Niebour-Pott & Anor v Pott
[2020] QSC 7
•10 February 2020
SUPREME COURT OF QUEENSLAND
CITATION:
Niebour-Pott & Anor v Pott [2020] QSC 7
PARTIES:
CAMERON DAVID NIEBOUR-POTT (by his litigation guardian JENNIFER MARGARET NIEBOUR-POTT) and
NAOMI AMBER ALICE NIEBOUR-POTT(applicants)
v
CECILIA KIT-YING POTT (as executor of the will of BRYAN FREDERICK NIEBOUR POTT)(respondent)
FILE NO:
BS No 2789 of 2009
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
10 February 2020
DELIVERED AT:
Brisbane
HEARING DATE:
22 and 23 October 2019
JUDGE:
Ryan J
ORDERS:
Naomi Amber Alice Niebour Pott is to be included as an applicant in the application made by Cameron David Niebour-Pott (by his litigation guardian), file number S2789/2009.
I indicate that I consider provision in the sum of $400,000 ought to be made for each of the applicants out of the estate of Bryan Frederick Niebour Pott.
I will hear the parties as to the form of order and as to costs.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANTS LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants are the children of the deceased – where the applicants have been diagnosed with Asperger’s Syndrome – where the deceased did not provide for the applicants in his will – whether a wise and just testator, in the deceased’s position, would have made some provision for the applicants in his will – where a wise and just testator would have taken into account that his estate was not small; they were his children; he controlled his relationship with them and the contact they had with him; they were unlikely to find employment; their life was likely to be difficult because of their disability; their mother’s finances were limited; and there was no suggestion of any other needs based claim upon the estate – where having regard to the size of the estate, the community would not expect the deceased to leave the most vulnerable of his children dependent on welfare whilst providing for his other children who were able to meet their needs from their own resources – where the deceased failed to make adequate provision for the applicants’ proper maintenance and support in his will
SUCCESSION – FAMILY PROVISION – PROPERTY WHICH MAY BE SUBJECT TO ORDER – PRIMACY OF WIDOW’S CLAIM – EXONERATION OF MATRIMONIAL HOME – where the respondent is the widow of the deceased – whether the conduct of the respondent as executor, and any pursuit by her of litigation to the detriment of the estate, can be taken into account in deciding whether to exonerate the matrimonial home – where no evidence given of the widow’s particular attachment to the home, or her inability to find or fund a suitable replacement for it were it not exonerated – where it is not appropriate to apply the broad general rule that primacy be accorded to widows
Succession Act 1981 (Qld)
Abrahams (by his litigation guardian the Public Trustee (Qld)) v Abrahams (2015) 13 ASTLR 406
Alexander v Jansson [2010] NSWCA 176Baird v Harris [2015] NSWSC 803
Bladwell v Davis & Anor [2004] NSWCA 170
Blore v Lang (1960) 104 CLR 124
Camernik v Reholc [2012] NSWSC 1537
Collet & Anor v Knox & Anor [2010] QSC 132
Collicoat v McMillan [1999] 3 VR 803
Cropley v Cropley [2002] NSWSC 349
Duffy v Duffy [2014] NSWSC 216
Gardiner v Gardiner, Supreme Court of New South Wales, 28 May 1998, unreported
Golosky v Golosky [1993] NSWCA 111
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Higgins v Higgins [2005] 2 Qd R 502
In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959
Jones v Smith [2016] VCA 178
Kohari v Snow [2013] NSWSC 452
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker (1957) 97 CLR 566
McGarry v McGarry [2009] NSWSC 504
Mckenzie v Topp [2004] VSC 90
Palagiano v Mankarios [2011] NSWSC 61
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Anderson, Supreme Court of Queensland, 13 May 1984, unreported
Re Fulop Deceased (1987) 8 NSWLR 679
Re Harris [1936] SASR 497
Re Watkins (deceased) Hayward v Chatterton and Others [1949] 1 All ER 695
Rocco Condello v Sung Soo Kim [2018] NSWSC 394
Sayer v Sayer; Garbutt v Sayer [1999] NSWCA 340
Singer v Berghouse (1994) 181 CLR 201
Slack v Rogan (2013) 85 NSWLR 253
Steinmetz v Shannon (2019) 368 ALR 161
Stewart v McDougall NSWSC, 19 November 1987, unreported
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thompson v Sgro [2016] NSWSC 1869
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin (2005) 221 CLR 191
Warriner v McManus & Warriner [2015] VSC 314
Whitmont v Lloyd, Supreme Court of New South Wales, 31 July 1995, unreported
Zagame v Zagame [2014] NSWSC 1302
COUNSEL:
J I Otto for the applicants
C A Brewer with P Coore for the respondent
SOLICITORS:
Keating Lehn for the applicants
Gall Stanfield & Smith for the respondent
Table of Contents
Preliminary matter
Overview
The deceased’s will
Chronology
Relationship between the deceased and Cameron and Naomi
Cameron’s personal circumstances
Cameron’s financial circumstances
Naomi’s personal circumstances
Naomi’s financial circumstances
Naomi’s house
Naomi’s financial circumstances apart from her house
Jennifer’s financial circumstances
Cecilia Kit-Ying Pott’s evidence and circumstances
The needs and circumstances of the children of the deceased’s first marriage
Legal matters
Claims by widows
Claims by adult children
Claims by children with disabilities; claims by children funded by social security
Estrangement
The conduct of the executors
The estate
Cameron and Naomi’s needs generally
Expert Accounting Evidence
Consideration of application (first stage)
Applicants’ submissions
Respondent’s submissions
Discussion and Conclusion (first stage)
Should the matrimonial home be exonerated from the estate for the purposes of determining the size of the pool from which provision might be made for the applicants?
Respondent’s submissions
Applicants’ submissions
Respondent’s submissions in response to complaints made about her conduct as executor
Conclusion about exonerating the matrimonial home
Proper provision for Cameron and Naomi (second stage)
Applicants’ submissions
Respondent’s submissions
Preliminary matter for second stage: Conclusion about Naomi’s false affidavits
Conclusion as to proper provision (second stage)
Preliminary matter
This is an application for provision from the estate of the deceased. I will refer to family members by their first names so that my reasons are easier to follow. I intend no disrespect.
Overview
Bryan Pott died on 17 June 2008, aged 69 years. He was a retired commercial airline pilot. At his death, he had almost $3.8 million in assets, separate from other income earning assets which he controlled through a family trust.
The deceased married his first wife, Denise, in 1959. They had three children.[1] He met Jennifer Niebour-Pott in 1982. In 1983, after he separated from Denise, he entered into a relationship with Jennifer. They had two children. He divorced Denise in 1986. His relationship with Jennifer ended in the 1990s. In 1998, he married his second wife, Cecilia, and they were still together at his death.
[1] They also raised a foster child, who predeceased Mr Pott.
The deceased provided for Cecilia and the three children of his first marriage in his will. He left nothing to his children with Jennifer – Cameron and Naomi Niebour-Pott. Cameron and Naomi are the present applicants. The respondent, Cecilia, is the executor of the deceased’s will.
It is not necessary for me to make any finding about the nature or duration of the deceased and Jennifer’s relationship. It is enough to say that there was animosity between them after their final separation and, in 1998, Jennifer commenced de facto property proceedings against the deceased. The deceased engaged the law firm Clayton Utz to act on his behalf in those proceedings. They had not resolved prior to his death and were continued by his estate.
