counsel appeared with Ms S Clemmett of Counsel for the Defendants.

Facts

14. Many of the facts related immediately below were either uncontroversial or were agreed between the Plaintiffs and the Defendants unless otherwise noted. There were a number of disputed facts on what could be termed minor grievances between the parties which I have chosen not to include as nothing substantive turns on them. The Court finds the facts to be as follows.

15. George and Jill met sometime between 1999 and 2000 and commenced a romantic relationship. They were both recently divorced and had children from their previous marriages.

16. Jill had two sons: Paul and Karl. Paul is currently forty-two years old. Karl is currently thirty-eight years old.

17. George also had two children: a daughter, Joanne, who is currently thirty-eight years old, and a son, coincidentally also named Paul, who is currently thirty-five years old.

18. Where necessary, I have referred to the First Plaintiff as Paul Lucas and the Fourth Defendant as Paul Salman.

19. When George and Jill commenced their relationship, the Plaintiffs lived at home with their mother at a property she owned at Scribbly Gum Crescent, Rouse Hill (the Rouse Hill Property). George later moved into the Rouse Hill Property with Jill and the Plaintiffs. The consensus between the parties appeared to be that this most likely occurred in 2002.

20. George and Jill became engaged. It is unclear when this happened but presumably sometime between 2002 and their marriage in early 2003.

21. On 11 February 2003, shortly prior to their marriage, George and Jill executed a deed of agreement (the Pre-Marital Agreement) which listed their assets and made specific provision for those assets.

22. According to recital D of the Pre-Marital Agreement, George’s assets were:

1. A unit at Virginia Street, Rosehill (the Rosehill Property);

2. A BMW motor vehicle; and

3. A superannuation account with Advance Funds Management.

23. According to recital E of the Pre-Marital Agreement, Jill’s assets were:

1. The Rouse Hill Property;

2. A Mitsubishi motor vehicle;

3. A superannuation account with AMP; and

4. A superannuation account with Colonial First State.

24. The Pre-Marital Agreement also stated:

“3. All property whether real or personal belonging to each party as at the date of this Deed remain their separate property, in particular:

Those listed in Covering Clauses D and E above

4. All property acquired by the parties after marriage by gift, devise, bequest or inheritance, remain the property of the person to whom the property was given, devised, bequeathed or inherited.

5. All property acquired by the parties out of the proceeds of income from property owned at the commencement of the marriage, or attributable to appreciation in value of such property, whether enhancement is due to market conditions or services, skills or efforts, shall be the separate property of the party to whom the income and assets are attributable.”

25. The same day the Pre-Marital Agreement was executed, Jill also executed a will in contemplation of her marriage to George (Jill’s Will). Under Jill’s Will, Paul Lucas was appointed executor and, in the alternative, Karl. Aside from monies to be paid to settle any funeral expenses, debts and administrative costs, Jill’s Will:

1. Bequeathed the residue of her estate to her surviving children and grandchildren in equal shares as tenants in common. If there were no surviving children or grandchildren, the residue was to be given to George; and

2. Granted a life estate to George over the Rouse Hill Property and its contents. Upon George’s death, the Rouse Hill Property was to be sold and the proceeds divided equally among Jill’s surviving children and grandchildren.

26. In April 2003, George and Jill were married.

27. On 1 August 2013, George and Jill purchased an apartment in Chatswood as tenants in common for $397,000 (the Chatswood Property). George held a 99% share in the Chatswood Property and Jill held a 1% share.

28. According to Paul Lucas’ affidavit, he moved out of the Rouse Hill Property sometime in 2004, however, the objective evidence of the Pre-Marital Agreement and Jill’s Will indicate that this in fact occurred prior to George and Jill’s marriage. Karl remained at home with his mother and George until about February 2008.

29. On 11 September 2008, Jill sold the Rouse Hill Property for $510,000.

30. The same day, George and Jill purchased a property at Fowler Road, Illawong (the Illawong Property) for $678,000 to be held by them as joint tenants.

31. In early 2009, Jill was diagnosed with bowel cancer. Approximately six months later, George was also diagnosed with bowel cancer.

32. On 16 September 2014, the Chatswood Property was sold for $517,000.

33. Jill died on 21 February 2016. Her assets at the time of her death were:

1. A half share as joint tenant in the Illawong Property which passed to George by survivorship;

2. Superannuation of $202,000;

3. Estimated assets of $50,000 for an import company Jill operated; and

4. Jewellery of unknown value.

34. Probate was never obtained.

35. On 5 April 2016, George made a will (the 2016 Will) which divided the residue of his estate equally between the Plaintiffs and the Third and Fourth Defendants.

36. In May 2016, George met the Second Defendant on an online dating website. They had their first date on 14 May 2016, which marked the commencement of their relationship.

37. The alleged agreement between the Plaintiffs and George which is the subject of these proceedings is considered in paragraphs [48] and following below.

38. On 16 September 2016, Jill’s superannuation was deposited into George and Jill’s joint account by Matrix Planning Solutions. The total amount transferred was $202,000.

39. On 26 September 2016, $710,279.99 was deposited into George and Jill’s joint bank account. It was attested by John Salman that these funds were paid out of George’s life insurance policy with Matrix Superannuation Trust for which Jill was the beneficiary before her death.

40. On 15 October 2017, George made a new will (the 2017 Will) which divided his estate:

1. A red corvette to John;

2. $100,000 to Jodie; and

3. The residue divided equally between Joanne and Paul Salman.

41. John was the nominated executor under the 2017 Will.

42. The Plaintiffs were not included in the 2017 Will.

43. George swore a statutory declaration also dated 15 October 2017 that included:

“3. On 30 April 2003 I married Jill Caroline Lucas. Jill had two children from a previous marriage being Paul Lucas and Karl Lucas. At the time Jill and I were married, Jill earned approximately $23,000 per annum and minimal superannuation;

4. Throughout our relationship Jill’s business turned over approximately $20,000 to $25,000 per annum. I earnt approximately $240,000 per annum and my wage was applied to the acquisition of our matrimonial home including renovations and the acquisition of an apartment in Chatswood which we sold in approximately 2013 for a profit of about $30,000;

5. Each year I pay some of my income into Jill’s superannuation;

…

17. I do not have any ongoing relationship with either Karl or Paul and I have not provided them with any financial support;

18. Having considered the extent of my estate and my responsibility to provide for my son and daughter, I have determined to leave the majority of my estate to my brother, John Salman, my girlfriend Jodie Elchah and my children Joanne Lee and Paul Salman for the following reasons:

a. My income provided the majority of the wealth that Jill and I acquired;

b. Jodie, John and Paul Salman have always been close to me and have been supportive of me in times of need;

c. Jodie has provided me with support during cancer treatment including taking time off work to take me to chemotherapy and look after me when I am unwell following treatment;

d. Jodie, John, Joanne and Paul Salman are an integral part of my family life;

e. I share a loving relationship with Jodie, John, Joanne and Paul Salman I do not have a loving relationship with Karl and Paul;

f. Karl and Paul have been well provided for throughout their lives through my support and assistance, both monetarily and emotionally;

19. Karl and Paul are not to take any part of my Estate as I no longer have any relationship with them or their families and, through their own choosing, are no longer a part of my life …”

44. On 25 October 2017, George’s superannuation worth $211,892.84 was paid into the joint account he had held with Jill.

45. On 1 December 2018, George and Jodie were married. Neither of the Plaintiffs was invited to attend the wedding. A text message from Karl to George on 25 December 2018 congratulated George on his marriage to Jodie.

46. On 19 February 2019, George made his final will (the Final Will) which was in identical terms to the 2017 Will except it increased the legacy to Jodie from $100,000 to $350,000.

47. On 1 March 2019, George sold the Illawong Property for $1,180,000. After discharging the mortgage and paying other fees, George received $1,060,213.97.

The alleged agreement between the Plaintiffs and George

48. On 9 June 2016, George sent this text message to Paul Lucas:

“I just had a call from our financial advisors and I need to give them yours and Karl’s residential address. They need to send you a letter advising you both that I am the beneficiary of her super payout in case you had an issue with that. If you’re okay with that could you please send me your address. Thanks mate. Let me know about brekky tomorrow.”

49. Also on 9 June 2016, George sent this text message to Karl:

“Hi Karl

Hope all is well.

I just had a call from our financial advisor and I need to give them yours and Paul’s residential address. They need to send you a letter advising you both that I am the beneficiary of her super payout in case you had an issue with that. If you’re ok with that could you please send me your address.

Thanks mate and we’ll talk soon.”

50. Karl, who lived in the United States, did not reply to George’s message. George sent a follow-up text on 13 June 2016 which stated:

“Hi mate

Hope you had a great weekend.

Just a gentle reminder that I need your address.

Thanks

Thank [sic] soon.”

51. A screenshot of text messages between George and Karl show that Karl provided his address to George sometime prior to 24 June 2016.

51. Sometime shortly after 9 June 2016, Paul Lucas alleges that he had breakfast with George at a café in Illawong where this conversation occurred:

[GEORGE:] “If you let me have [Jill’s] Super and not make a claim on [Jill’s] estate, I will ensure that my Will leaves one fourth of my estate to each of you and Karl, which includes the house.

I’ll also repay your mother’s superannuation with my entire superannuation which should cover the interest and you will each get ¼ of my life insurance benefit.

Do you think that’s a fair agreement?”

[PAUL:] “I want to support you in any way I can. Yes, I think it’s a fair agreement and I agree to it on the condition that Karl also agrees to it.

I need to have a conversation with Karl to see if he is okay with this agreement.”

[GEORGE:] “I’ll discuss it with Karl.”

53. Paul and Karl each received a letter from Oasis Fund Management dated 19 July 2016 about Jill’s superannuation account. The letters both stated:

“[T]here was a Binding nomination on the account to pay the death benefit 100% to Mr George Salman, spouse of the late member. This nomination lapsed in July 2013. As such there is no valid beneficiary on the superannuation account …

In the absence of a valid nomination, the Trustee has the discretion to pay the death benefits to the member’s Legal Personal Representative and/or Late member’s dependants in proportions the Trustee determines.

