MacAlpine v MacAlpine

[2020] NSWSC 824

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

MacAlpine v MacAlpine [2020] NSWSC 824

Hearing dates:

19, 20 December 2019; 29 April 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Equity - Family Provision List

Before:

Parker J

Decision:

See [347]-[349]

Catchwords:

SUCCESSION – family provision – proper provision for maintenance education and advancement – claim by estranged adult child with net assets of $4.3 million conducting farming enterprise – “financial needs” – alleged misappropriation by deceased of part of claimant’s inheritance when he was a child – alleged forbearance by claimant in settlement of claim against deceased’s husband’s estate – alleged reconciliation between claimant and deceased – negative judgment of claimant in deceased’s will – no entitlement to provision

Legislation Cited:

Limitation Act 1969 (NSW), ss 11, 47, 47(1)(e), 52

Minors (Property and Contracts) Act 1970 (NSW), s 8

Succession Act2006 (NSW), Pt 3, ss 57(1)(c), 58, 59(2), 59(1)(c), 60(1)(d)

Cases Cited:

Bective v Federal Commissioner of Taxation (1932) 47 CLR 417

Bird v Bird [2013] NSWCA 262

Briginshaw v Briginshaw (1938) 60 CLR 336

Delaforce v Simpson-Cook (2010) 78 NSWLR 483

Hannaford v Hannaford [2010] NSWSC 911

Olsen v Olsen [2019] NSWCA 278

Sgro v Thompson [2017] NSWCA 326

Slack v Rogan (2013) 85 NSWLR 253

Steinmetz v Shannon (2019) 99 NSWLR 687

Vigolo v Bostin (2005) 221 CLR 191

Category:

Principal judgment

Parties:

Stuart MacAlpine (Plaintiff)
Grant MacAlpine (Defendant)

Representation:

Counsel:
GE Underwood (Plaintiff)
B Skinner (Defendant)

Solicitors:
Cole & Butler Solicitors (Plaintiff)
Cheney Suthers Lawyers (Defendant)

File Number(s):

2019/116888

Publication restriction:

Nil

Judgment

1. This is an application for a family provision order out of the estate of the late Anita Amy (known as “Nita”) MacAlpine who died in August 2018 at the age of 94. The application is made under Part 3 of the Succession Act2006 (NSW). Except where otherwise stated, statutory references in this judgment are to that Act. For convenience, and without intending any disrespect, I will refer to the members of the deceased’s family by their given names.

2. The deceased married Laurence MacAlpine in the late 1940s or early 1950s. He predeceased her, dying in 1991. They had two sons, Stuart MacAlpine and Grant MacAlpine.

3. The deceased’s last will was made in July 2009. By that will, she appointed Grant as her executor. Apart from some relatively small legacies to her friends and to her grandchildren, she left her whole estate to Grant.

4. The deceased left nothing to Stuart. But as I will describe later in this judgment, Stuart had earlier received significant assets, including a large rural property, by way of inheritance and gift from his family.

5. Grant obtained probate of his mother’s will in November 2018, about three months after her death. For the purposes of the application for probate, the deceased’s estate was valued at approximately $2.5 million. Much of the estate consisted of listed company shares and its value has probably declined as a result of the financial impact of the Covid-19 emergency. Nevertheless it is still substantial.

Issues for determination

6. Stuart is the plaintiff in these proceedings and Grant is the defendant. The proceedings were commenced in April 2019, within the time allowed under the Act: s 58.

7. The proceedings came on for trial in December last year. Two days were allocated for the trial, but this proved to be only enough time to complete the evidence. The parties agreed to provide written submissions. These were not completed until 24 April. On 29 April there was a further hearing at which some further evidence, referred to in the written submissions, was tendered. The parties did not ask to present any further submissions, oral or written.

8. The parties agree that Stuart is an eligible person: see s 57(1)(c). The first issue for determination is whether the deceased’s will made adequate provision for the “proper maintenance, education and advancement” of Stuart: s 59(1)(c). If so, the second issue is what provision “ought to have been made” for him: s 59(2).

Summary and analysis of evidence

Chronology of key events

9. The deceased was born Anita Amy Field in February 1925. She was the only child of Elwin Monteith Field and Amy Jessie Annie Field. She appears to have had a background in grazing or farming on both sides of her family.

10. The deceased’s father owned a large grazing property (10,812 acres; 4,375 hectares) in north-western New South Wales called “Bogan Downs”. When the deceased’s father died, the property passed to her mother. It had a frontage to the Bogan River and lay to the east of the township of Coolabah. Coolabah is about 80 kilometres north-west of Nyngan.

11. In about 1949 the deceased acquired for herself a grazing property near Coolabah called “Tubba Villa”. The deceased purchased Tubba Villa from an aunt or cousin who had previously owned it. The property was similar in size to Bogan Downs. Part of its northern boundary formed part of the southern boundary of Bogan Downs.

12. The deceased’s husband, Laurence, was born in September 1912 and was thus twelve years her senior. He had some land of his own. This property was called “Double Tanks”. It became their family home.

13. Double Tanks was made up of a number of smaller parcels of land which were accumulated by Laurence over time. The property, while still located in the Coolabah area, was about 40 kilometres away from Bogan Downs and Tubba Villa.

14. The evidence does not identify precisely when the deceased married Laurence. Stuart was born in June 1953 and Grant was born in October 1955.

15. In December 1958 the deceased’s mother died. By her will she appointed the deceased as her executor and trustee. She left Bogan Downs, together with 500 head of sheep to be selected by her trustee, to Stuart, her grandson. The rest of her estate she left to the deceased.

16. Bogan Downs was a Western Lands leasehold, not a freehold, property. At the time Stuart inherited it, he was five years old. His grandmother’s will directed that the property and the sheep should be transferred to him as soon as he should be permitted to hold them. Until then, the deceased as trustee was directed to carry on the grazing operations at Bogan Downs and accrue any profits for Stuart’s benefit.

17. Following her mother’s death, the deceased was registered with the Crown Lands Department as the owner of Bogan Downs, as executrix of her mother’s will. The evidence is scant, but it would seem that the deceased and Laurence managed Bogan Downs alongside Tubba Villa and Double Tanks while Stuart and Grant were growing up. In evidence, Stuart described all three properties being used for running sheep. Both Bogan Downs and Tubba Villa had a carrying capacity of about 1,500 ewes. Double Tanks was not breeding country and was used to run about 800 wethers.

18. Double Tanks is not far from Coolabah itself. Coolabah was, and is, only a small village. It had a public school, which catered to primary school students. There was also a pub, and a shop which doubled as the post office.

19. Both Stuart and Grant attended the local primary school at Coolabah, and then went away to boarding school. Stuart left school in 1970 at the age of 17 and returned to live with his parents at Coolabah. Grant followed suit in the following year (when he would have been 16). Neither pursued tertiary studies. According to Stuart, this was because their parents wanted them to work on the properties.

20. In April 1971 the deceased obtained approval from the Crown Lands Department for the transfer of Bogan Downs to Stuart in accordance with his grandmother’s will. According to Stuart, the property was transferred into his name about six months later, in October. (Stuart had turned 18 in the meantime, in June: the transfer had become possible because of the statutory reduction in the age of majority from 21 to 18 which took effect on 1 July 1971: Minors (Property and Contracts) Act 1970 (NSW), s 8).

21. In 1969, the deceased and her husband had established a company called Tubba Villa Pty Limited (“TVPL”). The company had four shares, divided into two classes of two shares each. Laurence and the deceased each owned one of the shares in one class (referred to by Stuart as “preference” shares and in the inventory of Laurence’s assets for the purposes of probate as class “A” shares). Stuart and Grant each held one of the shares in the other class, which carried the right to the proceeds of the company’s assets on liquidation. It seems that each of the four family members was a director of TVPL. The deceased was the managing director and had a casting vote.

