Mitar v Mitar - [2017] NSWSC 647

Supreme Court

New South Wales

Medium Neutral Citation: Mitar v Mitar [2017] NSWSC 647
Hearing dates: 4 – 7 April 2017
Decision date: 26 May 2017
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff should be granted a family provision order in an amount of 30% of the value of the estate of the deceased (where that value is as determined in these reasons for judgment).
(2) Parties to bring in short minutes of order to give effect to these reasons for judgment.
Catchwords:
SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Whether order should be made granting plaintiff a fee simple interest in the family home and a lump sum – Where order sought by plaintiff amounted to claim for approximately 60% of the estate – Where plaintiff had three sisters also in need of provision.
SUCCESSION – Family provision – Appropriate form of family provision order – Where plaintiff was one of four children of the deceased – Where plaintiff’s sister is executor of the deceased’s estate – Where plaintiff’s other two sisters brought and settled claims for family provision – Where settlement agreement provided for the three sisters to split the estate in agreed percentages following the resolution of the plaintiff’s claim for family provision.
Legislation Cited: Succession Act 2006 (NSW) ss 58-60
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Buggle v Buggle [2012] NSWSC 1009
Chan v Chan [2016] NSWCA 222
Dimic v Djekovic [2014] NSWSC 1502
Gardiner v Gardiner [2014] NSWSC 435
Golosky v Golosky [1993] NSWCA 111
Meres v Meres [2017] NSWSC 285
Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111
Stewart v McDougall, Unreported, SC (NSW), Young J, 19 November 1987
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Toscano v Toscano [2017] NSWSC 419
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Ante Mitar (plaintiff)
Maria Mitar (defendant)
Representation:
Counsel: Dr J Lucy (plaintiff)
Dr H Bennett (defendant)
Solicitors: Berala Law Group (plaintiff)
Glass Goodwin Solicitors (defendant)

File Number(s): 2015/269034
Publication restriction: None

Judgment

Parties

This matter originally involved claims for the making of family provision orders by three of the children of the late Jozo Mitar (the deceased).
The deceased was born on 3 April 1940 and died on 22 May 2014, aged 74 years. The deceased left a will dated 29 March 2011.
Under the will the deceased appointed one of his daughters, Maria, as his executor. Probate of the will was granted by this court to the executor on 1 September 2014.
The deceased had three other children, each of whom made a family provision application under s 59 of the Succession Act 2006 (NSW) (the Act). The first application was commenced by summons filed by the deceased’s other two daughters, Dina Boljevak and Linda Mitar on 18 May 2015. The second was commenced by summons filed by the deceased’s only son, Ante, on 14 September 2015.
With no disrespect intended, I will for convenience refer to the children of the deceased by their first names.
As Ante filed his summons outside the 12 month period prescribed by s 58(2) of the Act, he will not be permitted to pursue his application for a family provision order unless the court makes an order under that sub-section permitting him to do so.
It should be noted that the deceased’s wife predeceased him in 2009.

The will

The deceased’s will, after appointing Maria as his executor and trustee, provided in cl 3 for the deceased’s estate to be vested in Maria as his trustee, and to be divided as follows:

a) I give to my son ANTE MITAR my motor vehicle and furniture and effects situated at my residence at 1 Harry Avenue Lidcombe.
b) I give the rest and residual (sic) of my estate including any real interest I may have in real property to my daughter MARIA MITAR.
c) I direct my executor MARIA MITAR shall permit my son ANTE MITAR to reside in the property at 1 Harry Avenue Lidcombe for such period as he continues to occupy those premises as his principal place of residence, and providing that ANTE MITAR pays for electricity and water usage accounts in respect of his occupation of the said premises.
d) I direct that my executor MARIA MITAR pay all other expenses in respect to the said premises as referred to in Clause c) hereof, from income received in my estate.
e) I further direct my executor MARIA MITAR to utilise such part of my estate as she in her absolute discretion deems appropriate for the advancement of my son ANTE MITAR.

The will also gave the trustee power to sell and convert into money the property in the estate and to partition or appropriate any real or personal property forming part of the estate towards the satisfaction of the share of any person or persons in the estate.

Inventory of property

The inventory of property annexed to the grant of probate suggested that the estate was worth $2,720,099.50. As will be seen, the value of the estate has grown. The property referred to in clause 3(c) of the will, which I will call “1 Harry Avenue”, was given a value of $1,200,000. 1 Harry Avenue had been the family home for the Mitar family. The deceased at his death also owned a neighbouring property, 3 Harry Avenue Lidcombe. That property was estimated as having a value of $800,000. The deceased was entitled to cash of $704,099.50. Finally, the deceased owned a motor vehicle that was valued at $16,000. The deceased had no debts.
1 Harry Avenue was a four-bedroom home, although one room on the ground floor had been turned into an additional bedroom, so that the property was effectively a five-bedroom home. The property had a garage that had been converted into a granny flat.

Effect of will

The deceased made no provision under the will for Dina and Linda.
However, evidence of statements made by the deceased to Maria before his death establishes that the deceased gave a direction to Maria to divide the cash in his estate between herself and her two sisters. Maria carried out that direction, and presumably after payment of certain costs of the estate, Maria distributed slightly over $200,000 to each of herself and Dina and Linda.
The only gift of property directly to Ante was the gift of the motor vehicle and furniture and effects at 1 Harry Avenue.
The residue of the estate was given solely to Maria as the executor and trustee, subject to a number of directions as to how she was to deal with the estate.
By clause 3(c) of the will, a right of occupation was given to Ante of 1 Harry Avenue, for so long as he continued to occupy those premises as his principal place of residence, and also provided that he paid for electricity and water usage.
The right of occupation appears to be non-exclusive, although Ante’s counsel put a submission, which was not pursued, that it was arguable by implication that the right was exclusive: cf Estate George Roby, deceased [2017] NSWSC 265 at [40]. Counsel accepted that the right was one of occupation and not a life estate. There was some evidence of statements made by the deceased before his death to the effect that it was his intention that Maria could allow other members of the family, and in particular his grandchildren, to use 1 Harry Avenue, as well as Ante.
As Ante only received a right of occupation, he did not have an entitlement to earn income from the property by licensing rooms, or any other means.
The effect of clause 3(d) was to require Maria to generate enough income from the balance of the estate to pay all of the costs of ownership of 1 Harry Avenue, other than the electricity and water costs that Ante was required to pay.
Maria was given an absolute discretion to utilise the balance of the estate for the advancement of Ante.
The effect of cl 3(d) and arguably also cl 3(e), was to stultify the use of the balance of the estate for the benefit of any other members of the deceased’s family, at least to the extent that Maria was required to earn income from that part of the estate to meet her obligations under cl 3(d) and (e)
Also, 1 Harry Avenue itself could not be applied for the benefit of any other members of the deceased’s family, so long as Ante continued to occupy the property as his principal place of residence, and continued to pay all electricity and water costs.
Subject to the specific gifts and obligations made or created by the will, its literal effect was to give the whole of the residue of the estate to Maria, so that she would be entitled to apply both 1 and 3 Harry Avenue for her own benefit if Ante died, ceased to use 1 Harry Avenue as his principal place of residence, or ceased to pay the electricity and water usage accounts.
The evidence supports the conclusion that the deceased probably did not in fact intend Maria to personally receive the balance of the residue of his estate for her own benefit. The deceased appears to have wanted one of his daughters to receive the residue, so that she could administer his estate in accordance with his wishes.
On this subject Maria said in her 21 March 2016 affidavit, at par 2(viii):

… He said words to the effect:
“I want to leave everything to you.”
He looked sad. I said: “Okay”.
I was aware that Linda and Dina were not speaking with my father at this time.
He then said: “I want you to distribute the funds between you girls and use the rent from 3 Harry Avenue to cover the costs of looking after the properties. I want Ante to live in the house and he is to be independent and pay his way [I took this to mean that Ante was to pay his electricity, water and personal bills]…I want the house to be there for everyone to use, including all the grandchildren”.

Dina was party to a similar conversation to the following effect, as stated in her 16 June 2015 affidavit:

49. In about February 2011, prior to my father going overseas for a holiday in Croatia, he visited us at our home. I was happy and surprised. He said to me “I want to put you as the sole recipient of my estate”. I said “Dad, Mum has specifically said it is to be distributed four ways. Why do you want to give everything to me”? Dad said “I want one name on the Will only”. I said “Tony hates me the most. It’s not worth it. I want all the three daughters”. He said “No. It’s too complicated. I want one person’s name”.
50. I declined my father’s offer because I was worried that my brother Tony would find out about the will and threaten me.

Linda said in her 16 June 2015 affidavit that she also had a similar conversation:

38. After we returned from Croatia in 2011, my late father showed me his will. He said to me, “I want to change the executor and main beneficiary from Maria to you”. He told me at a later time “I need someone strong to stand up to Tony and be the main beneficiary.”

The deceased does not appear to have directed his mind to the need to decide for himself how his estate should ultimately be distributed. He in effect delegated to the daughter who agreed to accept the appointment as executor the power to decide how to distribute his estate, subject to specific gifts and directions that he made. He asked Maria to distribute the cash among his daughters, but does not appear to have addressed the ultimate fate of the balance of his estate after the entitlement of Ante ceased.

Significance of Ante’s psychological history

Ante’s psychological history provides the primary explanation for the terms of the deceased’s will.
The evidence establishes that Ante suffered from paranoid schizophrenia for many years up to at least about 2006. That medical condition has been described as drug-induced schizophrenia, although there is a suggestion that Ante may have been prone to schizophrenia, and his drug use may have been a reaction to his mental condition. There is some evidence that Ante acted aggressively towards his parents even after he ceased experiencing serious bouts of schizophrenia.
It is reasonably clear that the deceased thought that Ante was dependent upon him for a place to live, and that is why he provided for Ante to have an indefinite right of occupation in 1 Harry Avenue. The deceased did not trust Ante with money, which is why he did not leave Ante any property other than his car, furniture and effects. He wanted to impose some financial discipline on Ante, which is why he made Ante’s right of occupation subject to the proviso that Ante pay for his own electricity and water bills. He chose one of his daughters, who he believed was strong enough to stand up to Ante, to decide what additional money should be given to Ante.
It is not clear that the deceased gave any particular attention to his testamentary obligations to his daughters. Save for the instruction to Maria to divide the cash equally, he left the position of his daughters up in the air. It seems most likely that he expected that the two real properties would simply remain in the family, and be enjoyed by all into the indefinite future, or be distributed in accordance with the discretion of the one daughter who he appointed as his executor.

