Moreau v Moreau

[2017] NSWSC 1333

Supreme Court

New South Wales

Medium Neutral Citation:

Moreau v Moreau [2017] NSWSC 1333

Hearing dates:

20 & 21 April 2017

Date of orders:

04 October 2017

Decision date:

04 October 2017

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Plaintiff granted extension of time to apply for provision out of the deceased’s estate. Order for notional estate granted over real estate in Australia. Provision made for the plaintiff out of the estate

Catchwords:

SUCCESSION – Wills, Probate and Administration - Family Provision – summons filed outside limitation period – whether sufficient cause shown for Court to make orders extending time for plaintiff’s application for family provision order

 

SUCCESSION – Wills, Probate and Administration - Family Provision – notional estate order sought - estate partly distributed – moveable property in the UK – real estate in Australia

  SUCCESSION – Wills, Probate and Administration - Family Provision - whether provision should be made for son out of deceased father’s will when no provision expressly made – whether there was an estrangement between father and son – impact of estrangement upon provision – needs of parties considered

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Burke v Burke [2015] NSWCA 195
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572

Category:

Principal judgment

Parties:

Plaintiff: Gwenael Youenn Moreau
Defendant: Simone Marie-Louise Aline (also known as Simone Marie-Louise Aline Moreau) as executrix of
the Will of Guy Gustave Arsene Moreau

Representation:

Counsel:

 

Plaintiff: Mr L. Ellison SC
Defendant: Ms S Alexandre-Hughes

 

Solicitor:

  Plaintiff: Charles Emmanuel Morgan, Fisher Nash Morgan Solicitors
Defendant: Sarah Ann Basten, Dezarnaulds Basten Solicitors

File Number(s):

2015/169890

Publication restriction:

No

Judgment

1. Guy Gustave Arsene Moreau (“the deceased”) was born on 9 May 1949 in France. In 1980, following the adoption of his first son, Laurent David Moreau (“David”) and the birth of his second son, the plaintiff, Gwenael Moreau, the deceased, his wife Elisabeth and the two children moved to Australia. They established a home in Stanmore, a suburb of Sydney.

2. The deceased separated from Elisabeth in late 1994. Shortly after the separation, the plaintiff chose to move out of the family home. He was then 17 years old. David died suddenly in 1997 at the age of 24.

3. In 2006, the deceased moved to London, where he died on 31 August 2011 following a battle with cancer. He was survived by his brother, Alain Guy Roger Moreau (“Alain”), his mother, who is the defendant in these proceedings, Simone Marie-Louise Aline Moreau (“Mrs Moreau”), and the plaintiff. Both Alain and the defendant were French citizens and residents of Mervent in the Vendée Department of France.

4. The deceased did not make any provision for his surviving son in his last will dated 13 October 2005 (“the will”). In the will, the deceased gave an antique clock to his friend Bernadette Menon and the remainder of his estate to his brother, Alain. The will provided that should Alain not survive the deceased by 30 days, Mrs Moreau was to become the executrix of the estate and was to receive the residue of the estate. And the will further provided that in the event Mrs Moreau did not survive him, the deceased would leave his estate to the charity World Vision.

5. Alain in turn died on 16 May 2012 without leaving any spouse, a de facto partner, or children, and before he had arranged a grant of probate in relation to the deceased’s 2005 will. Alain’s will operated to give the whole of his estate to the defendant.

6. Probate of the deceased’s will was granted on 15 October 2014 to Mrs Moreau as substitute executrix (even though Alain had survived the deceased by more than 30 days). The plaintiff assisted Mrs Moreau in the probate application process, the detail of which is explained later in these reasons.

7. The plaintiff was born in July 1977 in Paris, France. He was 39 years old at the time of the trial. He now lives in a northern suburb of Sydney with his partner, Ms Maud Seron and their three children who, at the time of the trial, were aged 10, eight and three.

8. The defendant, Mrs Moreau is 95 years old. In the course of these proceedings, as a result of her infirmity, in September 2016 she left her home in Mervent and moved into the nursing home where she now resides. She is now being cared for in a nursing home, in rural France. The plaintiff, her grandson brings these proceedings against her for provision out of his father’s estate.

9. Subject to the Court’s leave to bring these proceedings outside the applicable limitation period, the plaintiff seeks provision out of the deceased’s estate under Succession Act 2006 (NSW) (“Succession Act”), s 59. He also seeks a notional estate order in relation to a property in Stanmore, now held in Mrs Moreau’s name as a result of its distribution to her out of the estate (“the Stanmore property”).

10. Mr Ellison SC appeared for the plaintiff in these proceedings, instructed by Fisher Nash Morgan solicitors. Ms Alexandre-Hughes appeared for the defendant, instructed by Dezarnaulds Basten Solicitors.

11. The parties come from the same family and often referred to one another by their first names. For convenience and without intending any disrespect to the deceased or to the persons involved in the proceedings, they are sometimes referred to by their first names in these reasons.

Delay in Commencement of Proceedings

12. These proceedings were brought out of time. An application for a family provision order “must be made not later than 12 months after the date of death of the deceased person, unless the Court otherwise orders on sufficient cause being shown”: Succession Act, s 58(2).

13. As the deceased died on 31 August 2011, the Succession Act, s 58(2) limitation date expired at the end of August, 2012. The plaintiff filed his Summons on 9 June 2015, a period in the order of two years and nine months after the expired limitation date. The Summons seeks the Court’s leave under Succession Act, s 58 (2) to bring these proceedings out of time.

14. The plaintiff bears the onus of persuading the Court that “sufficient cause” has been shown for the Court to make orders allowing the plaintiff to bring these proceedings out of time.

15. Mrs Moreau resists the plaintiff’s claim for an extension of time. She says through her counsel that he has not provided sufficient reasons for this Court to grant an extension.

16. The plaintiff contends that but for his delay in bringing these proceedings he has a strong claim for provision out of the deceased’s estate of the deceased. As these reasons later show, the plaintiff does have a compelling claim for provision. Subject to issues of his alleged estrangement from the deceased he is the deceased’s only surviving son who was wholly omitted from the will and who has an identifiable need for capital at this stage of his life.