22. Neither the company’s articles of association nor any historical search of it were in evidence. But it appears that the company was established to allow Laurence and the deceased, as the founders, to build up assets from which they could benefit during their lifetimes but which would ultimately be shared by Stuart and Grant. That was a recognised method of reducing death and estate duties at the time: see Weinstock v Beck [2011] NSWCA 228 at [106] where Handley AJA described it as a “Robertson scheme”, after Robertson v Federal Commissioner of Taxation (1952) 86 CLR 463.

23. When Stuart and Grant returned from school, they were brought into the family grazing business. The four family members formed what Stuart described as a “livestock partnership”. Its assets included some plant and equipment as well as livestock. It seems that the business was operated on all three properties. According to Stuart, despite the transfer to him of Bogan Downs, his parents continued to manage the property.

24. The livestock partnership was not governed by any formal partnership agreement. No financial records of the business were in evidence. The relationship between the operations of the business and those of TVPL is obscure. There were no financial records of TVPL in evidence either.

25. According to Stuart, he took over running Bogan Downs himself in 1976. But the livestock partnership appears to have continued. Whether the partnership operations continued on Bogan Downs after 1976 is not clear. It does seem that at some point Stuart (and Grant) had stock of their own, outside the partnership.

26. In May 1977 the family purchased a property called “Salisbury” at Girilambone, which is east-south-east of Coolabah. Salisbury was about 130 to 140 kilometres from Bogan Downs and Tubba Villa. It had, and has, the advantage over the Coolabah properties of a secure water supply. The property was purchased in the name of TVPL.

27. Part of the cost of purchasing Salisbury was funded with a bank loan. According to Stuart, money was also borrowed from the deceased’s aunt (her late mother’s sister). According to Stuart, the purchase price was about $280,000. The evidence does not identify how much of that was borrowed.

28. Three months after the purchase of Salisbury, in August 1977, the deceased gifted Tubba Villa to Grant. This meant that Grant too now owned his own grazing property. There was a house on Tubba Villa, and at some point Stuart and Grant moved there from Double Tanks.

29. In May 1982, Stuart married his wife Patricia Anne (also known as “Trish”) MacAlpine. After the marriage, she moved in with him and Grant at Tubba Villa.

30. Soon afterwards, in August 1982, the family purchased another property at Girilambone, adjoining Salisbury, called Booka. The purchase price was about $345,000. Laurence and the deceased were the purchasers, but Stuart provided $65,000 to his father to assist in the purchase and paid one-quarter of the legal bill for the conveyancing. Grant also contributed $65,000 (and, presumably, one quarter of the conveyancing cost).

31. In December 1983 Stuart and Patricia’s first child, Amanda Aimee MacAlpine, was born. They had a second daughter, Marissa Anne MacAlpine, in August 1985.

32. In about 1986 Stuart and Grant bought another property at Coolabah together. This property was called “Mount Pleasant” and adjoined Bogan Downs. According to Grant, the property cost $170,000. Laurence provided $40,000 to Stuart to help meet his share of the purchase and the deceased provided $40,000 to Grant to help him with his share.

33. At around the same time, the family bought a Cessna aircraft. Stuart and Grant both learned to fly in it, and used it (mainly) to fly between Girilambone and Coolabah. According to Stuart, the aircraft was bought for $40,000 by the deceased, Grant and himself.

34. In April 1986, Grant married his wife Cathy. A year or so beforehand Grant had moved to Salisbury, and that became his and Cathy’s matrimonial home. In April 1987, Stuart and Patricia had a son, Andrew Stuart MacAlpine. Later that year, in October, Grant and Cathy also had a son, William.

35. In April 1987, the deceased gifted her half share in Booka to Laurence. This meant that he was now the owner of both Double Tanks and Booka. Stuart owned Bogan Downs and Grant owned Tubba Villa. Between them they owned Mount Pleasant. TVPL owned Salisbury.

36. Stuart and Grant both gave evidence that they had a very happy upbringing with their parents. Stuart and Grant were also themselves the best of friends. Grant was a groomsman at Stuart’s wedding and, as already noted, after the wedding he continued to share a house with Patricia and Stuart.

37. Sadly this did not last. Tensions arose between Stuart on the one hand, and Grant and Laurence on the other. The tensions appear to have centred on Salisbury and Booka. These were the properties in family, rather than individual, ownership. Stuart felt that they were being run in Grant’s interests, and he was being “pushed out”. According to Stuart, his father told him that Grant would manage the properties for the family, without his (Stuart’s) involvement. At some point there was an altercation between Stuart and Grant at Booka, which led to punches being thrown and a scuffle.

38. By 1988 both sides were communicating with each other through solicitors. Stuart’s solicitor was Mr Tony Chalker, of Cobar. Mr Don Iverach of Flashman & Co, a firm in Nyngan, was retained by Laurence on behalf of TVPL, in effect representing the rest of the family. Flashmans seem to have been the family’s long-standing solicitors.

39. A letter from Flashmans to Mr Chalker from September 1988 is in evidence. The letter referred to an offer (the terms of which were not recorded) having been made by Grant to Stuart and rejected. It continued:

If there is no chance of the position being otherwise reviewed by your client it would appear now necessary for the Company to organise the subdivision and disposal of “Salisbury” between Mr Grant MacAlpine and your client.

It is wishful thinking to contemplate an ordinary and co-operative continuation of the family partnership having regard to the strained relationship now existing between the parties. The system previously used in sharing the assets and the profits will not now work. To put it simply, your client will have to go his own way.

Obviously there will be an appropriate division of stock and plant (subject to liabilities) and adjustment for values. We need to have more instructions before we can present a detailed submission to you but in the meantime, your client can start considering his approach to the matter.

40. The letter continued, referring to TVPL:

Whether or not improvements are carried out on the assets held by the Company is a matter for decision by the directors, and the shareholders, as such, have no say. The managing director continues to be Mrs. MacAlpine as has been the case since incorporation. There was an Extraordinary meeting of members held last July and the time was abridged but unfortunately not all members were able to sign the acceptance of the abridgment and therefore it is necessary for the Extraordinary meeting to be held again. We enclose a copy of our letter to your client information him of the time, date and place of this meeting.

41. Then the letter stated:

It seems more than reasonable to expect your client to talk to his brother and parents as to the arrangements to give effect to the winding up of the business. It is going to be an expensive exercise if communications are limited to the passage of correspondence and telephone calls between us.

42. Finally, the letter returned to the division of Salisbury:

We enclose a copy of a submission relative to the subdivision of “Salisbury”. The area proposed to be transferred to your client is shown as the eastern section and is coloured with blue edging. The present debt to the State Bank will need to be shared and probably secured with replacement mortgages.

43. Meanwhile, Stuart had been building a home for himself and his family at Bogan Downs (the property had not previously had a homestead on it). The building work was completed, and Stuart and his family moved there, in 1989.

44. In evidence is a note of a meeting between the parties in August 1989. The meeting took place at the offices of Flashmans. Laurence, the deceased, Stuart and Grant attended. Also present were Mr Chalker and Mr Iverach.

45. The note records that Laurence opened the meeting by referring to the circumstances in which TVPL had been formed. He said that the company now had limited use and suggested that it be wound up and its assets distributed. A lengthy discussion followed, which resulted in the parties agreeing an eight point plan. This involved, among other things:

1. the subdivision of Salisbury “as had been previously suggested by” Grant, with him to take the western half (which apparently included the buildings) and for Stuart to take the eastern half (with the right to use the woolshed for a period of three years, and with Grant making an adjustment in Stuart’s favour to reflect the value of the improvements on his half);

2. Grant selling Tubba Villa to Stuart “at valuation”;

3. Stuart and Grant selling Mount Pleasant and dividing the proceeds between them;

4. Laurence making “some adjustment to Stuart re Booka with the amount in question to be decided but based on the cash contribution by Stuart when the property was purchased originally”;

5. the cattle running on Tubba Villa being mustered and split up;

6. the rest of TVPL’s assets being sold and the proceeds distributed.