Given that there is a Spouse of the late member as at the date of death, the Trustee proposed to pay the death benefits 100% to Mr George Salman – Spouse of the Late Member …

If you object to this proposed decision, you have 28 days from the date of receipt of this letter in which to lodge a complaint to the Trustee.”

(emphasis in original)

54. Sometime in July 2016, Paul and Karl depose that they had a conversation. Paul’s version of events put the conversation in these terms:

[PAUL:] “I went for breakfast with George and we talked about Mum’s superannuation. If we let George have Mum’s superannuation, George will give us his Superannuation which would include the principal and interest when he passes. Mum has about $200,000 in superannuation and George said he currently has about $250,000. George also said he would ensure that his will leaves us each ¼ of his life insurance payout and ¼ of his estate, including the family house.

George is terminally ill and I don’t expect him to live for many years.

What do you think? I’ll only agree to this if you agree to this.”

[KARL:] “I’ll agree to this only if George agrees to this.”

55. Karl’s version of events put the conversation in near identical terms excluding the mention of George being terminally ill and not expected to live much longer.

56. On 1 August 2016, Karl sought and received advice from a US-based lawyer, Gregory DiCenso in relation to Jill’s estate. Notably, the email correspondence from Karl to Mr DiCenso does not mention any agreement.

57. Sometime in either July or early August, the Plaintiffs approached Peter Murphy, a solicitor at Probate Sydney to obtain legal advice in relation to Jill’s estate. They provided instructions to Mr Murphy by telephone. On 6 August 2016, Mr Murphy emailed a record of his advice to the Plaintiffs, a copy of which was provided to the Court in this proceeding. That advice included these options:

1. Challenging the proposed superannuation distribution to George;

2. Filing a negligence claim against the lawyers who drafted the Pre-Marital Agreement and Jill’s Will; and

3. Family provision orders.

58. Again, the advice did not mention any proposed agreement with George.

59. Paul Lucas gave evidence during cross-examination that he never responded to the letter from Peter Murphy. The reason for this was allegedly because the Plaintiffs “made an agreement with George” (Tcpt, 1 November 2021, p 44(49)).

60. Also in August 2016, Karl claims to have had a conversation with George in which George said these words:

“… If you let me have [Jill’s] super I will make sure you and Paul get my super which is around $250,000 right now. You will also each get ¼ of my life insurance and ¼ of the residue of my estate per my Will, which includes the house, cars, whatever cash is leftover, and my guitar collection. I know you love my guitars.”

61. Karl replied:

“Alright. I will agree to this agreement.

I received the letter from Mum’s Super. Paul and I decided not to challenge it and it is an agreement.”

62. The Plaintiffs then say they spoke to each other and confirmed between them their consent to the purported agreement.

63. In George’s statutory declaration sworn 15 October 2017, he made these statements:

“9. In or about October 2016 I arranged for my financial adviser to send some documents to Karl and Paul for them to make a claim against Jill’s superannuation. Neither Paul nor Karl signed or returned the documents and Jill’s superannuation was paid to me.

10. In or about October 2016, Karl rang me to talk about the superannuation. Karl has not spoken to me or attempted to contact me since that time.”

64. George’s statutory declaration did not mention the alleged conversation with Paul Lucas or any agreement with the Plaintiffs.

The Plaintiffs’ requests for a copy of the Final Will

65. In approximately May 2019, about three weeks after George’s death, Joanne and her husband, Roger, deposed that they had a conversation with Karl in which he said words to this effect:

“So how are we going about splitting up the estate like originally agreed?”

66. Joanne responded:

“Dad did not include you in the final will, you or Paul.”

67. Joanne also stated that the matter would need to be referred to John as the executor of the Final Will.

68. Karl also claimed that Joanne acknowledged the agreement to split George’s estate equally between the Plaintiffs and the Second and Third Defendants, but she and Roger denied this.

69. In mid-May 2019, Karl had a conversation with John Salman in which he requested a copy of the Final Will. Karl and John gave slightly different versions of the conversation in their affidavits, but these facts were common in both accounts:

1. John told Karl that the Plaintiffs were not included in the Final Will in accordance with George’s wishes;

2. As executor, John’s role was to carry out George’s wishes;

3. Jodie Salman would oppose Paul and Karl Lucas receiving a share of George’s estate (or would oppose the diminishment of her own share); and

4. Karl should try to maintain a good relationship with Joanne and Paul Salman.

70. On 21 May 2019, Karl sent an email to John Salman with the subject line “George’s Will”. The substance of the email requested that John send to Karl “a copy of George’s Will, or the contact details of his lawyer”.

71. On or around the following day, an email was sent from John Salman to Karl Lucas which included the details of Melanie Tonazzi of Sydney Law Group, being the solicitors acting for George’s estate. Ms Tonazzi was copied into the email to Karl.

72. On 27 June 2019, Clayton James of Clayton James Solicitors wrote on behalf of the Plaintiffs to Sydney Law Group. That letter stated that the Plaintiffs would be “making a claim on the estate”. The letter also referred to two earlier letters dated 6 and 17 June 2019 “to which I have received no reply”.

73. On 13 August 2019, Clayton James sent a letter on behalf of the Plaintiffs to Sydney Law Group requesting a copy of the Final Will “as creditors of the estate”. The letter noted that if a copy of the Final Will was not received within 7 days then Clayton James would contact John Salman directly.

74. On 20 August 2019, Clayton James sent another letter to Sydney Law Group which stated:

“Both my clients appear to have claims under the Succession Act and further they are creditors of the estate having lent the deceased their mother’s superannuation of approximately $200,000 which was to be repaid to them on the death of the deceased.

Please forward the Will to me within 7 days otherwise I will be obliged to make an application to the NSW Supreme Court for an order to do so. The application would include an order that the applicant’s cost be paid out of the estate or other person.”

75. On 1 November 2019, Paul Lucas emailed Clayton James Solicitors. The email states:

“Hi Clayton, thanks for getting back to us.

I need to point out that we didn’t sign over the superannuation. we [sic] didn’t sign that letter

George wanted the superannuation and asked us to sign the papers from oasis, but we didn’t sign it.

We did not challenge it though because he pleaded to us to release the super to him and that he would later release his super to us and our mothers [sic] property.

He couldn’t access his super because he had medical insurance from the cancer and if he did access his super it would mean terminating the insurance payments which were 10K PA. and [sic] at that stage it was unclear of how much life he had left …”

76. On 17 December 2019, Janine Foo of Maurice Blackburn Lawyers wrote to Ms Tonazzi of Sydney Law Group by email on behalf of the Plaintiffs. That email includes:

“It is the intention of Paul and Karl to lodge a claim upon the Estate in accordance with the Family Provision Legislation under section 59 of the Succession Act (NSW) and we request all future correspondence be forwarded to our attention …

In order to advise Paul and Karl in regards to the strength of their potential family provision claims, please provide us with a copy of:

1. The Deceased’s last Will;

2. The Deceased’s previous Wills that were dated in or around February/March 2016 and September 2016;

3. The inventory of property;

4. A list of the estate’s liabilities; and

5. Any assets that may be considered notional estate, including assets that have been held jointly, transferred, gifted or otherwise disposed of by the Deceased so as not to form part of the estate, within the last three (3) years from the date of death.

Both Paul and Karl have made previous attempts to obtain a copy of the Deceased’s Will …

Please further confirm by return that no assets of the estate will be distributed until such claims brought by Paul and Karl are resolved.”

77. Ms Tonazzi replied to Maurice Blackburn on 18 December 2019:

“We enclose a copy of the Late George Salman’s last Will dated 19 February 2019 and previous Wills dated 15 October 2017 and 5 April 2016.”

78. The email from Ms Tonazzi invited Maurice Blackburn to contact her if they wished to discuss the matter but provided no further information.

79. Maurice Blackburn replied to Ms Tonazzi on the same day, again seeking an inventory of property and a list of the estate’s liabilities and assets. The email also stated: “We now put your client on notice that our clients intend to file a Family Provision Claim”.

80. No response was received by Maurice Blackburn and a follow-up email was sent to Ms Tonazzi on 13 January 2020. Still no response was received and Maurice Blackburn telephoned the office of Ms Tonazzi on 21 January 2020 and left a voice message and wrote a further letter requesting a response on 3 February 2020.

81. On 25 February 2020, Ms Tonazzi emailed a response to Maurice Blackburn which included:

“Amongst other things, we are instructed as follows:

1. Prior to his death, your clients did not spend any time with Mr Salman and did not speak to him after their mother passed away.

2. Your clients did not contact or visit Mr Salman when it was known to them that he was nearing the end of his life, and they did not attend the funeral.

We are instructed that any family claim will be strongly defended and that evidence relating to the conduct of your clients following their mother’s death in 2016, which included theft of jewellery from Mr Salman and their decision to abandon any ongoing relationship with him, will be set out in Affidavits from the family.”

82. Although John was named as executor under the Final Will, probate was never granted.

The Christmas in July party

83. Sometime in July 2016, George hosted a Christmas in July celebration at the Illawong Property (the Christmas in July party). The gathering was attended by George; the Third Defendant and her husband, Roger; the Fourth Defendant; and the First Plaintiff and his then-girlfriend, Kelly. There were also several members of Jill’s family present, including her brother, Bill Ferguson; brother-in-law, Shane Woods; and sister-in-law, Sonia.

84. During the Christmas in July party, George invited members of Jill’s family to go through her belongings. Some of the jewellery belonging to Jill was removed, including Jill’s wedding ring. Paul Lucas’ then-girlfriend, Kelly, had removed the ring and given it to him.

85. George’s statutory declaration affirmed on 15 October 2017 stated that he telephoned Paul Lucas the day after the party and “told him that [George] wanted the ring returned” but Paul had not done so.

86. A few days after the Christmas in July party, John Salman recalled a conversation with George in which the latter said to him that he was “angry” because he had “said Jill’s family could go through Jill’s clothes and stuff, but not to go through her jewellery”.