Parties’ attitudes to adequacy of provisions made in the will

This is quite an unusual case in that all parties, that is all three claimants and the executor, submitted that the deceased did not make adequate provision, for the purposes of s 59(1) of the Act, although Dina and Linda do so for different reasons than Ante, and Maria, though apparently the principal beneficiary under the deceased’s will, accepted that inadequate provision was made for each of her siblings.
Dina’s and Linda’s position is that inadequate provision was made for each of them, because no provision was made, they each have reasonable need for additional provision (even after the receipt of the cash distributed by Maria), and although the estate is reasonably substantial, the effect of the provisions of the will is essentially to stultify the reasonable enjoyment of the estate by any of the deceased’s children so long as Ante continues to reside in 1 Harry Avenue.
Ante argues that the deceased’s will does not make adequate provision for his proper maintenance and advancement in life on two bases.
The first is that the premise upon which the deceased acted in making the special provisions for Ante that he did in his will – being that Ante continued to suffer from the effects of the paranoid schizophrenia from which he formerly suffered and that he would do so indefinitely – was now wrong as a matter of fact.
Ante’s case is that: (1) he has not had any paranoid schizophrenic episodes for more than 10 years; (2) he has not been hospitalised since 2006; (3) he has been entirely free from the use of drugs since 2000, in which year he spent 2 to 3 months at a drug rehabilitation facility at Katoomba; (4) he has been employed in a reasonably secure job as a truck driver since July 2015; and (5) he is now financially trustworthy, and has been able to reduce his credit card debt from $16,500 to $800.
Ante’s evidence of his employment was supported by an affidavit made by the general manager of his employer, who said that Ante has worked 45-55 hours per week for the last 12 months. Ante has an excellent driving record, and is known for looking after company equipment whilst on the job. The general manager said that Ante’s “performance is well above standard”.
Ante also called evidence from a psychiatrist, Dr John Albert Roberts. The thrust of Dr Roberts’ various reports was to provide an opinion that Ante adequately understood the nature of the proceedings and the possible outcomes, and that he was fit to give instructions. Dr Roberts said that Ante is psychologically fit to participate in legal proceedings, that he has an understanding of the legal process in which he is involved, and said that he was capable of providing instructions to his legal representatives: see Dr Roberts’ 8 March 2017 report.
Ante was cross-examined by counsel for Maria and, while I gained the impression that he was very intense, there is nothing in the way that Ante responded to the questions that were put to him that would justify my not accepting his submission that he is now mentally competent to lead an independent life, and for that purpose, be trusted with the ownership of substantial assets, and to manage those assets to benefit his own future.
Ante’s sisters all accepted the validity of Ante’s submissions concerning his present competence.
While it may be possible that Ante will suffer a relapse in the future, there is no positive reason for the court to think that he will, and it seems that for that to happen Ante would need to take some voluntary course, such as renewing his use of recreational drugs.
I will therefore accept Ante’s submission that his mental state is now, and has for no less than a decade, been sufficiently competent so that he no longer needs the special and restrictive provisions made for him by the deceased in his will.
There may be significant consequences for the purposes of the determination of Ante’s family provision application that, by his own argument, he has undermined the basis upon which he received the gifts that were given to him by his father’s will, and that he now argues that he is mentally and financially competent. That argument is likely to put him broadly on the same footing as his sisters when it comes to the family provision that ought to be made in his favour.
During the course of final oral submissions, Ante’s counsel agreed with the following proposition that I put to her (T 142.12): “the court should treat him as if he is a person of ordinary, sound mind, capable of looking after his own affairs and able to be trusted with a significant asset of one sort or another to deal with as he sees fit”.
Ante’s counsel specifically confirmed (T 142.49) that Ante is not saying “I’m free of all those problems, so give me the house, but you’ve got to give me the house because I’ve still got problems”.
The second basis for Ante’s submission that adequate provision had not been made for his proper maintenance and advancement in life was the unsatisfactory nature of the gifts that have been given to him under his father’s will.
Ante was given a contingent right of occupation for life, provided that he continued to use 1 Harry Avenue as his principal place of residence and paid the costs of electricity and water. His counsel described that right at as a “conditional and fragile” right. She relied upon the observations by Kirby P in Golosky v Golosky [1993] NSWCA 111, where the President (as his Honour then was) said, in relation to a gift in similar terms made to the testator’s wife:

A mere right of residence will usually be an unsatisfactory method of providing for a spouse, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;

If Ante becomes unable to live at 1 Harry Avenue, due to age and fragility, illness or accident, he will lose all rights under the deceased’s will. He would also lose those rights if for any reason he found it necessary or desirable to move interstate or overseas, for example for employment reasons. He would have nothing to leave on his death to any partner or child that he may then have.
Furthermore, Ante “wants to walk away from his sister’s control” (an expression used by Dr Roberts in his last report). The effect of cl 3(e) of the will is that Ante is entirely dependent on the discretion of Maria, to the extent that he may be unable to support himself through his own exertions, and may need to receive additional income from the estate.

Ante’s sisters all agree that the court should accept Ante’s submissions concerning the inadequacy of the provision made for him in the will, following the court’s acceptance of the initial submission that the peculiar arrangements made for Ante by the will were made on a premise which has now been shown to be false.
In my view it is obvious, given Ante’s present relative psychological competence, that the deceased did not make adequate provision for his proper maintenance and advancement in life. In this relatively unusual case, it is not necessary to examine the authorities that are usually cited for the principles that govern the issue of the adequacy of provisions for the purpose of determining disputes between the parties as to whether in fact an inadequate provision has been made.
In coming to this conclusion, I have not ignored the fact that in making a will in the terms that he did, the deceased made his own judgment as to how he should exercise his testamentary discretion. It is plain that at the date he made his will, which was only about three years before his death, the deceased’s own judgment was that Ante continued to suffer from psychological disturbances that made him dependent upon the deceased, and that he was not competent to handle any valuable assets that may have been left to him. The evidence in the proceedings is not entirely clear and complete concerning the day-to-day relationship between Ante and his father. There is some indirect evidence that Ante’s behaviour continued to be such as to cause the deceased to be fearful for his own safety. Whatever the cause may have been, it is clear that the deceased believed that Ante’s psychological problems had not completely abated.
The court should be careful when asked to ignore the judgment of a competent testator concerning special provisions that ought to be made for the protection of one of his children. Of course, the court accepts settlements of claims for family provision orders as between claimants and the executors frequently, and generally as a matter of course. It remains a matter of concern, however, in a case such as the present, where the court is asked by all parties to make wholesale changes to the entire way that the deceased’s will operates. The court should have some qualms about ignoring the voice of the testator, as expressed in the will.
However, the court must decide the claims on the basis of the evidence, and the evidence would suggest that, for reasons that cannot be known, the deceased had a view as to the level of mental competence of Ante that is not supported by the evidence. In that circumstance, it is appropriate for the court to accept Ante’s claim that the deceased’s will does not make adequate provision for his proper maintenance and advancement in life, given particularly that the submission is not contested by the deceased’s other children.

Settlement of Dina’s and Linda’s claims

On the first day of the hearing, Dina and Linda reached a settlement of their claims for family provision orders with Maria. The substantive terms of the consent order which the sisters joined in asking the court to make were:

1.   In lieu of the provision in clause 3(b) of the last will of the late Jozo Mitar there be the following provision:
(a)   Linda Mitar, Maria Mitar and Dina Boljevac each retain the payment made to her referred to in paragraph 3 of the Affidavit of Administrator (Updated) of Maria Mitar sworn 21 March 2007;
(b)   Subject to the determination of the Court in relation to the claim for provision in proceedings 2015/00269034 of Ante Mitar, the estate of the late Jozo Mitar (“the Deceased”) be distributed as follows:
i)   As to the first $700,000, in the following proportions:
A)   40% to Linda Mitar;
B)   40% to Maria Mitar; and
C)   20% to Dina Boljevac.

ii)   As to the balance of the estate, to each of Linda Mitar, Dina Boljevac and Maria Mitar in equal shares.
2.   Linda Mitar’s costs of these proceedings on the ordinary basis be paid out of the estate of the Deceased.
3.   Dina Boljevac’s costs of these proceedings on the ordinary basis be paid out of the estate of the Deceased.
4.   Maria Mitar’s costs of these proceedings on the indemnity basis be paid or retained out of the estate of the Deceased.

The explanation for the reference to $700,000 in par 1(b)(i) of the consent order is that that amount appeared to be the sum of money that would be left in the estate (1) if Ante was successful in gaining the family provision order that he sought (which involved his receiving the fee simple title to 1 Harry Avenue); and (2) after the payment of all parties’ legal costs on the usual basis.
The sisters’ settlement was ambulatory, in the sense that the actual amounts received by the sisters would be their agreed percentages after there was paid out of the estate whatever provision will be made for Ante, as well as all of the parties’ legal costs.
Before I agreed to make the orders in accordance with the sisters’ settlement, I raised with all parties the problems that can arise when there are multiple proceedings seeking family provision orders from a single estate, and some of the claims are settled and orders made before other claims are determined by the court. I made some observations about this difficulty in the recent case of Toscano v Toscano [2017] NSWSC 419 at [29]-[69].
Following these discussions, Ante through his counsel expressly consented to the court making orders to give effect to the sisters’ settlement.
I thereupon made orders in terms of the consent order signed on behalf of the sisters.
A consequence of the orders that the court made was that Dina and Linda ceased to be claimants under their own proceedings against Maria, and became beneficiaries of the deceased’s estate. Accordingly, their interests could henceforth be represented by Maria as executor.
By agreement between the parties, I permitted counsel for Dina and Linda to deal with Ante’s objections to those beneficiaries’ affidavits (as counsel for Maria had not prepared to read the affidavits prepared on behalf of Dina and Linda in Maria’s case). After all affidavits that were now to be read in Maria’s case had been read, and objections dealt with, the separate counsel for Dina and Linda were excused and left the court.
In her final written submissions, Ante’s counsel made the following submission about the effect of the settlement of the sisters’ claims (at par 8):

… Linda and Dina have settled their proceedings on the basis of the consent orders, and could not be heard to say, if Ante were to receive the house, that adequate provision has not been made for them. This does not mean, of course, that their interests are not relevant when considering the appropriate order to be made in respect of Ante.

Ante’s counsel also, in final oral submissions, made the following submissions concerning the technical effect of the orders made settling the sisters’ claims:

But I think it’s more than a technical effect, it’s a real legal change in their status. And what it means is that they’ve determined what the will now – the will has now been altered by your Honour’s orders to provide for them in a different way. And it’s not my submission that the Court would ignore their interests or their needs. Of cause the Court has to take them into account, it’s just that it’s a different kind of an exercise now. (T 133.33)
Well, your Honour, in my submission, in one way, I think the settlement has certainly changed things, and if I can just explain in what way, I don’t think it’s limited what the sisters can get because your Honour still has a discretion not to award my client anything – which of course I would urge your [Honour] not to exercise that discretion – but it’s still possible for the entire estate to be divided up between the sisters. What they’ve done is to convert their claims into what might be described as an ambulatory interest under the will, so that when your Honour says you’re concerned about what you can give the sisters, from one point of view it is not now your role to give them something, because they’ve already determined what their entitlements are… (T 134. 30)