   46. Later the jointly owned stock and plant were divided up and the partnership ceased to operate. This seems to have happened in 1990. But the other elements of the plan were not implemented.

   47. According to Stuart, Laurence’s health had been ailing since the late 1980s. In April 1990, Laurence (then aged 77) made what proved to be his last will. He named the deceased and Grant as his executors. He left Booka to Grant, subject to a life estate in favour of the deceased. The residue of his estate (including Double Tanks) he left to the deceased. He left Stuart nothing. Less than a year later, in March 1991, he died.

   48. Following Laurence’s death, the deceased lived alone at Double Tanks. She helped out at the Coolabah school. She also frequented the Coolabah shop. The deceased was friendly with Joan Gaffey who, together with her husband, Bill Gaffey, had run the shop and the postal service for decades. The deceased would also visit the Coolabah pub.

   49. In January 1992 there was an incident which resulted in the final breach between Stuart and Grant. Stuart wanted to agist some of his sheep at Salisbury and took the view that he was entitled to do so because he owned a half share with Grant in TVPL. Grant’s position was that he and his mother had decided on behalf of TVPL that they did not wish Stuart to do so.

   50. Grant’s position would appear to have been legally correct, although it may not have accorded with previous practice of the parties. Be that as it may, Stuart and Patricia brought some of his sheep to Salisbury and attempted to unload them. This was resisted by Grant and his father-in-law David Wass. There was a fracas involving Grant, Mr Wass, Stuart and Patricia. According to Stuart, Patricia was hit by both Mr Wass and Grant, and suffered a fractured ankle and bruising. The police became involved, but do not appear to have taken any formal action against any of the parties involved.

   51. Following this incident, the deceased and Grant took steps to have TVPL wound up. Salisbury was sold at auction and purchased by Grant for $1,080,000. Stuart ultimately received the sum of $480,000 from the liquidation. Stuart later bought out Grant’s share of Mount Pleasant (which had unsuccessfully been offered at auction with a reserve price of $90,000) for $20,000.

   52. By this point, ownership of the family assets had been completely separated. The deceased continued to live at Double Tanks, which she now owned as a result of inheriting it from Laurence. Stuart was living at Bogan Downs, which he owned. He also owned Mount Pleasant. Grant was living at Salisbury, which he owned. He also owned Tubba Villa and (subject to his mother’s life interest) Booka. Grant managed all of his mother’s financial affairs, both concerning Double Tanks and her properties in Nyngan (see [76] below). Stuart was not involved.

   53. In 1994 Stuart commenced proceedings against his mother and Grant, as executors of Laurence’s estate, in this Court. The proceedings centred on the $65,000 provided by Stuart to his father at the time that Booka was acquired. On Stuart’s behalf it was alleged that the informal family partnership extended to the ownership of Booka. He claimed a one-quarter interest in the property. His claim was eventually settled at mediation in June 1995. This was followed by a deed of release executed in August. Under the settlement, he was paid the sum of $55,000 out of the estate.

   54. This was the last financial dealing between Stuart and the other members of his family. At this point Stuart was aged 42 and Grant was almost 40. Both of them continued to live on their respective properties (Stuart on Bogan Downs, and Grant about 140 kilometres away on Salisbury).

   55. At the time of the settlement the deceased was aged 70. She continued to live at Double Tanks for almost another twenty years. For the second half of that period a local, Nicholis Bruce Davroen, acted as her carer. Initially he stayed in one of the cottages on Double Tanks and cared for her on a part-time basis. From about 2009 he moved to the main house and cared for her on a full-time basis.

   56. In November 2014 Grant made arrangements for the deceased, who was then aged 89, to move to an aged care facility in Nyngan. Her physical and mental capabilities gradually declined after her admission. Exercising a power of attorney given to him by the deceased, Grant sold Double Tanks on her behalf in November 2017. The sale price was $655,000. The deceased died on 4 August 2018.

Witnesses

57. Stuart and Patricia were the principal witnesses in the case for the plaintiff. Both gave lengthy affidavits and were cross-examined in some detail. I will make some general comments on their credibility as witnesses below.

58. Stuart’s daughters, Amanda and Marissa, also gave evidence in support of his case. So too did Mr Davroen, Mrs Gaffey, and two other locals who knew the deceased. The principal focus of the evidence from these six witnesses was the relationship between the deceased on the one hand and Stuart and his family on the other. I will refer to their evidence in more detail when addressing the deceased’s relationship with Stuart, below.

59. Grant gave evidence in support of the defence case. He too was cross-examined at some length and I will make some general comments on his credit below.

60. Stuart’s credibility: In giving evidence in these proceedings, Stuart was required to try to remember events going back almost fifty years. Most if not all of Stuart’s evidence about financial and legal matters appear to have been based on his unaided recollection, if not reconstruction. One would not expect such evidence would necessarily be reliable at the best of times, and the limited documentary evidence which is available is generally inconclusive at best.

61. This in itself would be enough to engender reservations. But there are some specific features of Stuart’s evidence which require mention as well.

62. Stuart has had his share of worries with his own family. In particular, his son Andrew, has spinal muscular atrophy. This is a congenital condition which was diagnosed in late 1988, about eighteen months after Andrew was born. One of his sisters also has the condition but much more mildly. Andrew and his sister also both have Attention Deficit Disorder (“ADD”).

63. When Andrew was diagnosed with spinal muscular atrophy, Stuart and Patricia were advised that the condition was a progressive one and that Andrew would probably die before school age. Andrew has confounded this expectation; although he is in a wheelchair he lives and works in Sydney and is now engaged to be married. Nonetheless his condition must remain an ever-present worry for his parents.

64. Stuart has also had difficulties with his mental health. In evidence were notes of an admission to hospital in March 1997 where he was diagnosed as having “acute depression”. Also in evidence is a report prepared in March 2000 by Dr Peter Snowdon, a consultant psychiatrist. The report was apparently prepared for the purposes of a claim for a disablement benefit under an insurance policy.

65. Dr Snowdon reported that Stuart had been himself diagnosed with ADD nine years before (that is, in 1991). On diagnosis, Stuart apparently realised that his condition had been with him since he was a child. Dr Snowdon reported that Stuart had been placed on medication for eight years beforehand (that is, in late 1991 or early 1992) and had stayed on medication for two years.

66. Dr Snowdon thought, as a result of his interview with Stuart and Patricia, that Stuart leaned heavily on Patricia. He thought Stuart’s memory and comprehension were “severely impaired” and at a later point described him as “almost cognitively impaired”. Dr Snowdon attributed this to a severe learning disability going back to childhood. He also recorded that at times the pain from Stuart’s back condition (described below) interfered with his ability to recall things.

67. This description was consistent with what I observed of Stuart when he gave evidence before me. It was difficult to get him to answer in a clear and direct fashion the questions which he was asked. When he did respond to questions about specific events, his answers were often vague or he could not remember. He stated that his memory was “not that good” and that appeared to be an understatement. He said that Patricia looks after financial matters for the two of them.

68. I have also rejected some key allegations in Stuart’s case on a factual level. These include Stuart’s allegation that the deceased cheated him out of parts of his inheritance, and that the rift between Stuart and his family was caused, at least in part, by sectarianism towards Patricia. I refer below to various specific instances where I found Stuart’s evidence unreliable or unsatisfactory.