17. The plaintiff contends there were justifiable reasons for his delay in commencing these proceedings. These reasons may first be briefly summarised. Then they are dealt with in more detail, together with the defendant’s case on each:

1. The plaintiff’s knowledge of the death of his father was delayed;

2. The plaintiff’s knowledge of his exclusion from the will was delayed;

3. The plaintiff was not aware of the family provision jurisdiction and his entitlement to bring a claim until May 2015 and when he became aware he brought proceedings within weeks;

4. The plaintiff did not engage in any disentitling or unconscionable conduct; and

5. No prejudice was occasioned to the defendant by the plaintiff’s delay.

18. (1) The plaintiff’s knowledge of the death of his father was delayed. The plaintiff initially said (in his affidavit dated 31 July 2015) that he first learned of the death of his late father in March 2012. Mrs Moreau’s evidence is that at the time of the deceased’s death, she and his brother Alain attempted to call the plaintiff to inform him that his father had died. She says that she did this on a number of occasions, but the calls went unanswered. The plaintiff says that he never received any voicemail messages or written messages from Mrs Moreau or Alain to inform him that his father had died. I accept his evidence that these messages were not received and that either Mrs Moreau did not leave any messages or that for some technical reason they were not picked up. But as will be seen there probably was a telephone conversation with the plaintiff’s mother, Elisabeth, about this time that conveyed the same news to the plaintiff.

19. Ms Alexandre-Hughes drew the Court’s attention in the course of her cross-examination of the plaintiff to a document which suggested the plaintiff may have known of the deceased’s death earlier than March 2012. The plaintiff agreed he had printed this document (Exhibit B) from a French website, Ouest France, on or about the date it bears, 19 January 2012. Exhibit B gives information confirming the correct date of the deceased’s date of death. The plaintiff says, and the Court accepts, that the discrepancy between the date described in his 31 July 2015 affidavit and the Ouest France printout was an “honest mistake”.

20. The plaintiff was a witness of truth, whose evidence the Court accepts. Despite a searching cross-examination the plaintiff was genuinely attempting to give the best account of his history with the deceased and his discovery of the deceased’s death as he could. None of the various challenges to his testimony threw any serious doubt upon his veracity. Further credit observations are made about the plaintiff and the other witness who was cross-examined later in these reasons.

21. Upon being shown Exhibit B, the plaintiff corrected his initial account of learning of the deceased’s death in March 2012. His modified evidence in cross-examination confirmed that he had first learned of his father’s death when he was told by his mother, Elisabeth, in a conversation they held in January 2012. He says he then visited the French website Ouest France to verify the details of his father’s death. On this evidence, the Court infers that the plaintiff became aware of the deceased’s death after a delay of some four to five months, in January 2012.

22. But in January 2012 he was only aware of the deceased’s death. He did not know what was in the deceased’s will.

23. (2) The plaintiff’s knowledge of his exclusion from the will was delayed. The plaintiff says he did not understand that he was excluded from the deceased’s will until the defendant told him about the contents of the will in September 2012. In September 2012, during a family visit to France, he says and the Court accepts, that he and Mrs Moreau had the following conversation in French:

Mrs Moreau:       "I need to tell you something."

Gwenael Moreau:   "Okay."

Mrs Moreau:    "Your dad, he completely disinherited you. He didn't leave anything to you."

Gwenael Moreau:    "Do you know why?"

Mrs Moreau:       "He didn't say anything to me."

Gwenael Moreau:    "Do you know who he left his Estate to?"

Mrs Moreau:       "He left everything to his brother."

24. The parties are in contest regarding what the plaintiff says was discussed later in this conversation about who indeed was to benefit under the will. The plaintiff says the following exchange took place:

Mrs Moreau:    "You were not in Alain's Will, he didn't leave anything to you either. They left everything to me."

Gwenael Moreau:    "Right."

Mrs Moreau:    "But you know, Gwenael, despite all that's happened, all this will be yours one day."

Gwenael Moreau:    "What do you mean?"

Mrs Moreau:    "Well, everything I have, and that your dad and uncle left me, I will leave to you."

Gwenael Moreau:    "Okay."

25. Mrs Moreau was not cross-examined due to her age and her residence at the nursing home in rural France. But her affidavit was read. In it she deposes that she does not recall the alleged subsequent portion of the conversation about her benefiting under the will. But I accept the plaintiff’s account that these words were spoken, as he says they were. They immediately created the impression for the plaintiff that another family member, the deceased’s mother, had been given priority to him in the deceased’s testamentary wishes expressed in the will. This was something in which he could understandably acquiesce, especially if he thought, as he did, he was going to benefit in the long run from her estate, as she led him to believe.

26. The plaintiff said, and the Court accepts, in relation to the promise Mrs Moreau made “I will leave [everything] to you”, that “I took her word at that”.

27. The plaintiff says, and I accept, that he did not see the deceased’s will itself until March 2013. He read it while he was assisting his grandmother, Mrs Moreau, to apply for probate of the will here in New South Wales. I infer that from about this time, March 2013, he was aware of its contents and that he had been excluded from it.

28. From about mid-2013, Mrs Moreau, with the plaintiff’s assistance, proceeded with the application for probate for the deceased’s estate. This was logical as Mrs Moreau was in France and the plaintiff was in Sydney. The estate property was situated in New South Wales. Mrs Moreau instructed an Australian solicitor and notary public, Mr James Richardson, to prepare the probate application. The plaintiff and Mrs Moreau only ever spoke together in French. Mrs Moreau’s first language is French and she does not speak English.

29. The plaintiff assisted with the probate application process by communicating in French with the defendant in France by telephone and by preparing documents with the aid of a local French notary, Maître Philippe Cailleaud and relaying Mrs Moreau’s instructions to the solicitor handling the probate application in Sydney, Mr Richardson. I accept that the plaintiff co-ordinated the Sydney end of the probate application process to assist his grandmother, who was otherwise at a considerable disadvantage in the process, being in a foreign country and not speaking English. Indeed the senior paralegal involved, Ms Annmarie Adel, said in her own oral evidence, and the Court accepts, that the plaintiff’s assistance was “invaluable” and otherwise “we wouldn’t have been able to get to where we were”. The plaintiff’s conduct in giving this assistance is explained by his ready willingness to help his grandmother and should be assessed in the fundamentally generous way that he offered his assistance. But he assisted in minor part with the knowledge, induced by the defendant, that he would benefit from her estate in the long run.

