McDonald v O'Connor

[2019] NSWSC 261

Supreme Court

New South Wales

Medium Neutral Citation:	McDonald v O’Connor [2019] NSWSC 261
Hearing dates:	10 - 12 December 2018
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Equity
Before:	Hallen J
Decision:	(i) Directs the parties to bring in Short Minutes of Order to reflect these reasons.  (ii) Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of orders, and to determine any orders for costs.
Catchwords:	SUCCESSION – FAMILY PROVISION - The Plaintiff, an adult child of the deceased, makes a claim for a family provision order - No dispute as to the Plaintiff’s eligibility as a child of the deceased - Written statement going to testamentary intention, which provided reasons for the lack of any provision being made for the Plaintiff made by the deceased - Contents of parts of the statement disputed by Plaintiff - Nature of relationship of the Plaintiff and the deceased - Modest actual estate (and property sought to be designated as notional estate) in value – Competing claim of the major beneficiaries, being the only two grandchildren of the deceased - Nature of the relationship of each of the major beneficiaries and the deceased – Whether a family provision order should be made, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne.   NOTIONAL ESTATE – Whether a relevant property transaction – Whether part of the proceeds of sale of the deceased’s home given to the Defendant within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Family Provision Act 1982 (NSW) Inheritance (Family Provision) Act 1972 (SA) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Succession Act 2006 (NSW) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alcock v Cooper [2010] SASC 167 Alexander v Jansson [2010] NSWCA 176 Amos v Hogg [2018] NSWSC 1226 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Benham v Benham [2004] NSWSC 416 Boettcher v Driscoll (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Courtney v Powell [2012] NSWSC 460 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Fiorentini v O'Neill [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Fulton v Fulton [2014] NSWSC 619 Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Harris v Harris [2018] NSWCA 334 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hildebrandt v Soncini [2007] NSWSC 1227 Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 Kastrounis v Foundouradakis [2012] NSWSC 264 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Maynard v Maynard [2018] NSWSC 1961 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Meres v Meres [2017] NSWSC 285 Morris v Smoel [2014] VSC 32 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Oxley v Oxley [2018] NSWSC 91 Page v Page [2016] NSWSC 1218 Palagiano v Mankarios [2011] NSWSC 61 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Coventry (Deceased) [1979] 3 All ER 815 Rogers v Rogers [2018] NSWSC 1982 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson [2015] NSWCA 297 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Smith [2018] SASC 93 Steinmetz v Shannon [2018] NSWSC 1090 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2015] NSWCA 269 Vidler v Ivimey [2013] NSWSC 1605 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305
Texts Cited:	Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10
Category:	Principal judgment
Parties:	Margaret May McDonald (Plaintiff) Fiona O’Connor (Defendant)
Representation:	Counsel: Mr A Lakeman (Plaintiff) Mr J E F Brown (Defendant)   Solicitors: & Legal (Plaintiff) Marks Griffiths & Bova Solicitors (Defendant)
File Number(s):	2017/265419

Judgment

Introduction

1. HIS HONOUR: These reasons concern the estate of Mavis Valerie McDonald (“the deceased"), who died on 1 October 2016, aged 84 years. She was born in April 1932.

2. The deceased was survived by one child of her first marriage, Margaret May McDonald, who is the Plaintiff, and by two grandchildren, being Fiona Ann O’Connor, who is the Plaintiff’s daughter and the only Defendant, and Matthew Kevin George Burton, who is the Plaintiff’s son but by another marriage. The case is a rather tragic one as a parent, on one side, and her children, on the other, are opposed in relation to the estate of the mother of one, and the grandmother, of the others.

3. Like many family provision cases that are now being heard involving mature adult children seeking provision, or additional provision, out of the estate of a parent, the major issues principally revolve around the character and conduct of the applicant, her, or his, relationship with the deceased, the deceased's views of the relationship, and the relationship of the deceased with one, or more, of the beneficiaries named in the last Will of the deceased

4. Whilst an applicant's feelings of having been excluded as a beneficiary will not be a relevant consideration in the determination of a family provision claim, often, at least partially, it explains a driving motive in the cases that are not resolved other than by a contested hearing. For example, in this case, the Plaintiff stated that “I just wanted everything to be fair”: Tcpt, 10 December 2018, p 86(1).

5. There is an additional layer in these proceedings that involves the acrimonious relationship between the Plaintiff and her two children, one of whom is the executrix to whom Probate has been granted, and both of whom are the principal beneficiaries named in the deceased’s last Will. There was a palpable sense of resentment of the Plaintiff’s treatment of each of them as children during the case.

6. Without intending to convey undue familiarity or disrespect, and for convenience and clarity, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

The Claim

7. Margaret filed a Summons on 31 August 2017, in which she sought a family provision order out of the estate and notional estate of the deceased, pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”), and an order for her costs. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.

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

9. Margaret sought an order that some of the proceeds of the sale of the deceased’s home, at Doyle Road, Padstow (“the Padstow property”), which was sold in December 2014, be designated as notional estate of the deceased. Fiona disputed that any of the proceeds of sale could be designated as such.

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

11. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “…(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which, and the basis on which, the deceased person did so”. This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.

12. It was not in dispute that Margaret commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act, and that there was no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 10 December 2018, p 1(41) – p 2(1).

13. The matter was listed for two days but was not finished within that time. It was concluded almost at the end of the third day at which time I reserved my decision. Throughout the hearing, Mr A Lakeman, of counsel, appeared for Margaret, and Mr J E F Brown, of counsel, appeared for Fiona.

Background Facts

14. There is a conflict of evidence, principally in the affidavits, regarding the relationship of Margaret and the deceased, as well as Margaret and her children, particularly in their younger years. It is convenient to next provide a statement of some of the background, and the other formal, facts, since these provide the context in which the issues in this case arise. To the extent that any of these facts are in dispute, the facts stated should be regarded as the findings of the Court.