69. Overshadowing all of Stuart’s evidence in this case is his attitude towards Grant. Stuart now apparently sees the rift which arose between himself and the rest of his family, and his exclusion from his parents’ wills, as having been orchestrated by Grant in a successful attempt to increase his share of the family inheritance. As I describe in more detail below, this interpretation of events appears to have been fuelled by personal resentment, and, perhaps, jealousy.

70. I suspect that this attitude has coloured Stuart’s evidence. Because of this, and the other factors to which I have referred, I have treated his evidence with caution.

71. Patricia’s credibility: In contrast to Stuart, Patricia presented as confident and knowledgeable. She appeared to relish the cut and thrust of cross-examination. But she did not emerge unscathed. I refer below to her admission to making false statements in support of bursary applications for Andrew. And in rejecting key factual allegations in Stuart’s case I have also rejected aspects of her evidence in support of those allegations.

72. I also got the impression that Patricia shares Stuart’s attitude towards Grant, and that there was no love lost between her and the deceased after the rift arose. Overall I have also treated her evidence with caution.

73. Grant’s credibility: Like the evidence of Stuart and Patricia, Grant’s evidence was given long after most of the relevant events had taken place and he had a direct interest in the result of the case. But nothing happened in the course of the trial to make me think that he was not doing his best to present an objective picture. Within its limitations I see no reason not to accept his evidence.

The deceased’s estate and its origins

74. The deceased appears to have been independently wealthy. She bought Tubba Villa for herself when she was only about 24. There is no evidence about what the cost of buying and stocking Tubba Villa was, or about what other family wealth the deceased may have had.

75. Laurence does not appear to have come from a wealthy family. Stuart’s evidence referred to Laurence having met the deceased when delivering mail, and to there having been some opposition from the deceased’s family to the marriage. But by the time Stuart was born in 1953 Laurence was forty-one years old and would have been working for more than twenty years. Presumably that was how Laurence had financed the purchase and stocking of Double Tanks.

76. The deceased was 33 in 1958 when she inherited the residue of her mother’s estate. That residue included two properties in Nyngan. One was a house. The other was a shopfront used to operate a café business called the “Niagara Café”. There is no direct evidence of other assets, but for reasons given below it may have included some listed shares, including shares in the Broken Hill Proprietary Company Limited (“BHP”) and the brewing company Tooth & Co. It may also have included stock beyond the 500 head of sheep left to Stuart.

77. The evidence does not clearly identify what assets were put into TVPL when it was established in 1969. A letter written by Laurence, to which I refer in more detail below, states that he started TVPL with “shares I had accumulated over the years”. On the other hand, Grant in his affidavit stated (without objection, although he would not have had personal knowledge of this) that TVPL was established with contributions from both his father and his mother, “in the form of shares, cash and commercial real estate”. In his letter, Laurence stated that over ninety per cent of the money required to purchase Salisbury in 1977 had been put in originally by himself and the deceased. On balance it seems that the deceased did make a capital contribution to TVPL when it was established, but the nature and value of that contribution is unknown.

78. When Laurence and the deceased purchased Booka in 1982, they paid for the whole of the purchase price apart from $130,000 contributed by Stuart and Grant. That means Laurence and the deceased would have paid $215,000 towards the purchase. The evidence does not identify who contributed what.

79. There was uncontested evidence from Grant that his parents gave substantial gifts over the years to Stuart and himself. Laurence gifted Stuart and Grant $20,000 each in 1970 and a further $10,000 each in October 1977. There was also the $40,000 provided to each of Stuart and Grant by their parents for the purchase of Mount Pleasant. Grant also said that his mother gave her share of the Cessna aircraft (see [33] above) to Stuart in 1990. Grant said the value of that share was around $20,000.

80. Grant also said that in 1989 his parents relinquished their share of what he described as “agistment proceeds” from Bogan Downs, Tubba Villa and Mount Pleasant in favour of Stuart and himself. He said this amount was approximately $61,600, and was shared equally between them.

81. The phrase “agistment proceeds” would normally refer to income received from third parties for grazing the crops on the land. That is not easy to understand in circumstances where Bogan Downs was already owned by Stuart and Tubba Villa by Grant, and Mount Pleasant by the two of them. It may be that Grant was intending to refer to profits from the livestock partnership. The question was not explored in the evidence but Stuart did not dispute what Grant said.

82. The deceased was 66 years old when Laurence died in 1991 and she inherited his estate (apart from Grant’s remainder interest in Booka). The inventory sworn for probate is in evidence. As well as Double Tanks (estimated value of $140,000) the estate included listed shares worth approximately $160,000 (including 9,400 shares in BHP and 6,254 shares in National Australia Bank (“NAB”)). It also included 1,400 head of sheep and 60 head of cattle and various motor vehicles and items of plant.

83. There is no evidence as to the deceased’s earnings over her lifetime. She owned Tubba Villa from about 1949 until 1977, and a half share of Booka from 1982 to 1987. She appears to have participated on her own account in the family grazing operations, first with Laurence, and then as a member of the livestock partnership from when it was established in about 1972 until its dissolution in 1990. As well as profits from grazing activities, she would have received income from the properties in Nyngan and dividends from her listed shares. She may also have received dividends from TVPL.

84. The inventory of property which accompanied the grant of probate for the deceased’s will included:

1. cash at bank ($870,000);

2. the two properties in Nyngan ($260,000);

3. listed shares ($1,310,000);

4. a 2017 Toyota Hilux ($40,000); and

5. jewellery and personal effects ($20,000).

   85. The listed shares included 25,835 shares in BHP and 25,835 shares in South32 Limited, which was demerged from BHP in 2015 (total value $950,000) and 5,695 shares in NAB ($190,000). It will be recalled that the deceased inherited 9,400 shares in BHP and 6,254 shares in NAB from Laurence. She must therefore have had, or later acquired, at least 16,000 shares in BHP of her own.

   86. On the valuations given in the inventory of property, at the time probate was granted the gross value of the estate was $2.5 million. After the grant of probate the estate’s shares remained unrealised and their value continued to rise. Updating figures show that by December 2019, when the hearing began, the net value of the estate was estimated at $2.45 million. This was after Grant as executor had incurred or paid out an estimated $170,000 in administration expenses (including the costs of these proceedings) and had distributed the legacies under the will, totalling $144,000.

   87. Since December 2019, however, the Covid-19 emergency has seen heavy falls on the Australian stock market, which remains volatile. There was no updating evidence as to the current net value of the estate but it would have declined appreciably.

The deceased’s management of Bogan Downs

88. In these proceedings, Stuart accused his mother of having mismanaged, and in part misappropriated, his inheritance from his grandmother. He said that while he received Bogan Downs itself he never received the benefit of the sheep left to him in his grandmother’s will, or of the operations on Bogan Downs before it was handed over to him in October 1971. He alleged that his mother had used that income for her own benefit, or for the benefit of other members of the family. He said this continued with the income he should have derived from Bogan Downs after 1971. He claimed that the purchase of Salisbury, half of which ultimately passed to Grant, and the wealth ultimately left by the deceased in her estate, were built on monies misappropriated from him.

89. These accusations were never put to the deceased in her lifetime. The only documentary evidence presented at trial in support of them came from a ledger book which Stuart has in his possession. The specific allegations of misappropriation are largely based on entries in the book, and apparently derive from a review of the book undertaken by Stuart for the purposes of these proceedings. As the book is the foundation for Stuart’s case on this point, I have analysed it in some detail.

90. Stuart exhibited copies of the cover and the pages to one of his affidavits, but some parts were difficult to read and the book itself was not in evidence. On its cover the book bears a label on which the words “Est AJA Field” (a reference to the deceased’s mother) had been written and has been crossed out. Lower down on the label appears the name “MacAlpine” together with one or more initials that are illegible on the copy in evidence.

91. The book covers the financial years from 1962-1963 to 1989-1990. For each financial year it contains lists of income and expenditure items. Each item includes the date, the payer or payee, and the amount. There are also occasional supplementary figures and other notations. In most of the years, the entries have been ticked or crossed off.