30. As Mr Ellison SC rightly submitted, the plaintiff’s unstinting assistance to his grandmother in the probate application was to the disadvantage of his own potential entitlements. The plaintiff’s willingness to expeditiously carry forward this assistance through in my view is significant supporting evidence that he was, just as he says, ignorant of his potential Succession Act rights against the estate at that time.

31. But by 2014 the plaintiff’s relationship with his grandmother started to fracture. As a result he began to think about the possibility that he may have his own rights against his father’s estate.

32. (3) The plaintiff was not aware of the family provision jurisdiction and his entitlement to bring a claim until May 2015. The plaintiff says he only became aware of his entitlement to make a family provision claim under the Succession Act once he sought advice from a lawyer in May 2015. The Court accepts this evidence as accurate. But by 2014 he had developed some general suspicions, uninformed by legal advice, that he may have inchoate “options” to do something about his being left out of his father’s will. He began to think about these potential options because he began to doubt that his grandmother would indeed leave everything to him as she had said.

33. By 2015 the plaintiff’s relationship with Mrs Moreau had fully broken down. Some features of that breakdown are discussed later in these reasons. The plaintiff says, and the Court accepts, that this relationship breakdown caused him to reach a point where he felt he needed to act in order to exercise any potential legal rights that may have been available to him.

34. The plaintiff says on about 28 May 2015 he sought advice regarding his rights from Mr Charles Morgan, a solicitor at Fisher Nash Morgan. The plaintiff says, and the Court accepts, that this was when he first became aware of the family provision jurisdiction in Succession Act, Chapter 3 and his ability to make a claim against the deceased’s estate, notwithstanding his lack of provision under the will. These proceedings were commenced about one month after the time the plaintiff received this legal advice.

35. But Mrs Moreau contends that the plaintiff was aware since 1 May 2014 of his ability to seek legal advice to contest his father’s will. In support of this, she relies upon the affidavit of Mr James Richardson, sworn 21 April 2016. Mr Richardson, the solicitor advising the plaintiff while he assisted his grandmother to prepare the probate application. Mr Richardson said that the plaintiff emailed him and Ms Adel, Mr Richardson’s senior paralegal and personal assistant, at 11.36am on 1 May 2014 to request a preliminary discussion regarding his father’s estate. Ms Adel assisted with the application for probate of the will of the deceased.

36. The email said, under the subject heading ‘Moreau estate’:

“Hi James/Annmarie,

The affidavit looks good, thanks. We addressed your question on the phone this morning.

I would like to schedule an appointment with James (separate to this financial engagement) to go through a number of questions and options that may be available to me at this point E.g. Contest.

This would be a preliminary discussion but I would like to keep my options option should the need arise to exercise a potential rite [sic].

When would James be available?

Regards,

Gwenael”

37. The plaintiff says, and the Court accepts, that he sent this email because he was seeking information about his potential rights in relation to his father’s estate. He followed up on 7 May 2014:

“Hi Annmarie,

Do you have an update on a possible date and time.

Regards,

Gwenael”

38. After this follow-up email, the plaintiff received a response, in which Ms Adel told him to seek independent legal advice because Mr Richardson could not assist him because a conflict of interest. There plainly was a potential conflict. Mr Richardson could not act for Mrs Moreau on this estate and advise the plaintiff about his related rights against Mrs Moreau. The plaintiff says, and the Court accepts, that the proposed preliminary discussion between the plaintiff and Mr Richardson never happened.

39. (4) The plaintiff did not engage in any disentitling conduct or unconscionable conduct. The plaintiff submits, and the Court accepts, that he did not engage in any unconscionable conduct during the period between the deceased’s death and the finalisation of the application for probate in October 2014. Quite the contrary, the Court finds that he was genuinely assisting Mrs Moreau as best he could, whilst relying upon her general assurance to him that he would ultimately benefit from her estate. The question of whether there was any other disentitling conduct before the deceased’s death will be dealt with separately below.

40. (5) There is no prejudice to the defendant occasioned by the plaintiff's delay. While the Stanmore property has been distributed to the defendant, the remainder of the estate remains undistributed. The plaintiff says his delay has not caused Mrs Moreau any prejudice.

41. Ms Alexandre-Hughes submits that the defendant would suffer prejudice if the Court were to grant an extension of time. She says that the defendant’s advanced age, her medical expenses and her desire to obtain security towards the end of her life are all factors which justify the Court refusing to grant additional time to allow the plaintiff to claim against the deceased’s estate and notional estate.

38. But these submissions are not persuasive. The delay itself has not occasioned any particular prejudice to the defendant. The defendant was elderly and in need of medical care and desirous of security even at the time that the deceased died. Her medical condition has worsened since then, sharpening her needs for financial assistance. But it is not clear on the evidence that she would have been able to travel to Australia and give evidence if the trial had taken place a few years earlier or that her capacity to defend these proceedings has been otherwise been worsened by the delay. The impact of delay on the plaintiff’s notional estate claim is otherwise considered below.

Conclusions on Extension of Time

43. The plaintiff’s contention that there has not been undue delay and that he has given a sufficient explanation for the late commencement of proceedings is persuasive. The plaintiff relies upon the statement of Hallen J in Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572 at [90]:

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

44. That is the plaintiff’s situation. The plaintiff acted quickly after he became aware in May 2015 of his entitlement to bring a family provision claim. He had no clear knowledge of his rights before then. And his reasons for delay are fully explained by the defendant’s representations to him.

45. The plaintiff has shown sufficient cause in this case for his application being made later than 12 months after the date of death of the deceased pursuant to Succession Act, s 58(2). The time within which the plaintiff may make an application will be extended up until the date of filing of the application. The plaintiff’s claim for a family provision order may now be considered.