87. About a month after the Christmas in July party, Joanne recalled a conversation with George in which he expressed that he was “upset” that the jewellery had been taken, especially Jill’s ring. According to Joanne, George had formed the view that Jill’s relatives had engaged in “a premeditated plan to take the ring and Jill’s valuables”. George also stated that he had been trying to call Paul Lucas about Jill’s ring but had not heard back from him and that “[i]f that is how they are going to be they can get stuffed”.

88. On 8 August 2016, George sent this text message to Paul Lucas:

“Aren’t you talking to me Paul?”

89. On the same day, Joanne sent a text message to Paul Lucas which stated:

“Hey Paulie how are you? Dad said he’s been trying to call you… are you ok? How did Mario go on his op? Hope everyone is ok. X”

90. On 16 August, having received no reply, Joanne sent a follow-up message to Paul Lucas:

“Hi Paul. It really upsets me to write this but im [sic] so disappointed in how you’ve handled things with Dad, not even responding to him when you’ve clearly done the wrong thing in taking something from his home without even a conversation and, more importantly, after everything he’s done to support you. The fact that you can’t even respond to me shows that you feel that too. I feel ashamed of where this has got to and don’t think you realise the damage that’s been done.”

91. On 17 August 2016, Paul’s then-girlfriend, Kelly, sent this text message to Joanne:

“Hi Jo Happy Birthday hope you have a good one! Paul mentioned you txt [sic] him, i’ve tried not to get too involved in this but I feel like I need to get this off my chest. I know your dad feels like he’s been hard done by but that was nobody’s intention, we all thought the jewellery was going to [Paul and Karl Lucas] and that’s what Jill had said as well so I think there has just been a misunderstanding with all of that. Aside from that I think you should all keep in mind that everyone is still very much grieving for Jill and everyone deals with grief in their own way. I know you may be disappointed with how Paul has handled the situation but we are a little disappointed and surprised with George’s reaction as well. He may be ready to move on from Jill so soon but Paul and Karl will never be able to replace or fill the void their mother left. So I just wanted you to keep that in mind and maybe just think about it from their side and how they might have felt if the situation was reversed. I know Paul has wanted to reach out to you but wasn’t sure if you would see things from their point of view because obviously you will be defending your Dad. Grief is a funny thing and we are all family so I’m sure this will all be sorted out in good time.”

92. On 19 August 2016, Paul Lucas sent a text message to George which stated:

“hi George, we have been mates for 15 years now and have both had the privilege of knowing and spending time with a beautiful woman which I think you will agree. Its taken me a while to process all this and ive [sic] spoken with roger about everything. It seems we are both disappointed with each other and both hurt for different things and he has told me your point of view, which I understand now. i would like to hold out an olive branch and I hope you can see my point of view. i really don’t want to get into a discussion of he said she said but am hoping we can have a calm and mature discussion and reach a calm and mature solution. i really don’t want to fight … i really just want to grieve my mother in peace

i know you don’t want to fight either and want to grieve too.”

93. There is no evidence that George ever responded to Paul Lucas’ text message.

94. On 25 August 2016, Paul Lucas responded to Joanne’s message at [90] above and they had this exchange:

Paul Lucas: “hi jo, i do apologise for not communicating with you earlier but i can’t help where my head is at. happy birthday for last week too. i do hope you had a nice night. i have text your dad last week and basically held out an olive branch to him and hope to resolve any miscommunications of late. i do hope to talk with you too. is roger still up in sydney? i might see if he is around this afternoon?”

Joanne Lee: “Hi Paul thanks for the msg. i understand everyone is hurting and I really do get it. im [sic] sure all will be well in time. Had a great birthday thanks. Rog actually flies back this arvo. You might catch him if you give him a buzz now. Talk soon x”

Paul Lucas: “ok cool. i really didn’t want to hurt your feelings. it is hard enough when someone you love has cancer then having other issues to deal with. i will probably miss rog as i wouldnt [sic] be able to get to the city until 4 ish unfortunately. yep id [sic] like to clear things up … i dont [sic] want to fight. Xxoo”

Value of George's estate

95. In an affidavit affirmed 13 November 2020, John attested that, at the time of his death, George's estate included:

A. Assets

a) CBA Smart Access account ending xx9812

In the name of George Salman

b) CBA NetBank Saver account ending xx7901

In the name of George Salman

c) 14 Guitars

d) Personal Property

a. Seiko Watch

b. 12 copy watches from Thailand

c. Gold ring previously owned by our mother

d. Gold and ruby ring

e. Silver/metal ring bearing GS

f. Oroton wallet

g. Two egg chairs

h. Brown lounge and outdoor setting

i. TAG Watch

j. Longines Watch

e) 50” Samsung TV

f) OnePath Ltd Life Insurance Policy

Received to solicitors trust account on 5 July 2019

g) Money held as cash

8/3/2019 $200,000 WDN from CBA Smart Access account xx9182 in the names of George Salman and Jodie Salman (‘the joint account’)

h) Money held as cash

8/3/2019 $200,000 WDN from CBA Smart Access account xx9812 in the name of George Salman (‘George’s sole account’)

$76.55

$2.94

$15,500.00 Estimate

Sentimental value

Sentimental value

Sentimental value

Sentimental value

Sentimental value

Nominal value

Nominal value

Nominal value

Sentimental value

Sentimental value

$500.00 Estimate

$40,976.00

$200,000.00

$200,000.00

B. Liabilities

a) CBA Mastercard xx8350

In the name of George Salman – paid

b) Funeral Expenses

c) Tax liability for year ending 30 June 2019

Paid from CBA Smart Access account ending xx9182 on 20 July 2019

d) Tax liability for year ending 30 June 2018

Paid from CBA Smart Access account xx9182 on 31 October 2019

e) Tax invoice issued by accountant for tax returns

$1,699.50

$12,000.00

$40,101.15

$28,949.10

$979.00

C. Possible Notional Estate

a) CBA Smart Access account xx9182

In the names of George and Jodie Salman (‘the joint account’) ($1,048,950.39) which included funds which had been transferred from CBA Smart Access account xx9812 in the sole name of George Salman to the joint account between 25 March 2019 and 9 April 2019

[This included the deceased’s half share as joint tenant as at 10 April 2019]

b) 2012 Porsche Boxter given to Joanne Lee in approx. February 2019 purchased by George in late 2016 or early 2017

c) Maloo Ute given to Paul Salman in approx. February 2019

d) Red Corvette given to John Salman in approx. April 2019

e) 3 guitars given to John Salman as a gift 2 to 3 years prior to death

f) Gift of VW Tourag motor vehicle to Jodie Salman in approx. November 2017

g) Gift of a 2012 Nissan 370Z motor vehicle as a Christmas gift in December 2018

h) 100 fully paid shares in Step One Secured Pty Ltd transferred to Rose Horn Tamasaukas for $100 on 23 August 2016

i) [Life insurance payout from a Death and TPD Insurance policy issued by OnePath Life Ltd]

j) [Superannuation which was withdrawn and paid into the joint account of George and Jill]

$524,475.34

$80,000.00

$40,000.00

$25,000.00

$3,800.00

$47,000.00

$20,000.00

[Nominal value]

$710,279.99

$211,892.84

96. John stated that he had prepared the above information related to the value of George’s estate by reference to George’s bank statements and other documentation where possible.

97. An account statement for George's joint Commonwealth Bank of Australia account, which was held in the names of George and Jodie, was tendered as evidence. The records covered the period from 1 July 2019 to 31 October 2019. As at 31 October 2019, $7,879.33 remained in the joint CBA account in contrast to the $200,000 estimated by John above.

Distributions from George’s estate

98. On 10 April 2019, George passed away. Neither of the Plaintiffs were invited to the funeral, however, text messages between Karl and the Third and Fourth Defendants confirm Paul Lucas' attendance.

99. George began making large withdrawals of money in the months leading up to his death. At the time of his death, he had already made arrangements for the withdrawal of further large sums to be distributed.

Distributions to John

100. It was admitted by John that he received the red corvette from George in about February 2019, prior to his death.

Distributions to Jodie

101. Shortly after George's death, on 7 May 2019, $350,000 was deposited into the personal Commonwealth Bank of Australia account held by Jodie.

102. On 8 and 9 May 2019, Jodie used a portion of these funds to make two payments towards her home loan. Both payments were for $37,500. Jodie made further home loan payments on 10 May 2019 for $80,000 and 11 May 2019 for $7,000.

103. Jodie also received:

1. An Oroton wallet;

2. Two “copy watches” purchased by George in Thailand; and

3. Four guitars.

Distributions to Joanne

104. Prior to George's death, Joanne received:

1. $100,000 in cash; and

2. A Porsche Boxter.

105. The timing of the receipt of these gifts was disputed. Joanne, Paul Salman and Roger had all stated in their affidavits that the money was received in December 2018, but all three changed this to February or March 2019 in subsequent affidavits. I accept that they were most likely received in February or March 2019 (see [166], [172] and [181] below).

106. Following George's death, Joanne received:

1. $62,500 which was transferred to Joanne's personal NAB account by Jodie on 8 May 2019 under the description "George Salman". On the same day, Joanne transferred these funds to her joint account with Roger.

2. $300,000 cash. This money, in addition to the leftover amount of the $100,000 cash received prior to George's death, totalling $377,600, was deposited into Joanne and Roger's joint account on 14 May 2019.

3. $20,488.13 that was deposited into Joanne's bank account on 9 July by Sydney Law Group under the description "Est George Salman". This was half the total amount of George's OnePath Ltd life insurance policy.

4. Three deposits of $1.47, $333.18 and $39,961.22 to Joanne's bank account on 31 October 2019 under the description "George Salman". A bank account statement for the joint Commonwealth Bank account held by George and Jodie showed a corresponding transfer of $39,961.22 on that date.

5. A gold ring.

6. Six guitars.

7. Four “copy watches” purchased by George in Thailand.

Distributions to Paul Salman

107. Prior to George's death, Paul received:

1. $100,000 cash; and

2. A Holden Maloo ute.

108. As with Joanne at [105] above, the timing of these gifts was disputed. However, I accept that they were most likely received in February or March 2019, noting that Joanne, Roger and Paul Salman were all consistent on this point.