92. Most of the entries up until 1974-1975 appear to be in the same handwriting, which Stuart identified as the deceased’s. The 1963-1964 expenditure entries are in a different handwriting, as are the occasional notations and supplementary figures in other years. Stuart identified a handful of the notations as having been made by Laurence or by the family’s accountant (whose name does not appear in the evidence). It is reasonable to suppose that the 1964 expenditure entries and the supplementary figures were written by Laurence, but the evidence is insufficient to confirm this for sure.

93. Stuart said that he himself started making entries in the book in 1976 (this was when he said he started running Bogan Downs) and entries in a recognisably different handwriting begin to appear in that year. Up until the 1981-1982 financial year, most of the entries are in Stuart’s handwriting. These are supplemented by entries in the deceased’s handwriting, a third handwriting (which may be Laurence’s) and an unidentified fourth handwriting (possibly Grant’s) which first appears in 1981.

94. From 1982-1983 onwards, the arrangements for making the entries appear to have changed. Yet another handwriting appears. All of the entries are written in that handwriting. Occasional supplementary figures and notations appear, apparently written by at least two other people. I suspect that the entries from 1982-1983 onwards were written by Patricia. As already noted, Stuart said that she looked after the family finances, and the writing appears similar in style to her signature. But this was not confirmed in the evidence. It is impossible to identify the writers of the supplementary figures and notations.

95. The items of income and expenditure recorded in the book are grouped into categories. In each year the income includes receipts from sale of stock and wool, and in some years, skins or hides. There are also typical items of farm expenditure, such as stock purchases, rates, contractor payments, labour and agistment. From 1977-1978 many of the income and expenditure listings include a “Salisbury” item, apparently representing a share of the income and expenditure referable to that property. There are also interest receipts from TVPL from 1977-1978.

96. The book also includes categories of non-farm income and expenditure. Between 1962-1963 and 1970-1971 it records dividends received from various companies, including BHP. From 1971-1972 it includes private health insurance payments. From 1972-1973 it includes medical and dental expenses. From 1982-1983 it contains personal non-deductible expenditure as a separate category. In 1984-1985 it includes Patricia’s separate income, the figures for which have been completed in another handwriting, presumably the accountant’s.

97. The preparation of a full set of accounts for an entity would involve the preparation of at least three books of account. There would be a cash book, recording all of the income and expenditure in that entity’s bank accounts, and allocating them to ledger accounts; a journal book similarly recording and allocating non-cash transactions; and a general ledger recording the items of income and expenditure from the cash book and the journal in the relevant ledger accounts.

98. The ledger book in this case does not appear to be a general ledger of the type I have described. It does not contain any account numbers, or any items derived from journal entries. Nor does it appear to be a cash book. Instead it seems to have been prepared from primary records, such as bank statements, remittance advices and invoices, for submission to the accountant so that the accountant could use it to prepare the relevant tax returns. That is consistent with the fact that the book contains annotations identified as having come from the accountant. Presumably he or she also ticked or crossed off the entries when they had been processed.

99. Stuart was asked in cross-examination when it was he obtained the book in his permanent possession. He said he got it “many years ago” but when asked how many, he said “got no idea”. When asked whether he had the book from taking over Bogan Downs in 1971, he said it remained at Double Tanks and he did not “get the physical on it” until “much later”. When asked how much later, he said “got no idea”. This evidence well illustrates the difficulties in extracting information from Stuart at the trial.

100. In fact it is clear that Stuart wrote some of the entries in the book from 1976 onwards and he must have had access to it for that purpose. Nevertheless, up until 1982 there remained some entries in the book by the deceased (and possibly Laurence). It is possible that the book remained at Double Tanks and was written up there before being sent to the accountant each year.

101. But after the new person took over making the entries in 1983 those entries included personal income and expenditure of Stuart and Patricia, and I think it is likely that the book was in Stuart’s possession from then on (in fact, as already stated, I suspect the entries were actually written by Patricia). In any event, the book ends in 1990, at a time when Stuart was completely disentangling his financial affairs from those of his family. It would seem likely that, if he did not already have it, Stuart would have obtained the book permanently at this time.

102. In his affidavit, Stuart said that the ledger book contained “clear examples” of him being cheated out of his entitlements under his grandmother’s will in favour of his mother, father and brother. He set out a list of “irregularities” from the book in support of his allegations. These included the following:

1. The ledger book only begins in 1962-1963. Stuart pointed out that his grandmother died in December 1958 and probate of her will was granted to his mother in July 1959. There is no record of income in the intervening period.

2. Furthermore, Stuart said, income from wool and livestock sales only begins in the book in 1963-1964.

3. Stuart referred to the dividend income recorded from 1962-1963 to 1970-1971. He reasoned that the shares must have been purchased with profits from the operation of Bogan Downs. He said he did not know what had happened to them. The implication was that they had been appropriated by his mother. In this regard, Stuart pointed out an entry in 1971-1972 where a dividend from Tooth & Co had been recorded and then crossed out, with an annotation to “AAM”, which were his mother’s initials.

4. Stuart referred to an annotation against the wool income in 1970. The annotation reads “Pay Stuart one fifth”. The suggestion was that Stuart had been entitled to the other four-fifths and had not received it.

5. The book contains an entry in 1973 recording a payment of “wages to self”. Stuart said he had never received any wages out of his grandmother’s estate.

6. The book contains entries for insurance payments on the Niagara Café from 1962-1963 to 1966-1967. As we have seen, the Café fell into the residue under the deceased’s mother’s will and therefore belonged to the deceased. Stuart suggested that this was an instance of her applying monies from Bogan Downs for her own personal benefit.

(7)   Stuart referred to contractor costs from 1962-1963 to 1966-1967 which were paid for land clearing. According to Stuart, clearing activities took place not only on Bogan Downs but also Tubba Villa. The suggestion was that income from Bogan Downs had been applied to improve Tubba Villa.

1. The book contains entry for the purchase of cattle which begins in 1967-1968. There was also expenditure in 1969 and 1970 which Stuart said was attributable to the construction of cattle yards at Bogan Downs. Stuart said that he had never received any proceeds of sale of cattle, or any profits from the cattle operation.

2. Stuart referred to entries in the book recording the purchase of horses. He said that his father had a quarter horse business. Stuart also referred to fodder costs which he identified as “fodder for horses”. According to Stuart, these included supplements and salt licks which were required for running horses on Double Tanks (which is red soil country) but not on Bogan Downs (which is black soil country). Stuart acknowledged that horses were used on Bogan Downs for mustering, but the suggestion was that the expenditure which he identified was for his father’s benefit.

3. Stuart referred to a payment for electricity in October 1970. He said that there was no homestead on Bogan Downs. The suggestion was that money from Bogan Downs was being used to pay expenses elsewhere, presumably on Double Tanks.

4. The book contains an entry on 20 May 1975 recording the purchase of two horses from Laurence in the amount of $1,000. This is set off against a sale to Laurence of a hundred cattle for $1,000, equating to $10 a head. Stuart suggested that this was an undervalue. He referred to a purchase from a third party on 3 June of thirty-one cattle for $41 per head.

5. Stuart also referred to entries for interest income on bonds in 1976 and 1977. The allegation was not entirely clear, but it may be that this was said to be another instance of investments being purchased with income from Bogan Downs and then misappropriated.

   103. Most of the entries in the book for 1971-1972 have been annotated with an “E” or an “S”. Such annotations do not appear in any other year. Stuart said that he believed they were made by the accountant, with E representing the estate and S representing him personally.