15. The deceased was born in April 1932. At the age of 20, she married Kevin McDonald, who predeceased her, aged 79 years. He died in November 2011. Margaret is the only child of their marriage. She was born in November 1953.

16. Margaret has been married four times. She had one child, Fiona, from her first marriage to Paul Quimby. They were married in 1972 and divorced in March 1976. In October 1976, Margaret married Ian Paul Keith Gimblet. She had one child, Matthew, from this marriage. He was born in April 1977. Margaret married her third husband, William John Brien, in August 1981. They were divorced in April 1986. She married her fourth husband, Gary Burton, in February 1988 and they were divorced in June 1998. There were no children from her third, or fourth, marriages. Matthew has taken the last name of Margaret’s fourth husband.

17. In her first affidavit sworn 18 August 2017, Margaret referred to her current relationship with Steven Leonard Horne, stating that they had been “together 12 years, 5 years engaged”. They do not live together, although they spend the weekend together if Mr Horne is not working, and sometimes, one other night per week. They do not share their finances, although Mr Horne agreed that he would assist Margaret financially “if she was struggling”: Tcpt, 11 December 2018, p 139(23-24). There are no children of this relationship.

18. In her oral evidence, when asked whether Mr Horne was her “partner, boyfriend, or special friend” Margaret described him as “he's everything. He's all wrapped in one. He's my partner, he's my boyfriend and - and he's - you know, he's my rock”: Tcpt, 10 December 2018, p 87(6-8).

19. Mr Horne said, in his oral evidence, that “we are currently engaged and yes, we are boyfriend and girlfriend, and we have been the - seeing - we have been with each other for over a period of 13 years”: Tcpt, 11 December 2018, p 139(30). He also said that they had discussed marriage and that they may marry next year: Tcpt, 11 December 2018, p 140(37) – p 141(25). The description by Margaret’s counsel, in written submissions served before the hearing, of Mr Horne as “a male friend or acquaintance” is a clearly inaccurate description of his true relationship with Margaret.

20. Fiona was born in June 1973 and is now 45 years old. She is married to Peter Bede O'Connor (referred to as “Bede” during the proceedings) and they have one child, Emmett James O'Connor, who is 7 years old. Margaret commenced other defended proceedings, to obtain contact with Emmett, which resulted in her incurring significant legal costs. (The precise details of those proceedings were not the subject of evidence in the present case.)

21. Matthew was born in April 1977 and is now 41 years old. He is married to Angela (who is aged 39). There are no children of their marriage.

22. For most of her married life, the deceased lived in the Padstow property with her husband, and then with Fiona, who commenced living with them, at about 6 years of age. The deceased continued to live there after Fiona left in about 1999, at the age of 26 years, and following the death of Kevin in 2011.

23. The Padstow property was sold, at auction, on 1 November 2014, with the subsequent Transfer to the purchasers, apparently, registered on 24 December 2014. The copy of the Transfer in evidence was undated and was signed by Fiona, as Attorney for the deceased, under a registered Power of Attorney. The consideration shown on the Transfer was $850,000, (although after adjustments, the amount of $851,742 was disclosed as payable to the deceased, on the Tax Invoice dated 16 November 2017.

24. There is no suggestion that the Padstow property was sold for other than full valuable consideration.

25. Shortly before completion of the sale of the Padstow property, the deceased became a resident of the RSL Veteran’s Retirement Village, formally called the RSL LifeCare - Narrabeen, an aged care facility, at Narrabeen, a beachside suburb in northern Sydney. I shall return to how the proceeds of sale were disbursed, later in these reasons.

26. The deceased left a duly executed Will made on 30 June 2016. It comprises 10 pages. On 23 October 2017, this Court granted Probate of the deceased’s Will to Fiona.

27. Relevantly, by Clause 6 of her Will, the deceased made the following bequests:

1. $25,000 to her husband's nephew, "Lesley" [sic] McDonald and his wife, Heather McDonald, in equal shares, absolutely;

2. Her coin collection to Fiona;

3. Her husband’s inscribed gold band wedding ring and his silver watch with silver band, to Emmett, when he attains the age of 21 years;

4. $10,000 to Emmett, when he attains the age of 25 years;

5. To one, or more, of the care staff in the aged care facility or nursing home in which she resided at the date of her death, an amount not exceeding $5,000, the distribution of this bequest between such staff to be at the discretion of Fiona, as trustee; and

6. $200,000 to Matthew, if he survived her by 30 days.

28. By Clause 7(a) of the deceased’s Will, the rest and residue of the deceased’s estate was left to Fiona.

29. The pecuniary legacies total $240,000. At the commencement of the hearing, in answers to questions from the Bench, Margaret’s counsel submitted that Margaret should receive the whole of the deceased’s estate, as well as all of the property sought to be designated as notional estate, with the consequence that none of the pecuniary legacies would be distributed in accordance with the terms of the deceased’s Will: Tcpt, 10 December 2018, p 3(3-35).

30. On the third day of the hearing, counsel for Margaret stated that his instructions had changed, and “that the legacy payable to Emmett is not challenged”: Tcpt, 12 December 2018, p 16(25-26). However, counsel maintained that the other pecuniary legacies, and the residue of the estate, should not be paid as provided for in the deceased’s Will, and that they should pass to Margaret as the family provision order that she was seeking.

31. The above oral submission was made in the face of, and without any reference to, Clause 10 of the deceased’s Will, which stated that the deceased did not give, devise, or bequeath, any of her estate to Margaret “for reasons outlined in the Statement of Reasons executed by me, this Statement of Reasons being stored with my will”.