As Ante appeared to submit that the orders that the court made in settlement of the claims by Dina and Linda may have had some unexpected effect on the way the court was required to deal with Ante’s application for a family provision order, and even though I did not understand what that effect may have been, I gave directions that would permit Dina’s and Linda’s legal representatives to make further written submissions after the conclusion of the hearing.
Counsel for Dina and Linda delivered joint submissions on 21 April 2017. They noted that Ante did not oppose the making of the orders sought by consent of his sisters, that the provision for Dina and Linda embodied in the orders took effect as if made in a codicil to the deceased’s will by reason of s 72 of the Act, and in that manner Dina and Linda became beneficiaries of the deceased’s estate. Their primary submission was that, in considering the propriety and adequacy of any testamentary provision for Ante, the court must consider the resources and needs of other claimants on the deceased’s bounty. That includes other beneficiaries entitled to a share of the deceased’s estate, whether or not they have made a claim for a family provision order: Meres v Meres [2017] NSWSC 285 at [135]. They submitted that the observations made by Callinan and Heydon JJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] that: “The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all the other relevant factors” stated the correct principle to be applied. Finally, they referred to the terms of s 60(b), (d) and (f) of the Act, as having the effect that any family provision order made in favour of Ante must be made having regard to the competing entitlement of Dina and Linda to provision out of the deceased’s estate, which should be decided on the basis of the claims originally made by Dina and Linda.
In my view, the terms upon which Dina and Linda settled their claims for family provision orders do not create any material change in principle, upon which the court should now determine Ante’s claim.
It is true that Dina’s and Linda’s status changed from claimants in their own proceedings to beneficiaries. However, the practical effect of the ambulatory nature of the sisters’ settlement was: (1) that Dina and Linda settled their claims against Maria in a way that divided Maria’s entitlement under the will between the three sisters in the agreed percentages; and (2) as the only other beneficiary under the deceased’s will was Ante, and as Ante also wanted the court to make a family provision order in his favour, the effect of whatever order was made in favour of Ante would define what was left in the estate to be shared between the sisters in the agreed percentages.
In my view the effect of the relevant provisions of the Act is to require the court in any event to have regard to the sisters’ claims on the bounty of the deceased, in deciding what family provision order should be made in favour of Ante: see in particular s 60(2) (b), (d) and (f).
In substance, the court should reach the same conclusion concerning the family provision order that should be made in favour of Ante that it would have made if Dina and Linda had continued to pursue their own claims against the estate. I am satisfied that that is the basis upon which the sisters settled Dina’s and Linda’s claims, by adopting the structure of the settlement that they did, which was to share the balance of the estate in agreed percentages after provision had been made for Ante and the parties’ legal costs had been paid.

Open offer

After orders had been made to implement the sisters’ settlement, on the first day of the hearing, counsel for Maria made an open offer in court (with the apparent consent of Dina and Linda) to settle Ante’s claim for a family provision order, on the basis that Ante would receive a lump sum of $950,000 plus his costs on the ordinary basis.
The offer was left open until 10am on the next date of the hearing. That time came and went without Ante saying anything further about the offer. The hearing continued, and it is obvious that Ante did not accept the offer.

Leave to Ante to make application for a family provision order out of time

In the context of the discussion between the court and the parties, concerning the possibility of unexpected consequences arising out of the partial settlement of the claims for family provision orders in respect of the deceased’s estate, and the desirability for Ante to consent to the court making the orders sought by the sisters, the sisters all consented to the court making an order in Ante’s favour under s 58(2) of the Act, to permit him to pursue his claim even though it was not commenced within 12 months after the date of the death of the deceased.
The grounds for Ante’s application had been set out in par 3 of his written opening submissions, and are supported by Ante’s 20 March 2017 affidavit.
Although it is for the court to exercise its own judgment as to whether it should permit the application to be continued though commenced out of time, I was satisfied that the reasons put forward by Ante, when considered in the light of the consent of the other parties, justified the order being made.
To my observation there was a connection between Ante’s consent to the court making the orders sought by the sisters, and the sisters’ consent to the court making an order that permitted Ante to continue with his application. The sisters’ consent facilitated Ante consenting to the court making the orders sought by the sisters in settlement of the claims between them, as it obviated the possibility that, after the settlement orders had been made, Maria might succeed in opposing Ante being allowed to pursue his claim.

Assets available for distribution

Ante did not challenge the final written submissions made on behalf of Maria in so far as they set out the estate that is now available for distribution.
After the death of the deceased, Maria distributed $624,306 between herself and her sisters in accordance with the deceased’s instructions (Dina $207,103, Linda $209,403 and Maria $207,800).
Ante received the deceased’s motor vehicle (est. $16,000), the household contents (est. $5000), rent from 3 Harry Avenue ($8690) and $5000 withdrawn from the bank account of the deceased: total est. $34,690. The total amount distributed is therefore $658,996.
The parties did not suggest that it was necessary for the court to consider whether or not these receipts should be treated as notional estate of the deceased, as they accepted that the assets had been received by the recipients and that the court should determine the respective claims for family provision orders, and Maria’s claim to be left with adequate provision under the will, on the basis that the relevant amounts had already been received out of the estate.
The parties accepted that 1 Harry Avenue had a value of est. $1,850,000.
Before the hearing, Maria had sold 3 Harry Avenue, and the amount of cash remaining in the estate after payment of various expenses was $1,134,017.
The value of the assets remaining in Maria’s hands is therefore $2,984,017, which after allowance for estimated expenses still to be incurred of $80,000, leaves $2,904,017.
The total of the balance of Maria’s costs on the indemnity basis, and the costs of the three claimants on the ordinary basis, which the parties agreed should be paid out of the estate is $371,763. Costs of $113,111.17 incurred by Maria have already been paid out of the assets of the estate.
Consequently, the net distributable estate after costs is $2,532,254, which may be treated as being $3,191,250 if the total of $658,996 already distributed is taken into account.

Ante’s claim for family provision order

Ante claims that the court should make a family provision order in his favour that has the effect of transferring to him the fee simple title to 1 Harry Avenue. That gift would have a value of $1,850,000.
In addition, Ante claims that he should receive a pecuniary legacy of $50,000. This additional claim was not made until Ante’s final submissions in reply (literally the second last page of the transcript). I infer that Ante added this claim in response to observations made by the court during his counsel’s submissions concerning the practical problems that may arise if Ante is given title to 1 Harry Avenue, but he does not have sufficient financial resources to pay his debts. Maria did not have any opportunity to respond to this additional claim.
Ante’s position is that he should be able to retain the benefit of the $34,690 that he has already received, and his costs on the ordinary basis should be paid out of the balance of the estate. Ante’s share of what is available in the estate would then total $1,934,690.
If the court accedes to Ante’s application, after his sister’s costs have been paid out of the estate on the usual basis, and allowing for the $624,306 already received by them, the amount available for the sisters to share in accordance with their settlement would be $1,256,560.
In that case the parties would share in the estate approximately as to Ante 60% and his sisters combined 40%.

Basis of Ante’s claim for family provision orders sought

I have taken the basis of Ante’s argument as to why the court should make the family provision order in his favour that he seeks principally from the argument that he put in his written outline of submissions before the commencement of the hearing, as it is on the basis of these submissions that his sisters settled their disputes, and this is the case that Maria fought. I have supplemented the statement of Ante’s argument with some details taken from his final written submissions.
First, Ante argues that an order transferring 1 Harry Avenue to him would be consistent with the deceased’s intention that Ante should be permitted to reside in the family home. Ante put it that a family provision order in these terms would best embody the principle “that Australians have freedom to leave their property by their will as they wish” provided that they “fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made”, relying upon Stewart v McDougall, Unreported, SC (NSW), Young J, 19 November 1987, cited by Brereton J in Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 at [44]. This argument is based upon the proposition that the deceased wished Ante to be able to live in the family home for his lifetime.
This argument was supplemented by the submission that Ante has resided at 1 Harry Avenue for the whole of his life, the property has deep emotional significance to him as the family home, and it is territorially the centre of his social life. Ante relied upon the decisions of the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 and Chan v Chan [2016] NSWCA 222 to underscore the significance of the fact that a claimant may have an expectation of being permitted to live in accommodation that he or she has lived in for a long time in determining what is an appropriate family provision order.
Secondly, according to Ante adequate provision for the proper maintenance and advancement in life of his sisters may be made from the remainder of the estate, after payment of all costs on the usual basis.
Thirdly, Ante says that his claim would meet community expectations, given his contribution to the construction and cost of the home, the practical support he gave to his parents when living with them over many years, and his current financial position.
This argument is based in part on a claim by Ante that in 2000, on the occasion of his father’s 60th birthday, Ante paid to the deceased two sums of $60,000 in cash, and the deceased used that money partially to fund the construction of a new family home on 1 Harry Avenue.

Ante also gave some generally expressed evidence that he did a lot of work in relation to the renovation of the home in 2000 and also around the home thereafter, and he looked after his parents for many years.
Ante complemented this argument by referring to the amounts that he claimed to have paid to his parents over the years for board, and claiming that the deceased told him that these payments would go towards Ante’s entitlement to receive an interest in the home.
Ante then submitted, fourthly, that whilst the proposed orders would result in Ante receiving a larger portion of the estate than his siblings, and this might not be regarded as an equitable distribution of the estate, it is not the court’s function to achieve equity between claimants. In support of this submission, Ante relied upon three decisions of Hallen J (as his Honour now is) in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [92], Buggle v Buggle [2012] NSWSC 1009 at [96] and Dimic v Djekovic [2014] NSWSC 1502 at [144], where his Honour said:

Bryson J noted, in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants. The court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court’s role is of a specific type and goes no further than the making of “adequate“ provision in all the circumstances for the “proper“ maintenance, education and advancement in life of an applicant.

Ante also relied upon the following statement of mine in Gardiner v Gardiner [2014] NSWSC 435 at [100]:

It is necessary to consider the legal principles that govern applications for family provision orders. In this area of the law it is important for the parties to the proceedings to have an opportunity, if they so wish, to understand from a review of the reasons for judgment why the Court has reached the conclusion that it did. An important reason is that Ch 3 of the Act does not give to the Court a general discretion to re-work the effect of the testator’s will. In particular the Court is not given a power simply to divide up the testator’s property in accordance with what the Court considers to be fair. The testator’s entitlement to decide how his or her property should be distributed is preserved, subject to a limited power that the Court is given to intervene and change the effect of the will in specific circumstances. Those circumstances are set out in Ch 3 of the Act.

Ante put this proposition in the following way: “Further, it is not part of the court’s role to achieve some kind of equity between the various claimants. The court’s function is not to reward an applicant, or to distribute the estate according to notions of fairness or equity”.
Fifthly, Ante submits that as he no longer suffers from mental health issues, and having regard to his contribution to the estate and his lack of financial means, the appropriate order is that he be given a full legal and beneficial interest in the family home.
As a sixth matter, Ante relied upon the fact that he was not in paid work between 2005 and his father’s death in 2014 “dedicating himself to looking after his parents in this 10-year period including by taking them to medical appointments, assisting with household chores and maintaining both his parents’ properties”. He said that notwithstanding that he was living on a pension, he contributed to his parents’ expenses by paying them board from about 2000 until his mother’s death in 2009, and was told by his father that these payments would “go into the house as [Ante’s] share”.
Seventhly, Ante submitted that his sisters had rarely visited their father.
Next, and eighthly, Ante submitted that the court should respond to evidence given by Dina that her father had said to her in about 2004 that the family home was for her and her children, that this statement may have reflected a desire that they would be able to live there during his lifetime, but if it was an expression of the deceased’s intention as to what was to happen after his death “he may have changed his mind during the eight year period prior to his death when his relationship with Dina had deteriorated and Dina saw little of him”.
Ninthly, Ante submitted that the court should give very little weight to the evidence given by the sisters concerning difficulties in the relationship between Ante and his parents, and the level of assistance that he gave them, primarily because the evidence was largely hearsay based upon statements made by the deceased or his wife. Ante then responded to the possibility that the court may accept the evidence given by his sisters by saying that his conduct for a long period should be excused because he suffered from paranoid schizophrenia.
Tenthly, Ante compared the value of the assets that his sisters, or in the case of Dina and Maria his sisters and their husbands, had been able to accumulate compared to his limited assets, as a basis for justifying an otherwise disproportionate part of the estate being given to him by means of the family provision order that he sought.
Finally, although not expressed last in Ante’s submissions, Ante submitted that his “father had a domestic and moral obligation to let Ante reside in the family home during his life time and to leave the family home to Ante. This would reflect perceived prevailing community standards of what was right and appropriate”. That was so notwithstanding that Ante accepted that ordinarily a parent is not expected to provide an unencumbered house to an adult child. Ante submitted that his father: “had a responsibility to provide for Ante given Ante’s previous mental illness and the impact this had upon his ability to provide for himself”.