Plaintiff’s Relationship with the Deceased

46. A central issue between the parties is the frequency and quality of contact between the plaintiff and his father during the deceased’s lifetime and their relationship following the plaintiff’s departure from the family home at the age of 17. The Court’s findings here show that the plaintiff’s account of their relationship is accepted.

47. The deceased worked in the airline industry during his lifetime. As a result he and his family travelled regularly. This travel included visits to his mother, Mrs Moreau, in France until the plaintiff decided to leave home in about 1994.

48. In mid-1996, the plaintiff decided to leave Australia and move to France to study music for two years. Before he left, he says, and the Court accepts, that he discussed this decision with his father. But the deceased made his disapproval of this course clear. The deceased responded to the news, saying:

“I think that’s a mistake. I want you to pursue advanced academic studies in law or medicine. We didn’t sent you to private schools for you to pursue musical studies. I am very disappointed that you are not going to pursue a more highly remunerated career”.

49. The plaintiff is not the first musician or composer to have encountered such parental opposition to have been presented with such parental solutions. But the plaintiff was patient and persisted with his father. He wrote to the deceased during his first year in France to inform his of his new address and contact details. But his father never initiated contact. The plaintiff believes his own career choice caused a cooling in the relationship between him and his father, who never seemed to vary from his desire that the plaintiff should pursue a career in law or medicine. As it turned out the plaintiff ultimately became an IT architect.

50. The plaintiff’s mother, Elizabeth, and the deceased divorced in 1997, following their earlier separation, the same year the plaintiff’s elder brother David died. The plaintiff was not aware David had died. The deceased did not inform the plaintiff of David’s death, or contact him at the time.

51. Later in 1997 the deceased visited the plaintiff in France. They met and had dinner together. The plaintiff says at the time he said to his father “I think we should put it all behind us and move on”, to which he says and the Court accepts, the deceased responded, “I agree”. Mrs Moreau says this meeting occurred at her request. That may be partly right. But the meeting took place.

52. The plaintiff and his father maintained sporadic contact from late 1997 to mid-1998 while he completed his studies and worked overseas. The plaintiff returned to Australia permanently with his family in 1998. From that year onwards, until about 2004, the plaintiff and the deceased maintained regular contact and arranged meals together every few months. They seemed to have overcome the earlier rift that had developed over the plaintiff’s career direction.

53. Mrs Moreau concedes the plaintiff and the deceased did have sporadic contact. But her case is that they were estranged for a period between 2005 until the deceased’s death in 2011. She says that she was not aware of any contact between them after 2005.

54. But the plaintiff says, and the Court accepts, that the deceased ceased contact with him from mid- 2007, not 2005 as Mrs Moreau contends. The deceased initiated this break and it seems to have persisted over the last four years of the deceased’s life, during his cancer treatment. The plaintiff says he was unaware of his father’s illness.

55. But Mrs Moreau says she believes the plaintiff actually was well aware of his father’s sickness and visited the deceased in hospital while he was receiving cancer therapy. But the plaintiff denies this. He says, and the Court accepts, he was not aware of the severity of his father’s condition, or the fact that he had cancer until he saw the deceased’s Death Certificate.

56. When the plaintiff’s and Maud’s son, Alexander, was born in December 2006, the plaintiff says, and the Court accepts, he informed the deceased of the birth by sending him a card by post. But he received no response. His card was redirected to the deceased who by then was in England.

57. In early 2007, the deceased told the plaintiff he had moved and had gone to live and work in London. He and the deceased then exchanged a few emails. Four years before the deceased’s death these emails clearly evidence a relationship that bears very little resemblance to an estrangement. One example of such an email exchange was between 30 and 31 March 2007. The plaintiff gave the deceased an update on his son, Alexander, by email on 30 March:

“Hi Dad,

Well, the end of another week - time really flies.

Thanks again for the nice gifts for Alexander - he has yet to go shopping but intends to do this during the next couple of weekends. He will let you know of his new presents! His eyes certainly lit up when he saw a big box addressed to him.

As you know, his website has been updated with latest news and photos, however, I've attached better quality photos to this email for you. He really is starting to talk now and loves conversations. His sleeping is very limited during the day - he is more interested in discovering his growing surroundings and of course eating. In a couple of months he'll probably start crawling which will bring Maud and I to another stage where we will need to keep things off the ground and be conscious of potential dangers.

Friends of ours with babies of similar ages have warned us of this stage. I had a safety switch installed in our electrical meter box today in preparation…”

58. The deceased responded the following day, 31 March:

Hi Gwenael,

Thank you for the photos I asked and got. You'll see, having children is a voyage of discovery that does not stop.

When I am less busy, less traveling, I will put some photos on a cd and get prints, I am still old fashion and I think nothing beats the old albums.

Good luck in your new job.

Good to know your life is good, enjoy whatever you can.

Lots of love

Dad

59. But from mid-2007, the contact between father and son ceased entirely. The plaintiff never heard from his father again. But what is clear is that before this break there was no sudden rift, no argument, no incident in which the plaintiff ill-treated the deceased. All that can be inferred from the limited evidence that follows from the Court’s acceptance of the plaintiff’s testimony is that the deceased’s progressive illness made him disinclined to keep up contact.

60. The plaintiff conceded in cross-examination that he was hurt when he found out that his father left him out of the will. He was not particularly upset that his uncle, Alain, left him out of his uncle’s will.

61. These findings show that the deceased and the plaintiff had a good relationship until about four years before the deceased’s death. They then lost contact in circumstances that were not the plaintiff’s fault. The Court concludes that there was no estrangement between them.

The Plaintiff assists Mrs Moreau with the probate application

62. More explanation is needed about differences that arose between the plaintiff and Mrs Moreau in 2014. As earlier indicated from about mid-2013, the plaintiff assisted Mrs Moreau with her probate application in respect of the deceased’s estate. The Court accepts his motivation was to assist his grandmother, particularly in light of the death of her two sons. In his own words, he felt “morally obliged” to assist.