109. After George's death, Paul received:

1. $62,500 which was transferred to Paul's bank account by Jodie on 8 May 2019 under the description "George Salman".

2. $300,000 cash. This money, in addition to the leftover amount of the $100,000 cash received prior to George's death, which totalled $394,800, was deposited into Paul's account on 15 May 2019. Paul applied this money towards his home loan, making two transfers to separate home loan accounts with NAB on 3 June 2019. The first payment was $262,100 and the second was $55,800.

3. $20,488.13 that was deposited into Joanne's bank account on 9 July by Sydney Law Group under the description "Est George Salman". This was half the total amount of George's OnePath Ltd life insurance policy.

4. Three deposits of $1.47, $333.18 and $39,961.22 to Paul's bank account on 31 October 2019 under the description "George Salman". A bank account statement for the joint Commonwealth Bank account held by George and Jodie showed a corresponding transfer of $39,961.22 on that date.

5. $20,000 transferred to Paul by Jodie under the description "Car difference". During cross-examination, this figure was stated to represent the difference in value between the Porsche Boxter and Holden Maloo ute that each had been given by George.

6. Two guitars.

7. Seiko watch and several “copy watches” purchased by George in Thailand.

8. Two rings.

9. Samsung television.

The parties and their evidence

110. The matter was heard over four days and conducted entirely via audio visual link. The Plaintiffs were both cross-examined, as were their uncles, Bill Ferguson and Shane Woods. Each of the Defendants were also cross-examined.

Paul Lucas

111. Paul is Jill’s eldest son. He holds a bachelor’s degree in applied finance from Macquarie University and was previously employed for almost a decade in financial services, specifically in derivatives. At the time of hearing, he was employed as support staff at Woolworths, having been laid off during the Covid-19 pandemic. His monthly income is approximately $8,300 after tax depending on how many hours he works per week.

112. Paul has a diagnosis of ulcerative colitis, an inflammatory bowel disease, which has impaired his ability to continue in the financial industry. A letter from his treating physician dated 18 August 2019 described his diagnosis as “very severe”. His diagnosis prevents him from being vaccinated against Covid-19 and he expressed concerns that this may result in him losing his employment at Woolworths if vaccination became mandatory.

113. Paul rents a property in Clovelly and has a son who is aged under a year. As at the date of the hearing, he was not in a relationship with the child’s mother. He pays child support between $1,300 to $1,500 per month.

114. Around the time of the alleged conversation with George in June 2016, Paul attested that they were on good terms, despite allegations that he was bitter about George commencing his relationship with Jodie soon after Jill’s death. Text messages between them were genial in nature and George had invited Paul to his home for Christmas in July celebrations.

115. Paul’s evidence during cross-examination was largely consistent with his affidavit. He maintained that there had been a conversation between him and George at a café in June 2016 in which George had suggested that, in return for allowing George to keep Jill’s superannuation and not making any claim against her estate, he would leave his superannuation and a quarter-share of both his life insurance and estate to Paul and Karl. However, he conceded that there was no contemporaneous evidence beyond his affidavit to support its existence.

116. Paul was challenged during cross-examination about why, if George had made such an offer, the Plaintiffs had approached lawyers to seek advice in August 2016. Paul’s response was that they had been “told to get a second opinion”.

117. Mr Ellison SC also pressed Paul about a lack of any real mention of the agreement by Paul or Karl when corresponding with lawyers. In the email addressed to Clayton James at [75] above, Paul had only referred to George’s superannuation and “our mother’s property”. There was no mention of any life insurance or George’s estate. Paul claimed he “might not have used the right words” in the email. In my view, this demonstrated that he did not have a strong recollection of the exact terms of the alleged agreement.

Karl Lucas

118. Karl is Jill’s youngest son. He holds a bachelor’s degree in business administration and a master’s degree in management from Macquarie University. At the time of the hearing, he was employed in the marketing and sales department at a US-based company. His annual income is approximately $137,000 AUD per annum. He stated that he had been laid off from various jobs as a result of an ulcerative colitis diagnosis, although no evidence was tendered in relation to this.

119. In addition to his paid employment, Karl has amassed a portfolio of 23 properties. He has three properties in Australia at Umina Beach, Dee Why and Woy Woy, and another twenty properties in the United States, including seven purchased in the twelve months immediately preceding the hearing. With the sole exception of a property in Kentucky, all of the US properties are subject to mortgages for which Karl has personal liability.

120. As of 2020, the total value of Karl’s US property portfolio was $1.5 million with total liabilities of $1.4 million. As of October 2021, his liability to the banks was $3.3 million. He met the various loans by a combination of his salary, refinancing and rent collected from tenants. Despite this, he was overleveraged. He had withdrawn $100,000 from his 401K account (being the US equivalent of superannuation) leaving a balance of only $40,000 and would likely need to sell some of his properties to make ends meet.

121. He gave his evidence by audio visual link from his home in Newport Beach, California. At the time cross-examination of Karl commenced, it was approximately 8pm in California.

122. Karl’s evidence was that he lived in the Rouse Hill Property with Jill and George from the ages of eighteen to twenty-four, with a brief interlude when he was studying overseas at Michigan State University. In 2013, Karl moved to the US on a more permanent basis, only returning to Australia occasionally.

123. Like his brother, Karl insisted the agreement existed as they described it. He explained the fact that they had spoken to lawyers in August 2016 as due to a desire to “explore my options” and it was only after having done so that the brothers accepted George’s offer.

124. When asked why the agreement was never put into writing, against the purported recommendations of lawyers he had spoken to, Karl gave the following response (Tcpt, 1 November 2021, p 63(15-18)):

“… if I could go back in time, that’s exactly what I would do. It’s a tricky situation, when you’re dealing with a man who is dying, who you consider your father, to go and put something in writing. It’s not something you do, and I don’t know how else to say that.”

125. Karl’s evidence was beset by several issues, including a tendency to look down instead of into the camera when answering questions. When asked by Mr Ellison SC whether he was reading his answers, he replied that he was not and the reason he was looking down so frequently was because: “I’m kind of looking at myself. Maybe I’m a bit vain”.

126. The most significant issue with Karl’s evidence arose in relation to a very unsatisfactory loan application he had made to the Commonwealth Bank of Australia in March 2021 for the purchase of the property at Woy Woy. The loan document, which he claimed he had signed but the bank had prepared on his behalf, had several errors, such as describing him as a permanent resident when he is in fact an Australian citizen. The most glaring problem was a total absence of any mention of his financial liabilities in the US. His explanation, which reflected very poorly on his candour, was that he felt the Commonwealth Bank hadn’t directly requested that information and so he hadn’t provided it. The Court has reservations about Karl’s credibility as a witness because of this.

Bill Ferguson

127. Bill is the maternal uncle of the Plaintiffs. He is self-employed and runs his own carpet cleaning business.

128. Throughout his cross-examination, Bill maintained his evidence. Despite the lapse in time between the events he recounted and his affidavit, I find that he was a credible witness and am satisfied as to the truthfulness of his evidence.

129. His evidence was that, after Jill’s death, Paul had informed him of the agreement offered by George. In his affidavit, Bill attested that Paul said to him:

“Mum’s superannuation is worth approximately $200,000. George wants to make an agreement with Karl and I to let him have Mum’s superannuation to live out the remainder of his life. In exchange, George will give us his superannuation and a portion of his estate. George’s oncologist said that he doesn’t have long to live, given he is terminally ill with cancer. We’re also in George’s will as ¼ beneficiaries.

“Karl and I are agreeing to this.”

130. Bill described George as a “salesman” who was “good … with his words”. Not trusting George to keep to his promise, Bill confronted George about the agreement at his home during the Christmas in July party. The conversation was recounted by Bill in these terms:

[BILL] “Hey George, what is this about Jill’s superannuation?

“Paul and Karl told me about the agreement you’re making with them in regard to Jill’s superannuation. I want to make sure you honour that agreement if they let you have Jill’s superannuation?”

[GEORGE] “I love those two boys, they are my children. They are like my family. Of course, I’m going to honour that agreement with them. They will be well looked after under my will.”

131. In spite of George’s assurances, Bill encouraged the Plaintiffs to consider challenging the division of Jill’s superannuation and estate, however, the deadline had already passed to do so. The Plaintiffs also told him that, due to what they perceived to be George’s poor financial situation, they were content to make the agreement so that George could “live out his life”.

Shane Woods

132. Shane is the Plaintiffs’ uncle by marriage; his wife is Jill’s sister. Shane resides in Grasmere and is a retired police officer. His evidence was largely directed at supporting Bill’s account, having witnessed the conversation between Bill and George at the Christmas in July party referred to at [130] above.

133. While he was not a direct participant in that conversation, he recollected that it had occurred in the lounge room at George’s house with several people present and that George had spoken in a manner as if he were addressing more than just Bill.

134. During cross-examination, Shane could not recall the exact words used by George at the Christmas in July party when he confirmed the agreement, but he remembered that there had been mention of George’s superannuation, as well as splitting his estate between the Plaintiffs and the Third and Fourth Defendants. His overall impression of George’s response was that he “over-emphasised” his intention to fulfill the agreement, “as if he was trying to sell it to me and whoever was there”.

135. He also attested that, in his experience, it was quite common after Jill’s death for George to express his affection for the Plaintiffs and to state his intention that they “will be well looked after”.

136. As was the case with Bill, I am satisfied that Shane was a credible and reliable witness, and I accept his evidence as truthful.

Jodie Salman

137. Jodie was George’s spouse at the time of his death. She is fifty-seven years old and has three children from a previous relationship. There was no direct evidence of their dependency, if any, upon her.

138. At the time she met George and up until his death, she was employed as a disability support worker. Throughout the final year of George’s life, she reduced her work hours and took an 11-month sabbatical to care for him. Jodie has not returned to her employment as a disability support worker. She is currently employed part time at a bakery where she earns $729 per week after tax, in addition to $850 per week in rental income she receives from a property she owns in Bangor. The property in Bangor was valued between $1.5-$1.6 million at the time of the hearing with a mortgage of approximately $18,000.