The deceased had some contact with Cameron and Naomi until 2000. After 2000, his contact with them ceased but he agreed to maintain them both until they reached 18 years.
At the deceased’s death, Cameron was aged 17 years and 11 months and Naomi was 24.
On 16 March 2009, by his litigation guardian, Cameron filed an originating application for an order for adequate provision from his father’s estate. On 26 October 2009, Naomi indicated her intention to seek adequate provision from her father’s estate. Under rule 69 of the Uniform Civil Procedure Rules 1999, I order that Naomi be joined as the second applicant in this application.
It may be noted that it has taken ten years for the application to be heard. An explanation for some of that delay has been footnoted.[2]
[2] The present proceedings were stayed, by consent, on 15 March 2010, pending the resolution of the de facto property proceedings.
The de facto property proceedings settled in September 2011.
Jennifer was appointed as Cameron’s litigation guardian (in lieu of his original litigation guardian) on 6 September 2012.
The estate required the applicants to prove that they were the children of the deceased. They brought an application for a declaration of his paternity.
On 30 May 2014, the applicants obtained a declaration of paternity and the estate was required to pay the costs of that application. Those costs were assessed and ultimately paid, although Cecilia complained about their quantum to the Legal Services Commission.
On 13 October 2015, the applicants applied for disclosure of the family trust’s records. Their application was dismissed and they were required to pay the estate’s costs. Those costs are yet to be assessed.
An attempt at mediation of this matter, on 29 February 2016, was unsuccessful.
On 21 June 2019, the applicants were granted leave to proceed, certain directions were made and the matter was set down for trial.
The estate has, of course, incurred the costs of responding to the present application. It bore some of the costs of the deceased’s de facto property dispute with Jennifer and the costs of another application by Jennifer concerning maintenance. It has also been involved in litigation against Clayton Utz over its fees in the de facto property dispute.
The financial cost to the estate of litigation over the years has been more than $1 million. Its current net asset position is about $2 million. Its principal asset is the matrimonial home in which Cecilia resides which is valued at $1.450 million.
The applicants argue that Cecilia, as executor, failed in her duty to the estate including by engaging in, or at least continuing, the litigation against Clayton Utz over its fees when the cost of that litigation (which is ongoing) significantly outweighed any potential benefit to the estate (a benefit which was not, in any case, guaranteed).
One of the questions for me is whether and how I may take into account the fact that Cecilia, as executor, depleted the estate by incurring significant legal costs in deciding whether to exonerate the former matrimonial home from any order I might make for provision for Cameron or Naomi.
Cameron suffers from Autism Spectrum Disorder (ASD). Life is not easy for him. In 2009, he was diagnosed with Hodgkin’s Lymphoma for which he was successfully treated. Naomi also suffers from ASD. She is not as disabled by ASD as her brother but life is not easy for her either. In addition to her ASD, she suffers from post-traumatic stress disorder, having been sexually abused by her maternal grandfather. She also suffers from a gynaecological condition which, until recent surgery, caused her great pain. It might reoccur. Both are in receipt of disability support pensions. Both have been approved for NDIS funding.
Cecilia, as executor, accepts that provision ought to have been made by the deceased for Cameron. She submits that $100,000 is proper. He seeks $473,750 – the maximum amount which he may receive without risk to his disability support pension.
Cecilia does not accept that any provision ought to have been made by the deceased for Naomi. Naomi too seeks $473,750. Naomi’s application is complicated by the fact that, in support of it, she swore false affidavits about her assets. For several years, she failed to disclose that she owned a house.
The deceased’s will
The deceased’s will is dated 21 August 2007.
Before his death, the deceased purchased property through a trust, the Ocean Projects Trust. The trustee of the trust was a company, Ocean Projects Pty Ltd. The deceased was a director and shareholder of the trustee company and the principal beneficiary of the trust. The trustee company owed the estate more than $2 million at the deceased’s death.
By his will, the deceased appointed Cecilia his executor and trustee. She was granted probate of the deceased’s will on 21 January 2009.
At his death, the deceased’s estate included two residential properties (and their furniture and effects) at Benowa Waters (including the matrimonial home), a car, shares, his loan to the trustee company and another $494.50 in assets.
The deceased left to Cecilia the matrimonial home at Cabana Boulevard, Benowa Waters, its furniture and effects, and his cars.
He left another home at Edinburgh Road, Benowa Waters and its furniture and effects, to his daughter, Christine Morgan.
He gave all money owing to him by the trustee company, either as a loan or as undistributed income, to Cecilia (50%) and his sons, Gregory Pott (25%) and Bryan Pott (25%).
He gave to Cecilia his shares in Ocean Projects Pty Ltd and appointed her as the principal of the Ocean Projects Trust in his place.
He gave the residue of his estate to his trustee (Cecilia) to be used for the payment of certain expenses, with the balance to be held on trust for his sons Gregory and Bryan.
Chronology
The material tendered on this application was quite voluminous. I found the simplest way to manage it for the purposes of understanding the relevant narrative was to prepare a table setting out significant factual matters in chronological order.[3]
[3] The evidence before me in affidavit form did not present a totally consistent picture of the historical narrative. However Jennifer and Cecilia were not cross-examined about inconsistencies in their narratives and I was not required to make specific factual findings about the history between the parties.
November 1959
The deceased married his first wife, Denise Robyn Pott.
He had three children and one foster child with her. His three children are Bryan Kenneth Pott, Christine Denise Morgan and Gregory Colin Pott. Bryan, Christine and Gregory are beneficiaries under his will. His foster child died in 1997.
August/September 1982
The deceased and Jennifer met.
September 1983
The deceased and Jennifer commenced a relationship (the deceased was then separated from his first wife Denise).
27 June 1984
Naomi was born on the Gold Coast.
May 1986
The deceased and his first wife divorced.
1987
The deceased, Jennifer and Naomi moved to Hong Kong. The deceased was employed as a pilot with Transcorp Airlines (a subsidiary of Ansett Airlines) and later by Air Hong Kong. He, Jennifer and Naomi returned to Australia between his employment with those companies.
19 July 1990
Cameron was born prematurely in Hong Kong at 27 weeks’ gestation.
1994/1995?
The relationship between the deceased and Jennifer deteriorated.
Jennifer returned to Australia with Cameron and Naomi.
The deceased visited Jennifer, Cameron and Naomi in Australia twice.
Jennifer, Cameron and Naomi were away for about 15 months.
December 1996
Jennifer returned to Hong Kong with the children.
The deceased was, by then, in a relationship with Cecilia.
They all lived together in the same house in Hong Kong.
July 1997
The deceased’s employment with Air Hong Kong ended and the deceased, Jennifer, Cameron and Naomi returned to Australia. Cecilia followed some months later.
The deceased, through his family trust, owned a motel at Palm Beach, flats at Palm Beach and a “farm” at Midginbil. After a stay at the motel, the deceased, Jennifer and the children lived on the farm until the deceased’s relationship with Jennifer ended.
Cameron and Naomi are discretionary beneficiaries of the Ocean Property Trust. They have never received any distribution from it.
Australia Day 1998
According to Jennifer she and the deceased separated finally at this time.
According to Cecilia, their final separation was in August 1995.
April 1998
Jennifer commenced proceedings in the Supreme Court against the deceased and the trustee of the family trust.
August 1998
The deceased and Cecilia married.
7 September 1999
The deceased filed an Application for Final Orders in the Family Court, seeking contact with Cameron and Naomi.