32. In her Will, the deceased added:

“In summary, my late husband and I have provided much financial assistance to my daughter … including cash and highly subsidized property rent in properties I owned jointly with my late husband. Margaret … has squandered the money that my late husband and I have given to her. She vacated a number of properties owned by my late husband and me even though she has had ample opportunity to remain as tenant in them with a heavily subsidized rent. This vacation of properties by Margaret resulted in my grandson, Matthew, not having a stable home as his mother just left any property in which she lived when it suited her without appearing to consider the deleterious effects such moves would have on Matthew….”

33. Later in these reasons, I shall return to the more detailed Statement of Reasons dated 7 September 2016, and which comprises 12 closely typed paragraphs; assess the circumstances in which it was created; and discuss Margaret’s response to the assertions in that document. I shall also refer to an earlier affidavit, sworn by the deceased, in 2005, going to the reasons that she made a Will, in the terms that she did, at that time.

33. Because of the nature of the claim by Margaret, and what she describes as her “needs”, one of which is a car (examples of which would cost between about $40,000 and $63,000: Ex. PC1), I should mention, now, that she has never held a driver licence, or owned a car, in New South Wales: Ex. PA/9-10. It was not suggested that she has done so otherwise.

34. In September 2014, the deceased had an aged care assessment. She was described as “cognitively alert and oriented. Has marked hearing loss which makes it difficult for client to participate in conversations…needs 24 hour care. Needs help with all aspects of ADLs and IADLs”. A recommendation was made that she should receive approval for high level respite and permanent care: Ex. PA/29.

35. Shortly thereafter, the deceased moved into the RSL Veteran’s Retirement Village, where she remained living until her death, less than 2 years later.

Eligible Persons

37. In Margaret’s notice of eligible persons, filed on 31 August 2017, she identified herself as the only eligible person. However, in my view, the eligible persons are Margaret, Fiona, and Matthew. The latter are eligible persons within s 57(1)(e) of the Act, each being person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased.

38. Only Margaret has made a claim for a family provision order. However, Fiona and Matthew is each a witness who has given evidence of the bases of her, and his, claim, respectively, on the bounty of the deceased. Only Matthew has raised his financial circumstances as a competing financial beneficiary. Each was cross-examined.

39. In an affidavit sworn on 24 October 2017, Mr J Friedman, solicitor, stated that he “had caused to be served by post”, a notice of claim on each of the beneficiaries named in the deceased’s Will, namely, Leslie McDonald, (incorrectly spelled “Lesley”), Heather McDonald, Emmett, Matthew, and RSL LifeCare – Narrabeen. The affidavit does not demonstrate that the notice was received by the intended recipient.

40. I have suggested, elsewhere, that if service of a notice required under the Act is given by post, or given by electronic communication, it may avoid any concerns regarding proper service and receipt, if there were an acknowledgement of service requested from the recipient, and there was evidence of the acknowledgement having been given: Rogers v Rogers [2018] NSWSC 1982, at [50]. Evidence of an acknowledgement will demonstrate actual receipt of the notice.

41. In the circumstances of this case, I am satisfied that notice of the application, and of the Court's power to disregard her, or his, interests, has been served on all of the beneficiaries.

42. Each of the beneficiaries is entitled to elect to remain silent about her, or his, financial resources and needs, respectively, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and her preferable disposition to her, or him, respectively, as a beneficiary regardless of her, or his, financial resources or needs. The Act specifically provides that her, or his, interests, as a beneficiary, cannot be disregarded, even though she, or he, has not made a claim: s 61. Each is entitled to rely upon the terms of the Will and her, or his, competing claim as a chosen object of the deceased’s testamentary bounty.

43. In Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

“The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.”

44. Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].

45. Even if the Court may infer that each of the beneficiaries, other than Matthew, has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than Margaret, the beneficiary’s silence does not mean that her, or his, competing claim should not be evaluated. As will be read, what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

46. As I stated in Meres v Meres [2017] NSWSC 285, at [85], the consequences of not disclosing the beneficiary’s financial resources and needs, simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Margaret, the Court will not disregard the competing interest of any beneficiary as a claimant upon the bounty of the deceased and a chosen object of the deceased’s bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.

47. Finally, for completeness, I should mention that the evidence, that I accept, discloses that the deceased had a relationship with Emmett, her great-grandson. She expressed the view to Fiona that she hoped he would appreciate the emotional value of the gifts made to him.

48. The evidence, that I also accept, demonstrates that Leslie McDonald was a nephew of Kevin, and that he had remained in contact with the deceased for all of his life. He described the deceased and Kevin as like his own parents. Similarly, Heather McDonald had a close relationship with the deceased which was maintained until the deceased’s death. Mrs McDonald would speak to the deceased about twice a week and would often take her for outings, such as for coffee, lunch, or to go shopping.

49. Both Mr and Mrs McDonald were cross-examined. I have no hesitation in accepting each as a witness of truth. However, it is noted that the evidence of each, about Margaret, for the most part, is in terms of conversations had with the deceased, and is consistent with the complaints made by the deceased about Margaret’s conduct, to which I shall refer. It was not suggested to either that the conversations repeated with the deceased did not occur.

The nature and value of the deceased’s actual estate and property that is sought to be designated as notional estate

50. At the commencement of the hearing, nearly one hour of Court time was spent, unsuccessfully, trying to determine the nature and value of the deceased’s estate, and the property sought to be designated as notional estate, at the date of death and at the date of the hearing.

51. It appeared, from discussions between the Bench and counsel, that no detailed attention had been given, by the parties, or their legal representatives, to the calculations, which would enable the Court to determine, with some degree of precision, the value of the property out of which an order for provision might be made.