139. Aside from this, Jodie lives in rental accommodation in Drummoyne, although she has considered selling her property in Bangor in order to purchase a home in Sydney’s inner west. Her other assets include:

1. Commonwealth Bank shares worth $77,580;

2. IAG shares worth $4,000;

3. Superannuation of $162,423; and

4. Commonwealth Rollover Fund of $44,604.83.

140. Of the $350,000 she received from George’s estate, her evidence was that she had loaned $100,000 to her son and made mortgage repayments in two lots of $37,500.

141. It was clear that in giving her evidence, Jodie had relied on information she received from George which, as was demonstrated by Mr Armfield, was not always entirely truthful.

142. In July 2016, she recalled a conversation with George in which he said to her:

“Jill’s superannuation is around $200,000. I was putting extra money into her super fund and her balance grew a lot in a really short time.”

143. In August 2016, she recalled another conversation with George in which he said to her:

[GEORGE] “I’m thinking of buying a Porsche.”

[JODIE] “Really? Where is the money coming from for that?”

[GEORGE] “I was putting money into an extra superannuation account in Jill’s name. She didn’t get paid much and it worked out well for me tax-wise.”

[JODIE] “How much is the Porsche?”

[GEORGE] “About $110,000 to $120,000.”

144. George purchased the Porsche Boxter on 29 September 2016. It was later given to Joanne as part of the division of his assets. Jill presumed the remaining moneys from Jill’s superannuation were placed in George’s personal account.

145. During cross-examination, Mr Armfield put to Jodie that George had never made any contribution to Jill’s superannuation. Copies of Jill’s superannuation accounts from 2007 until her death in 2013 were tendered as evidence. These showed only two contributions in that time: one for $1,000 and another for $1,500. Neither contribution was made by George. Aside from those small contributions, all of the increase in value of Jill’s superannuation had been accrued as a result of investment earnings. After being shown the documents, Jodie accepted that George had never made any contributions to Jill’s superannuation.

146. Jodie stated in her affidavit that George told her he hadn’t spoken to Paul “since his girlfriend stole Jill’s jewellery at the Christmas in July party”. During cross-examination, Jill was asked about the fact that the incident had been described as theft. It was revealed that she had never been told that Jill’s Will left her estate, including her jewellery, to Paul and Karl. It was put by Mr Armfield, therefore, there had been no theft as the jewellery in question had been conveyed by Kelly to Paul, who was legally entitled to it.

147. The final issue on which Mr Armfield challenged Jodie’s understanding related to her evidence of the relationship between George and the Plaintiffs. Jill’s evidence was that George barely spoke of the Plaintiffs to her except to complain that they had not spoken to him or answered his telephone calls. She attested that in July 2016, George said to her words to the effect of:

“I’m really hurt that Paul and Karl have not spoken to me or returned my calls, especially after all I did for their mother. I don’t understand how they can be so disrespectful. I took such good care of Jill and they just ignore me. They don’t call me or check in on my health. They obviously don’t care about me at all.”

148. During cross-examination, Mr Armfield drew Jodie’s attention to text messages between Paul Lucas and George in June and July 2016. The interactions recorded are genial, with Paul inquiring about George’s health, offering to take George to his medical appointments, and the two of them making plans to meet. Messages between Karl and George in April 2016 were also friendly, with Karl enquiring after George’s health and wishing him a good time on a trip to Thailand.

149. Jodie stated that she had never been made aware of these messages by George (although with respect to the messages between Karl and George, they had not yet commenced their relationship). When pressed by Mr Armfield she conceded that George was having limited contact with the Plaintiffs which she had been unaware of but would not go so far as to say that George had lied to her.

148. The Court accepts that Jodie gave a faithful retelling of what she was told by George, but it is apparent from the objective evidence that George was at best prone to exaggeration. The things George said to Jodie may have been his truth of how he saw the relationship with the Plaintiffs, but that does not make it the objective truth.

149. Jodie acknowledged that she was aware that George was withdrawing large sums of money prior to his death. The day after his death, she had completed a withdrawal of $200,000 from their joint account that had been arranged shortly prior to George’s passing. On George’s instruction, that money was given to John Salman to be distributed to Joanne and Paul Salman.

150. In her affidavit, Jodie attested that “on many occasions before he died” George had said to her words to the effect that the Plaintiffs “are to get nothing when I die” and “are not to get anything from my estate”. However, Jill denied that the withdrawals were part of a scheme by George to diminish his assets in order to prevent the Plaintiffs from receiving anything from his estate. While she had not made enquiries as to why George was making the withdrawals, she assumed he simply wanted to give his assets to his biological children.

151. Jodie gave evidence that she suffered from several medical issues which required treatment, including depression for which she undergoes regular appointments with a psychologist. She also attested to needing a tooth implant, hearing aid and laser treatment to repair her skin following chemotherapy for skin cancer. No evidence was provided in relation to her medical conditions.

John Salman

154. John is George’s younger brother. He was named as the executor in the Final Will but probate was never sought. Nevertheless, John’s evidence was that he was the person who corresponded with the solicitors about the estate on behalf of the family and gave instructions to the solicitors. When invoices were provided, they were sent directly to John by the solicitors and he would forward them to the other family members for payment. He also provided instructions to Jodie for the transfer of estate funds from her joint account with George and managed the distribution of assets to Joanne and Paul Salman.

155. John gave a similar account to Jodie of the relationship between George and the Plaintiffs, stating that George had told him in about May 2016 that after Jill died the Plaintiffs “haven’t bothered contacting me much now that Jill’s gone. I guess they don’t really care how I’m doing”. Text messages between George and the Plaintiffs in 2016 contradict that assessment. Rather, the text messages show that both Plaintiffs were concerned about George’s health and offered him their support. He also recounted George instructing him that the Plaintiffs were not to be invited to his funeral and had no knowledge of any prior arrangement between them.

156. Also like Jodie, John was aware of – and participated in – the distribution of George’s assets prior to his death. He had been provided with about $400,000 cash by George and Jodie prior to George’s death and was instructed to distribute the funds to Joanne and Paul Salman. He was also given a further $200,000 cash after George’s death to distribute to Joanne and Paul Salman.

157. John denied knowledge of any scheme to diminish the estate prior to his death in order to avoid the Plaintiffs making a claim against it.

158. John also stated that was unaware of any claim to be made by the Plaintiffs until about one year after George’s death. While he accepted that he’d had a telephone conversation with Karl about the Final Will in May 2019 (referred to at [69] above), he attested that he only knew that Karl was considering making a claim, but no claim had arisen. Similarly, John said he would have been shown the email from Clayton James dated 27 June 2019 at [72] above, but maintained that he didn’t consider that to be an actual claim. He prevaricated on the issue of whether it put him on notice of any potential claim, possibly having misunderstood the query (Tcpt, 3 November 2021, p 151 (6-9)). In any case, he assumed that he would have instructed the solicitors to provide a copy of George’s Final Will to the Plaintiffs, although he could not recall having done so.

159. The Court has reservations about John’s evidence on this matter. The Plaintiffs had taken steps to retain solicitors who sent numerous emails to Sydney Law Group with a tone of increasing force and urgency. It seems unlikely that John would have been unaware, at the very least, of any potential claim by the Plaintiffs. Nor can a defendant claim ignorance on the basis that the words of formal notice – as adopted by Maurice Blackburn in correspondence of December 2019 – were not adopted. Even if this were the case, John would have been on notice several months earlier than he had claimed (being around April 2020).

Joanne Lee

160. Joanne is George’s oldest child from his first marriage. She is employed as an Internal Communications Lead at a wine company with an estimated annual income of $80,000. Her husband, Roger, is employed as a Head of Affiliate and CRM at an education marketing company. His annual income is $140,000 per annum. Together, Joanne and Roger have two young children who are entirely dependent upon them. They own an unencumbered property as joint tenants in Reservoir, Victoria which is valued at $900,000.

161. Joanne attested that she had a close and loving relationship with her father. She and Roger relocated to Sydney after his bowel cancer diagnosis, ostensibly to be closer to George and Jill. Joanne recalled offering to driver her father to medical appointments and occasionally being told that Paul Lucas was already doing so.

162. Like Jodie, Joanne described George as lamenting that Jill’s jewellery had been removed from the Illawong Property, describing him as saying the Christmas in July party was “a premeditated plan to take the ring and Jill’s valuables” and “Paul hasn’t called me back about the ring. It hasn’t been returned. If that is how they’re going to be they can get stuffed”. She was not pressed during cross-examination about whether she understood that Jill had left her estate, including her jewellery, to the Plaintiffs.

163. Joanne presumed that the incident at the Christmas in July party was the cause of a breakdown in the relationship between George and the Plaintiffs. She recalled a conversation with her father in August 2016, after Paul had sent the text message at [92] above regarding extending an olive branch. According to Joanne, George had said words to the effect: “I’m not gonna reply, it is too little too late. I don’t have any interest in speaking with or seeing Paul. I’ve been dealing with Paul Lucas’ attitude for too many years now. I’ve had enough.”

164. She gave evidence that she had been aware of the 2015 Will that split George’s estate between the four children. However, she was unaware of any purported agreement between her father and the Plaintiffs in relation to Jill’s superannuation. To the extent that her father spoke to her about Jill’s superannuation, in her third and final affidavit she recounted a conversation with George in August 2016 in which he said words to this effect:

“You know I’m listed as the beneficiary of Jill’s superannuation, but the super fund had to send Karl and Paul some forms in case they choose to make a claim on it. I texted Karl about it and asked for his address and as usual he didn’t get back to me. When I finally got through to him, he said he was upset that I had texted him about it instead of talking person [sic]. I can’t believe he’s upset with me about that after I had to chase him for months! Anyways, the date has passed for them to make a claim and they didn’t do anything so it’s going to be paid to me.”