Credibility of sisters’ evidence

This is a convenient point to deal with the issue of the credibility of the evidence given by Dina, Maria and Linda, as a number of issues that are important to the proper determination of the claims in this case depend upon the resolution of conflicts in the evidence between the sisters on the one hand and Ante on the other.
I found each of the sisters to be credible in the way they gave their evidence. They were straightforward witnesses and apparently candid. As judicial experience often shows, when a witness gives his or her evidence in open court, the court becomes satisfied in a holistic way that the witness is genuine and giving evidence to the best of the witness’s recollection. I am satisfied that this was the case for each of the sisters.
It does not necessarily follow from the fact that the court is satisfied that a witness is a witness of truth that all of the evidence given by the witness should be accepted. The memories of even truthful witnesses are fallible and are liable to diminish with time. However, in the present case I am generally satisfied with the reliability of the evidence given by the sisters, even in respect of the events that occurred a long time ago. The evidence in question concerns the events that would ordinarily endure in the memory of the witnesses.
Furthermore, there is a high level of consistency between the evidence given by each of the sisters, and there can be no suggestion that the evidence given was not the independent recollection of each witness.

Ante’s evidence

The issue of the credibility of Ante’s evidence is unfortunately more problematic than is the case for his sisters’ evidence.
It will be convenient to deal with the question of Ante’s credibility in conjunction with a consideration of the evidence that he gave in support of the claim for the family provision order that he seeks.
In due course it will be necessary to consider the positive cases made by the sisters as to their entitlement to family provision orders, but at this stage it will be convenient to deal with that part of the sisters’ evidence that responds to the evidence given by Ante.
The evidence establishes that Ante has lived at 1 Harry Avenue all his life.
I also accept Ante’s evidence that he wishes, for emotional reasons and for convenience, to continue to live at 1 Harry Avenue for the foreseeable future, and if he can, for the rest of his life. Ante’s aspiration in that regard is understandable.
I do not accept that Ante’s aspiration is objectively reasonable, in the sense that Ante has a practical need to own 1 Harry Avenue as his sole residence, given the size of the home, with its five bedrooms and a granny flat. If the deceased’s estate were large enough to permit Ante to receive sole title to 1 Harry Avenue, while providing adequately for each of his three sisters, then there would plainly be no harm in his owning a home that has five bedrooms.
I bear in mind that Ante gave evidence that he still hopes to marry and have children, and while there is apparently no immediate likelihood that that will occur, it must be allowed for as a real possibility.
Linda gave evidence that on 16 October 2014, she, Maria and a real estate agent inspected 1 Harry Avenue for insurance purposes. She said that the house was in squalor. There was a large pile of garbage on the floor of the upstairs main bedroom. The house smelt strongly of smoke. There was a backyard fireplace/fire pit which had been constructed with bricks about a metre high in a square shape. Ash had accumulated at the bottom, inside the square brick barrier. There was an enormous pile of rubbish in the yard, including an old letterbox, tiles, and other junk. As I understand it, the sisters have not inspected the property more regularly, because Ante has not been prepared to give them access.
Ante responded by saying that he has kept the premises in a good state of repair and in very good condition as he regularly cleans the property. He said that the property was in a proper and clean state when it was inspected by Maria’s solicitor for the purpose of taking photographs.
While I accept the evidence given by Linda, I do not think that the evidence as a whole allows the court to make a decision about the general level of upkeep of 1 Harry Avenue since the death of the deceased. The evidence given by Linda does no more than introduce an element of doubt as to whether in a real, practical way a home as big as 1 Harry Avenue is needed by Ante.
I accept that Ante has a need for a permanent home, which is of course a universal need for people in the position of Ante. To the extent that the deceased’s estate is sufficient to fund it, it will be appropriate for a family provision order to be made in favour of Ante that enables him to acquire an appropriate home which is unencumbered, or if he prefers, is only encumbered by a relatively small mortgage. The issue of whether that home should be 1 Harry Avenue, or some other home, will ultimately depend upon a consideration of the claims made by Ante’s sisters.
The sisters did not challenge Ante’s evidence concerning his recent earning capacity, and his net assets.
I have outlined the position concerning Ante’s employment as a truck driver above.
Ante’s current gross monthly income is approximately $4800, and his net monthly income is approximately $3950.
Ante’s monthly expenses are quite frugal at about $1930.
He has assets of about $46,750, represented by a motor vehicle worth $12,000, and the balance being primarily superannuation.
Ante’s only liability, other than in respect of the costs of these proceedings, is a debt to his former solicitors of $3000.
I accept that Ante did not engage in regular work for a period of at least 10 years before he gained his present employment as a truck driver.
Ante has submitted that his father was obliged to consider the fulfilment of his testamentary duty to Ante on the basis that Ante’s earlier debilitation from paranoid schizophrenia was the cause of Ante being unable to accumulate any substantial assets in the period after he ceased to suffer from that disability.
The evidence is unclear as to the extent to which Ante’s unemployment was caused by his earlier psychological disturbances. The evidence establishes that Ante has been successful in undertaking his present employment. Ante’s case is that he has been free of symptoms of his earlier disability for at least 10 years. Ante did not provide evidence as to why it took him in the order of 10 years to get a job, which he has found that he can fulfil competently. On the other hand, Maria did not seek to make a case that Ante could have obtained gainful employment a long time before he did, and the terms of the deceased’s will in favour of Ante reflect an appreciation by the deceased, albeit qualified one, that the deceased had an obligation to ensure that Ante had a home.
There is objective evidence before the court concerning the period when Ante suffered relatively extreme episodes of paranoid schizophrenia, in the form of hospital records from Cumberland Hospital. Ante was an inpatient at Cumberland Hospital on five occasions: from 7 August to 23 August 1995; 21 January to 19 February 1997; 20 March to 30 March 1998; 2 January to 3 January 1999; and 6 January to 28 February 2006.
Ante’s first admission was when he was 29 years of age. Ante was transferred to the Hospital with a police escort. Ante’s mental condition had deteriorated over the past three months; he was suspended from his job, and he claimed that he was persecuted by his workmates. He told the medical officer at the Auburn Community Health Centre that he would not take medication, and he intended to get even with his persecutors. He said that he could kill someone if he was on medication, and accused the medical officer of being a drug pusher. Ante was started on antipsychotic medication, which had no side effects, and he was ultimately discharged.
The discharge summary for Ante’s 1997 admission recorded that, before his admission, Ante had experienced 12 months of suspiciousness and social withdrawal, culminating in delusions and violence towards property and threats to his parents. His condition was described as “Drug Induced Psychosis (? Schizophrenia)”. Ante was the subject of a community treatment order for a period that appears to have been three months. The nature of the treatment imposed is not clear.
The discharge summary for the third period of admission describes the diagnosis as “drug induced psychosis”. It referred to Ante being the subject of a community treatment order which he had breached by stopping taking his medication for 2 to 3 weeks. An incident is reported in which the deceased discovered Ante burning dead tree cuttings that led to a struggle over putting out the fire. At the time of discharge, Ante agreed to allow his mother to supervise his medication, and not to use again the drug that had prompted his psychosis.
The hospital record concerning Ante’s fourth admission to hospital recorded that he had been brought in by police, who reported that Ante broke the window and the wall in his own house and then damaged a neighbour’s house. He was abusive and screaming when the police arrived. On this occasion Ante was only admitted to hospital between 2 January and 3 January 1999. At the time of his discharge, it was recorded that there was no evidence of psychosis or mood disorder or cognitive impairment during the presentation. Ante was discharged home on Risperidone .5 mg nocte with follow up by the Auburn Community Health Centre.
The hospital record for the last admission in 2006 recorded that Ante had been brought to the hospital by a team from the Auburn Community Health Centre with police escort, after his parents requested help from the Health Centre. The record recorded that on one occasion Ante pushed his mother away, physically hurting her. It recorded that he had acknowledged doing the same to his father before admission. Ante improved gradually following the administration of oral antipsychotics.
Given the evidence concerning Ante’s recovery from the psychosis from which he episodically suffered, the evidence of his condition at the time of the admissions to the Hospital is to some degree only of historical interest.
It is relevant to note, however, the records of Ante being to some degree violent with his parents.
In Ante’s 16 October 2015 affidavit, he gave evidence that after high school he attended the University of Sydney, and graduated with a Bachelor of Law/Economics degree in 1997. However, in cross-examination (T 55.5) Ante volunteered that, while he had obtained an Economics degree from the University of Sydney, he did not obtain a Law degree, but obtained a Diploma of Law over 7 years part-time from the Solicitors and Barristers Admission Board. This unexplained lapse is troubling, in relation to the light that it shines on the reliability of Ante’s evidence. There is a very clear distinction between a Law degree obtained from a university and the Diploma of Law, and Ante must be taken to have known the difference.
In his evidence, Ante made a number of allegations concerning the position of his sisters, which in my view were clearly calculated to undermine their claims for family provision orders.
In his 16 October 2015 affidavit, Ante claimed that all of his sisters left the family home by the time they were 18 years of age. Dina gave evidence, which I accept, that she left home at the age of 24, when she married her husband. I also accept Maria’s evidence that she left home at 20, and after three months moved in with Linda to live at 3 Harry Avenue. Linda accepted that she moved out of home halfway through her final year of high school, at the age of 17, because she was unable to continue living at home because of the conduct of Ante.
The evidence given by Ante concerning the ages at which his sisters left home is also troubling. At the least it demonstrates an unreliability of memory. However, in my view the evidence was intended to supplement Ante’s evidence that his sisters rarely saw his parents, and did not provide them with any assistance. Viewed in this light, I have come to the view that the incorrect evidence given by Ante as to when his sisters left home was part of an attempt to understate the claims that the sisters had on the deceased’s testamentary bounty.
Ante gave evidence that in 1993 he purchased 11 Harry Avenue Lidcombe as an investment, with the assistance of a loan of $80,000 that he received from his parents. The conveyancing records that were in evidence show that the purchase price was $154,000 and that Ante sold the property in 1999 for a price of $245,000. Ante also stated that he repaid the mortgage during the time that he owed the property. The amount of that repayment would have been $74,000. Ante would have been assisted in being able to repay the mortgage by using the net rent from the property. The repayment required was about $1000 per month. The historical title search for the property shows that the property was mortgaged on 23 November 1993 on the date it was transferred to Ante. There was a discharge of mortgage and a new mortgage registered on 17 August 1998. Ante did not give evidence of the circumstances leading to this new mortgage. The evidence establishes that on 28 June 1999, Ante’s parents lodged a caveat to protect their right to receive repayment of the $80,000. On 16 August 1999, the latest mortgage was discharged on the date of the registration of the transfer from Ante to the purchasers.
This aspect of the evidence is one of a number in which important evidence takes the form of nothing more than bare assertion by Ante. The fact that there was always a mortgage registered against the title to 11 Harry Avenue during the period it was owned by Ante does not exclude the possibility that Ante repaid the later mortgage at some time between 17 August 1998 and 16 August 1999, but did not bother registering a discharge until the later date. However, the evidence is also consistent with some part of the amount borrowed remaining outstanding at the time the property was sold by Ante.