   104. In his affidavit, Stuart provided some further context to his allegations. He said that when he first returned to Bogan Downs in 1970 after leaving school he wanted to “go up north” and work as a jackeroo. He said that his mother disapproved and said that if he went “you will sign everything over to us”. He said that, being only seventeen at the time and not wanting to see his mother upset, he complied and his mother thus “retained control” for two years after he turned sixteen.

   105. Stuart also complained about the way in which the bequest of five hundred sheep to him was ultimately handled. He said: “I was never told what sheep I owned, it was just treated as part of and absorbed in the stock partnership which I received nothing out of in the end. Grant made no contribution in livestock to the stock partnership”. Stuart said that despite the transfer of Bogan Downs in 1971, he did not start running it until 1976.

   106. Counsel for Grant contended in the course of the evidence that these proceedings were not the proper venue for allegations of the type made by Stuart. Counsel submitted that any allegations of misappropriation were statute barred. According to counsel, if Stuart was to raise the allegations at all, he should have done so in his 1994 proceedings in this Court. Counsel for Stuart responded that those proceedings concerned only his father’s estate, not his mother’s. This submission is technically correct, although it overlooks the fact that some of Stuart’s allegations concerned transactions in which he was supposedly cheated by his father. More importantly, it does not address the limitation point.

   107. The Limitation Act 1969 (NSW), s 52, provides that the limitation period on a child’s cause of action does not start running until the child reaches his or her age of majority. When the Act was originally enacted, s 11 provided for an age of majority of twenty-one. Among the changes made by the Minors (Property and Contracts) Act 1970 (Sch 1) was to amend s 11 so as to make the age of majority eighteen. As already mentioned, Stuart turned eighteen in June 1971. The limitation period on any claim which had accrued to that point concerning the mismanagement of his inheritance would have begun to run a few weeks later, on 1 July, when the amendment took effect.

   108. Counsel’s submissions proceeded on the basis that the relevant limitation period was that which applied to an action in devastavit: Bird v Bird [2013] NSWCA 262. But devastavit is an action against an executor, and the deceased’s responsibilities as executor would have ceased once the estate’s debts and funeral expenses were paid and the legacies under the will distributed, which presumably would have happened in 1959 or 1960. Thereafter the remaining assets held by the deceased would have been held by her as trustee for the trust established under the terms of the will. The relevant limitation period(s) would be those applicable to claims for breach of trust.

   109. From Stuart’s point of view, the most favourable limitation period would be that prescribed by s 47, which applies to fraud and misappropriation of trust property. Under that section the limitation period does not expire until a period of twelve years from the date on which the plaintiff first discovers, or may with reasonable diligence discover, the facts giving rise to the cause of action and that the cause of action has accrued (see s 47(1)(e)).

   110. As will be seen, Stuart’s inheritance appears to have been transferred to him, and the estate (as I will continue to call it, for convenience) wound up, by the end of the 1971-1972 financial year. Stuart actually had the ledger book in his hands, from time to time at least, from 1976 onwards. The last entries in the book which were the subject of accusations by Stuart in these proceedings dated from 1976-1977. There seems no reason why Stuart could not, with reasonable diligence, have identified the alleged breaches of trust by then. Claims against the deceased based on Stuart’s allegations in these proceedings would therefore have become statute barred decades before the proceedings were instituted in 2018.

   111. I was troubled by the thought that Stuart could, in effect, bring misappropriation claims against the deceased’s estate which are now statute barred through the back door, by putting them forward as part of a claim for family provision. But I did not think that I could rule Stuart’s allegations out of contention. I thought that to do so might involve an impermissible restriction on the breadth of the circumstances to be considered under the Act. In the end I do not need to decide whether that is so. But I certainly can take the lapse of time into account in considering the weight of the allegations.

   112. It is convenient to deal first with the insurance payments for the Niagara Café recorded from 1962-1963 to 1966-1967. The 1966-1967 entry has the following annotation:

Take up in Mrs MacAlpine’s Tax Return, against rents. Niagara is her property. Estate owes Mrs MacAlpine for this year:

Rents         $738.12

Less insurance   $53.71

$684.41

113. In the 1967-1968 year there is a side note which records that the estate owed the deceased $369.06 for rent on the Café banked in the estate bank account between July and December 1967. In 1964-1965 year there is also an income item for “Niagara” of $360, presumably representing rent.

114. There is no reference to rental income for the Café in 1962-1963 or 1963-1964. But the annotations (which Stuart did not refer to in his affidavit) do make two things perfectly clear. One is that the estate bank account was being used, at least intermittently, for income and expenditure associated with the Café, which had formed part of the deceased’s mother’s estate but had been inherited by the deceased rather than Stuart. The second is that the family accountant was well aware of this, and of the need to record that income and expenditure in the deceased’s, and not the estate’s, tax return.

115. In these circumstances there is no justification for Stuart’s assumption that the dividends in the book came from shares purchased with profits from his inheritance (as I will explain, there is no evidence that there was any overall profit in any event). It is far more likely that, like the rent from the Café, the dividends were paid on shares which had been inherited by the deceased as part of her mother’s estate, but went through the estate bank account. If the shares had been registered in the deceased’s name as executrix and were only registered in her name beneficially at around the time Bogan Downs was transferred to Stuart, that would readily explain why the dividends recorded in the book cease in 1970-1971.

116. Against this background, I turn to Stuart’s allegations about the 500 sheep he inherited under his grandmother’s will. The relevant provisions of the will were:

I GIVE DEVISE AND BEQUEATH unto my grandson, STUART MacALPINE … free of contribution for death duties and administrative expenses, my grazing property known as “Bogan Downs” Coolabah … together with five hundred head of sheep to be selected by my Trustee [the deceased] AND I DIRECT that such assets shall be transferred to him as soon as he shall be permitted to hold the said lease. In the event of my said grandchild predeceasing me or dying before attaining the age of sixteen years then such lands and stock shall pass and be transferred to the next oldest child of my said daughter as soon as permission to hold such Lease can be obtained.

I DIRECT that until my said grandchild shall be enabled to hold the said lands as aforesaid my Trustee shall carry on grazing operations thereon and for that purpose I give to my Trustee all necessary powers and authorities AND I FURTHER DIRECT that all profits accruing, from the said grazing operation shall accrue for the benefit of my said grandchild.

117. The will provided that the 500 sheep were to be transferred to Stuart only when he became entitled to hold Bogan Downs. Despite the reference in the will to Stuart surviving until the age of sixteen, the Crown Lands records tendered in these proceedings show that Stuart was only capable of holding the lease of Bogan Downs once he attained his majority, which, in the events which happened, was on 1 July 1971. Stuart’s complaint about his mother “retaining control” for two years after he turned sixteen appears to be misconceived.

118. There is no reference in the ledger book to the estate after 1971-1972. Bogan Downs was transferred to Stuart during that financial year. The “E” and “S” annotations suggest it was also a year of transition so far as the income and expenditure recorded therein were concerned. I think it is clear that the estate must have been wound up, and the livestock to which Stuart was entitled transferred to him, during that year. The wool and livestock income in subsequent years would have been income received by Stuart on his own account.

119. I think that Stuart is clearly wrong in saying that the book records no wool or stock income in 1962-1963. The 1963-1964 income contains receipts from “AMLF Company”, presumably a stock and station agent, under headings for the sale of both wool and stock. No such headings appear in the 1963 year, but two payments from AMLF appear under the income. One is annotated with the sale of ewes and the other is the same order of magnitude as the amount received for wool in the following year.

120. Nor do I think that there is anything in the fact that the book commences only in 1962. The obvious inference is that receipts and income from Bogan Downs were recorded in an earlier book, which is not in evidence and may no longer exist.

121. On Stuart’s evidence, the stock belonging to the estate, the deceased and Laurence were run together across all three properties (Tubba Villa, Double Tanks and Bogan Downs). Stuart did not suggest that the income and expenditure attributable to the stock his parents owned, or to operations on Tubba Villa and Double Tanks, were recorded in the Bogan Downs ledger book. Presumably it would have been recorded in some other book or books, and taken up by the family accountant in the deceased’s and Laurence’s tax returns.