8 September 1999
By consent, the deceased agreed to pay child support for Cameron and Naomi until they reached 18 years (he died just before Cameron reached 18).
He agreed to pay Naomi’s orthodontic fees and private school fees for both children.
2 March 2000
The deceased withdrew his application for final orders for contact with Cameron and Naomi.
After “early 2000”
The deceased stopped contacting Cameron and Naomi.
10 March 2001
Dr Tony Attwood confirmed that it was “quite clear” that Cameron’s abilities and history were consistent with Asperger’s Syndrome (then a “recently defined neuro developmental disorder”) – noting that there had been “some concern” about that diagnosis in the past.
20 July 2001
Dr Attwood assessed Naomi (aged 17), noting her unusual profile of abilities and character. He found her character consistent with an Asperger’s personality type.
2004
The deceased made an offer to Jennifer to settle their litigation which was rejected. (He made one further offer before the matter was mediated in 2011.) The deceased engaged Clayton Utz to act for him in this matter.
25 October 2004
Assistant Professor Dr David Furrows confirmed that Naomi satisfied the criteria for a DSM-IV diagnosis of Asperger’s Disorder.
6 February 2006
Dr (now also Professor) Attwood confirmed Cameron’s diagnosis of Asperger’s Syndrome, noting its effect on his ability to gain employment and specific components of his daily living skills as well as his need for “continuing support from a parent”.
6 February 2006
Dr Attwood confirmed that Naomi had quite clearly Asperger’s syndrome.
28 February 2006
Dr Furrows confirmed Cameron’s “severe” Asperger’s Disorder “which handicaps his ability to obtain skills or work”. Dr Furrows explained that while Cameron accepted all appropriate treatment, his disability was unlikely to substantially improve.
28 February 2006
Dr Furrows confirmed Naomi’s “severe and longstanding Asperger’s Disorder” which disabled her communication and social skills and handicapped her ability to obtain skills or to work. He confirmed that her disability was unlikely to substantially improve.
23 August 2007
Dr Furrows confirmed Cameron’s diagnosis of severe Asperger’s Disorder. He was then receiving distance education because of his disability.
4 December 2007
The deceased requested that his name (as father) be removed from Naomi’s birth certificate, and it was.
19 December 2007
Dr Chris Wever confirmed Cameron’s diagnosis of Asperger’s Disorder, noting his symptoms of poor eye contact, odd use of language and an inability to understand complex language. He was extremely isolated and “could be severely disabled by his psychiatric condition”.
19 December 2007
Dr Chris Wever confirmed Naomi’s diagnosis of Asperger’s Disorder. He referred to her poor eye contact, odd use of language and social difficulties.
December 2007
Naomi purchased a house at Tivoli – using money from her grandfather (the circumstances in which he gave that money to her are explained below) and the first home buyer’s grant. Cameron, Naomi and Jennifer moved into Naomi’s house at Tivoli.
17 June 2008
The deceased died aged 69 years.
21 January 2009
Probate of the deceased’s will was granted to Cecilia.
16 March 2009
Cameron filed an application for adequate provision from his father’s estate.
July 2009
Cameron was diagnosed with Hodgkin’s Lymphoma.
26 October 2009
Naomi joined Cameron’s application for adequate provision from her father’s estate.
25 November 2010
Dr Attwood prepared a report primarily about Naomi’s career and occupational potential. He described her as “kind, insightful and humorous”. She was considerate; showed a remarkable level of compassion; and had considerable intellectual ability. She had, though, extremely low self-esteem and this led to the potential for clinical depression. She had trust and rejection issues and “unresolved issues in relation to her father and his personality”. Dr Attwood strongly recommended her attendance at the Minds and Hearts Clinic to improve her self-esteem. He noted her need for psychotherapy to assist with her Asperger’s Syndrome.
4 March 2011
Jennifer, Cecilia and the trustee of the deceased’s family trust entered into a deed of settlement of Jennifer’s Supreme Court Action for $800.000, including costs of $307,910.81.
25 July 2011
Naomi swore an affidavit for the purposes of this application. She did not disclose her ownership of the house at Tivoli. She falsely stated “I have no assets”.
November 2011
The estate changed solicitors from McCullough Robertson to Gall Standfield and Smith.
December 2011
Jennifer purchased a house at Robina (from the settlement proceeds). She and Cameron and Naomi moved from Tivoli to the Robina house. Naomi rented out the Tivoli house from late 2012 until mid-2016.
30 March 2012
Cecilia brought proceedings against Clayton Utz (whom the deceased had engaged to act for him in the proceedings brought by Jennifer in 1998) seeking a declaration that a Costs Agreement was void and otherwise challenging the fees said by Clayton Utz to be owed to it by the deceased/his estate (the “assessment proceedings”).
Clayton Utz issued invoices to the estate in the amount of $534,150.15 between July 2008 and March 2011. The estate paid $393,040.25. An amount of $141,109.90 is outstanding, pending the outcome of the ongoing assessment proceedings.
July 2012
The applicants changed solicitors from Gleeson Lawyers to Lehn’s Lawyers (now Keating Lehn Solicitors).
20 September 2012
Dr Attwood confirmed Cameron and Naomi’s diagnoses of Asperger’s Syndrome.
16 July 2013
Cameron and Naomi filed an application for a declaration that the deceased was their father.
14 October 2013
Naomi swore an affidavit for the purposes of this application (for adequate provision) which did not refer to her ownership of a house.
30 May 2014
Justice Peter Lyons declared that the deceased was Cameron and Naomi’s father. His Honour ordered the estate to pay their costs on an indemnity basis.
2 February 2015
Naomi swore an affidavit for the purposes of this application which did not refer to her ownership of a house.
16 April 2015
Naomi swore an affidavit for the purposes of this application which disclosed her ownership of the house at Tivoli and explained her reasons for lying about it previously.
13 May 2015
Cecilia made a complaint to the police about Naomi’s false affidavit/s and she was charged with a criminal offence.
17 August 2015
Cecilia paid Cameron and Naomi $67,002.09 – their legal fees for their successful application for a declaration of paternity.
16 June 2016
The charge against Naomi was “struck out” in the Magistrates Court.
28 June 2016
Naomi sold the Tivoli property. The net proceeds of sale were $211,515.89. She invested $50,000 in a term deposit. The balance went to legal costs, the purchase of a car for her mother and other living expenses.
1 August 2016
Police advised Cecilia that the charge against Naomi had been withdrawn.
Relationship between the deceased and Cameron and Naomi
According to Jennifer, the deceased had been attentive to Cameron and Naomi’s needs when they were young. In his own words, he was loving and caring. The deceased told Cecilia (once) that he missed holding Cameron’s hand.
According to Cecilia, there was no contact between the deceased and Cameron and Naomi after Jennifer brought proceedings against the deceased in 1998. According to Jennifer, the deceased’s contact with Cameron and Naomi during their de facto property dispute was “cordial and limited, normally by telephone”.
In 1999, when Cameron and Naomi were aged about 9 and 15, the deceased was, apparently, keen to have contact with them (including on every second weekend) and keen for them to resume contact with the three children of his first marriage and their children. He made an application to the Family Court for contact orders.
In support of his application, which was filed on 7 September 1999, the deceased swore an affidavit in which he described himself as a “loving and caring father figure” to the children; interested in their personal and educational development.
The evidence suggests that the deceased assisted Naomi to gain work experience at a property owned by the trust in November 1999.