63. The plaintiff held a number of discussions with Ms Adel during this application process. Ms Adel said that the plaintiff told her, “I don’t want to contest the will because my grandmother has left me everything in her will”. The plaintiff does not recall this particular conversation with Ms Adel. But the Court accepts that some version of it took place, not quite in the terms Ms Adel says but at least connecting Mrs Moreau’s promise to him with his lack of pursuit of any other options.

64. In early 2014, the plaintiff began to discuss with Mrs Moreau in a more concrete way her own testamentary intentions. Mrs Moreau did not feel comfortable discussing these issues with him.

65. She says he persisted with these discussions. That may be right. He says he was making genuine attempts to assist her and look after her interests. In about mid-2014, the plaintiff says he and Mrs Moreau had the following discussion in French by phone, a discussion that reveals her growing discomfort with the subject he was raising:

Mrs Moreau:    "I need to tell you something..."

Gwenael:    "OK".

Mrs Moreau:    "I didn't appreciate your line of questioning the other day on the phone."

Gwenael:    “What do you mean?"

Mrs Moreau:    "You should mind your own business."

Gwenael:    "I don't understand what you mean?"

Mrs Moreau:    "You asked me the other day about my Will and I didn't like it."

Gwenael:    "We've spoken about the importance of this previously and you never said anything about you having an issue with it."

Mrs Moreau:    “I don’t appreciate you sticking your nose in my business.”

Gwenael:    “Well I’ve spent the last year and a half looking after your business, at your request, and finalising my dad’s will here in Australia, so I don’t understand why you’re suddenly upset about this. Look I’m sorry if I’ve offended you, that wasn’t my intention.”

66. The parties do not contest that their relationship subsequently broke down. In my view the plaintiff is unlikely to have pursued this subject at all with Mrs Moreau unless Mrs Moreau had made promises about leaving everything to him in her will. She seems with advancing age to have forgotten what she had said to him.

67. From 2014 onwards, the plaintiff, somewhat galvanised by Mrs Moreau’s apparent lack of recollection of her earlier promises, began to doubt Mrs Moreau’s intention to provide for him in her will once she passed away. His contact with his grandmother decreased markedly just as the probate application was finalised, to the point where ultimately they only discussed legal matters and their contact became more sporadic.

68. Counsel for Mrs Moreau submits the defendant placed trust in the plaintiff when she relied upon him for assistance in preparing the application for probate to administer the estate. She submits the plaintiff breached that trust. The plaintiff contests this. But in my view the plaintiff discharged the duty he had taken on as best he could (despite his growing misgivings) until probate was granted. And it is difficult to see how Mrs Moreau suffered any disadvantage by the alleged breach of trust.

69. The contact between the plaintiff and Mrs Moreau essentially ceased from the end of 2014 or early 2015. The plaintiff thought that the breakdown of the relationship between him and his grandmother caused him to think he would no longer be provided for under her will. So he sought the legal advice from Mr Morgan in May 2015.

Credibility of Witnesses

70. The plaintiff was a precise witness who was careful to only say what he was sure of putting before the Court. He had an insightful understanding of his grandmother, the defendant. His account of his relationship with, and his communications with his grandmother was probable, credible and the Court accepts it.

71. His evidence was reliable. He did not commit himself without checking the documents. He made concessions against interest that bolstered his credibility. His concession in cross-examination that he learned of his father’s death in January 2012, not March 2012, after Ms Alexandre-Hughes took him to the Ouest France online deceased notification for his father bearing a print date of January 2012, is one example of this.

72. The defendant was not available to be called as a witness due to her advanced age. She can no longer travel overseas. The defendant speaks no English and has hearing difficulties. The defendant’s affidavit evidence was prepared with the assistance of a NAATI accredited French interpreter. It was not in contest that setting up a video-link to the nursing home in which the defendant resides, and using an interpreter would have caused great difficulty for her. Mr Ellison SC accepted that the defendant was not available for cross-examination for these reasons but reserved the right to comment on the fact that the defendant had not been cross-examined.

73. The only other witness who gave oral evidence, Ms Annemarie Adel displayed a lack of familiarity with the court room environment. But she was a credible witness who had a good recollection of her dealings with the plaintiff. She only committed herself to matters she was confident about and made concessions about matters she was less sure of at the time of giving evidence.

The Deceased’s Estate

74. The deceased’s estate at the time of his death included an apartment in Stanmore (“the Stanmore property”) which the parties estimate has a current value of approximately $700,000, $25,400.00 cash in a Sydney bank account, and superannuation of $326,363.00. A sum of approximately $160,000 was also left in a bank account in London. The deceased left no assets in France.

75. The deceased’s estate at the time of death according to the Schedule of Assets with the grant of Probate on 15 October 2014 was given an estimated value of $1,571,785.29. But this composite figure includes an incorrect value for the Stanmore property. Its value was noted as $1,210,000, due to what the defendant describes as an “administrative error” on the part of the solicitor who acted for her in relation to the Probate application.

76. The defendant says that the approximate value of the Stanmore property at the deceased’s death was $420,000. It may be that the value was $440,000 in accordance with a letter of valuation annexed to her affidavit dated 28 January 2016. The difference of $20,000 is not material. The plaintiff’s estimate of $420,000 for the Stanmore property results in a revised estimate for the total gross distributable estate of $781,785.29, as at the date of the deceased’s death.

77. But the Stanmore property has been distributed. It was transferred to Mrs Moreau on 10 April 2015 as sole beneficiary. There has also been distribution in respect of outstanding liabilities of the estate in the order of $15,000.