122. In these circumstances, it is hard to see how Stuart can say that the contractor clearing expenditure recorded in the book related to clearing on Tubba Villa. Stuart accepts that clearing was done on both properties. The overwhelming inference is that expenditure in the ledger book related to Bogan Downs, and the expenditure on Tubba Villa was recorded somewhere else.

123. Returning to the livestock Stuart inherited, if Stuart’s grandmother was running more than 500 sheep on Bogan Downs when she died (which seems likely, given that its carrying capacity was about three times that) any additional stock would have passed to the deceased with the residue of the estate. The will is unclear about how the provision about the operations being carried on for Stuart’s benefit would work in such circumstances.

124. Nor does the will say (at least, in express terms) whether Stuart’s 500 sheep were to be selected at the time of the grandmother’s death, or only later when Bogan Downs was transferred to him. There was no argument before me on these questions.

125. As already noted, the book appears to include, in the period up to 1971-1972, entries for income and expenditure deriving from assets inherited by the deceased as part of the residue of her mother’s estate. The wool and livestock income in the book for the same period might possibly also have been derived, in part, from livestock inherited by the deceased. At this point it is impossible to say.

126. Another uncertainty arises from the fact that, on Stuart’s evidence, the stock belonging to the estate, the deceased and Laurence were run together across all three properties (Tubba Villa, Double Tanks and Bogan Downs). It is not clear how, if at all, this was taken into account as between the estate and Stuart’s parents. The entries in the book do not mention it, but some adjustments may have been made when preparing the parties’ tax returns. Again this is something which is now a matter of pure speculation.

127. In any event, even if all of the wool and livestock income in the book, without deduction or adjustment, was Stuart’s, it is far from clear what overall profit, if any, he would have been entitled to. In his affidavit, Stuart set out a summary of the income and expenditure recorded in the book. For the period from 1962-1963 to 1971-1972, there were profits and losses but the overall figure was a loss.

128. There is another point about the income from Bogan Downs up to 1971-1972. The will provided for that income to be accrued for Stuart’s benefit. But it probably would have been legitimate for the deceased to apply that income towards meeting the costs of Stuart’s maintenance and education (see Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 419-421). Even if the figures had shown a profit, there might not have been anything left over after deduction of such costs.

129. There is simply no evidence that Stuart received less than his proper livestock entitlement, whatever it was, when the estate was wound up in 1971-1972. The book contains an income entry from the sale of cattle in 1968-1969. Another appears in 1971-1972, where it is annotated with an E. The book contains further such income from 1974-1975 onwards, after Bogan Downs and Stuart’s livestock entitlement had been made over to him. The obvious inference is that cattle were acquired on behalf of the estate and then made over to Stuart when Bogan Downs was transferred.

130. Indeed, when Stuart’s complaint, which I have quoted at [105] above, is carefully analysed, he did not say that he did not receive any stock. Rather he appeared to acknowledge that he had received the benefit of his stock entitlement, by way of a contribution to his share of the livestock partnership. If Stuart is correct in saying that Grant received his stock for nothing, then the obvious inference is that this stock would have come from the deceased and Laurence so as to equalise their sons’ holdings. This did not mean that Stuart was being deprived of his entitlement.

131. Stuart’s real complaint about the stock seems to be with what he ultimately received by way of distribution from the livestock partnership in 1990. But the division was carried out at arms’ length, and Stuart had his own solicitor, Mr Chalker, representing him. There is no reason to think that he did not receive his share.

132. I turn now to Stuart’s complaints from 1972-1973 onwards. During this period, following the winding up of the estate, the function of the book must have changed. The obvious inference is that it was used thereafter to assist in the preparation of Stuart’s individual tax return. This would explain why items of individual personal expenditure, and, after Stuart’s marriage, Patricia’s income, were recorded in the book.

133. This means that Stuart’s complaint about the wages “paid to self” in 1972-1973 is misconceived. The entry cannot represent a payment from the estate which was somehow diverted or withheld, as the estate had been wound up by then. It is probably just a reference to Stuart’s drawings from his income for that year.

134. I have already referred to the inclusion in the book, from 1977-1978 onwards, of what appears to have been Stuart’s share of income and expenditure associated with Salisbury. But there is no indication of figures for the livestock partnership, which is said to have begun in 1972 or thereabouts. The uncertainties so far as accounting for family operations conducted across multiple properties are concerned (see [126] above) thus continued after 1971-1972.

135. The points which I have so far made do not directly answer all of the complaints made by Stuart in his affidavit. They do not, for instance, explain the entries concerning the purchase of horses (by way of set-off) from Laurence in May 1975. But there might be any number of possible explanations for individual items of expenditure. I have no confidence that what Stuart now says about entries in the book is a reliable basis for making findings about the underlying transactions. Given the evidentiary vacuum, I think that further speculation is a pointless exercise.

321. I think that the passages I have quoted from Vigolo and Delaforce both recognise that there comes a point at which a plaintiff’s ability to provide for his or her own maintenance, education and advancement ordinarily precludes any entitlement to further provision. Implicit in this is that, in assessing “financial needs” under s 61(d), the court adopts an objective or standardised approach. The approach is standardised in the sense that it does not have regard to the size of the estate, the means of the other beneficiaries, or other factors extraneous to the plaintiff’s circumstances.

322. I do not think the other point which Handley AJA made in Delaforce about the particular provision in that case not satisfying the plaintiff’s needs detracts from this. Nor do I think that what Bergin CJ in Eq said in Hannaford qualifies it; although, as her Honour observed, where the threshold lies in any particular case will depend on the plaintiff’s age, state of health and possibly other factors. Nor is it inconsistent with the well-established principle that in determining “financial need” for the purposes of the Act the court is not limited to what is required for bare subsistence: see Steinmetz v Shannon (2019) 99 NSWLR 687 at [128]-[131].

323. Of course this does not mean that no plaintiff whose assets exceed the threshold can succeed in a family provision claim. There may be other factors which mean that “proper” provision extends beyond the applicable standard. In Vigolo, the fact that the plaintiff had contributed substantially to the deceased’s estate was seen as being, at least potentially, such a factor. In Hannaford, it was the fact that the previous division of assets was, unknown to the deceased, less than she had intended. But once the threshold is reached then, unless there is some other factor present, the claim must fail, independently of the value of the estate and the merits of the competing beneficiaries under the will.

324. In the present case, it is notable that some of the expenditure claimed by Stuart as “needs” result from the back condition from which Stuart has suffered for many years, and Stuart has not satisfied those “needs” out of the substantial sums of money which he has received in recent times. The claim for a new Toyota utility is one example.

325. In this regard, the passage which I have quoted from Stuart’s cross-examination at [305] above is significant. It gives the impression that what Stuart really wants is a lump sum, the larger the better, which he can draw on according to his various farming and family priorities as he then sees them.

326. Of course, if the deceased failed to make adequate provision for Stuart, and he is entitled to a provision, it will be up to him how he spends it. But the fact that he has not so far seen fit to meet the alleged “needs” calls into question whether they are truly needs.

327. In any event, it is clear that Stuart has sufficient assets to pay for such expenditure many times over. Stuart’s submissions argued by way of response that Stuart and Patricia were both “asset rich and cash poor”. The submissions also stressed that farming is in Stuart’s blood; he has lived his whole life at Coolabah and farming there is all he knows. For him to uproot himself and move now would be, so the argument ran, unthinkable.