52. At the end of the case, because of the changes in figures provided by the parties’ legal representatives, and the differing claims, particularly made on behalf of Margaret, as to the source from which some of the liabilities should be met, and the differing amounts the subject of the claims, the Court can be far from confident about the nature and value of the estate. However, as will be read, on any view, the deceased’s estate is a relatively modest one.

53. The actual estate, as revealed in the Inventory of Property attached to the Probate document, was cash, comprising some of the proceeds of the Residential Bond that had been repaid to the estate ($463,338), and cash in a Credit Union Account ($264). Thus, the total gross value of the deceased's actual estate, as disclosed in that document, was $463,602. (In stating these amounts, I have omitted the reference to cents and will continue to do so. This will explain any seeming mathematical errors.)

54. In her first affidavit, sworn 24 October 2017, Fiona stated, at [18], that “[D]educting funeral and testamentary expenses, paid liabilities and probate costs, but omitting the costs of these proceedings, the present value of the likely distributable estate will be $456,331”. She added, at [19], that “[T]here has not been any amount paid out of the deceased’s estate (or otherwise) for, or on account of, my costs of defending these proceedings to date”.

55. Fiona also described, at [20], that “the sale of the deceased’s principal place of residence on 20 December 2014 for an amount of $850,000, that is, or may be, the subject of a prescribed transaction”. (Clearly, not all of the proceeds of sale could be described this way, as a part thereof, albeit as a result of the repayment of the Residential Bond, made up the bulk of the actual estate to which I have referred.)

56. In an affidavit sworn by Fiona on 16 November 2017, she described, at [5], the assets owned solely by the deceased at the date of her death, as the proceeds of the Residential Bond ($550,387) and two amounts in the bank ($264 and $53). She then described, at [6], the “liabilities of the deceased at the time of death and funeral costs” as “Repayment of Invoices paid by Bede O’Connor ($70,843), Invoices paid by Bede O’Connor but not yet reimbursed ($102,075), Funeral and funeral catering ($14,334 and $973)”.

57. The nature and quantum of the expenses said to have been paid by Bede personally, for which he sought reimbursement, were detailed in two spread sheets annexed to Fiona’s affidavit. (In the first (Annexure A), the funeral services fee stated above is included, as is an amount of $1,032, for Fiona’s solicitors’ fees and disbursements.)

58. After providing additional information as to property distributed during the deceased’s lifetime (to which reference will be made shortly), Fiona stated, at [13], that the balance remaining in the solicitor’s trust account and controlled money, on 16 November 2017, after payment of invoices from estate solicitors, was $455,359. She then stated, at [14], that the value of the residuary estate, allowing for unbilled litigation and probate fees acting for the estate (then $28,508), repayment of the debt to Bede O’Connor “for expenses incurred for the care and expenses of the deceased” ($102,075) and the jewellery valuation ($650) was $84,124.

59. In an affidavit sworn 8 November 2018, Fiona stated, at [2], that, at that date, “the estate has a gross value of $390,896”. She identified costs and interest thereon, made in associated proceedings brought by Matthew (to which I shall refer) ($21,250), for “ongoing legal costs of the proceedings” and “the issue of reimbursement to Bede O’Connor of $102,075” as liabilities. She added that Margaret asserted that “there is also $93,805 in notional estate”.

60. Fiona stated, at [12] of her affidavit of 16 November 2017, that the jewellery (said to have a value of $1,090) had been given to her by the deceased in about June 2014, and that the coin collection (said to have a value of approximately $3,200), the wedding ring and the silver watch (said to have a value of $245), were given to her by the deceased in August 2016. Mercifully, the parties agreed that these personal items were not to bear the burden of the provision, if any, made for Margaret. It follows that it is not necessary to discuss whether these items (or their value) would form part of the estate, or notional estate, of the deceased.

61. During discussions between Bench and counsel, at the commencement of the hearing, it seemed that there was no dispute that, of the amount said to be payable to Bede, $32,083 was required to be repaid out of the estate: Tcpt, 10 December 2018, p 7(9-15). Counsel for Margaret submitted that the balance ($68,991) had been paid for the personal expenditure of Fiona and/or her family, and that the amount in dispute was calculated by reference to child care expenses for Emmett ($24,223), entertainment ($17,600), and car running costs ($27,168).

62. Following cross-examination of Fiona, and of Bede, the amount agreed to be repaid to Bede, and the source from which it was to be paid was not as clear and I shall return to that topic.

63. In addition, an amount of $650, being for a valuation of the jewellery forming part of the deceased’s estate, was to be reimbursed to Fiona, as it had been paid, personally, by her. There was no dispute that this amount was to be repaid out of the estate.

64. Fiona stated that she did not intend to apply for commission.

65. I have referred to Matthew having commenced his own proceedings for a family provision order (2017/291098). On 23 February 2018, by agreement of the parties in those proceedings, orders were made dismissing his proceedings. In addition, an amount of $20,000, on account of Matthew’s costs and disbursements, and Fiona’s costs, calculated on the indemnity basis, of those proceedings, were ordered to be paid out of the estate of the deceased.

66. In accordance with the practice in the Family Provision List, Margaret, as a Plaintiff in proceedings involving the same estate, was expressly informed of the proposed orders that were sought to be made by agreement. By counsel, she appeared at the time the orders were made, and it was stated that there was no opposition to the making of the orders, two of which related to the costs of Matthew’s proceedings being paid out of the deceased’s estate.

67. However, at the commencement of the hearing, in discussions concerning the liabilities that would need to be paid out of the estate, counsel for Margaret submitted that no allowance should be made for Matthew’s costs, as ordered in his proceedings, as those costs had been incurred “unnecessarily”: Tcpt, 10 December 2018, p 7(19-41).