This is an important issue, as to which the court would ordinarily expect Ante to provide more objective evidence than he has provided. The issue is important because Ante has given evidence that he gave $120,000 to his father, which was used to assist in the construction of the present house on 1 Harry Avenue. That is a significant plank in Ante’s case, because it will obviously support his claim for an order that the property be transferred solely into his name, if he made a very substantial contribution to the cost of constructing the new house on the property.
Before I come to that evidence, however, it will be convenient to deal with the evidence given by Ante about his paying board to his parents. Ante said that he paid board of $100 per week to his parents between 2000 and his mother’s death in 2009. He said, in effect, that his father said to him that his payments of board would be a contribution towards his entitlement to receive 1 Harry Avenue.
Ante also said that his father kept a record of board payments in an exercise book. An extract from that exercise book became Exhibit B.
An analysis of the exhibit shows that, between 2 January 1998 and 27 February 1998, Ante paid board of $360 every two weeks. Thereafter until 24 July 8, 1998, he paid board of $720 every four weeks.
There is then a gap in the record of about two years until 4 August 2000. There is a statement made by the deceased in the place in the document represented by this gap in what I assume to be Serbo-Croatian. The statement was not translated.
Between 4 August 2000 and 4 May 2004, the deceased appears to have recorded payments by Ante every four weeks of $320. There appear to be entries that may explain apparent absences of board payments for relatively short periods, but the explanations are written in untranslated Serbo-Croatian.
There is then a gap in the record of about three years between 4 May 2004 and 26 June 2007. Again, the deceased has made an untranslated statement in the place that represents the gap.
The document then records payments by Ante of $400 every four weeks between 22 June 2007 and 12 December 2009.
On the face of the document, Ante paid board of $80 per week between 4 August 2000 and 4 May 2004. Ante only paid board of $100 per week for about 2 ½ years after 22 June 2007. There was a gap in payment of about three years between mid-2004 and mid-2007. (The earlier two-year gap between mid-1998 and mid-2000 was before the period given by Ante as to when he paid board to his parents).
Maria gave evidence that the deceased had said to her, on unidentified dates:

I want your brother to pay board so he will have less money to spend on drugs, and he can learn a few life skills about budgeting… I fight with your brother over him paying board.
And:
Ante, as if he is paying board… sometimes he does and sometimes he doesn’t.

Ante did not give evidence in explanation of the three-year gap in the record of his paying board to his parents. It seems to be improbable that Ante paid board during that gap, but the deceased did not make a record of it.
This is another example of Ante’s evidence not being complete or sufficiently reliable.
Ante’s claim that he undertook significant work in conjunction with the renovation of the home on 1 Harry Avenue is also not corroborated in any way. Ante made a number of assertions concerning the type of work that he did. His sisters generally deny his claim, in the sense that they say that they never became aware of him doing such work. Just as it is difficult to accept the general and unsubstantiated assertions made by Ante on this subject, it is difficult to know what weight to give to the evidence of the sisters, as it is not at all clear whether, and if so how often, they visited 1 Harry Avenue during the course of the renovation.
To return to the issue of whether Ante gave his father $120,000, Ante said in his initial 16 October 2015 affidavit at par 19: “During this period I also contributed some $120,000 towards the cost of the construction of the house from my own money”. This evidence was rejected on grounds of form, and Ante was given leave to give evidence on this subject properly. Ante gave the following evidence in chief (T 43.18-43.39):

Q. I'm going to ask you a few questions about the new house that was constructed at 1 Harry Avenue. Can you please tell the Court whether you made any financial contribution to the construction of that house?
A. I contributed $120,000.
Q. Can you explain to the Court how you did that?
A. I sold a house to build a house, I gave my dad $60,000 on his 60th birthday, which was in the year 2000, and I thought it was appropriate and right, and it was less than ten days that I gave him another 60,000.
Q. How did you pay him that money?
A. In cash. That's what you do between father and son. I had the funds available.
Q. Where did you get the cash from?
A. The sale of 11 Harry Avenue.
Q. But where did you directly get the dollars from?
A. The bank.
Q. Do you recall which bank you got it out of?
A. I don't recall.

In cross-examination of Ante, the following occurred (T 58.16-59.50):

Q. Mr Mitar, in your evidence this morning you referred to a contribution of $120,000 you made. Can you just clarify what period of time you say this occurred?
A. On his 60th birthday.
Q. When was that? What date was that?
A. 3 April.
Q. What year was that?
A. 2000. $60,000 for 60 years old.
Q. When do you say you provided the other $60,000?
A. Within a matter of - very quickly, probably three days' time. Very quickly.
Q. Where did you get the money from?
A. From the bank.
Q. What bank was that?
A. I do not recall.
Q. You would agree, Mr Mitar, that $120,000 is a lot of money?
A. Not to my dad when we're building a house.
Q. Mr Mitar, to you $120,000 is a lot of money?
A. Not when I'm building a house.
Q. Mr Mitar, was that your only substantial asset at the time?
A. I sold a house to build a house.
Q. When you sold the house, Mr Mitar, was the $120,000 pretty much all you had?
A. That was my intention, to sell a house to build a house.
Q. I'll ask you to answer my question. In terms of your assets at the time, was the 120,000 pretty much the bulk of what your assets were?
A. Yes.
Q. You have a law degree, and you said earlier in your evidence you understand the importance of record keeping. It would have been important to make a written record, wouldn't it, of such a transaction?
A. I don't know why, I'm not sentimental on paperwork, if that's what you mean.
Q. Mr Mitar, this was, you would agree, pretty much your major asset, financial asset in life?
A. What, the one that I built or the one that I sold?
Q. The $120,000 you say you had.
A. The $120,000? I was looking more forward to building with the money, rather than looking at the money.
Q. Do you have any written documentation to support your assertion that you gave your father $120,000?
A. No.
Q. You can't remember the bank you got it from?
A. I do not recall.
Q. It would have been a big deal, don't you agree, for a man to walk into a bank and ask for $60,000 in cash?
A. I don't recall withdrawals, I don't recall deposits, I don't recall small amounts, I don't recall large amounts, I don't recall lump sums.
Q. Is your memory for the whole of that period fairly poor, Mr Mitar?
A. Poor?
Q. Is your memory for events in the year 2000 poor?
A. No.
Q. Don't you agree not remembering what bank you got two lots of $160,000 from, wouldn't you agree that is
A. It's $120,000.
Q. A total of 120,000. Don't you agree that is a poor memory?
A. All I was concerned about at the time was making sure that it was sentimental for my dad, he was 60 years old, it was $60,000, twice on that, and I wasn't really concerned where I got the money from as long as I got it. It came from a bank.
Q. And you simply don't remember which bank?
A. No.
Q. You simply don't remember even going there?
A. Well, I just knew the money was there, I just sold a house. I had the money, I sold the house so my money was there.

Maria gave evidence that her father never mentioned to her that Ante had contributed $120,000, or any other sum, to the construction of the new house on 1 Harry Avenue.
No other evidence was tendered by Ante concerning how his parents funded the construction of the new house.
Acceptance of Ante’s claim that he contributed $120,000 towards the construction of the new house requires that the court simply accept the bare assertion made by Ante.
It is of some significance that Ante initially simply said that he contributed $120,000, without at the outset providing any further details; particularly in relation to there being two payments in cash.
As I have observed above, Ante also did not provide any evidence in corroboration of his claim that he had $120,000 available to pay to his parents from the sale price of 11 Harry Avenue. That also was a matter of bare assertion by Ante.
Ante’s bland observations that he could not remember the bank from which he got the cash are not inherently credible. Ante claimed that his memory for events in the year 2000 was not poor.
Ante offered no explanation for why he made two payments of $60,000, which he said at one place were “less than 10 days” apart (T 43.26) and at another place “probably three days” apart (T 58.28).
Ante’s response to the suggestion that: “It would have been a big deal…for a man to walk into a bank and ask for $60,000 in cash” was:

I don’t recall withdrawals, I don’t recall deposits, I don’t recall small amounts, I don’t recall large amounts, I don’t recall lump sums”

This is inconsistent with Ante taking the question seriously, or appreciating the significance of his request to ask the court to take him on faith when he said that he made two cash payments of $60,000 to his father.
Taking into account the manner in which Ante gave his evidence on this issue, and having regard to the other unsatisfactory aspects of Ante’s evidence that I have discussed above, I am not satisfied that Ante has provided sufficiently clear and convincing proof of the making of the payments to justify the court accepting that he did so.
Ante gave evidence that, during the period that he owned 11 Harry Avenue, and subsequently, he lived at 1 Harry Avenue “so that I could assist [my parents] as I looked after their needs and assisted them with various chores”: see Affidavit 16 October 2015 at par 14. Ante made similar claims at pars 21, 22, 27 and 29.
Ante’s sisters denied that Ante provided any substantial assistance to his parents during their lifetimes. To some degree the sisters’ evidence must reflect their belief or understanding, as on their own evidence they did not frequently visit 1 Harry Avenue. Maria gave evidence of a statement made by the deceased, again undated, where he said: “Ante does not help around the house at all”. She asserted that her father did all of the house maintenance and that her mother cooked and cleaned after her father and Ante.
Linda gave evidence, again without specifying the time, that her father said to her: “Once I asked Tony to get a cup of water for me and he said “Get it yourself. This is not a nursing home.” He couldn’t even get a cup of water for me.” She said that her father would often say: “I can’t rely on Tony for anything - You know what he’s like”. Linda also gave evidence that she never once saw Ante helping her parents with chores around the house or garden, but that after her mother died, her father did say to her once that: “Tony sometimes cooks but normally I cook for myself or buy food from the take away shop”.
It is not possible on this evidence to resolve the dispute about the extent to which Ante did, or did not, provide day-to-day assistance to his parents concerning the house or their affairs generally. I note that again the evidence given by Ante is not corroborated, and the general unease that I have expressed about accepting Ante’s evidence as being entirely reliable has caused me to discount the significance of the evidence that he has given.
Ante also stated baldly in his 16 October 2015 affidavit at par 28:

My sisters very rarely visited my father and I. My sisters did not attend to my father’s needs. I took my father to his medical appointments and assisted him with all his needs.