78. The defendant updated the current estimated value of the estate’s assets and liabilities as at 19 April 2017. The defendant lists the estate’s assets and liabilities in an affidavit of Ms Corinne Schwartz dated 20 April 2017as follows:

Assets not distributed

(a) Controlled Money Account held by James Robert Richardson,

Solicitor, ATF The Estate of the late Guy Moreau

NAB Term Deposit Account No. 083-004 54-848-3036

Currently invested for 3 months at 2.10%

Maturity date: 2 March 2017

$175,444.70

(b) Funds held in the Trust Account of James Richardson Solicitor on

3 April 2017

$11,331.49

(c) Funds deposited at the Lloyds Bank (UK) on 18 February 2016: GBP 88,865.71 pounds

Estimated value in Australian dollars as at 19/04/2017)

$151,621.71

Total assets not distributed

$338,397.90

Assets distributed

(a) The Stanmore Unit

$670,000 to $700,000

(b) Interim distributions to the Defendant as beneficiary of the Estate ($5,022 and $10,022) - October 2016

$15,044.00

Total assets distributed (averaged)

$685,044.00 - $715,044.00

Total assets distributed and undistributed

$1,023,441.90 - $1,053,441.90

Total liabilities paid out of the Estate (approximately)

(a) Paid out of Mr James Richardson's Trust account from August 2013 to April 2017

$242,752.05

Liabilities unpaid (estimate)

(a) Australian Taxation Office - Estimated tax Liability for the Estate – Unpaid

$5,506.52

(b) Wealth Definition Advisory Services - Tax Invoice dated 3 April 2017- Preparation of the 2016 Trust Income Tax Return and an Estimate of the 2017 Trust Income Tax Return for the Estate of Guy Moreau – Unpaid

$1,430.00

(c) James Richardson Solicitor - Tax Invoice rendered 27 March 2017 - Estate Legal Fees – Unpaid

$7,099.40

(d) Simone Marie-Louise Aline Moreau - reimbursement of the sum of $2,000.00 paid to James Richardson trust account on account of costs on 30 August 2015 - Unpaid. Details of the manner in which this amount was calculated are set out in paragraph 9 of Affidavit affirmed by Ms Moreau on 28 January 2016

$2,000.00

Total estimated unpaid liabilities (excluding legal costs other James Richardson's Invoice dated 27/03/2017)

$16,035.92

79. The defendant’s evidence is that the net distributable estate is comprised of the total assets of the estate not previously distributed ($338,397.90), less the outstanding liabilities of the estate ($16,035.92). This produces a net total of $322,361.98. But the parties have also incurred legal costs related to these proceedings which may yet have to come out of the estate.

80. The Stanmore property is unencumbered by any mortgage. It is managed by a real estate agent and derives net rental income of $240.00 per week after the deduction of rates, taxes and agent’s commission. But because it has been distributed any order for provision that is to be made in respect of it would need to be made out of the deceased’s notional estate.

French inheritance and the Moreau Estates

81. The parties tendered a joint expert report from an expert in French succession law and French conflict of laws, Mr Rama Chalak. Mr Chalak was briefed by the parties to provide an opinion on relevant tax implications, and on French succession law regarding the estates of Guy, Alain, and the future estate of Mrs Moreau. Only limited parts of his evidence may be considered.

82. Mr Chalak says the plaintiff is entitled to the whole of Mrs Moreau’s estate if she dies without a will. But even if Mrs Moreau has exercised testamentary freedom under a will, the plaintiff is automatically entitled to at least half of her estate under French succession law by what is known as a “reserve system”. Mr Chalak explains that the effect of this reserve system is that: “the freedom to dispose of one’s assets is limited by the rights of the descendants of the deceased on an intangible portion of the estate known as the reserved portion”.

81. According to Mr Chalak, the “reserved portion” is half of the estate if the deceased is only survived by one child. Because Alain predeceased Mrs Moreau and had no children, the plaintiff is entitled to at least half of Mrs Moreau’s estate, as his “reserved portion”: Article 913-1 of the French Civil Code.

82. Ms Alexandre-Hughes submitted on the basis of Mr Chalak’s evidence that because the plaintiff is already entitled to at least 50 per cent of Mrs Moreau’s estate upon her death, he would be “double dipping” if the Court were now to make Succession Act 2006, s 59 provision for him in these proceedings in addition to the automatic award to him of the reserved portion under the French Civil Code.

83. Mr Chalak’s evidence was that French taxation obligations would apply to any payment made to Mrs Moreau in France in respect of moveable assets in Australia, which Mr Alain Moreau received in France from the deceased’s estate. Mr Ellison SC submitted that the value of the estate will be significantly diminished if the money in the estate is paid to Mrs Moreau over the plaintiff. Mrs Moreau would also be subject to substantial capital gains tax if she were to sell the Stanmore property and remit the proceeds to France.

A Preliminary Question of Characterisation

86. Mr Ellison SC submitted that this case does not involve the defendant taking under the deceased’s will, given the estate passed to his brother. Ms Alexandre-Hughes submitted that this is a technicality: Alain survived for such a short time that, in spirit at least, the defendant is now taking under the will of the deceased. The difference between the two positions may not matter much for practical purposes. But Mr Ellison SC is correct. The deceased’s estate passed to Alain, and then to the defendant.

87. In the grant of probate in this Court Mrs Moreau was appointed the substitute executor under the deceased’s will, even though Alain did survive the deceased by more than 30 days. He was dead by the time the probate application was made. That grant permitted the deceased’s estate to pass into Alain’s estate before transmittal to the defendant.

88. Mr Alain Moreau’s final will dated 8 February 2012 (“Alain’s will”) was made after the deceased’s death. Alain’s will leaves Mrs Moreau his whole estate, and failing this, it provided that the estate should be shared equally between the children of Mr Moreau, the plaintiff, and the plaintiff’s children.

89. It is not necessary for the Court to consider this preliminary characterisation issue further.

Applicable Legal Principles

“Eligible Person” and “Factors Warranting” Succession Act 2006, ss 57 and 59

90. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an “eligible person” within Succession Act, s 57. The plaintiff is an “eligible person” as a child of the deceased: Succession Act, s 57(1)(c).

Adequate Provision

91. Finally the issue is whether an order for provision should be made in the plaintiff’s favour. The test of whether an order for provision should be made out of an estate in any case is set out in Succession Act, s 59(1)(c):-

“(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

…

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

92. There are many judicial statements summarising the operation of this legislation which is often said to include a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:-

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

93. Whether the two-step test operates with the same full vigour in the current legislation has been discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for the plaintiff once he has been shown to be an eligible person.

94. Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:-

“[153]   Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

[154]   In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:

"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

[155]   In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

…

[158]   Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

…

[160]   In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:

"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."”

95. The application of these principles involves examination of a number of specific issues in this case. Preliminary to those issues the Court examines the financial and personal position of the plaintiff and the defendant.