According to Cecilia, in July 2000, the deceased was advised by his lawyer to cease contact with his children until the de facto property proceedings were resolved.
Whatever his reasons, the deceased was not motivated to pursue his Family Court application for contact with Cameron and Naomi and he withdrew it in 2000, after which his contact with them ceased. Nevertheless, the deceased supported Cameron and Naomi financially until they turned 18;[4] he permitted them (and their mother) to live at the farm until December 2007; he paid for their school fees and he paid for Naomi’s orthodontic work.
[4] He died about a month before Cameron’s 18th birthday.
Cameron’s personal circumstances
Cameron will be 30 years old in July 2020. He is not named as a child of the deceased on the deceased’s death certificate.
Cameron suffers from a neuro developmental disorder on the Autism Spectrum which was previously known as Asperger’s Syndrome. He was bullied, and physically assaulted, at school. He requires a litigation guardian. His condition has improved a little with a gluten, dairy and soy-free diet.
He is very dependent on Naomi and his mother. He is otherwise friendless, isolated, withdrawn and depressed.
He cannot cope with change. He is a concrete thinker with rigid and inflexible thought processes. His verbal comprehension is impaired. He is prone to misinterpretation. He risks becoming “overloaded” by auditory information. He likes things “in order”. He does not like his belongings touched. When he becomes angry, he goes into his bedroom, screams into a pillow and puts on music to calm down.
He panics over social interaction. He has poor social and pragmatic language skills. He struggles to interpret facial expressions and body language. At times, his conversation is inappropriate. He talks about irrelevant matters and can be tangential. He does not like public transport because it places him in close proximity to other people.
He has a heightened awareness of smell, sound and touch. He does not like being hugged, preferring a handshake. He cannot stand “feeling the fat” in the environment. He is sensitive to the feeling of clothing on his body.
He is able to dress himself but does not always wear clothes which are appropriate for the weather or occasion. He (and Naomi) meticulously plan their outfits for a particular day, including when they need to wash and dry an outfit in anticipation of wearing it.
He washes his clothes separately from the clothes of the others in his family. He insists (at least at times) on washing and drying his clothes inside a closed house (so that the smell of “outside” does not enter).
Cameron is worried about everything he eats. He has some ability to prepare food. He will only eat meat cooked in a casserole dish because he cannot deal with the fat “going everywhere” were it to be grilled or fried. He will not eat anything cooked in his mother’s oven. He will only eat out at one restaurant.
The kitchen is divided into two areas: one for Jennifer and the other for Cameron and Naomi. Each area has a refrigerator, microwave, food preparation area and table and chairs. The separation is intended to prevent the intermingling of Cameron and Naomi’s food with Jennifer’s food and to prevent any “contamination” of Cameron and Naomi’s food, utensils, crockery, containers et cetera by their mother or the chemicals she uses to clean. Cameron and Naomi will only sit at Jennifer’s table if they are eating seafood and only after they have washed the chairs to ensure there is no dust on them. Jennifer is only allowed to use one side of the sink – the other side is for Cameron and Naomi. Jennifer is not allowed to use “their” dishwasher. Sometimes, because of Cameron’s fear that his clothes will be contaminated by cooking smells, Jennifer cooks outside.
Cameron sleeps a lot and does not get out of bed until late afternoon. He requires direction for his activities of daily living. He showers once a day, spending about two hours in the bathroom, although he may not wash himself thoroughly. He does not shampoo his hair properly. He needs to be prompted to shave and his mother assists him with it. He cannot tolerate toothpaste – he washes his teeth with bicarbonate of soda (as does Naomi). He washes his hands frequently; so frequently that his skin cracks. He has bladder problems. He experiences urgency of micturition and he wets the bed frequently. He is encouraged to sit to urinate, so as to achieve accuracy. He will not use a public urinal. Because of his concerns about hygiene, he will use a paper towel to open cupboard doors or turn on taps that he knows Jennifer has recently touched.
He does not assist his mother with housekeeping, gardening or mowing. He would not clean his mother’s car because “he would be too allergic to the chemicals”. He cannot tolerate the noise of the vacuum. His mother is not permitted to clean his room unless he has been sick. It is covered in dust. He cannot make his bed properly and needs prompting to change his sheets. He does not like it if his mother disturbs his things. A cleaner from Anglicare comes once a fortnight. She is not permitted to clean his or Naomi’s bedrooms. If he or Naomi become aware that the cleaner has touched anything in their bathroom, they will no longer use the thing.
Leaving the house is stressful. He has no real road sense and can get lost. He will not take public transport by himself. Jennifer exercises supervision over his spending.
Cameron and Naomi do their grocery shopping together – separate from their mother’s shopping. Cameron has to “brace himself” to prepare to speak to a shop assistant. He will not walk through a certain food court section of a shopping centre because he can “feel” the fat and the oil used in cooking “on his skin”.
He has trouble with some fine motor skills (he only recently learnt to tie his shoe laces). He is slow to comprehend a task and responds best to visual demonstrations.
He enjoys playing video games and watching movies. He reads and writes reasonably well. His mother cannot always understand what he is saying – although his sister can.
He left school in year 10 as a result of pain which was related to his cancer diagnosis.
In July 2009, just before his 19th birthday, he was diagnosed with Hodgkin’s Lymphoma. He was successfully treated for it in 2009 and 2010. The disease is currently in remission.
He had dreams of being an author but found his head “scrambled” after his cancer treatment. Although he has an interest in film writing and would like to attend university to study Arts, he is unlikely to be able to do those things.
In a report dated 8 November 2012, Helen Coles, Occupational Therapist, assessed Cameron’s capacity for work. In her assessment, Cameron’s ASD impacts adversely upon all aspects of his life. He is vulnerable to a risk of injury in novel situations and is unlikely to ever be able to work. Ms Coles observed that Jennifer had adapted her life around Cameron’s characteristics and traits to minimise his stress, confusion and insecurity.
Lynda Troy, a clinical and neuro-psychologist, prepared a report about Cameron, dated 28 January 2014, based on a variety of tests as well as collateral information. Cameron’s test results were consistent with a DSM V diagnosis of Autism Spectrum Disorder level 1. “Level 1” reflected his need for support: he had “difficulty initiating activities without prompting, [difficulty] communicating effectively, and his adherence to inflexible rules also interferes with his functioning and causes acute distress when varied”. Cameron will make no developmental gains and his impediments will remain static.
As to his ability to look after himself in the future and his ongoing needs, Ms Troy said –
Results of the current assessment indicate that Mr Niebour-Pott has a range of significant areas of impairment, including mild deficits in intellect, common sense reasoning, and constructional ability, and moderate to severe deficits in comprehension and judgment, mathematical reasoning, processing of nonverbal communication, sensitivity to sensory stimulation, analysis, synthesis, planning and organisation and rigidity in behaviours. This constellation of impairment, consistent with Asperger’s Syndrome, causes significant disability in his capacity to function independently in his activities of daily living, with his adaptive composite below the 1st percentile for his age matched peers. He shows moderate to severe impairment in all aspects of everyday functioning … In my opinion he is unable to be gainfully employed, support himself financially, or to manage his own affairs, and he is reliant upon the support, supervision and prompting of his mother, and to a lesser extent his sister, to help him follow … basic routines and attend to his own cares. He is unlikely to be able to live independently, and will continue to require prompting, support and/or supervision to perform basic tasks ([f]ood preparation, shopping, personal hygiene) and for safety and health issues. He will require supported and supervised accommodation if his mother is not available to provide care. These needs will be lifelong.