68. I am satisfied that Matthew’s costs (and the interest payable thereon), as well as Fiona’s costs, of those proceedings, should be paid out of the deceased’s estate as those proceedings were resolved on the basis that his costs should be paid out of the estate. Margaret, by her counsel, could have opposed the making of costs orders out of the estate, but did not do so. No doubt, it was considered that to do so, might encourage Matthew to persist with his claim and that this would result in additional costs being incurred.

69. In my view, the orders made by agreement of the parties in Matthew’s case, without opposition by Margaret, at the time the orders were made, were appropriate in all of the circumstances.

70. Following the time spent doing calculations, and after the long adjournment on the first day of the hearing, a jointly prepared document, marked as Ex. PB, was tendered, which revealed that the gross value of the deceased’s estate, at the date of death, was $553,898.

71. Exhibit PB also revealed that after the payment of liabilities ($70,843, $32,083 (which should have been $33,084), $15,307, $4,145 and $650, to all of which reference has already been made), as well as the costs ordered to be paid in Matthew’s proceedings and interest (in total $21,250), the amount of the distributable estate, at the date of the hearing, was estimated to be $409,620: Tcpt, 10 December 2018, p 9(16-26), p 12 (30-41). (The value of the distributable estate should have been $408,620 as the amount of $32,083 should be $33,084.)

72. During the course of his oral submissions, despite having agreed to what was disclosed in Ex. PB (Tcpt, 10 December 2018, p 43), counsel for Margaret submitted that, in fact, the amount of $70,843, which was the amount said to have been repayable to Bede, should be paid out of the proceeds of sale that were held by Fiona and Bede, rather than out of the actual estate, of the deceased: Tcpt, 12 December 2018, p 258(18-21). To accept this submission, would, of course, alter the calculation of the value of the actual estate and increase it by that amount, to $479,463 (before the payment of any costs of the proceedings).

73. The second component out of which Margaret sought provision is property that she submitted should be designated as notional estate of the deceased. The amount sought to be designated as notional estate was said to be $282,030 (Ex. PB). It was calculated as the net proceeds of sale of the Padstow property ($832,060), less the amount paid, by way of the Residential Bond, for the accommodation into which the deceased moved ($550,030). (The costs and disbursements of sale ($17,939) had been deducted from the gross proceeds of sale of the Padstow property ($850,000).

74. Fiona stated, in her affidavit of 16 November 2017, at [8], in relation to the proceeds of sale which were placed into her and Bede’s joint account, that:

“When the deceased’s property at … Doyle Road, Padstow NSW was sold in 2014, she said to me that she wanted me to use the money to assist her while she lived at Peter Cosgrove House and any money that was left over when she died would be mine apart from any gift she made in her will which she asked me to give to the beneficiaries in her will. I said to the deceased that was very kind of her and that of course I would always help her financially. The deceased never said to me that she was giving me her money in order to avoid having to give any of it to the plaintiff when she died. The deceased never said to me that she believed the plaintiff would try to get money from the deceased’s money when she died. In June 2016, the deceased said to me that she wanted to create a new will in order to ensure that my brother, my son and I would each receive part of her estate in thanks for the joy we provided her and for the care we gave to her, and she also said she wanted to leave gifts in her will for those who really care for her and helped her. At no time did the deceased actually discuss with me how she planned to distribute the assets in her will.”

75. Fiona disputed that the sum asserted by Margaret could be designated as notional estate of the deceased and submitted, in any event, that this is a case in which the Court’s discretion would be exercised so that a notional estate order would not be made.

76. It was not disputed, however, that the amount placed into the joint bank account, unless reduced by the deduction of some of the liabilities, should be regarded as having been received by Fiona (and Bede) from the deceased: Tcpt, 10 December 2018, p 12(4-5).

77. It will be necessary to determine whether this amount, or any part of it, should be designated as notional estate of the deceased.

78. Counsel for Margaret relied upon the statement said to have been made by the deceased to Fiona that “she wanted me to use the money to assist her while she lived at Peter Cosgrove House”. He submitted that because the $70,843 had been incurred in respect of nursing home fees (Tcpt, 12 December 2018, p 254(15)), the amount should be deducted from the balance of the proceeds of sale of the Padstow property that had been placed into the joint account, rather than it being deducted from the money held by Fiona as actual estate of the deceased.

79. For the same reason, counsel for Margaret submitted that the other amount of $68,991 (being $102,075 less $33,084) should also be paid out of the balance of the proceeds of sale that had been placed into the joint account and that it should not be regarded as a liability of the estate.

80. In relation to the three disputed amounts referred to earlier (in total being $68,991), Fiona gave evidence in her affidavit of 16 November 2017, as follows:

“6.   … Whilst the deceased was alive, she told Bede O’Connor and me that she would reimburse us for any expenses paid to maintain her house, expenses associated with the death of her late husband, council rates, expenses involved in the preparation of her house in Padstow for sale, child care expenses for Emmett O’Connor so that I would have more time to spend with her during the day, all food and entertainment expenses whenever we would go out together or with my family, telephone expenses, Christmas party expenses for my family when the deceased attended, general expenses for the deceased’s day to day living including new clothing, and birthday gifts for attendant staff who assisted in taking care of the deceased. In addition to these, the deceased told me that she wanted to pay for my car running costs so that I could visit her regularly.”

81. If the amounts ($70,843 and $68,991) were deducted from the amount placed in the joint bank account ($282,030), the balance sought to be designated as notional estate would be reduced to $142,196, and that would be the amount which Fiona would be entitled to retain.

82. (A comparison of the above calculations with what is included in the written submissions provided to the Court prior to the hearing, will demonstrate that the amounts were different.)

Determination of whether there is any notional estate

83. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. As earlier stated, a notional estate order may be made where, as a result of certain property transactions, property is not included in the estate of a deceased person. Relevantly, the Court is empowered, in limited circumstances, to make an order designating property not included in the estate, as “notional estate” for the purposes of making a family provision order under the Act: s 80(1).