The Plaintiff’s Family Provision Claim

96. Mr Ellison SC submitted that an order for provision should be made over the Stanmore property which should be designated as notional property. He submitted that the cash in the balance of the estate could be left to meet the defendant’s needs. He identified several hurdles that the plaintiff must pass for his claim to be successful. Given the deceased’s assets have been distributed in part and the claim was made out of time, under Succession Act, s 58 (2) the plaintiff must satisfy the Court under Succession Act, s 90(2)(b) that there are “other special circumstances” warranting provision out of the estate. In his submission, the special circumstances which warrant provision include the size of the estate, the fact that the plaintiff had not received provision from the deceased and that there was no “disentitling conduct” on the plaintiff’s part.

97. Ms Alexandre-Hughes submitted that this is an estrangement case. She says it is analogous to Burke v Burke [2015] NSWCA 195. She contends the relevant question in estrangement cases, is whether community expectations would see the need for the deceased’s adult child who was in financial need, to be provided for in a will, despite any estrangement between parent and child. In her submission, estrangement is a strong factor against provision here. She says the relationship between the deceased and the plaintiff, cannot justify the Court disturbing the wishes of the deceased in the will.

98. Mr Ellison SC submitted this was not an estrangement case. He says the relationship between the plaintiff and the deceased waxed and waned over time, and that towards the end of the deceased’s life, the father and son had “drifted apart”.

The Plaintiff’s Current Financial Circumstances and Needs

99. The plaintiff is an IT systems architect. Ms Seron works part-time as a human resources screening specialist. The plaintiff and Ms Seron have a combined net family income is $10,656.56 per month, excluding bonuses paid to the plaintiff from time to time. This income is the combined monthly net income of $8,346.37 from the plaintiff and $2,310.19 from Ms Seron. The Court accepts that, as the plaintiff says, their monthly family household expenditure is $9,921.18. This only leaves a very thin margin for saving for future contingencies of $735.38 ($20,656.56-$9,921.18).

100. The plaintiff’s gross taxable income was $146,005 according to his financial year 2014-2015 Notice of Assessment from the ATO. The plaintiff’s 2015-2016 tax return states that his total income was $153,077, and Ms Seron’s income was $23,655. These annual figures align roughly with the monthly figures above.

101. The plaintiff also gave evidence that he receives bonuses from time to time, subject to his performance against key performance indicators and his company’s performance. He said his contract provides that the maximum he could receive in bonuses in any given year is $15,000.

102. The plaintiff holds assets jointly with his partner, Ms Seron including a house which has an approximate value of $1,010,000.00 (as at March 2017), two motor vehicles, house contents and cash at bank. The net value of his half share in these assets was $429,428.04 as at March 2017. The mortgage over the property is in the order of $470,000.00 (as at May 2017).

103. In the course of the proceedings, through a family superannuation fund, Mr Moreau and Ms Seron entered into a contract to purchase an off-the-plan property in Queensland which will be paid for with a combination of existing monies held by the fund together with a loan of just over $284,000. Although these are funds quarantined within their superannuation fund, they nevertheless add to their family’s overall debt obligations.  

104. The plaintiff claims needs that include:

1. Capital to supplement the household income;

2. Capital to reduce or discharge the mortgage on his current residential property; and

3. A fund to meet the educational needs of his and Ms Seron’s three children.

105. Ms Alexandre-Hughes submitted that the plaintiff has not demonstrated any need. In her submission his household income is sufficient to meet all his needs, including mortgage repayments.

106. But Mr Ellison SC has two answers to this. First, he submits that sole reliance upon the plaintiff’s needs alone would be an error in principle. He says Succession Act, 60 (2) invites the Court to consider various matters, including but not limited to financial need.

The Defendant’s Requirements

107. In Ms Alexandre-Hughes’s submission, the Court should also consider that any order made in favour of the plaintiff would prejudice Mrs Moreau, due to her needs for medical and residential care. Those needs include the regular nursing home expenses of an amount equivalent to approximately $2,250 per month, home insurance, electricity, and the need to supplement her “negligible savings” from her pension of 850 Euros, or approximately $1,270, per month. Mrs Moreau also requires an urgent replacement for her dentures.

108. Mrs Moreau owns a rural property in Mervant, in North Western France (“the Mervent property”). Mrs Moreau is unlikely to return to live in this property. But before it is sold it needs to be connected to a mains sewerage line. Otherwise its value upon sale will be adversely impacted. The Court accepts her submission that realistically it cannot be sold until it is connected to the main sewer.

109. The Court ordered the parties to reach agreement on the maximum cost of connecting the sewerage line on the defendant’s property and the costs of the sale of that property. In the Agreed Statement of Facts dated 21 July 2017, the plaintiff contends the installation of a sewerage line would cost between 5,000 to 10,000 Euros. Mrs Moreau says the cost would be 14,000 Euros. For present purposes and applying the Practice Notice, the Court will use a figure of 8,000 Euros, which as at the date of this judgment is approximately A$12,000. The parties also agree the estimated costs associated with the sale of the Mervent property would be between five per cent and six per cent of the sale price.

110. Mrs Moreau’s property is worth between approximately A$76,000 and A$99,000, according to a valuation prepared in February 2016 and annexed to Mrs Moreau’s April 2016 affidavit.  The Court will assume $90,000 is a probable market price.

111. Thus if the Mervent property were sold it would realize $90,000, less 5% (namely $4,500), less $12,000 (for connecting to the sewer), leaving a net figure of $73,500.

The Notional Estate Claim

112. The plaintiff’s notional estate claim is only relevant to the distributed estate, being the Stanmore property.

113. The defendant is listed in the first schedule as the registered proprietor of the Stanmore property. The property was distributed to her in the course of administration of the deceased’s estate. She has been the registered owner since 2 April 2015. She has not encumbered the property.

112. The distribution of property from an estate qualifies as notional estate under Succession Act, s 79.

113. The Court must consider the Succession Act, s 87 criteria before proceeding to make a notional estate order over the Stanmore property:

“87 General matters that must be considered by Court(cf FPA 27 (1))

The Court must not make a notional estate order unless it has considered the following:

(a)   the importance of not interfering with reasonable expectations in relation to property,

(b)   the substantial justice and merits involved in making or refusing to make the order,

(c)   any other matter it considers relevant in the circumstances.”