I will refer to the evidence given by Ante’s sisters in response to this claim in more detail below, when I come to consider the evidence given by them in support of their applications for their own family provision orders, and Maria’s defence of her right to be provided for adequately.
At this stage it should be said that all of Ante’s sisters accepted that they rarely visited the deceased at his home, but the explanation they gave for that was that they were frightened of Ante and the way he conducted himself towards them.
Dina accepted that she did have a problem with her father, which was largely caused by his response to her not being prepared to have her children baptised at times demanded by the deceased. Nonetheless, she did contrive to see her father from time to time.
Maria and Linda gave evidence of having contact with and assisting their father with some frequency, at least over his later years. It must be remembered that the deceased was sufficiently close to Maria to appoint her as his executor, and to make her his residuary beneficiary. Linda gave specific evidence of the types of occasions on which she visited her father, took him for outings, and assisted him in various ways.
It may be that some excuse can be made in favour of Ante’s evidence that his sisters very rarely visited his father and that they did not attend to his needs, by reason of the fact that Ante may not always have been present when these events occurred. However, he ultimately cannot be excused for making such absolute claims with the evident intent to undermine his sisters’ claims for relief, as it demonstrates an unsatisfactory preparedness on Ante’s part to overstate his case by giving evidence that cannot be supported by his own experience and observation.
There was also a dispute between Ante and his sisters about whether Ante ever threatened or committed acts of violence towards his parents.
Ante said on this subject in cross-examination (T 66.28-66.41):

Q. Thank you, thank you. Turning now to paragraph 7 you say, "I deny that I regularly had physical altercations with my father." Now you've said "regularly" there. Does that mean there were times when you had altercations with your father?
A. No, you don’t touch your dad. That’s just the way it is.
Q. And are you saying it on - no occasion ever?
A. You don’t touch your dad, no, of - no. I - I can't - no.
Q. And what about your mother, did you ever
A. No.
Q. --push your mother or hurt your mother?
A. No, no, no, no. I - no, no. My mother gave me everything. No.

I have set out aspects of the hospital notes relevant to Ante’s admission to Cumberland Hospital above. Those notes record some instances of threatening or violent conduct by Ante against his parents.
There was some other evidence given by the sisters concerning threats or violent conduct by Ante towards his parents in the period when he episodically suffered from paranoid schizophrenia. I do not think it would be helpful to analyse this evidence, as it was mainly hearsay, and related to a period when the psychosis from which Ante suffered was likely to make him prone to violent acts. Now that the evidence suggests that Ante has recovered, the significance of that threatening and violent conduct will diminish.
Maria also gave evidence in her 21 March 2016 affidavit at par 2 (vii):

In around 2010 my father said to me words to the following effect:
I’m stressed out about Ante. He never helps me around the house. He doesn’t act normally or talk normally. I lock myself in the garage at night to sleep at times because I’m scared Ante will hurt me. If I die, you won’t hear about it.

Linda also gave evidence, in her 16 June 2015 affidavit, at par 34, that after his mother died on 14 June 2009, her father said to her: “I sleep in the garage with the doors locked. I am afraid that Tony will hurt me when I sleep.”
It is not feasible for the court on this sparse evidence to make any positive findings about the extent that Ante may, or may not, have threatened or perpetrated acts of violence towards his parents after he ceased to be prone to psychotic episodes.
However, the evidence as a whole is sufficient to cause me to conclude that Ante’s glib assertion in cross-examination that he had never touched his parents is inconsistent with what Ante ought to have recalled, at least in relation to his conduct during and in the period leading up to his psychotic episodes.

Linda’s evidence

Linda is the youngest of the deceased’s children. She was born on 30 May 1977, and is currently aged 40 years. Linda is single and self-supporting. Linda rents a room in a share house. There is one other tenant in the house.
Linda’s current assets have a value of $415,450.41, made up of money in bank accounts of $300,711.03, money held in her solicitor’s trust account of $40,000, the estimated value of her motor vehicle at $4000, and superannuation of $70,739.38.
The money in the bank accounts includes the $209,403 given to Linda by Maria from the money in the deceased’s bank accounts. As Linda accepts that she must, so to speak, give credit for that receipt in the determination of any family provision order that should be made in her favour, the amount should be deducted from her assets in order to determine her position relative to Ante’s. The balance is $206,047.41.
Linda’s current monthly income, net of taxation and superannuation, is $4172.62 from her employment with Ivy College. Linda gave evidence, which I accept, that her employment with Ivy College is fragile, because of doubts about the future commercial viability of her employer.
Linda started her present employment with Ivy College on 19 September 2016. It is an online education provider. She took the appointment because it offered a higher salary than her previous employment, being $70,000 per annum plus superannuation. She received a letter of retrenchment three weeks after being employed. Linda has managed to reverse that position, at least temporarily. Significant numbers of her fellow employees have been retrenched, and a number of senior staff have resigned.
Linda has enquired as to whether she could return to her previous employment, but the position is no longer available.
Linda has been searching for other employment, and has also started studying to obtain a Graduate Certificate of Public Health at the University of New South Wales to improve her employment prospects. The course started on 27 February 2017. Linda is studying part time, one unit per semester.
Linda also receives some income from consultations as a naturopath on weekends for long-standing clients. On average she would see from 2 to 4 clients a month, but the income is irregular. Her gross income for the 2007 year will be between $3000 and $4000, but she currently has to hire a room from which to conduct these consultations, at a cost of $22 per hour.
Linda’s monthly expenditure is estimated at $4244.50, which includes $560 for rent. It was not suggested that Linda’s expenses are unreasonable. It appears that Linda is just able to make ends meet.
Linda aspires to be able to purchase a house that is large enough for her to have a room for a baby and a room from which to run her naturopathy business.
Linda gave evidence that, because of her age, and the fact that she does not have a partner, she has been seriously engaged in an effort to become pregnant through IVF treatment. Linda tendered comprehensive evidence of the steps that she has taken to become pregnant, and the costs that have been involved. Linda decided not to proceed with IVF treatment until after the hearing of this court case, in order to have a better indication of the amount of the provision that she will receive from her father’s estate to enable her to plan for the future.

Dina had a difficult relationship with the deceased, primarily because the deceased refused to have anything to do with her because she did not immediately and fully comply with his insistence concerning the baptism of her children and their taking Holy Communion. Dina made arrangements to see her mother from time to time in secret.
Dina said that she was fearful of visiting the deceased at his home, particularly with her children, because she was concerned about the behaviour of Ante.
Dina said that she did not see her father very often, except on special occasions, during the last eight years or so of his life.
Dina said that she has been suffering from anxiety for 20 years, though she was only formally diagnosed 10 years ago, and she started seeing a psychologist.

Consideration

It is appropriate to start by repeating the observations made above concerning the exceptional nature of the issues raised by the present case.
First, Ante, who is the only beneficiary to receive a gift under the deceased’s will other than the residuary beneficiary, claims that the gift he received is inherently inadequate, and was made by the deceased on a false premise as to the incapacity of Ante to be trusted with any substantial asset in his own name.
Secondly, neither the other claimants nor the residuary beneficiary contest Ante’s claim that the will was made on the false premise that Ante asserts.
Thirdly, the executor, who is the residuary beneficiary, has settled the claims against her by her sisters on the basis that she accepts that inadequate provision was made for her sisters under the will.
Fourthly, the effect of the settlement is that the sisters have agreed as to the proportions in which the balance of the deceased’s estate should be shared between them, after the court has determined the appropriate family provision order that should be made in favour of Ante, but that provision should be determined having regard to the notional entitlement of all of the sisters to receive proper provision out of the estate.
Finally, the combination of these matters has the effect that the court has been asked to substantially recast the deceased’s will having regard to the entitlements of each of the deceased’s four children under ss 59 and 60 of the Act.
Ante’s primary claim is that the will should be varied so that 1 Harry Avenue, with a value of $1,850,000, is transferred to him in fee simple, together with a legacy of $50,000. If that claim is successful, Ante will receive 60% percent of the notional net distributable estate of $3,191,250. Ante’s alternate claim is that he be given a lump sum sufficient to enable him to buy a two-bedroom home in Lidcombe for $1,450,000. Ante also provided evidence of a three-bedroom house for sale for $939,000. In addition, in his alternative claim, Ante seeks capital of $500,000 for his retirement.
If each of the children were to be treated equally, they would each receive $797,812.50 (inclusive in the sisters’ case of the amount of some $200,000 that has already been distributed to them). This, of course, ignores the effect of the settlement between the sisters.
Ante’s claim may be compared with the claims made by his sisters, recognising that to some degree those claims were aspirational. Dina asked for a lump sum of $400,000 in her opening written submissions. Maria sought about $955,000, represented by a home worth $1,500,000, less the $600,000 value of her present home unit, plus $55,000 for a SUV. Linda sought $880,000, comprising $826,000 for a home, $24,000 for furniture (assuming Linda gives birth to a child) and $40,000 for a new vehicle. These calculations leave out of account certain financial needs established by the sisters, and are useful only for the purpose of indicating the general magnitude of the provision they sought.
The total value of the provisions sought by the deceased’s children, when added to the total of the unpaid legal costs of the proceedings of about $370,000, is approximately $4,500,000.
Thus, in broad terms, the deceased’s estate is worth about $1,300,000 less than the total amounts of the provisions which the deceased’s children ask the court to make in their favour out of the estate.
It is therefore clear that the court cannot make the family provision order primarily sought by Ante on the basis that the value of the estate is sufficient to accommodate the making of that order, without risking the deprivation of his sisters from being able to receive the provisions that would be proper for them to receive. Notwithstanding that the deceased’s estate is reasonably large, the determination of the competing claims of the four children must be undertaken on the basis that there is a relative scarcity of assets within the estate.
The submission made by Ante in response to this problem was that it is no part of the court’s function, when hearing an application for the making of a family provision order, to ensure that the deceased has treated the claimants upon the deceased’s bounty who are of the same status, such as the deceased’s children, with equality.
The validity of this proposition is clearly established in cases where a competent testator has exercised his or her testamentary discretion in a manner that distributes the estate unequally between persons who have some call on the testator’s bounty, even in a case where all claimants are of equal status in their relationship to the deceased. In such a case, where the court is faced with the need to determine an application for a family provision order by an eligible person under s 59 of the Act, the court must adopt the process of reasoning required by ss 59 and 60, and if an entitlement to a family provision order is established by the claimant, the court should be mindful, as Kirby P stated in Golosky v Golosky:

Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor, above, 458; Hunter, above, 576…