84. No written submissions were made, by either counsel, on the relevant provisions of the Act, dealing with notional estate, or the basis upon which property should, or should not, be designated as such.

85. Because I have come to the view that Margaret has not established what is required to enable a notional estate order to be made, I shall deal with this issue next, and will do so relatively briefly, so that I can return to the issue of the value of the estate out of which any order for provision may be made.

86. Counsel for Margaret did not identify the relevant property transaction upon which he based the claim for a notional estate order. It seems to have been the sale of the Padstow property in late 2014.

87. Section 75(1) of the Act provides that:

“(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being:

(a) held by another person (whether or not as trustee), or

(b) subject to a trust,

and full valuable consideration is not given to the person for doing or not doing the act.”

88. Section 76 of the Act provides examples of relevant property transactions. One example is “…(f) if a person enters into a contract disposing of property out of the person’s estate, whether or not the disposition is to take effect before, on, or after, the person’s death or under the person’s will or otherwise”.

89. In this case, the Padstow property was sold for full valuable consideration so that would mean that the sub-section could not apply to the sale of the Padstow property.

90. Section 76(3) provides that nothing in the section prevents any other act or omission from constituting the basis of a relevant property transaction for the purposes of s 75.

91. The relevant property transaction in the present case is “when the property concerned becomes held by another person”: s 75(1)(a) and s 77(1) of the Act. The property that became held by another person, or persons, was the balance of the net proceeds of sale of the Padstow property, after payment of the residential bond, which came to be held by Fiona and Bede.

92. It was not suggested that either, or both, of Fiona or Bede, gave full, or any, valuable consideration for the receipt of the balance of the net proceeds of sale to them. Furthermore, no application was made to join Bede as a party to the proceedings, even though he was a joint holder of the account into which the proceeds were placed: Yee v Yee [2017] NSWCA 305, at [195]-[198]; [205]-[206]. Nothing turns on this, in the present case, because of the conclusion to which I have come.

93. There was no dispute that if this were the relevant property transaction, it had occurred more than one year before the deceased died, but within three years of her death.

94. In reaching my conclusion on this issue, it is not necessary to do much more than refer to s 80 of the Act, which section limits the range of transactions that may qualify as “relevant property transactions”.

95. The section, relevantly, provides:

“(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies.

(2) This section applies to the following relevant property transactions:

(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order…”

96. The other sub-sections of s 80(2) are not relevant, and were not referred to.

97. It is to be noted that the power to make a notional estate order is discretionary. Even so, before the Court is able to exercise that discretion, it is necessary to establish that the relevant property transaction is one to which the section applies.

98. In relation to sub-section (a), in Kastrounis v Foundouradakis [2012] NSWSC 264, at [108]-[112], I wrote:

“Section 80(2)(a) requires the relevant property transaction to be entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order. Interestingly, the section does not identify whose intention it is, but it must be the deceased's intention that is to be proved: Hildebrandt v Soncini [2007] NSWSC 1227 at [21] - [28].

In Hinde & Hinde and Anor [2008] FamCA 24, Carmody J, in another context, said:

"The ordinary natural meaning of the word "intends" is to mean, to have in mind. Relevant definitions in the Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purposeful design. Intention is not the same as motive or desire. A person may do something fully intending to do it without desiring it at all. Euthanasia is an example. A motive is having a reason to do or not to do something. It is a subjective state of mind which cannot be conclusively established as a fact except perhaps by truthful admission."

However, more than mere contemplation by the deceased is necessary. In Cunliffe v Goodman [1950] 2 KB 237, a decision of the English Court of Appeal, Asquith L.J., again, in another context, considered, in some detail, the meaning of the term "intention". His Lordship said at 253:

"An 'intention', to my mind, connotes a state of affairs which the party 'intending' - I will call him X. - does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. X. cannot, with any due regard to the English language, be said to 'intend' that it shall be a fine day to-morrow. At most he can hope or desire or pray that it will. Nor, short of this, can X. be said to 'intend' a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents, and cross currents of circumstance that not merely is it likely not to be achieved at all, but, if it is achieved, X's volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence."

Whether the deceased has the necessary intention is a question of fact to be decided upon consideration of all the circumstances. One might expect there to be some language, written or oral, used, or adopted, by the deceased, from which the court is able to find, as a fact, the necessary intention prior to, or at, the time of, the relevant property transaction.

It is the intention with which the transaction was entered into, rather than the effect of that transaction, which is important. If that intention cannot be established, that the effect of the transaction is to wholly or partly, deny, or limit, provision, does not matter. It is not enough that the relevant property transaction has that particular result. In other words, what the subsection requires is not cause and effect, but intention and effect: Wilson v Wright (NSWSC, 25 February 1992, unreported), per Windeyer J.”

99. I continue to hold these views as to the meaning of the subsection, although I have read, and borne in mind, the comprehensive analysis provided by Robb J in Toscano v Toscano [2017] NSWSC 419.

100. Whether the relevant intention is established is a question of fact. Importantly, for the avoidance of doubt, and to make more clear what I had previously written, I repeat what Robb J wrote, at [229], that an applicant does not have to do “anything more than to establish the existence of the intention to the ordinary civil standard of proof that requires that the court be satisfied on the balance of probabilities that the deceased had the intention” and that my reference to “clear and convincing proof” was no more than a “reference to the process of judicial reasoning, and the level of satisfaction required, before a court should find a particular fact or issue proved”.

101. I should also add that there is no special definition of “intention” in the Act. It should be given its ordinary meaning. It is directed to an objective, a desire, or a motive, being brought about, namely, wholly or partly denying, or limiting, provision being made out of the estate of the deceased for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order.