Cameron is not able to obtain a driver’s licence. He has a lazy eye and wears glasses. He needs, but has not yet had, dental work. His treatment for Hodgkin’s Lymphoma left him, his mother thinks, tired and depressed, with a poor memory.
I have described Cameron’s personal circumstances in some detail because there is a dispute about the amount of “care” he and Naomi need.
Cameron’s financial circumstances
Cameron has always lived with his mother and sister. He was 17 years and 11 months when the deceased died. It is likely that he had then only the bank accounts he has now.
He has been in receipt of a disability support pension since 19 July 2006. When the deceased died, Cameron’s pension (including an education supplement) was $488.30 per fortnight. In July 2019, his pension was $926.20 per fortnight and he had $2,818 in the bank. He has no other assets. He contributes to his living expenses. He needs support to manage his money and fears losing it all.
He is a beneficiary of the Ocean Projects Trust. However, he has never received, and is unlikely to ever receive, a distribution from the trust. Nor is he able to earn money in any capacity to supplement his pension.
He bears the cost of his living expenses. His only liability is his share of the costs of these proceedings.[5] He does not have private health insurance
[5] Including the unpaid costs of associated proceedings.
On 2 July 2019, he applied to become a participant in the National Disability Insurance Scheme (NDIS). His primary disability is ASD level 2. The application identified Cameron’s needs as in the areas of mobility (transport), effective communication; social interaction; learning; self-care and self-management (noting that his mother organised all of his day to day activities). He has been approved for funding, which is discussed further below.
Naomi’s personal circumstances
Naomi will be 36 in June of 2020. The deceased had his name removed from her birth certificate and she is not named as a child of the deceased on the deceased’s death certificate.
As noted above, there is a dispute about the amount of care Naomi needs. I have therefore discussed her personal circumstances in detail.
Naomi was sexually abused by her maternal grandfather from pre-school age until 2007 (aged 22/23), although she had a “reprieve” from the abuse while she lived in Hong Kong.
She has been diagnosed with Autism Spectrum Disorder, Depression, Post-Traumatic Stress Disorder (PTSD), Anxiety, Alcoholism and Endometriosis.
Her depression, PTSD and alcoholism are likely to be the consequences of the sexual abuse. Also, the current legal proceedings are likely to have triggered PTSD symptoms.
Dr Wever, who saw her in May 2016, found her presentation consistent with a diagnosis of ASD level 1 (though she was on the borderline of levels 1 and 2). He thought she appeared extremely anxious and depressed. She made little eye contact and spoke in a quiet voice. Her speech was delivered in a monotone. Her answers were brief and concrete. (This was not unlike her presentation in court during her evidence.).
Naomi has legally changed her name four or five times since 2006. She chose new names which she hoped would make her feel better about herself as she struggled to cope with her father’s rejection of her and her grandfather’s sexual abuse.[6]
[6] Naomi has had the following name changes, for the following reasons –
Date
From/To
Reason
Early 2006
Naomi Amber Alice Niebour-Pott to
Naomi Ember Alice Storm Rose
Naomi was upset that her father alleged that she was not his daughter and she did not wish to have the same surname as him.
Mid 2007
Naomi Ember Alice Storm Rose to
Storm Naomi Rose
The first name change did not make her feel better.
2011
Storm Naomi Rose to
Rose Naomi Manning
‘Manning” is a name on Jennifer’s side of the family.
2014
Rose Naomi Manning to
Naomi Amber Alice Pott
Rose Naomi Manning did not sit well with Naomi. It reminded her of her grandfather. Also, the court had declared that the deceased was her father and she felt comfortable using his name.
She completed year 12 and was accepted into the University of Queensland to study Archaeology and Anthropology. Her mother enrolled in the same courses to support her. She was also assisted by a disability support officer and certain allowances were made for her. However, she found it impossible to study for reasons which may have included Cameron’s cancer diagnosis and the stress of her mother’s property dispute with the deceased. She discontinued her university study and has not returned to it. She managed to complete a TAFE course in signing and community language.
For years she has suffered from suspected endometriosis. By January 2019, it was causing her debilitating pain. She was unable to get out of bed and suffered from nausea and vomiting almost every day. She was prescribed Endone for the pain and an anti-emetic. She did not take the Endone (she was allergic to it or intolerant of it), and used alcohol (Tequila) instead until March 2019, when there was a change to her pain relief regime.[7]
[7] In about March 2019, she was prescribed anti-nausea medication and pain relief via suppository.
In the 12 months before 31 January 2019, she was hospitalised 5 times and attended numerous specialists. Non-surgical treatments failed to relieve her pain, leaving surgery as the only option. The wait for surgery via the public health system was lengthy. Her General Practitioner considered the wait “unacceptable”. On 19 July 2019, she was admitted to a private hospital for a “complicated laparoscopy” which she self-funded (she does not have private health insurance). She was out-of-pocket $7,741.80 for the surgery, which placed financial strain on her family.
Tissue was removed during the laparoscopy[8] and her pain has decreased. There is the possibility of its reoccurrence which would require further surgery.
[8] The result of the tissue examination was inconclusive.
Naomi’s general practitioner, Dr Van Driel, explained the interaction between Naomi’s endometriosis pain and her ASD –
Anyone with endometriosis pain will suffer, and, very often, women cannot function on those days. They stay home in bed. They cannot go to work and, basically, the world stops on those days. Naomi had exactly the same. However, Naomi also has autism and for people with autism, the world around them is a very hostile environment. That means that everyday activities and events can be extremely stressful, such as buying groceries or even going to the doctor, and that’s an extra layer of stress and pain to her condition.
Naomi suffers from a “bad back”. She sees a Chiropractor on an almost weekly basis for $60 a session.
In her own words: she has “a lot of allergic reactions” to foods and does not like the textures of some of them. She said, “I won’t eat gluten, dairy and soy and not pomegranates, they can be a nightmare”. As noted above, she (and Cameron) clean their teeth with bicarbonate of soda. Naomi says she is allergic to “Australian” toothpaste. She was not allergic to toothpaste in Hong Kong. She (and Cameron) wash with Sorbolene. She suffers from migraines.
Because of her ASD, she needs to follow certain routines. It can take her an hour or more to be ready to leave the house. She is particular about hygiene. She would not let her mother touch a doorknob after she had cleaned it. After she (and Cameron) eat at the one restaurant they are prepared to eat at, they swim in the ocean to remove “the oil” from their skin and the car must be cleaned. She has washed her hands so frequently that her skin cracked and bled.
Naomi does not like the sounds, noises or smells of public places and spaces. She smells odours intensely (“a little bit of perfume … would be like the whole bottle was poured over you”). She finds the smell of cooking meat “putrid”. She can smell “the outside”.
She is sensitive to noise, particularly high-pitched noise. She hears things “much louder than other things and people’s voices can get drowned out”.
She does not like the feel of certain clothing on her skin. She does not like to be hugged by her mother.
Naomi and Cameron are very close. She enjoys his company. She otherwise has no friends. She enjoys playing videogames and watching films, including with Cameron. She enjoys reading. She is good at preparing meals. She is able to do her own laundry (although Cameron did it for her when she was sick). She does not clean. She is allergic to dust, but lets it sit there because Jennifer is not allowed to touch it.