328. I do not accept these arguments. If the Court were assessing damages in a personal injury claim, it might be necessary to ask whether (for instance) the plaintiff’s desire to remain in his or her home, and the corresponding need for in-home care, were reasonable. But that is not the measure of “proper” provision under the Act. The Act is not concerned with compensating wrongdoing by the deceased but with altering the deceased’s testamentary arrangements to the minimum extent necessary to discharge the deceased’s moral obligation (I use this phrase having regard to what was said in Steinmetz v Shannon at [44] and [109]) to make provision for the beneficiary.

329. In my opinion the reasoning in Delaforce applies here. The deceased was not obliged to underwrite what is ultimately a choice by Stuart to continue to live on the farming property he inherited, any more than she would have been obliged to do so if he had had no farming backyard and he had acquired the property later in life after the family rift had arisen. Still less was the deceased obliged to supply working capital to Stuart so as to reduce the borrowings which he would otherwise have to make to pursue his farming business.

330. The drought has been a severe test for Stuart and Patricia but it is part of the farming cycle. It would be absurd to suppose that Stuart’s entitlement from his mother’s estate could depend upon whether judgment was delivered before or after the recent rains, or require an investigation into the degree to which those rains broke the drought specifically on Bogan Downs.

331. So far as the alleged need to pay off the mortgage on the Sydney flat is concerned, I question whether a plaintiff’s needs under the Act extend to the advancement of his or her adult child. If the deceased had a moral obligation to provide indirect assistance to Andrew in this way, would Patricia’s parents have had a similar obligation? Would the Court need to inquire into whether Andrew had received, or was likely to receive, legacies from that or any other source?

332. In any event, that “need”, on analysis, is a “need” to reduce the cost to Stuart and Patricia of subsidising Andrew’s living arrangements. For reasons I have given, I am not satisfied that Andrew relevantly needs this subsidy. The purchase of the unit was a choice by Stuart and Patricia. So was (and is) the decision to subsidise Andrew’s occupation of it. In my opinion the deceased had no obligation to underwrite those choices.

333. Finally, I observe that on no view could it be considered necessary for Stuart and Patricia to have purchased Ramsy Park. I do not criticise Stuart for his generosity in applying $750,000 of his carbon sequestration monies to assisting Amanda and her husband to acquire the property. But if Stuart were truly in need, the money tied up in Ramsy Park would be the obvious place from which that need could be satisfied.

334. There was no evidence about the state of the residential property market in Nyngan or Cobar. But it is quite clear that, with $4.3 million in net assets, Stuart could buy a retirement home there (or in Sydney for that matter) and have more than enough money left over to live comfortably for the rest of his life. The simple fact is that he is not relevantly in need.

Contribution to deceased’s estate

335. Stuart’s written submissions argued, consistently with his allegations in the proceedings, that Stuart had contributed to the value of the deceased’s estate through leaving money on the table in the 1995 settlement of his claim against his father’s estate, and, involuntarily, through the alleged misappropriations of his inheritance by the deceased.

336. If these allegations were sustained, they would not support claims for expenditure as formulated on Stuart’s behalf in these proceedings. The appropriate provision would be one calculated by reference to the contributions to the estate. Stuart’s case never attempted to quantify what these were. In any event I have rejected the claims on the merits.

337. In passing, I revert back to my concern that, in the case of the 1995 settlement, Stuart is seeking to go behind the terms of a settlement which he entered into with the benefit of legal advice. In Vigolo, there was also a family breakdown followed by a settlement and that was seen as critical. As Gummow and Hayne JJ said (at [78]), the statute required attention to all relevant circumstances, and:

These included not only the efforts of the appellant in building up the family assets over many years, but also the effect of the breakdown of the substratum of the family relationships upon which had depended the continuation of the representations made to the appellant by his father. Those relationships and the continued currency of the assurances given to the appellant were changed fundamentally by entry into the Deed of Settlement and the steps taken thereunder during the remainder of Mr Vigolo’s life.

338. In my view, this reasoning suggests that the breakdown and settlement was crucial because it changed the parties’ expectations. Once the family relationship had dissolved into acrimony and the parties were negotiating a financial separation, the plaintiff could not reasonably have expected that his previous efforts in building up the family business would be recognised, ultimately, in his father’s will. If those efforts were to receive a financial recognition, it would be through the settlement or not at all.

339. If this analysis is correct, it would be equally applicable to these proceedings. Stuart could not reasonably have thought that he would receive anything more for the monies he provided for Booka than what he obtained in the 1995 settlement. Similar reasoning might apply to the misappropriation claims based on the ledger book in his possession, if Stuart was aware of the basis for those claims and chose not to pursue them, but I do not need to consider this point further for the purposes of this judgment.

Deceased’s family relationships and testamentary intentions

340. In Sgro v Thompson [2017] NSWCA 326, White JA, with the agreement of the other members of the Court of Appeal, repeated and reaffirmed the statement of principle which he had previously (as White J) made in Slack v Rogan (2013) 85 NSWLR 253 (at [127], citations omitted):

In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed. This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.

341. As his Honour acknowledged in Olsen v Olsen [2019] NSWCA 278 at [76]-[78], this statement of principle could be controversial if it were understood to involve a reading down of the Court’s powers under the Act so as to preserve testamentary freedom. But it is not necessary to go into that here. His Honour’s statement can be understood as operating at least on an evidentiary level. Where in a will the deceased has made a judgment based on facts which the deceased is likely to have known, the court can and should recognise that, in the ordinary case, the deceased would have had a better understanding of those facts than the court can hope to have gleaned from the trial.

342. His Honour’s statement also reinforces where the onus lies in litigation of this type. It is for the plaintiff to prove that the provision made in the will was inadequate for his or her proper maintenance, education or advancement. The propriety of a provision depends on the circumstances and if the plaintiff wishes to point to factual circumstances which make the provision inadequate the plaintiff must establish those facts. In many cases a claim for further provision involves questioning the deceased’s testamentary judgment. In such a case, if there is a suggestion that the judgment has in some way miscarried, that is for the plaintiff to prove. Those who represent the deceased’s estate do not bear any onus to demonstrate the judgment’s soundness.

343. In the present case, the deceased’s 2009 will reflected a testamentary judgment she made, which was adverse to Stuart, going back to 1993. To the extent that the judgment depended upon the benefits previously conferred on Stuart, on Stuart’s role in the family rift, and in his behaviour thereafter, the deceased will have had a far deeper knowledge of the facts than was revealed by the evidence presented at the trial.

344. The written submissions for Stuart contended that the estrangement was at least partly caused by bigotry and further that it was overcome in later years. But on my findings those contentions fail on the facts.

345. It is true that the will resulted in Grant doing significantly better out of the family assets than Stuart has. But Grant also contributed more to the deceased’s wellbeing, and to her material circumstances.

346. Stuart’s written submissions relied on the decision in Hannaford which was said to have common features to this case. But in my view the critical distinction is the finding in Hannaford that the deceased intended the plaintiff to receive a larger share of the family assets than he in fact received, and that had she known this she would have made different provisions in her will. In the present case there is no comparable basis for saying that the deceased’s judgment, as expressed in the 2009 will, miscarried. And on my findings, none of the relevant circumstances changed in any significant or unforeseeable way between when the will was made and when the deceased died (or up to the date of trial).

Conclusions and orders

347. I have concluded that the deceased’s 2009 will did not leave Stuart without proper provision for his proper maintenance, education or advancement. Stuart’s claim fails and must be dismissed.

348. I was asked by the parties to defer dealing with the question of costs until after I had delivered my judgment. If the parties are unable to agree on the costs order which follows from my decision, that issue may be the subject of further argument.

349. The orders of the Court are:

1. Order that the plaintiff’s claim be dismissed.

2. Direct that the parties bring in an agreed minute of order concerning costs, or in default of agreement make any application concerning costs, within 14 days.

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Amendments

06 July 2020 - [329] amendment typographical error

Decision last updated: 06 July 2020