102. In Hildebrandt v Soncini [2007] NSWSC 1227, at [25]-[26], Macready AsJ had noted that merely intending to benefit one eligible person does not amount to an intention to deny, or limit, provision being made for another. It is the intention with which the transaction is entered into, that is essential for the sub-section to operate.

103. As I have also written, it is difficult to construe the section as requiring the Court to consider the intention of the other party, or parties, to the transaction, who obtains, or obtain, the property as a result of the transaction, but who does, or do, not, own the property prior to the transaction having effect. It must be remembered in this regard, that s 80(1) requires the Court to be satisfied that the deceased entered into a relevant property transaction before her, or his, death and that it is a transaction to which the section applies.

104. As I have previously stated, it is always difficult to assess the intention of a person who has left no specific directions, or indications of that intention. The Court, in those circumstances, looks at such facts and circumstances as are available, in order to determine what was more likely to have been intended by the deceased. Regard may be had to all of the circumstances (whether before or after the time of the transaction) in determining whether, at the time of the transaction, the Court is satisfied that the deceased had the relevant intention.

105. It is for the party relying upon the section to establish that the deceased, by some act or words, demonstrated that it was her, or his, then intention to deny, or limit, the provision that might be ordered in a claim brought by an eligible person. This will involve an assessment of the foresight of the consequences of the act. What is involved is that the deceased directed her mind to the purpose or design referred to.

106. In Courtney v Powell [2012] NSWSC 460, Ball J wrote, at [68]:

“Where property is transferred, an inevitable effect of the transfer is that, absent a notional estate order, the property will not be available to meet a claim for a family provision order. But effect, even inevitable effect, is different from intention. Intention requires that the relevant result (denying or limiting provision being made out of the deceased’s estate) is one that is sought to be secured by the transaction in question, although again that intention may be inferred from the consequence.”

107. Again, I respectfully adopt what Robb wrote in Toscano v Toscano, at [234], that “while the intention to prevent the property transferred being available to meet a claim for a family provision order does not follow from the transfer having that effect, the consequence may be one factor that may assist in the court in drawing the inference that the intention existed”.

108. A person is ordinarily understood to intend a result by her, or his, action if she, or he, means to produce that result. Thus, evidence that the deceased understood that a particular result was an inevitable consequence may assist in proving the relevant intention.

109. In the present case, the deceased’s intention in selling the Padstow property, and directing how the proceeds of sale should be distributed, was clear from the conversation about which Fiona gave evidence. I accept her evidence, in this regard, as truthful. She was not challenged on the terms of the conversation to which I have already referred. From the conversation, the deceased’s intention was that the proceeds of sale were to be used to pay for her accommodation in the aged care facility; to assist her whilst she lived in that accommodation; and that, if any part of the proceeds of sale remained at the date of her death, Fiona was to retain it as her own.

110. No part of the relevant conversation with the deceased reflected an intention to deny, or limit, provision being made in the manner described by s 80(2)(a). Indeed, Margaret was not mentioned in the conversation at all. Nor was there evidence that the deceased understood that the particular result was an inevitable consequence of what she was doing. Importantly, the deceased did not ever say that she was giving Fiona the balance of the proceeds of sale to avoid having to give any to Margaret when she died. The contrary proposition was not suggested to Fiona.

111. Indeed, Matthew gave evidence, which I accept, that the deceased told him that she wanted him and Fiona “to be looked after” and that “I have made my will so that your mother will not get your inheritance” (Emphasis added.). Again, in this conversation, she did not refer to the payment of part of the proceeds into the joint account of Fiona and Bede, as being a method by which provision being made out of the estate of the deceased for the maintenance, education or advancement in life of Margaret, would be wholly or partly denied, or limited. It was the terms of her Will that she believed would achieve that result.

112. Merely to rely upon a general wish held by the deceased, that she did not wish any part of her estate to pass to Margaret, on its own, does not, in my view, establish the necessary intention required by the sub-section.

113. In addition, it cannot be forgotten that not the whole of the proceeds of sale were placed into Fiona’s and Bede’s joint bank account, or if it was, then part of it was used to pay the Residential Bond. The deceased, in making the Will in the terms that she did, must have realised that, upon her death, the proceeds of the Residential Bond would be paid into her estate, and that there would be an estate out of which a family provision order could be made. There was no other source from which the pecuniary legacies of $240,000 could have been paid.

114. In all the circumstances, I am not satisfied that Margaret has established the requisite intention under s 80(2)(a) of the Act. It follows that the Court is not able to designate all, or any part, of the amount of $282,030, as notional estate of the deceased. It follows that there is no notional estate out of which an order for provision may be made.

115. If that were not enough, I should also refer to s 88 of the Act, which provides that the Court must not make a notional estate order unless it is satisfied that: (a) the deceased left no estate; or (b) the deceased’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders, or because there are special circumstances.

116. Counsel for Margaret made no written submissions on this topic either. In any event, in my view, none of the bases referred to are established, with the result that the Court “must not make a notional estate order”.

117. In the circumstances, hereafter, I shall refer only to the estate of the deceased. To the extent that Margaret’s claim seeks a notional estate order that part of her case fails.

What amounts are required to be paid out of the fund held in the joint bank account of Fiona and Bede?

118. Amounts that totalled $70,843 were accepted as being RSL LifeCare fees, which expenses had been paid by Bede: Tcpt, 12 December 2018, p 247(40-45). Clearly, Bede is entitled to be reimbursed this amount, but counsel for Margaret submitted, during his final submissions, and despite Ex. PB, that the amount should be repaid out of the funds held in the joint bank account.

119. There were “additional fees and expenses not yet reimbursed by the estate to Bede”. These amounts totalled $102,075. Only part of this amount was the subject of dispute.