Leaving the house is stressful for her. She does not like to do it because she might have to have a conversation with someone. She finds it easier to stay at home, although she will attend appointments. She finds conversations “like sitting an exam”. When she speaks to other people she feels “stressed and its wearying”. She will be polite to people she meets but she will go on and on about things she is interested in (such as kings and queens). Social engagements are difficult because she does not know what to do.
She is able to catch public transport and is responsible for her safety. She is able to manage her own money, although Jennifer keeps an eye on her spending.
If her “system” is “thrown out of sync” or things do not go to plan, she can get angry or frustrated. She became upset when she learnt that the deceased would not accept that he was her father.
Naomi’s wish is to return to university to study Arts, majoring in English, ancient history or archaeology. She would enjoy studying with Cameron and would study something he wished to study so that they could attend classes together. She has investigated the possibility of studying online.
Naomi says she would like to travel including to Egypt to learn about Egyptian history and archaeology. I note that Jennifer says Naomi hates flying and suffers from claustrophobia – although she is able to manage it with a window seat. She would not like to travel alone though – she would become overwhelmed. She would like to travel with her family.
She would also like to obtain her driver’s licence and to possibly buy a car. It is not clear on the evidence whether she is in fact capable of obtaining a driver’s licence.
In 2016, Dr Wever observed that Naomi was very reliant on her mother for day to day support. He thought it unlikely that she would ever be independent. He said, of her ASD and PTSD and her ability to manage her affairs and look after herself –
… Naomi is very reliant on her mother in matters of day to day support. I do think that she was very significantly traumatised by the alleged sexual assault from [her] maternal grandfather, which I previously underestimated when I saw her on that one occasion on the 17th December 2007.
…
It is clear that Naomi has an Autistic Spectrum Disorder (ASD) with comorbid Post Traumatic Stress Disorder (PTSD) and had comorbid alcohol abuse in the past, though this has improved more recently.
Her functioning is poor with her not currently engaged in studies, a job and being extremely socially isolated. She is currently on the Disability Support Pension and this would reflect her inability to work.
I think that her prognosis is poor as her ASD makes it more difficult to work on psychological issues of trauma. This is often related to a lack of insight into your own emotional state that people with ASD often have and this is what is required in trauma therapy. Her ASD symptoms have kept her isolated and the PTSD symptoms are causing further isolation as there are many triggers in the community which would worsen her anxiety and PTSD symptoms.
As such, I do think that she will need ongoing care and support and is unlikely to become independent and self-sufficient.
I do think that Naomi will need ongoing psychiatric and psychological support. Currently she is seeing a psychologist but I do think a psychiatrist may need to become involved with the possibility of evaluation of her needs for psychotropic medication. I think that her psychological needs will be ongoing and that her treatment is likely to require fortnightly to monthly visits to a psychologist and a psychiatrist to be seen once every three months.
Similarly, in Ms Coles’ opinion, Naomi will need ongoing care and support and is unlikely to ever become independent and self-sufficient.
Naomi’s financial circumstances
Naomi’s house
Jennifer’s father lived with Jennifer, Cameron and Naomi (on the farm) in around 2007. He left suddenly on Mother’s Day 2007. Shortly after he left, Naomi told Jennifer that her grandfather had sexually abused her as a child and as a young adult. The most recent incident of abuse occurred a few days before Mother’s Day 2007. It had been witnessed by Cameron. Indeed, Jennifer had also seen her father putting his hands on Naomi’s breasts – but she did not ask him to leave the farm. Jennifer herself had been sexually abused by her father when she was a child.
Later that year, Naomi was accepted into a course at the University of Queensland. The farm was isolated from the University. Jennifer felt that her father “owed” Naomi for the years of abuse he had put her through. She asked her father for money[9] to enable Naomi to buy a house in a location which would allow her to travel more easily to university. Jennifer and Naomi found a property to buy at Tivoli in Ipswich. Jennifer’s father gave Naomi $250,000 to buy it. Naomi reluctantly accepted the money. She said, “I felt as though my grandfather was giving me the money so that I wouldn’t tell anyone about the abuse. However, I could not see any other way we would be able to afford to move from the farm”.
[9] He had offered Jennifer money in the mid-2000s which she had declined.
The property settled in December 2007 and Jennifer, Cameron and Naomi moved into it. Naomi bought the property in her legal name at the time: “Storm Naomi Rose”.
She disclosed the ownership of the property to Centrelink but did not disclose it for the purposes of this application until 16 April 2015 – filing several false affidavits about her assets before then (dated 25 July 2011, 15 October 2013 and 2 February 2015).
In her affidavit of 16 April 2015, Naomi offered the following explanation for failing to reveal her ownership of the house previously –
… Until now I have been reluctant to speak about the Tivoli property because of the circumstances surrounding the purchase, and the memories of abuse associated with it. I have also felt some embarrassment about the numerous times I have changed my name. I was also scared my father and his family would find a way to take the property away.
In May 2016, Dr Wever was asked to comment on the reason for her making false affidavits. He said –
What does appear clear is that Naomi may well have been overwhelmed by many of the legal issues and may have mistakenly not declared her assets appropriately due to her high levels of anxiety or may have not declared her assets due to the triggering of PTSD symptoms that this would have caused. These are not clear from my interview with Naomi as she was extremely shy and unable to give good answers as to the reasons why she did this. Certainly her mental health condition would have considerable effect on her capacity to present information in any legal forum. When people are anxious they will often not think clearly and at times information may not be accurately presented due to their anxiety. Whether this is due to the anxiety of her Autism Spectrum Disorder in legal situations or whether it was related to her PTSD I am unclear but I think both would have affected her ability to present this information.
In her evidence at the hearing, Naomi said that she did not disclose her ownership of the house because it made her grandfather’s abuse of her “so real”. She also said “Mum … was afraid we’d be homeless”.
After Jennifer bought the house at Robina in 2011, and she and Cameron and Naomi moved into it, the house at Tivoli was rented from 2012 – 2016. There were two tenants. The first was to pay $240/$250 per week, but was evicted for non-payment of rent. The second was to pay $260 per week. Property agents took their commission and money for maintenance from the rental payments.
In June 2016, Naomi sold the Tivoli property. The net proceeds of the sale were $211.515.89.[10] She invested $50,000 in a term deposit; almost $140,000 went to legal fees and the balance went to medical expenses, improvements on the Robina home, the purchase of a car for Jennifer (the family had been without one), vet bills and living expenses.
[10] Some of the monetary amounts stated in the written submissions are incorrect – either because of an error in their calculation or because they are not based on the most recent evidence of a relevant person’s financial circumstances. In this judgment, for obvious reasons, I have stated the corrected or most recent amounts. The differences between the amounts I have stated and the corresponding amounts referred to in the written submissions have not mattered to the outcome in this case.
As noted in the table above, after Naomi disclosed her ownership of the house at Tivoli, Cecilia made a complaint to the police about her false affidavits. She was charged by police with a criminal offence but the charge was later withdrawn.
Naomi’s financial circumstances apart from her house
Naomi has always lived with her mother and brother. In addition to her house, or rental income derived from it or the proceeds of its sale, she has been in receipt of a disability support pension since August 2001.
At the date of the deceased’s death, she received by way of that pension and a supplement, a total of $762 per fortnight.
In July 2019, she was in receipt of a Disability Support Pension of $926.20 per fortnight. She had $1706 in savings, $50,000 in the term deposit and “effects” worth $300. She was earning about $60 a month in interest on her Term Deposit.