165. Joanne was not pressed about this conversation during cross-examination. Text messages referred to at [51] above show that it was a matter of less than a fortnight between George first contacting Karl about his address and Karl providing it. It was certainly not a period of “months” as described in the exchange. This is not to cast doubt on Joanne’s recollection, but it once again demonstrates that George appears to have been prone to exaggeration.

166. Much of Mr Armfield’s questioning focused on the amount of money that Joanne and Paul Salman had received from their father’s estate. He alleged that the siblings had each received $500,000 total as opposed to $400,000. Joanne disputed this. In her affidavit, she initially claimed to have received $100,000 from George in December 2018, but after viewing George’s bank statements had come to realise that she could only have received that payment in March 2019. This was in addition to a further $100,000 and $200,000 cash she received immediately after George’s death. I accept Joanne’s evidence on this point and find that she only received $400,000 cash from her father’s estate.

167. Joanne did not see anything suspicious in the fact that her father sought to distribute his assets prior to his death. Like Jodie and John, she denied being aware of any attempt by George to diminish his assets in order to deprive the Plaintiffs of potential entitlements. Nor was she aware that the Plaintiffs sought to bring a claim until April 2020. She had conversed with Karl Lucas a few weeks after her father’s passing and was cursorily aware that the Plaintiffs were seeking a copy of the Final Will but had no concrete knowledge. I accept this much of her evidence and find that she would not have known whether a claim was actually being made or intended to be made.

168. Joanne has several medical issues that require ongoing treatment, including a diagnosis for Crohn’s disease and anxiety/depression. Supporting evidence was provided in the form of a mental health treatment plan and colonoscopy report.

Paul Salman

169. Paul is George’s youngest child from his first marriage. He resides in Albion, Victoria in a property he owns which is valued at approximately $550,000 to $600,000. There was no evidence of current mortgage repayments. He was previously employed as a marketing executive with an estimated annual income of $72,000, but he had left this job to seek other opportunities and was unemployed at the time the proceedings were heard.

170. Like Joanne, Paul attested to a close and supportive relationship with his father. He claimed that the Plaintiffs only contacted George “infrequently” after Jill’s death, ceasing contact in mid-2016, and connected the breakdown in relationship to the Christmas in July party. Paul recollected that a few days after the party, George had said to him words to this effect:

“Some of Jill’s jewellery was stolen from the house by Paul’s girlfriend Kelly with the encouragement of Paul’s Auntie, Sonia. They took Jill’s wedding ring. Paul’s refusing to give it back.”

171. Paul was not asked whether he was aware that Jill’s Will had explicitly left her estate, which included her jewellery, to her sons and that Paul and Karl were in fact the true legal owners of her wedding ring.

172. Paul initially claimed to have received $100,000 cash in December 2018 from his father but after viewing George’s bank statements corrected this to March 2019. A further $300,000 cash was given to him in April 2019 after George’s death. As with Joanne, I accept that the total cash amounts received by Paul was $400,000.

173. Paul gave evidence in his affidavit of 1 November 2021 that he suffers from depression which requires regular medication and appointments with a psychiatrist, in addition to a diagnosis for ADHD which also requires regular medication. No supporting medical evidence was provided.

Roger Lee

174. Roger is Joanne’s husband and George’s son-in-law. Documents showed that funds from George’s estate had been transferred into a joint account that he shared with his wife.

175. On the final day of hearing, Mr Armfield raised the prospect that Roger should be joined as a defendant in the proceedings which would require an additional amended Statement of Claim to be filed. However, in light of Mr Ellison SC’s suggestion that the Defendants could determine among themselves how to recover any funds awarded to the Plaintiffs, it was unnecessary to do so. The result is that, at the conclusion of the hearing, the Second Further Amended Statement of Claim remained the relevant pleading.

176. Roger’s evidence was limited but generally corroborative of Joanne and Paul Salman.

177. His evidence suggested that between 2010 and 2016, George and the Plaintiffs had a positive relationship. Paul had occasionally taken Jill and George to medical appointments and Karl had tried to assist them with their diet. Like the other defendants, he believed the relationship had fractured after the Christmas in July party, having heard from Joanne that George was upset due to Jill’s wedding ring being taken by Paul’s then-girlfriend, Kelly. Roger stated in his affidavit that he had telephoned Paul and had this exchange:

[ROGER] “George is really hurt and upset. He expressly asked that no one touch Jill’s jewellery. If you offer to give it back, George will probably say you can keep it anyway.”

[PAUL] “No, it’s really special. I don’t want to fight with George, but I want to keep this.”

178. Roger had a subsequent conversation with George in which he tried to broker peace. George responded to him in words to the effect of:

“Not a chance. I’ve dealt with too many incidents with Paul over the years and I’m fed up with it. I’ve been lied to and stolen from and I have no interest in patching things up.”

179. Like Joanne and Paul Salman, Roger was not asked whether he was aware that the jewellery had formed part of Jill’s estate which she passed to the Plaintiffs in her will.

180. Roger had no knowledge of any agreement between Paul and the Plaintiffs about his estate or Jill’s superannuation, but he was aware that George changed his will sometime in 2017 to exclude them because, in George’s words, “they haven’t bothered to keep in touch”.

181. Roger’s evidence reflected that of Joanne and Paul Salman in respect of the distribution of cash. He stated that they made a simple error when they had previously stated that each sibling received $100,000 in December 2018 and the money had in fact been received in March 2019. I accept that the payments were received in March 2019.

Submissions

Plaintiffs’ submissions

182. The submissions for the Plaintiffs may be summarised as:

1. The Court should accept that the conversations as alleged had occurred. While conversations with deceased persons should be treated with caution, that did not equate to suspicion. In this matter, the evidence of the Plaintiffs was corroborated by Bill Ferguson and Shane Woods.

2. The substance of the agreement as put by the Plaintiffs should also be accepted: a promise to exchange Jill’s superannuation ($202,358) for George’s superannuation ($211,892) plus George’s life insurance and a quarter of George’s estate. I put to Mr Armfield in the course of argument that it was very strange to offer more than $1 million in exchange for $200,000 and that it made more sense for any offer to have been for the Plaintiffs to receive George’s superannuation plus a quarter share of George’s estate. Mr Armfield responded that the probable size of Jill’s contribution to the purchase price of the Illawong Property also needed to be taken into account as it would have formed part of her notional estate, and in those circumstances it was reasonable for George to have offered such an amount to the Plaintiffs.

3. The relationship between George and the Plaintiffs strengthened the likelihood that the agreement occurred. The Plaintiffs had known George for many years and had grown up around him. There was a close relationship until at least 2016, with the Plaintiffs offering care and support to George. The terms of the 2015 Will, which bequeathed a quarter share in the residue of George’s estate each to the Plaintiffs, also increased the likelihood that George had made the representations alleged by the Plaintiffs.

4. The Plaintiffs may have had other motives in abandoning their legal claims, such as a desire to help George. However, given that they had sought legal advice, it was more likely that they had been offered a premium of some kind for doing so.

5. It was possible that all of the parties were truthful, but they had in fact been “led down the garden path” by George, who had given them all differing accounts.

6. CONTRACT:

1. There were two reasons the Court could accept that there was an intention to create legally binding relations:

1. The value of the assets subject to the agreement was very large; and

2. The fact that the Plaintiffs sought legal advice. Notwithstanding that they never put the agreement in writing (as was suggested to them) the fact that they sought the advice was of itself sufficient to show that it was a serious transaction.

7. ESTOPPEL:

1. If the Court accepted the existence of the agreement, then this was sufficient to establish representations under the doctrine of equitable estoppel irrespective of whether there was any intention to create legally binding obligations.

2. There was sufficient evidence to establish that George had made representations in respect of Jill’s superannuation and a quarter share of his estate. It was the Plaintiffs’ primary case that the representation about George’s estate was express, but it was open to the Court to determine that it was an implied representation.

3. The Plaintiffs had relied on the representations to their detriment because:

1. They had lost a valuable right by electing not to challenge the distribution of Jill’s superannuation; and

2. They had lost the ability to bring a family provision claim against Jill’s estate within the statutory timeframe.

4. Had they pursued their claims in relation to Jill’s superannuation and estate in 2016, it was not fanciful to conclude that they may have received a positive outcome, especially in light of the fact that there would have been considerable notional estate in the Illawong Property and the fact that George was nearing the end of his life, so his need was diminished.

5. If estoppel was established, the appropriate remedy would be fulfillment of the expectation – that is, payment of the whole of George’s superannuation plus a quarter of the estate. This made sense in circumstances where there had been a lost opportunity which was difficult to quantify. The only reason not to do so would be because it would be disproportionate, but this wasn’t so.

8. JOHN AS EXECUTOR DE SON TORT:

1. The Plaintiffs alleged that liability for breach of contract or breach of trust should be borne by John Salman. This was possible as he had acted as an executor de son tort. Mr Armfield referred to Howling v Kristofferson (1992, Supreme Court of NSW, Equity Div, unreported) at 4-11 per Cohen J for the proposition that a person who acts in the guise of an executor attracts all the relevant liabilities as if probate had been granted.

2. If the Court was satisfied that John Salman was executor de son tort, then he would be entitled to indemnity from the estate and to recover the monies distributed: Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 53-54; [1958] HCA 2 per Kitto J (Brown).

3. Alternative to the immediately preceding submission, the estate could be subject to a kind of tracing exercise, more akin to restitution, to restore the balance of the funds to the Plaintiffs: Brown at 54; Heperu Pty Ltd v Belle (2009) 76 NSWLR 230 at [125]-[163]; [2009] NSWCA 252 (per Allsop P).

9. FAMILY PROVISION:

1. Each Plaintiff sought an amount of $300,000 in family provision. This would be adequate because neither was particularly well off, though Karl’s circumstances were probably better than Paul’s given that he owned no property and had a young child to support. Additionally, both Plaintiffs had ongoing medical needs that may require future assistance.

“[T]here must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “the circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts”.

Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It described what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”

206. In cases where an oral contract is asserted, the existence and precise terms of the contract are to be determined as matters of fact, taking into consideration the surrounding circumstances and any post contractual conduct by the parties: King v Adams [2016] NSWSC 1798 at [65]-[66] per Sackar J and cited with approval by Ward CJ in Eq in Moore v Aubusson at [322].

207. Agreements between close relatives may give rise to a “rebuttable presumption of fact” that the parties “do not intend their agreements to be contracts, relying rather on “family ties of mutual trust and affection”: Bovaird v Frost [2009] NSWSC 337 at [49] per Brereton J (as his Honour then was); Moore v Aubusson at [267].

Promissory estoppel

208. I respectfully adopt what fell from Brereton J (as his Honour then was) in Vukic in relation to equitable estoppel (citations omitted):

“[27] Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the … It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation … Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated … The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion …”

209. The requisite elements to establish an estoppel were elucidated by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7. Those elements, which were relied upon by the parties in these proceedings, are well known and do not require repetition.

210. Promissory estoppel operates as “a restraint on the enforcement of rights, and thus, unlike proprietary estoppel it must be negative in substance”: Saleh v Romanous (2010) 79 NSWLR 453 per Handley AJA at [74], Sackville AJA and Giles JA agreeing; [2010] NSWCA 274.

211. The language of a representation in promissory estoppel must be “clear” and “unequivocal” but need not be express: Legione v Hateley (1983) 152 CLR 406 at 435-5; 438-9 (Mason and Deane JJ); [1983] HCA 11. As stated by Tobias JA (Giles and Hodgson JJA agreeing) in Galaxadis v Galaxadis [2004] NSWCA 111:

“[93] … even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance.”

(emphasis in original)

212. The weight of authority favours a conclusion that the requirements of certainty are “more stringent” in promissory estoppel than in proprietary estoppel: Bassett v Cameron [2021] NSWSC 207 per Ward CJ in Eq at [524] (Bassett v Cameron). Further, where a promise is testamentary in nature, the reasonableness of the plaintiff’s reliance should be considered in light of the inherent revocability of wills: Bassett v Cameron at [524]; Moore v Aubusson at [398]. Courts must pay close scrutiny to alleged representations by deceased persons and should look for corroboration as the deceased cannot contest the issue: Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] per Brereton J (as his Honour then was).

213. In considering the applicability of equitable compensation (albeit in the context of proprietary estoppel), Meagher JA (Macfarlan JA agreeing) in DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) said:

“[86]  There does not appear to be any governing principle that requires that the relief to be granted is that which is the minimum necessary to do justice: Giumelli v Giumelli at [40]–[48]; Delaforce v Simpson-Cook at [3], [6], [59]. Furthermore, to the extent that there is a prima facie entitlement to relief on the basis that the adopted expectation is made good, that entitlement must be weighed against any injustice to the estopped party in doing so and any detriment suffered by the party acting upon the induced expectation: Plimmer v Mayor of Wellington at 714; Giumelli v Giumelli at [42].

[87]  In some circumstances it may not be unconscionable to allow the estopped party to depart from the expectation without making it good. A relevant but not determinative consideration is that the claimed remedy bears no relationship to the detriment suffered: Delaforce v Simpson-Cook at [4], [62], [67], [68]. Sledmore v Dalby (1996) 72 P&CR 196 (especially at 204, 209) was a case where relief was refused because of benefits received before the estopped party sought to repudiate the expectation.”

214. In DHJPM, the NSW Court of Appeal upheld a decision not to grant equitable compensation in circumstances where “there was no detriment and there was some injustice to the estopped party” having to pay a shortfall in rent without the benefit of occupying the premises (at [89] per Meagher JA, Macfarlan JA agreeing).

215. In Wilson v Arwon Finance Pty Ltd [2020] WASCA 137, Quinlan CJ and Vaughan JA drew these conclusions with respect to remedies for promissory estoppel:

“[100]  When established, equitable estoppel gives rise to an equity (ie an entitlement or obligation of which a court of equity will take cognisance) in favour of the claimant claiming the benefit of the estoppel. The remedy required to satisfy the equity varies according to the circumstances of the case. Depending on the circumstances of the case the equity may, or may not, call for the enforcement of the assumption or expectation on which it is founded. Relief is accorded only to the extent of the minimum content of the assumed state of affairs from which it would be unjust or unconscionable for the charged party to depart — ie the minimum equity needed to avoid the relevant detriment.

[101]  Thus consideration ought to be given to the extent to which it is unconscionable for the charged party to depart from the assumption or expectation that he or she has created. To act conscionably a charged party need not necessarily make good the assumption or expectation induced by his or her representation or conduct. Good conscience does not, in all circumstances, preclude a departure from an assumed state of affairs — it may be, for example, that the detriment sustained by the claimant may be adequately compensated by other means. The court, as a court of conscience, goes no further than is necessary to prevent the unconscionable conduct. In that respect Waltons Stores (Interstate) Ltd v Maher has been interpreted as a case in which:

a majority of [the High Court] concluded that equitable estoppel entitled a party only to that relief which was necessary to prevent unconscionable conduct and to do justice between the parties.

[102]  Plainly, however, there are cases where good conscience requires that a charged party be held to the assumption or expectation induced by his or her representation or conduct. In those cases the relief may sometimes reflect the value of the promise inherent in the representation or conduct rather than require the performance of the promise or non-departure from the assumption or expectation.”

(footnotes omitted)

Family provision

216. The Act relevantly provides:

“59   When family provision order may be made

(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 …”

217. Eligible persons as referred to in s 59(1)(a) includes:

“57   Eligible persons

(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 …

(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 …”

218. In Chisak v Presot [2022] NSWCA 100, White JA (Macfarlan and Gleeson JJA agreeing) made these observations in relation to the scope of dependency under s 57(1)(e):

“[46] [I]t is not correct that dependency is limited to dependency on the provision of financial or other material assistance (Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347) …

[47] The phrase “partly dependent” means at least “more than minimally” and perhaps “significantly”, although not “substantially” (McKenzie v Baddeley [1991] NSWCA 197 at [4]). In Alexander v Jansson [2010] NSWCA 176 Brereton J (as his Honour then was), with whose reasons Basten JA and Handley AJA agreed, accepted that “partly dependent” involved more than “minimal” dependence (at [13]).

…

[52] The issue was later addressed by this court in Spata v Turino (2018) 95 NSWLR 706; [2018] NSWCA 17. Payne JA, with whom Macfarlan JA agreed, held (at [71]-[72]) that a restrictive meaning of “dependent” in s 57(1)(e) should not be adopted, given that it is a remedial and beneficial provision. A narrow meaning was not warranted, given the provision provides for dependence to be assessed “at any particular time” and the applicant need show only that he or she was partly dependent on the deceased.

[53] Payne JA rejected the approach of earlier decisions of Young J (as his Honour then was) in Clinch v Swift (Supreme Court, Young J, 13 October 1986, unreported) and Shaw v Lambert (Supreme Court, Young J, 9 October 1987, unreported) that where dependence is assessed based on the provision of accommodation, the accommodation must be provided directly to the applicant, because of the relationship between the applicant and the deceased, and not indirectly as where the accommodation is provided to a child and the child’s spouse or child (at [73]-[78]).

[54] Sackville AJA, with whose reasons Macfarlan JA also agreed, said (at [139]):

“[139] In short, as Payne JA points out, a finding of dependency is merely the first step in determining whether the circumstances give rise to a statutory obligation in the deceased person to make provisions out of his or her estate for the proper maintenance, education or advancement in life of the claimant. To construe s 57(1)(e)(i) as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate the two quite distinct preconditions for the making of a family provision order. A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.””

219. To establish that there are ‘factors warranting’ an application pursuant to s 59(1)(b) it must be demonstrated that the applicant is the “natural object of the deceased’s testamentary bounty” (per Ward CJ in Eq, as her Honour then was, at [476] in Estate of Late Bryan [2022] NSWSC 965 (Estate of Late Bryan) referring to McLelland J in Re Fulop (Dec’d) (1987) 8 NSWLR 679 at 681). Regard may be had to community expectations in reaching a conclusion: Estate of Late Bryan at [476].

220. Applications for family provision orders must be made no later than 12 months after the death of the deceased unless “sufficient cause” is shown or the parties give their consent: the Act s 58(2).

221. Pembroke J stated in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 (Madden-Smith v Madden):

“[24] The short time period imposed by s 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say the case will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring “sufficient cause” may well apply.”

222. Hallen J set out the applicable criteria to show sufficient cause in s 58(2) in Sreckovic v Sreckovic [2018] NSWSC 1597 at [88] (Sreckovic) (citing Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90]):

“The decision of the court to extend time is a discretionary decision. Other than ‘sufficient cause being shown’, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]–[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]–[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant’s claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of ‘unconscionable conduct’ referred to above was ‘directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security’. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].”

223. These principles were adopted by Ward CJ in Eq (as her Honour then was) in Grant v Roberts; Smith v Smith; Roberts v Same; Curtis v Same [2019] NSWSC 843 at [184].

223. In Madden-Smith v Madden, Pembroke J also considered the relevance of prejudice in cases where an estate had already been distributed:

“[27] I should add one final note on the question of prejudice. The primary enquiry when considering whether to extend time pursuant to s 58(2) is as to the reasons why the claimant has failed to comply with the time limit. Prejudice is not by itself the relevant touchstone but it is a factor. The statutory discretion in unfettered and no guidance is given as to its exercise. However, the fact that an estate has been distributed will often be significant. As Sir Robert Megarry VC explained in Re Salmon … there is a real difference between depriving beneficiaries of the prospect of receiving a benefit under the will and taking money off them which they have already received and begun to enjoy.

[28] In this case, there happens to be prejudice. That is because the estate has been distributed, monies have been spent and the defendant has been left in a position of having limited, indeed insufficient, readily available funds to meet the claim and the parties’ costs. That is not to say that the fact of the distribution of the estate will always operate as a bar to an extension of time. In a given case, it may well not. For example, a deserving daughter living in a Buddhist monastery and out of touch with the world possibly may have a powerful case for an extension of time notwithstanding the distribution of the estate. It would be unwise however to speculate too far on the myriad facts that may arise.”