116. In my view Mrs Moreau did not have any reasonable expectation that she would receive the Stanmore property at the time of the deceased’s death. She is receiving net income from the property now. Her current expectation is to continue that receipt to supplement her overall income.

117. The plaintiff’s application has been brought out of time. This adds another hurdle to the notional estate claim: Succession Act, s 90. The defendant submits that because the Stanmore property was transferred to the defendant, the Court cannot be satisfied that the requirements under Succession Act, s 90(2)(a) are met.

118. The plaintiff contests this. He submits that not only are all the requirements of s 90(2)(a) met but other “special circumstances” required under Succession Act, s 90 (2)(b) also exist here.

119. Succession Act, s 90 provides:

“90   Restrictions on out of time or additional applications (cf FPA 28 (5))

(1)   This section applies to proceedings where:

(a)   an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or

(b)   an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order.

(2)   The Court must not make a notional estate order in the proceedings unless:

(a)   it is satisfied that:

(i)   the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and

(ii)   the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and

(iii)   the property is not vested in interest in any beneficiary under the trust, or

(b)   it is satisfied that there are other special circumstances that justify the making of the notional estate order.”

120. Given the plaintiff’s application was made outside the 12-month limitation period, the Court is also required to determine whether or not there are “other special circumstances” that justify a notional estate order being made.

121. The Court accepts the plaintiff’s submission that the facts here do show these “other special circumstances”. They include: a strong moral obligation on the deceased’s part for provision to the plaintiff; the plaintiff is solely eligible to make a Succession Act claim against the deceased’s estate; and that Mrs Moreau did not receive her benefit from the estate of the deceased, but from the estate of the deceased's brother Alain, as he inherited the deceased's estate, and transmitted it to her.

122. The defendant submitted that notwithstanding the outcome of the proceedings before the Court, the Stanmore property would need to be sold. That is not true if the property is designated as notional estate and orders for provision are made in respect of it.

Consideration

123. The distribution of the Stanmore property has resulted in Mrs Moreau holding the property in her name. Mrs Moreau is a party to these proceedings and has been on notice of the plaintiff’s claim since June 2015. As she continues to hold the Stanmore property, the possibility of her either making arrangements to sell the property or to transfer ownership to the plaintiff should the Court so order, was always within the forseeable realms of possibility, notwithstanding the plaintiff’s delay.

Should an Order for Provision be Made?

124. Should the Court make provision for the plaintiff out of his father’s estate? No provision has been made for the plaintiff under the will. As the sole adult son of the deceased, the plaintiff is an eligible person to make a family provision claim under Succession Act, s 59.

125. The deceased maintained the plaintiff in the family home until he was 17 years old. It is not in contest the relationship between the plaintiff and the deceased thereafter had some difficulty. The Court accepts that the plaintiff and the deceased ceased contact from about mid-2007 but it was not the plaintiff’s fault and there was no estrangement between them.

126. Not only does the plaintiff have a strong moral claim on the deceased but he has clearly identifiable financial needs. He has very little capacity to reduce or discharge the mortgage on his current residential property. He has no real reserves to deal with any unexpected increase in household expenditure. His and Ms Seron’s children are coming into their most expensive educational years as teenagers. The case for an order for provision in my view is a very strong one.

127. The Court does not accept the defendant’s submission that the plaintiff has not demonstrated need. The mere current sufficiency of household income to meet current outgoings only looks at the plaintiff’s real financial position in a superficial way. The discharge of his substantial liabilities would make a big difference to his advancement in life.

What Order for Provision Should be Made?

128. What order for provision should be made in this case requires consideration both of the plaintiff’s needs and the defendant’s overall situation.

129. In my view Mr Ellison SC’s submission is persuasive that the plaintiff should have a fund of the approximate value of the Stanmore property by way of an order for family provision. The sum of approximately $420,000 is in my view a sum appropriate to the plaintiff’s needs. But the question is whether the defendant’s needs are also adequately catered for by an order designating the Stanmore property as notional estate. The bottom line position for Mrs Moreau is that the parties’ costs will be paid out of the estate’s Australian liquid funds. Mrs Moreau must meet continual nursing home fees of over $2,000 per month, partly defrayed by her French pension. She will have access to the funds of approximately A$160,000 in London if a notional estate order is only made over the Stanmore property. She has the proceeds of sale of the Mervent property. This would give her capital of $233,500 ($160,000 + $73,500). But there is a degree of uncertainty from Mr Chalak’s affidavit as to whether some of the $160,000 may become liable to French taxes in Mrs Moreau’s hands. And that amount is the lion’s share of the cash that would be available to her. If she lives for a significant period the Court is concerned that her capital reserves may begin to run low.

130. For that reason, looking at the substantial justice and merits, the Court will order that the Stanmore property be designated as notional estate and be used to satisfy an order for provision for the plaintiff. But during the defendant’s lifetime the plaintiff should be required to pay to the defendant the sum of $500 per month from the Stanmore property. That will cover the Stanmore property’s outgoings and provide some income to the plaintiff but still give some benefit from the property to the defendant during her lifetime.

Orders and Directions

131. Accordingly, the Court orders as follows:

1. Leave is granted to the plaintiff pursuant to Succession Act 2006, s 58(2) to extend the time for bringing this application up to the date of the filing the Summons, 9 June 2015.

2. That the Stanmore property referred to in these reasons be declared notional estate of the deceased.

3. That provision be made for the plaintiff’s maintenance, education and advancement of life pursuant to Succession Act 2006, s 59 out of the notional estate of Guy Gustave Arsene Moreau, who died on 31 August 2011 by giving to the plaintiff the Stanmore property but on the basis that he pays $500 per month from the income from the Stanmore property to the defendant during her lifetime.

4. The costs of the parties be paid out of the estate.

5. The parties are otherwise directed to bring in proposed agreed short minutes of order to give effect to these reasons.

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Decision last updated: 04 October 2017