120. I have earlier referred to counsel for Margaret having submitted that child care for Emmett ($24,223), entertainment ($17,600) and car running costs ($27,168) totalling $68,991 should not be paid out of the estate as these expenses were personal expenses of Fiona and/or Bede, rather than expenses of the deceased.

121. Fiona gave evidence about these expenses at Tcpt, 11 December 2018, p 193(47) – p 194(42):

“Q. That child care has been paid by you and husband for Emmett's child care.

A. Yes.

Q. Why do you say that figure should be paid for by the estate?

A. My grandmother used to say to me, "Thank you for looking after me. If I can help out with any child care costs I am more than happy to do so".

Q. But that child care wasn't provided for the benefit of your grandmother. It was really provided for your benefit.

A. So I could assist my grandmother. I was her primary carer.

Q. In the next paragraph, there's a claim in the third row, "Food and entertainment including regular lunch and family activities $17,600".

A. Yes.

Q. And you say that's a debt of the estate as well.

A. Yes.

Q. The reason for that is why?

A. We would often take them for meals and she offered to pay.

Q. There is also in the same table in the second last row, "Birthday gifts for PCH" - I take it that's Peter Cosgrove House.

A. Yes.

Q. "Staff $5,000".

A. Yes.

Q. That again was something that you paid for that you say is a debt of the estate.

A. Yes.

Q. Last but not least, on page 10, a single table there, "Car running costs including distance, tolls to regular visit to Mavis McDonald $27,168.86".

341. Section 54(2) of the Act provides that a person who has possession, or control, of a Will of a deceased person, must allow any one, or more, of identified persons to inspect, or be given copies, of the Will (at her or his own expense), including any person named, or referred to, in the Will, whether as a beneficiary or not; any person named, or referred to, in an earlier will as a beneficiary of the deceased; issue of the deceased; and any person who would be entitled to a share of the estate of the deceased if the deceased had died intestate. Margaret falls into each of these categories.

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

345. This factor is not applicable.

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

346. There are no other matters that I consider relevant.

Determination

347. Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Margaret, has not been made by the Will of the deceased.

348. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.

349. There was no provision in the deceased's Will made for Margaret. However, this does not, automatically, mean that she will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased’s Will.

350. Yet, judged by quantum, and looked at through the prism of her financial and material circumstances, adequate provision for Margaret’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

351. The Court is required to make an assessment of Margaret’s financial position, the size and nature of the deceased’s estate, the relationship between Margaret and the deceased, the competing claims, particularly of Fiona and Matthew, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].

352. A wise and just parent will recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life. Yet, the deceased’s statement of the reasons for making no provision for Margaret must also be remembered and given significant weight. The deceased reviewed her testamentary intentions from time to time, and the effect of her last two Wills was to decrease, to the point of extinction, the provision made for Margaret.

353. Taking all of the matters into account, I have come to the conclusion that adequate provision for Margaret’s proper maintenance and advancement in life was not made by the Will of the deceased. Whilst her conduct over a significant period of time, and particularly in the period after 2005, will restrain the amplitude of provision, her current circumstances and the fact that she has been unable, throughout her life, to accumulate any capital, to acquire ownership of property, or to establish a fund to meet contingencies as she gets older, are such that some modest provision out of the estate of the deceased should be made out of the deceased’s estate for her. (The lump sum that she has is as a result of compensation she has received.)

354. Furthermore, the value of the estate, whilst modest, is sufficient to make modest provision for all of the persons to whom the deceased owed some form of testamentary duty.

355. The more difficult question then arises, namely what provision “ought to be made for her maintenance, education or advancement in life”, having regard to the facts known to the Court. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

356. Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that Margaret should receive a capital sum to add to the amount of capital that she has, for exigencies of life.

357. In coming to the conclusion on the quantum of the provision to be made for Margaret, the deceased’s entitlement to testamentary freedom, and the fact that she made a detailed, and sworn, statement setting out the reasons she had for making no provision for Margaret is, of course, important and has been given significant weight in reaching my conclusions.

358. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child’s life and into retirement.

359. Furthermore, the amount of provision that I consider adequate and proper will not impact upon the other pecuniary beneficiaries, but will reduce the residue of the estate passing to Fiona, who has not given evidence of her financial resources and needs. However, I have weighed the very substantial contribution, as a granddaughter and her claim upon the bounty of the deceased in reaching my conclusion on the quantum of provision.

360. In coming to this conclusion on quantum, I have taken into account, amongst other things, the value of the estate; the competing claim of all of the beneficiaries; the fact that Margaret, at the date of hearing, has no earning capacity and has no person with responsibility to assist in maintaining her; and that whilst she does have a capital sum, which provides her with a small income to supplement her other income. She also has significant health issues.

361. The provision for the proper maintenance and advancement in life of Margaret that ought to be made, in my view, is by way of a lump sum of $45,000. This will enable her to pay for the mobility scooter and pay off her personal loan, without reducing, to any significant degree, the capital that she has. If she is able to pay off her personal loan, her available income should also increase.

362. I shall hear the parties on when the lump sum should be paid.

363. Fiona will, of course, receive, the balance of the residue of the estate, which, when added to the balance of the proceeds of sale held in her and Bede’s joint account, will provide a reasonable lump sum to her. The family unit will also have the benefit of the repayment of funds expended during the deceased’s lifetime.

364. I shall delay the making of final orders until the argument on the question of costs is heard and determined. The matter will be listed for that argument when these reasons are delivered. Meantime, the legal representatives should consider the form of orders to be made and provide a draft to the Court for consideration.

365. The Court:

1. Directs the parties to bring in Short Minutes of Order to reflect the reasons.

2. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of orders, and to determine any orders for costs.

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Decision last updated: 15 March 2019