225. It is only if eligibility and sufficient cause pursuant to ss 57(1) and 58(2) are established that the question of adequate provision under s 59 arises: Sreckovic at [106] and cited in Maynard v Maynard [2018] NSWSC 1961 at [139] per Robb J.

226. An earlier will may be evidence that the deceased recognised, at the time of the earlier will, a testamentary duty towards the applicant: Sreckovic at [55]. While proper regard should be given to the freedom of testamentary disposition, it is not determinative of whether adequate provision has been made. As stated by Young J in Stewart v McDougall (Supreme Court (NSW), Young J, 19 November 1987, unrep):

“It is important to state what the Family Provision Act permits a court to do and what it does not permit a court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish, with one exception. The exception is that a person must fulfill any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish.

Thus in these cases one does not ask is the will fair, one does not ask why did the testatrix not divide her property equally; one does not as a judge say how would I have made a will had I been the testatrix; what must be asked is whether the testatrix by her will failed in her moral duty to those who had a claim on her. Even if the court comes to the view that the question should be answered in the affirmative, the court still does not remake the will, but only alters it to the extent that proper and adequate provision is made to the eligible person in respect of whom the testatrix failed in her moral duty.”

227. Those remarks were endorsed by the NSW Court of Appeal in Steinmetz v Shannon (2019) 99 NSWLR 687 per White JA at [53] and Brereton JA at [96]; [2019] NSWCA 114. Brereton JA went on to observe:

“[97] The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide.”

Consideration

228. Each of the Plaintiffs’ claims was put in the alternative.

Consideration – Contract

229. For the reasons that follow, the Court finds that the Plaintiffs have failed to prove that there was a contract between them and George.

230. The primary reason for the Court’s finding is that the terms upon which the contract was allegedly predicated lacked certainty. For the reasons already set out at [188] above, I do not accept that George’s death benefit ever formed part of any agreement or discussion between George and the Plaintiffs. Nor do I accept that there was any alleged agreement that the Plaintiffs would receive a quarter share each of George’s estate. The corroborating evidence – to which the Court should advert in cases involving testamentary promises (see [212] above per Brereton J) – does not establish that any agreement was put in such precise terms. Rather, the evidence of Bill Ferguson and Shane Woods is couched in terms that are vague, referring to taking care of the Plaintiffs but without specificity as to how this was to occur. While absolute precision is not required in cases of oral contracts, the Court is reluctant to ascribe greater certainty to the promises of the deceased without corroboration.

231. While the Court is satisfied there was a representation with respect to superannuation, the Court cannot sever the superannuation from whatever any agreement as a whole may have been in order to find a contract.

232. If that is wrong, a contract still does not arise because the objective circumstances do not establish an intention to create legal relations between the parties. Karl skirted around the issue of the agreement with George and Paul never spoke to George about it again after the Christmas in July party. The Plaintiffs’ reluctance to raise the issue and to put it in writing, in spite of legal advice to do so, favours a conclusion that whatever it was they thought they had agreed, they were operating on the basis of trust between close relations. That they had sought legal advice in respect of a claim against Jill’s estate does not, in the Court’s view, overcome this fact. In any event, there is no evidence the Plaintiffs informed a solicitor about the agreement in 2016 (see [186] above as to the Court’s finding). In those circumstances, the Plaintiffs have not established that an intention to be bound existed between them.

233. Had the other elements of agreement been fulfilled then there could be no doubt that the Plaintiffs provided good consideration by giving up their opportunity to bring proceedings in relation to Jill’s superannuation and estate. However, without more, the fact that the Plaintiffs relinquished a potential claim in circumstances where there was no legally binding outcome established is insufficient.

Consideration – Estoppel

234. Having accepted that there was a representation by George to the Plaintiffs in relation to Jill’s superannuation, I am satisfied that the Plaintiffs have made out an estoppel.

235. It is clear from the Court’s factual findings, set out at [185] to [189] above, that representations were made by George to the effect that he would give the Plaintiffs his superannuation in exchange for not making a claim against Jill’s superannuation and estate and the Court accepts this. I accept that the Plaintiffs relied upon this representation.

236. Although the Court is also satisfied that representations were made in respect of the Plaintiffs inheriting a portion of George’s estate, those representations do not establish an entitlement to a quarter share of George’s estate. The balance of authority establishes a higher threshold for certainty in cases of promissory estoppel than in proprietary estoppel (see, for example, Ward CJ in Eq in Moore v Aubusson at [399]). The words “looked after” are too uncertain to establish a promissory estoppel in this case. That language is not “clear” and “unequivocal” in the sense required by Legione v Hateley at 435-5 (Mason J). Did it mean George would make further provision for the Plaintiffs in his will beyond the value of his superannuation? If so, how much were they entitled to?

237. I accept the submission of Mr Ellison SC at [183(4)(e)] above that the relevant detriment suffered by the Plaintiffs was the loss of opportunity to pursue a claim against Jill’s superannuation and/or estate. Equally, I accept Mr Armfield’s submission at [182(7)(e)] that the proper remedy in this case would be to fulfill George’s promise. This is preferable in circumstances where it would not be disproportionate to the requirements of equity. The result is that the Plaintiffs are entitled to $211,892.84 together with interest at Court rates from the time of George’s death. The Defendants are to reach agreement between them as to how those funds are to be paid and shall be afforded an opportunity to do so.

Consideration – Family provision – George’s estate

238. The Court finds that Paul and Karl Lucas are not able to bring claims in family provision against George’s estate. Although they are eligible persons within the meaning of s 57(1)(e), there are no factors warranting the application pursuant to s 59(1)(b).

239. The Court accepts that Paul and Karl were both part of George’s household. Paul resided in the Rouse Hill Property for less than 12 months in about 2002 and Karl for about six years until 2008. Equally, both Plaintiffs were dependent upon George. Given the relative size of George’s income as compared to Jill’s, the Court infers that George would have contributed to the household expenses and likely would have been responsible for some further financial support. I accept Mr Armfield’s submission that George’s statutory declaration at [182(9)(c)] above evidences some measure of financial and emotional support. Despite the fact that the statement was given in a different context, it is clear that it was made in contemplation of any potential claims brought by the Plaintiffs against his estate.

240. For the purpose of being “dependent” under s 57 of the Act it is irrelevant whether each Plaintiff was a member of George’s household and a dependent for only a short duration. However, I accept Mr Ellison SC’s submission that the length of time Paul and Karl were residents in the same household and dependent upon George is relevant to whether the Court shall exercise its discretion to allow the claim to be brought. This consideration militates against Paul’s claim, in particular. In relation to both of them, in any event, the Court will not exercise that discretion because there are no factors warranting the application.

241. At the time the Final Will was made, the Plaintiffs were not natural objects of testamentary recognition. They were the adult stepchildren of the deceased. It had been many years since either of the Plaintiffs had been dependent upon George and that dependency was relatively minimal as both Plaintiffs were already into young adulthood when they met. Furthermore, George had natural children (Joanne and Paul Salman) and a wife (Jodie) all of whom had moral claims on George that outweighed those of the Plaintiffs.

242. The fact of the Plaintiffs’ inclusion in the 2015 Will cannot of itself establish factors warranting the application. There may be many cases in which a testator, at an earlier time, chooses to recognise a beneficiary who is an adult relation – for example, a cousin, niece or nephew – but without more this cannot grant the individual any entitlement to be recognised in subsequent wills. Although the Plaintiffs were George’s stepchildren, by the time George made the Final Will there had been a significant distancing between them. George had not spoken to Paul since July 2016 and had only sporadic contact with Karl. In all of these circumstances, community expectations would not consider the Plaintiffs to be the natural objects of George’s will, especially when compared to the Second, Third and Fourth Defendants.

243. Even if this is wrong, the competing claims of Jodie, Joanne and Paul Salman would mean the Plaintiffs would be no better off under family provision claim as under their estoppel claim. The same result would arise because, in my respectful view, if the discretion to order provision were engaged, community standards would require only that George’s estate fulfill the proven representation on which he had reneged to bequeath his superannuation to the Plaintiffs.

Consideration – Family Provision – Jill’s estate

244. Jill died in 2016 and the Plaintiffs did not commence a claim within 12 months of her death as required by the Act. The Court was asked to determine whether there was sufficient cause to permit the Plaintiffs to bring such a claim out of time.

245. It is not disputed that the Plaintiffs, as Jill’s children, are both eligible persons to bring a claim in family provision in respect of Jill’s estate: the Act s 57(1)(c). It was also undisputed that they were aware of her passing and their right to bring a claim in family provision shortly after her death. The Plaintiffs made a conscious decision, having received legal advice, not to pursue such claims.

246. As with the Court’s conclusion in respect of George’s estate at [243] above, I am not satisfied, given George’s claim as surviving spouse, that that the Plaintiffs would have received a materially better outcome against Jill’s estate (and certainly not the $300,000 each contended for on their behalf) than the outcome they have received in estoppel, even allowing for the fact that they were her children. It would therefore be inappropriate, as a matter of discretion, to allow the Plaintiffs to bring their claim out of time.

247. There is no prejudice against the Plaintiffs in doing so because they have successfully exercised an alternative cause of action in estoppel against George’s estate. Had there been no alternative cause of action available to the Plaintiffs, such prejudice may have arisen and sufficient cause could exist to bring the claim approximately six years after Jill’s death. But that is not what has occurred in this case. Where a litigant has alternative relief available to them in which they have succeeded, and the Court is satisfied that they would not receive a materially better result, there is no proper basis to exercise the Court’s discretion to permit a claim to be brought for family provision.

Conclusion

248. The Plaintiffs have succeeded in their estoppel claim and are entitled to receive an amount equal to the balance of George’s superannuation, being $211,892.84 with interest from the date of his death.

249. The Defendants will be given an opportunity to determine among themselves how the moneys are to be paid.

250. The parties will be given an opportunity to attempt to agree upon orders to give effect to these reasons and, if they are able to do so, as to costs.

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Decision last updated: 28 September 2022