Although she is named as a beneficiary of the Ocean Projects Trust, she has never received, and is unlikely to ever receive, a distribution from it.
She is unlikely to obtain or maintain employment, even on a part time basis, to supplement her pension.
She bears the cost of her living expenses. Her only current liability is her share of the costs of these proceedings.[11]
[11] Including the unpaid costs of associated proceedings.
Naomi applied for participation in the NDIS in July 2019. Dr Wever considered her to be then suffering from ASD level 2, because of her lack of independent functioning. She has been granted NDIS funding, which is discussed further below.
Jennifer’s financial circumstances
Jennifer and the estate settled the de facto property dispute for a payment to her of $800,000. The $800,000 included her legal costs of $307,910.81, leaving her with $492,089.19. She used that money to buy her home at Robina, which she estimates is now worth $600,000. Her other property, which includes furniture, her car and cash, is worth about $16,666.
In January 2019, Jennifer (aged 70) was receiving $1046.10 per fortnight from Centrelink for the care she provides to Cameron and Naomi. The Robina house requires some maintenance. Jennifer shares the cost of the usual living expenses with Cameron and Naomi.
Jennifer admitted in cross-examination that, in the course of her de facto property dispute with the deceased, she did not disclose to her solicitors that she lived in Naomi’s house. She said she was in rental accommodation. Her explanation for not telling her solicitors was: “We needed a roof over our heads. I was concerned about where the children would live if anything happened to me”.
She was aware that Naomi swore false affidavits about her property for the purposes of this application.
Currently Jennifer provides care, support and accommodation to Cameron and Naomi. She will turn 72 in September 2020. She has arthritis and household chores are becoming more difficult.
Her intention is to leave the whole of her estate to Cameron and Naomi when she dies. It is not unreasonable to assume that Cameron and Naomi will not personally be able to provide Jennifer with aged care (when she requires it) or tolerate carers for their mother in their home. It is not unreasonable to assume that Jennifer may need to sell her home to ensure that she receives the care and support which she may need as she ages.
Cecilia Kit-Ying Pott’s evidence and circumstances
Cecilia attached to her affidavits an email from the deceased to his lawyers which explained that he left nothing in his will to Cameron and Naomi because of his doubts about their parentage and because they had been “supported to adulthood financially and with the provision of accommodation and educational assistance.” This was essentially the position she took in response to the application. However, after the declaration of paternity in 2014, Cecilia acknowledged Cameron and Naomi’s eligibility to apply for provision out of the deceased’s estate.
As noted above, Cecilia was gifted the matrimonial home in the will. She has been living there since 1998 and seeks to have it exonerated from any provision I might make for Cameron or Naomi.
Cecilia presented very little evidence about her relationship with the deceased. She presented very little evidence about her personal, health, occupational or financial circumstances, although after the deceased’s death, she was in control of the family trust.
I proceed on the basis that she is able to maintain herself from her own resources.
Cecilia’s oral testimony was to the following effect:
a)It was only after affidavits were filed in these proceedings that she knew that Cameron and Naomi were autistic.
b)She acknowledged that Cameron and Naomi were potential beneficiaries of the family trust but said that she had no “duty” to check on the needs of potential beneficiaries. Nor did the trust “run” so as to meet the needs of its beneficiaries.
c)It was not for her (alone) to determine future distributions of trust income or capital. Every year, she met with her stepson Gregory to determine whether there would be any distribution and, if so, to whom. Those who received distributions from the trust were those who worked to earn income for the trust (and of course, on that test, there would never be any distribution to Cameron or Naomi).
d)She agreed that, as executor of the deceased’s will, she was under a duty to consider whether it was in the interests of the estate and its beneficiaries to engage in litigation.
She was cross-examined about the value of the estate and the cost of the litigation in which it had engaged. The following was established:
a)The value of the estate at the death of the deceased ($3,801,490) included an amount of $2,059,101 which the estate had lent to the Ocean Projects Trust and which the trust owed the estate.
b)The estate had incurred $1,134,536.03 in legal costs in the past 11 years.
c)That amount included the estate’s spending $243,051 to challenge $194,012 of Clayton Utz’s fees – of which $141,000 remained outstanding at the date of the hearing.
d)As to whether that was “proportionate”, Cecilia said, in effect, that the challenge was originally to an amount of $760,000; she received legal advice that she had “a case”; and she thought it was worth it. Once she started the action, she could not stop it. It had been running for seven years. She agreed that now it was “out of proportion” and “not quite balanced”.
e)Even if Clayton Utz’s fees were reduced by 15% (which the estate might consider a “win”), taking the costs of the action into account, the estate would only be “better off” by $63,000 – about which Cecilia said “Unfortunately, it’s the way it goes”. [The applicants submitted that, in fact, the more accurate best case scenario, taking into account the costs already incurred and paid, was that the estate would be out of pocket by $145,497.24.[12]]
f)If the estate lost against Clayton Utz, it would have to pay $141,109 to Clayton Utz, plus Clayton Utz’s legal costs of $160,000, plus its own additional costs – a total of $335,000; against which would be offset costs owed by Clayton Utz to the estate of $42,000. This would leave the estate worse off by $293,000 in addition to the costs it had paid its own lawyers of $209,051 (a total of $502,051).
g)Cecilia had never approached Clayton Utz to see if the matter could be settled. She hoped to make the point that Clayton Utz had overcharged the estate. She did not intend to cost the estate money. She did not expect that the costs would be “kind of flung out of proportion”.
h)Even after it was apparent to Cecilia that the cost of the exercise was disproportionate to any potential gain, it was, in her view, not worthwhile to negotiate, because it was “not just [a] cost[s] assessment”: There had been “wrongdoing”.
i)The costs incurred by the estate in defending the current application and the application for a declaration of paternity (paid and to be paid) were $346,567.
j)Cecilia was not embarrassed by the amount the estate spent on legal costs. She had been told that “principle costs”. She felt she had to “defend” because there had been injustice. She felt “sorry” for the estate.
k)The original estate was reduced by $800,000 to pay Jennifer, leaving it worth about $3 million.
l)It was further reduced by legal fees and costs payments of more than $1.1 million.
m)Cash in the amount of $2,363,971.[13] had come into the estate since the death of the deceased – but the cash at bank was now only $388,696.
[12] Calculated as follows:
(a) costs paid to Gall Standfield & Smith $209,051.31
(b)amount claimed by Clayton Utz (reduced by 15%) $119,942.73
(c)less costs payable by Clayton Utz to the estate (estimated) ($160,000)
(d)costs payable to Gall Standfield & Smith to finalise the proceeding $13,200
(e) costs assessors’ fees $20,800
(f)less costs assessed in favour of the estate ($57,496.80)
Cecilia said she had the support of the other beneficiaries (the children of the deceased’s first marriage) for the way in which she spent the estate’s money. Those beneficiaries were present in court with Cecilia and there is nothing before me to suggest that she does not have their support.
Cecilia said, in effect, that her attitude to the present application reflected “her late husband’s wishes”.
She said that because Naomi had lied to the estate, it was her duty to report that to the police.
The needs and circumstances of the children of the deceased’s first marriage
No evidence at all was presented about the needs or circumstances of these mature adult children or their relationship with the deceased. I proceed on the basis that they are able to maintain themselves and meet their needs from their own resources.