The position is in practical terms different where, as here, all eligible persons other than the executor have made their own claims for family provision orders, and the executor, who is the residuary beneficiary, recognises that adequate provision has not been made under the will for all of the claimants, but nonetheless seeks to ensure that the total effect of all family provision orders that are made leaves the executor with an adequate provision. Effectively, all of the eligible persons are in the same position as if they were claimants.
The present is an unusual case where all claimants and beneficiaries agree that the gifts made by the will, or the absence of gifts, means that the will did not make adequate provision for any of the claimants, and in reality the parties are asking the court to substantially recast the will, having effectively put aside the terms of the will made by the deceased.
It does not follow from the fact that the court is asked to put aside the terms of the will that the considerations that motivated the deceased to make the will that was made cease to be relevant. Those considerations will remain relevant for various purposes in the application of ss 59 and 60 of the Act.
But in a case such as this, the court is being called upon to decide for itself the provisions that ought to have been included in the will in order to make adequate provision for all claimants and beneficiaries.
As I have accepted above, it is established that a competent testator may make testamentary decisions that do not treat all claimants on the testator’s bounty equally, and may even do so perversely, save for the application of the court’s limited jurisdiction under s 59 of the Act. Where the reality is, however, that the court is called upon to stand in the shoes of the testator to substantially recast the effect of the will, many of the considerations that inform the amplitude of ordinary testamentary freedom cannot sensibly be applied.
While in many cases a testator may be free to act perversely, it is self-evident that the court should not do so. The court is unlikely to know, because of the invariable limitations on the evidence that can be put before the court, what the real relationship was between the testator and all claimants, particularly in relation to the nuances that always exist in interpersonal relations. It would not be rational for the court to embark upon the process of trying to second-guess what the testator would have done if he or she had made adequate provisions in the will for all claimants, given the premise is that the testator has not done so.
The court must still apply the principles necessary to satisfy ss 59 and 60 of the Act, and that may lead to different and unequal provisions being made for the various claimants. However, the fact that it is the court that is determining what provisions should be made must be informed by the limitations on the evidence that will invariably be available to the court.
The burden of these observations is to support the suggestion that, at least in cases where the claimants each had a relationship with the testator which is of the same status, such as the present case where the claimants are all of the testator’s children, the natural place for the court to start is the presumption that all of the claimants should be treated equally, save only to the extent that the proper application of ss 59 and 60 of the Act require a different result, but having regard to the practical inability of the court genuinely to stand in the shoes of the testator.
Although Ante’s sisters disputed his claim to receive the share of the deceased’s estate that would be represented by the fee simple ownership of 1 Harry Avenue, plus the additional lump sum sought by Ante, they have not challenged his entitlement to receive a substantial family provision order. After Ante rejected the open offer of a lump sum of $950,000 plus his legal costs on the ordinary basis, at the end of the hearing, Maria submitted that Ante should receive no more than a lump sum of $900,000, represented by a home at a cost between $500,000 and $700,000 (depending on Ante’s preparedness to obtain a small mortgage) and some cash for contingencies.
Accordingly, in considering the evidence led by Ante in support of his claim, the court is not concerned with whether or not Ante has justified the making of any family provision order in his favour. The question is whether the evidence justifies the court making a family provision order worth more than $900,000, up to the $1,900,000 now sought by Ante, given that a lump sum of $900,000 would already give Ante a greater than equal share in the estate than his sisters. The question is ultimately whether the strength of Ante’s claim is sufficient to increase the level of inequality in the way sought by Ante.
I propose to deal with the submissions made by Ante as to why he is entitled to the family provision order that he seeks in a different order to the way in which I have set those submissions out above.
To begin with, I reject Ante’s submission that the court, if it made a family provision order that gave him fee simple ownership of 1 Harry Avenue, would be recognising and implementing the intent of the deceased. Under his will, the deceased gave Ante a conditional lifetime right of occupation of that property. It is self-evident that the fee simple ownership of the property is greatly more valuable than a conditional non-exclusive right of occupancy. The court must infer from the limited and contingent nature of the gift made by the deceased in relation to the property that the deceased had positively determined not to give Ante the fee simple title to the property. Ante’s argument that the order he seeks is consistent with the intent of the deceased is logically inconsistent with the basis upon which Ante has asked the court to set aside the gift actually made in his favour, which is that the deceased determined to make that gift on the basis of a false premise as to Ante’s capacity to receive and hold the property in his own name.
I also do not accept Ante’s submission that, in this case, the fact that Ante has lived at 1 Harry Avenue all his life, and that he has expressed a deep emotional attachment to that property as the family home, is a significant justification for making a family provision order that would give Ante the entire benefit of that property to the exclusion of his sisters. It is a truism that each family provision claim must be dealt with on its own facts, and that the manner in which other claims have been decided rarely provides genuine guidance as to how the application before the court should be decided. In my view the decisions of the Court of Appeal in Alexander v Jansson and Chan v Chan referred to above are plainly distinguishable on their facts, and nothing will be gained from a minute comparison between the facts in this case and those cases. I do not ignore the facts that 1 Harry Avenue has been Ante’s lifelong home, that he has a real desire to continue to live there, and that it is the centre of his social existence. That would be a significant factor if the value of the deceased’s estate was sufficient to enable the court to make a family provision order giving Ante the property, and also to make adequate provision for the proper maintenance of Ante’s sisters. Unfortunately, the estate is not large enough to justify that approach.
I repeat the findings that I made when considering the evidence led by Ante. The evidence does not satisfy me that Ante contributed $120,000 to the cost of the rebuilding of the house on 1 Harry Avenue, or that Ante carried out work of substantial value in relation to the rebuilding, or that Ante over the period he lived at 1 Harry Avenue provided substantial and continuing assistance to his parents, in a manner that would justify a substantially unequal distribution of the deceased’s estate in his favour.
The evidence may justify a conclusion that Ante provided some assistance to his parents over the years, and that assistance may have had a value, but I am not satisfied on the evidence that the level of that assistance was such as to require the deceased to treat Ante as being entitled to any significant equity in the property.
I have not on the evidence been able to resolve the contention between Ante on the one hand and his sisters on the other as to whether Ante dissipated the proceeds of sale of 11 Harry Avenue.
Nor does the evidence enable me to make any positive findings about whether Ante mistreated his parents during the period that he lived at the property, after he had ceased suffering severe episodes of paranoid schizophrenia. I find that it is likely that there was some level of disharmony between Ante and his parents, but there is no direct evidence of the extent of that disharmony. The deceased was the best judge of those matters, and he decided that he had an obligation to provide Ante with accommodation for the rest of his life, albeit on a contingent and limited basis, and also albeit upon a premise concerning Ante’s capacities that all of his children now accept was unwarranted.
As the deceased accepted that he ought to make the provision that he did in favour of Ante in his will, and as the sisters do not challenge Ante’s right to be awarded a family provision order of a lump sum in an amount up to $900,000, there is no reason for the court to consider whether or not Ante engaged in any disentitling conduct, so there is no need for the court to resolve with any precision the disputes about the level of assistance provided by Ante to his parents, or the extent to which Ante behaved inappropriately towards his parents.
The evidence establishes that the deceased gave Ante a loan of $80,000 to assist him to buy 11 Harry Avenue, although it also establishes that the amount of the loan was repaid at the time 11 Harry Avenue was sold. As I have already said, the evidence does not enable me to find with confidence what happened to the net proceeds of sale of that property in Ante’s hands. The deceased did not provide any equivalent assistance to his daughters, and in Dina’s case he explicitly rejected a number of requests for assistance that she made of him.
After the period when Ante experienced episodes of paranoid schizophrenia, Ante lived rent-free at 1 Harry Avenue, although the evidence establishes that for certain periods Ante paid to his father board of about $100 per week. That is a relatively small amount, which would not be expected to cover much more than perhaps Ante’s food and other living essentials. Ante has not been required to pay any rent for the almost 3 years since the death of the deceased.
A significant factor that militates against the court making an order that gives the fee simple in 1 Harry Avenue to Ante is that an order to that effect would give Ante a very valuable asset, but no cash, in circumstances where it is at least questionable whether Ante would over the remainder of his lifetime have sufficient income for the upkeep of the property. It is true, as Ante submitted, that he could at least supplement his income by leasing the granny flat.
A related consideration, as I have found above, is that it is clear that Ante does not have any objective need to live in a five-bedroom house. Even allowing for Ante’s aspiration, at the age of 50 years, to marry and have children, it is improbable that Ante will ever have a real need for a five-bedroom house.
There is in my view a significant possibility that, notwithstanding Ante’s genuine desire to live at 1 Harry Avenue for the rest of his life, a change in Ante’s circumstances, or a change of mind, could lead Ante to sell the property. If that happened, then Ante would be in a position to buy a substitute property at least as valuable as the property that Maria submits would be adequate for his needs, and he would then have a cash sum in the order of $1 million left over.
It is necessary, however, to balance Ante’s claim with the proper claims of his sisters, including in Maria’s case, as the residuary beneficiary who seeks to sustain adequate provision being made in her favour.
Dina and Linda did not receive anything under the deceased’s will, although it is properly agreed that they have received an amount of slightly more than $200,000 each, and that that was an outcome that has been implemented by Maria in accordance with the deceased’s wishes.
The burden that Dina and Linda may have faced may have been greater if this was a case in which the deceased, as a competent testator, had exercised his testamentary discretion in the manner he thought fit, and the will was being defended by the beneficiaries under it, being Ante and Maria. However, as I have explained, the exceptional feature of this matter is that the beneficiaries also seek, or accept, the variation of the effect of the will.
I accept that both Dina and Linda have made out a case that in all of the circumstances, for the purposes of s 59(1) of the Act, the deceased by his will did not make adequate provision for their proper maintenance and advancement in life.
I accept the evidence given by Dina and Linda, which was mirrored in the evidence given by Maria, that the deceased treated them inappropriately with physical and emotional violence during their childhood.
It does not necessarily follow that Dina and Linda are entitled to the benefit of a family provision order, as some form of payback for the treatment they received from their father during their childhood. However, I accept the evidence given by Dina and Linda, which is also mirrored by the evidence given by Maria, that since their childhood they have developed and suffered reasonably serious physical and emotional disabilities, which are likely at least to some significant degree to have been a result of the way each of the sisters was treated during her childhood.

In my view it would accord with community expectations that the deceased ought to have realised that he had a significant testamentary obligation to his daughters to make some adequate provision for them, in view of the consequences of their early family life for which he was responsible, to provide for them to the extent of his ability to do so a substantial amount in order to ease their daily lives, to ensure them adequate housing, to provide a buffer against the vicissitudes of life, and to assist them to make proper provision for their old age.
The deceased ought to have had regard to the fact that, although each of his daughters had acquired a qualification that enabled them to earn an income, their ability to work full time would for a considerable part of their lives be inhibited by, in the case of Dina and Maria, their need to undertake maternal duties, and in the case of Linda, the need to support herself and hopefully also undertake maternal duties, as the deceased himself advocated. The deceased ought to have been aware at the time of his death that the circumstances of Dina and Maria were each such that they did not have the benefit of the material support of a partner who was able to earn an income that would provide for them adequately, and in Linda’s case that she had no support at all.
Although Dina and her husband have the benefit of a four-bedroom home, it is on the evidence only barely adequate for their needs, and is by no means as substantial as 1 Harry Avenue. Maria’s two-bedroom home unit is plainly not adequate for the four members of her family. Linda does not have a home at all, and is obliged to live in share accommodation.
None of the sisters has been able to save any substantial sum of money, or superannuation, and it is improbable that any of them will be able to do so in the future from their own resources.
I am satisfied that, even though in some respects the personal relationship between each of the sisters and the deceased was constrained and limited, the fault for that outcome lies mainly at the feet of the deceased. I am satisfied that, notwithstanding the circumstances, Maria and Linda were able to maintain a reasonable, albeit occasional relationship with the deceased. Although Dina conceded that she rarely saw the deceased in the latter years of his life, I am satisfied that the fault for that outcome essentially lay with the deceased. It was his choice by repeatedly refusing to have contact with Dina because of her unwillingness to comply with his insistent requirements concerning the religious life of Dina’s children.
The question then becomes what order ought to be made for the provision out of the estate of the deceased under s 59(2) of the Act for the maintenance, education or advancement in life of Ante, having regard to the facts known to the court at this time. Those facts will include the need for an appropriate provision to be made for Linda and Dina, and for Maria as the residuary beneficiary to retain an appropriate provision, having regard to the terms of the settlement reached between the sisters.
My overall view of the balance of the claims of the children of the deceased to share in the bounty of his estate, having regard to the considerations listed in s 60 of the Act, is that they are broadly equal, although by reason of the differences in the circumstances of the children there is a proper basis for making some broad distinctions between their entitlements. The exercise of distinguishing between the positions of each of the children cannot rationally be done in any precise or scientific way. Accordingly, looking at the matter broadly I would rank Ante and Linda as having approximately equivalent needs, Maria somewhat less, and Dina the least of all, although still warranting a substantial provision to be made in her favour.
For the purposes of s 60(2)(a) of the Act, the deceased was the father of each of the claimants and the duration of their relationship with the deceased was approximately the same, being different only by reason of their different dates of birth.
The nature of the deceased’s relationship with Ante was different to the nature of his relationship with his daughters. Ante lived at the family home, which was evidently a necessity during the period when Ante suffered from regular episodes of psychosis. It is not clear whether it was necessary for Ante to remain living in the family home thereafter. Evidently, the deceased thought that he needed to provide a roof over Ante’s head because of Ante’s character and psychological circumstances. However, as I have noted above, Ante has established that he is capable of working, owning property, and looking after himself. I find that the evidence of the quality of Ante’s relationship with the deceased after Ante recovered is unclear, and would not justify the court in finding at one extreme that Ante had a strong loving relationship with the deceased, or at the other extreme that Ante was antagonistic and threatening towards the deceased.
So far as the sisters are concerned, each left the family home at a relatively young age, in part because of difficulties they experienced as a result of Ante’s conduct, and the relatively high level of physical and emotional violence towards them exhibited by the deceased. Each of the sisters, over the balance of the deceased’s life, maintained a proper relationship with the deceased, though in each case, and in the case of Dina for a relatively long period, the relationship was soured because of conduct and attitudes adopted by the deceased towards his daughters that prevented them enjoying consistent and regular contact with him.
While I recognise that the nature of Ante’s relationship with the deceased was significantly different from that enjoyed by the sisters, I do not consider that that circumstance in itself entitles Ante to a substantially more generous provision out of the deceased’s estate than that to which the sisters are entitled.
Section 60(2)(b) of the Act invites the court to have regard to the nature and extent of any obligations or responsibilities owed by the deceased to the applicant for a family provision order. I have explained above why, even though the deceased evidently thought that he had a responsibility to Ante to make the provision that he did in favour of Ante in his will, Ante has established that the deceased did so on a false premise. Accordingly, I will not proceed upon the basis that the deceased had a responsibility towards Ante that would justify a substantially greater provision being made in Ante’s favour out of the estate than should be made in favour of the sisters.
I have explained above my conclusion that, although the estate of the deceased is relatively substantial, it is not sufficient to make provision for all of his children that would deal with all of their legitimate needs: see s 60(2)(c) of the Act.
In my view the most significant factors that justify a limited measure of differential treatment of the deceased’s children are those contained in s 60(2)(d), (e) and (l) of the Act which provide that the court may have regard to:

(d)   the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, or any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e)   if the applicant is cohabiting with another person – the financial circumstances of the other person,
(l)   whether any other person is liable to support the applicant,

Ante and Linda are in the same position in that they are not cohabiting with any other person, and no other person is liable to support them. Dina and Maria are married, but the evidence shows that their husbands for different reasons are not in a position to support them without Dina and Maria having to work. The husbands contribute to the family finances, but Dina and Maria are financially limited in their capacity to engage in employment because of their maternal duties. It is likely that the circumstances surrounding Dina’s and Maria’s marriages have contributed over the years to Dina and Maria and their respective husbands being able to acquire homes of their own. That said, given the number of children in each family, the homes could not be said to be commodious.
The result of these considerations is that Ante and Linda have a somewhat greater need than do Dina and Maria in relation to the provision of accommodation.
Linda’s need for accommodation will plainly be enhanced if she is successful in having a child through an IVF procedure. The chances of that occurring are significant but cannot be assessed in any scientific way. Linda will either have a child or she will not, and the most that can be done is to give the possibility some significant weight in determining Linda’s need for secure accommodation.
All of the children find it difficult to make ends meet, and it is likely that that situation will continue well into the future. None of the children have substantial financial resources of their own that would protect them against the vicissitudes of life, or provide adequately for their retirement. There is no reason to believe in respect of any of the children that their circumstances are likely to change substantially so that they will be able to make significant savings from their income.
Section 60(2)(f) of the Act invites the court to consider any physical, intellectual or mental disability of the children. Ante’s own case is that he has recovered from the serious mental disability from which he previously suffered. In the manner considered above, each of the sisters suffers from physical ailments of moderate severity, which are likely to inhibit them in their enjoyment of life into the indefinite future. Notwithstanding that Ante has not proved that he suffers from any continuing disability, having seen him in the witness box, I would treat him as being of approximately equal status with his sisters on the issue of disability. Ante appeared to me to be anxious, and I do not think that it would be appropriate to ignore the possibility of there being some continuing consequences of Ante’s former mental disability.
I do not regard the ages of the children as being a significant factor in this case in distinguishing between the provisions that ought to be made in favour of each of them: see s 60(2)(g) of the Act.
I have not accepted, for the purpose of s 60(2)(h) of the Act, that Ante has established that he has made a substantial contribution to the acquisition, conservation and improvement of the estate of the deceased. Ante may from time to time have performed some acts that were of assistance to his parents, but the value of that assistance must be balanced against the fact that Ante has for a substantial proportion of his life lived rent-free in the family home, and though he has apparently paid board for part of that period, as considered above, it is unlikely that the amounts paid entirely compensated Ante’s parents for the costs of maintaining him.
The factor in s 60(2)(i) of the Act concerning any provision made for the eligible person by the deceased tends to favour the sisters, as the deceased made virtually no provision in their favour, while he loaned Ante $80,000 to buy 11 Harry Avenue, and provided accommodation to Ante rent-free and for limited board, in the manner considered immediately above.
The court has been invited by Ante to substantially discount the testamentary intentions of the deceased, for the purposes of s 60(2)(j) of the Act. I have explained above why, having regard to the precise nature of the provision for accommodation made by the deceased in favour of Ante in his will, I have not accepted the submission made on behalf of Ante that the deceased expressed a testamentary intention that Ante solely enjoy the ownership of 1 Harry Avenue to the exclusion of his sisters.
I have taken into account that Ante was being partly maintained by the deceased in the manner that I have considered above: see s 60(2)(k) of the Act.
The state of the evidence is not sufficient to justify a finding that the character or conduct of any of the children ought to lessen their entitlement to an order for provision out of the deceased’s estate than that to which they would otherwise be entitled, for the purposes of s 60(2)(m) and (n) of the Act.
In my view both the primary and alternative claims made by Ante as to the provision that ought to be made in his favour out of the deceased’s estate are simply not justifiable having regard to the balance of the estate that would be left after the payment of the costs of the parties on the usual basis, to enable proper provision to be made for, or to be retained by, his sisters. To make either of the orders sought by Ante would give him a wholly disproportionate share of the estate and fail to recognise the strength of his sisters’ claims.
I am satisfied, however, that the period during which Ante suffered from serious episodes of paranoid schizophrenia was at least a significant cause of the inability of Ante to accumulate assets, and that he is in a worse position in this regard than his sisters. This in my view justifies Ante receiving a larger proportionate share of the deceased’s estate than the average received by his sisters.
It is also proper to take into account the fact that the deceased made a greater provision in his will for Ante than he did for Linda and Dina, even though Ante has asked for a different provision than was made by the deceased.
Maria provided evidence of a number of two-bedroom home units having been sold in 2017 in the Lidcombe area for prices between $585,000 and $650,000.
Maria submitted in her final submissions that the order that ought to be made in Ante’s favour is for a lump sum of $900,000, and for the remainder of the estate to be divided between the three daughters in accordance with their agreement. Orders of this nature should enable Ante to acquire a two-bedroom home unit in his desired location, and leave Ante with a reasonably significant fund to provide a buffer against contingencies. If Ante were minded to do so, he might take out a relatively small mortgage to increase the attractiveness of the home unit that he might acquire.
If this order were made, Ante would receive approximately 28% of the deceased’s estate, taking into consideration that the sisters must give credit for the amounts of cash already distributed to them. The result would be that the sisters would share about 72% of the estate, and having regard to the settlement reached between them, both Maria and Linda would receive about 25.5% and Dina would receive 21%.
The amount that each of the deceased’s children actually receives out of the estate will depend upon the net amount received from the sale of 1 Harry Avenue, and accordingly the family provision order made in favour of Ante should be expressed as a percentage of the estate, after including the amounts of cash already distributed to the sisters. I have concluded that the appropriate percentage for Ante to receive is 30%. Given the significant number of conflicting factors that must be taken into account, the more rational approach is to adopt a round percentage. That would in this case equate to a lump sum of the $964,286, if 1 Harry Avenue were sold for its assumed value. I do not regard this sum to be materially different to the amount of the open offer made by Maria during the course of the hearing.
As the sisters have settled the claims as between them, it would be invidious and is not necessary that I specify the percentages that I would have awarded the sisters had their claims not been settled. It is sufficient to say that I regard the compromise reached by the sisters to be reasonable in the circumstances.
I will leave it to the parties to bring in short minutes of order to give effect to these reasons for judgment, and will hear the parties concerning the appropriate order for the costs of the proceedings, if they cannot agree on this issue.

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Decision last updated: 30 May 2017

Medium Neutral Citation:	Mitar v Mitar [2017] NSWSC 647
Hearing dates:	4 – 7 April 2017
Decision date:	26 May 2017
Jurisdiction:	Equity
Before:	Robb J
Decision:	(1) The plaintiff should be granted a family provision order in an amount of 30% of the value of the estate of the deceased (where that value is as determined in these reasons for judgment). (2) Parties to bring in short minutes of order to give effect to these reasons for judgment.
Catchwords:	SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Whether order should be made granting plaintiff a fee simple interest in the family home and a lump sum – Where order sought by plaintiff amounted to claim for approximately 60% of the estate – Where plaintiff had three sisters also in need of provision. SUCCESSION – Family provision – Appropriate form of family provision order – Where plaintiff was one of four children of the deceased – Where plaintiff’s sister is executor of the deceased’s estate – Where plaintiff’s other two sisters brought and settled claims for family provision – Where settlement agreement provided for the three sisters to split the estate in agreed percentages following the resolution of the plaintiff’s claim for family provision.
Legislation Cited:	Succession Act 2006 (NSW) ss 58-60
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Buggle v Buggle [2012] NSWSC 1009 Chan v Chan [2016] NSWCA 222 Dimic v Djekovic [2014] NSWSC 1502 Gardiner v Gardiner [2014] NSWSC 435 Golosky v Golosky [1993] NSWCA 111 Meres v Meres [2017] NSWSC 285 Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 Stewart v McDougall, Unreported, SC (NSW), Young J, 19 November 1987 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Toscano v Toscano [2017] NSWSC 419 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category:	Principal judgment
Parties:	Ante Mitar (plaintiff) Maria Mitar (defendant)
Representation:	Counsel: Dr J Lucy (plaintiff) Dr H Bennett (defendant) Solicitors: Berala Law Group (plaintiff) Glass Goodwin Solicitors (defendant)
File Number(s):	2015/269034
Publication restriction:	None