Legal matters
The authorities to which I will refer in this part of my reasons (which are only some of the numerous authorities to which I was referred by the parties) are mostly from interstate. Whilst there are some differences between the legislation in Queensland and the legislation interstate, those differences do not detract from the value of the particular statements of principle and guidance which are set out below.
The application is made under section 41(1) of the Succession Act 1981 which provides –
If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
In Singer v Berghouse,[14] Mason CJ, Deane and McHugh JJ identified two questions or stages for consideration in determining such an application (footnotes omitted) –
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 Co. Ltd. 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 Leader, 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.
[14] (1994) 181 CLR 201, 209 – 210.
However, the questions or stages do not always neatly divide into two, as Callinan and Heydon JJ observed in Vigolo v Bostin – [15]
We do not … think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
[15] (2005) 221 CLR 191, 230 – 231 [122].
In Taylor v Farrugia, Brereton J referred to the two stage approach and the potential for overlap, and explained the matters which the Court was required to consider in these terms –[16]
… [T]he Court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes.
[16] [2009] NSWSC 801 [10].
In this matter, sections 41(3) and (4) of the Act are also relevant. Those sections state –
(3) The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.
(4) The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.
The principles which have guided my approach in this matter have included the following.
A court is not to intervene merely because it thinks it would have been good, fair or more equal for the testator to have benefitted an applicant in a certain way. A court is to consider the provision a wise and just testator would have thought it his or her moral duty to make for an applicant, having regard to community standards.
·It is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate or some kind of equity between the various claimants. The court’s role is not to reward the applicant, or to correct the hurt feelings of, or the sense of wrong felt by, the applicant: Baird v Harris [2015] NSWSC 803 [136] – [137] per Hallen J.
·Courts do not intervene just because it would have been “nice or good” for the testator to give a certain applicant a benefit. The test is whether and, if so, what provision a wise and just testator would have thought it his moral duty to make in the interest of the applicant, having regard to community standards. Such an assessment takes place with due regard to the freedom of testamentary disposition: Warriner v McManus & Warriner [2015] VSC 314 [57] per Zammit J.
·The purpose of the jurisdiction is not the correction of the hurt feelings of, or sense or wrong felt by, the competing claimants upon the estate of the testator: Golosky v Golosky [1993] NSWCA 111 per Kirby P.
·A person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made, before they can leave money as they wish. One does not ask if the will is fair; or if the property has been divided equally. One does not, as a judge, ask how would I have made the will; “What must be asked is [did] … the testatrix fail … in her moral duty to those who had a claim on her.”: Stewart v McDougall NSWSC, 19 November 1987, unreported, Young J.
·“The Testator’s Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator’s moral duty to make adequate provision for the proper maintenance of his family – not for the making of what may appear to the court to be a fair distribution of a deceased person’s estate among the members of his family. As has been said in another context, the Act is to provide maintenance, not legacies”: Blore v Lang (1960) 104 CLR 124 at 135 per Fullager and Menzies JJ.
A court may interfere with a testator’s dispositions only where there has been a breach of a testator’s moral duty in the sense that adequate provision has not been made for an applicant; and only to the extent of making adequate provision for the proper maintenance and support of the applicant.
·A court may interfere with the dispositions in a will only to the extent necessary to make adequate provision for an applicant’s proper maintenance, education and advancement in life: Re Fulop Deceased (1987) 8 NSWLR 679 at 680.
·“ … [I]t was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ.
·“ …[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else … A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent …” Grey v Harrison [1997] 2 VR 359 at 366 per Callaway JA.
·“[95]…It may readily be accepted that the legislation does not authorise a redistribution of an estate according to indeterminate and unreliable concepts such as “fairness or equality”, and that it authorises interference only to the extent of making adequate provision for proper maintenance, education and advancement in life …[96] But neither this, nor the extensive resort that is nowadays made to the jurisdiction, means that “a tight rein” must be exercised on it … [T]he Act is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation … [97] The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide … ”: Steinmetz v Shannon (2019) 368 ALR 161 at 179-180 per Brereton JA.
The question whether an eligible applicant has been left without adequate provision for their maintenance and support is to be determined in light of all of the circumstances, including competing claims.
·“ …[T]he question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all 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”: McCosker v McCosker (1957) 97 CLR 566 at 571 – 572 per Dixon CJ and Williams J.
Whether there has been a breach of moral duty is to be determined at the date of the testator’s death, having regard to all of the circumstances, known or unknown by the testator, and having regard to contingencies which the testator ought reasonably to have foreseen. (The question as to what provision ought to be made must be determined according to the circumstances that obtain at the time the application is before the court.)
·“ … It is settled that you look at the circumstances as they were at the time when the testator died and not at the time when the application is made to the court. But the contingencies which a testator ought reasonably to have foreseen are not to be left out of view”: Blore v Lang (1960) 104 CLR 124 at 128 per Dixon CJ.
·“Whether a breach of moral duty has occurred is determined at the date of the testator’s death, having regard to the value of the estate at that time, the [applicant’s] claim upon the bounty of the testator and the competing moral claims of the actual beneficiaries of the will. The judgment made at the date of death is on the basis of facts, whether known or unknown to the testator, and all of the eventualities that might, at that date, reasonably have been foreseen by a testator who knew the facts.”: Warriner v McManus & Warriner [2015] VSC 314 at [58] per Zammit J.
“Adequate” relates to the needs of the applicant. “Need” or “Needs” is a relative concept. Consideration of “needs” must be in the context of the statutory formulation. The answers to the questions whether adequate provision has been made and what provision would be proper involve value judgments upon which minds may legitimately differ. “Proper” maintenance and support may involve provision beyond bare need.
·“… [T]he statutory formula makes no reference to ‘need’ but rather to ‘adequate provision for the proper maintenance, education or advancement in life’. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; Williams Wardy v Gordon Salier; Hassiba Wardy v Estate of the late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that ‘the need a claimant must demonstrate is a need for “proper” maintenance, education and advancement in life’, but that does not mean that ‘adequate provision for proper maintenance and advancement in life’ implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others’. Respectfully, I agree. Consideration of “needs” must be in the context of the statutory formulation’: Baird v Harris [2015] NSWSC 803 [102] per Hallen J.
·Whether adequate provision has been made requires an assessment of the applicant’s financial position, the size and nature of the deceased’s estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon the estate and the circumstances and needs of those other persons. Such an assessment is necessary because of the inter-relation between “adequate provision” and “proper maintenance”. What is adequate relates to the needs of the applicant. What is proper requires regard to all of the circumstances, including the size and nature of the estate and the needs of other beneficiaries or potential beneficiaries: Verzar v Verzar [2014] NSWCA 45, referred to in Rocco Condello v Sung Soo Kim [2018] NSWSC 394 (Kunc J).
·“‘Adequate’ relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. ‘Proper’ depends upon all the circumstances of the case. These include the applicant’s station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased’s bounty, the applicant’s conduct in relation to the deceased, the applicant’s contribution to building up the deceased’s estate, the existence of dependents upon the applicant, the effects of inflation, the applicant’s age and sex, and whether the applicant is able-bodied”: Gardiner v Gardiner NSWSC, 28 May 1998, unreported, per Santow J at 12, referred to in Kohari v Snow [2013] NSWSC 452 [74] (Hallen J).
·In Zagame v Zagame [2014] NSWSC 1302, Hallen J, said (citations omitted) –.
[110] Whether an applicant has a ‘need’ or ‘needs’ is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether ‘adequate’ provision has been made for the ‘proper’ maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).
[111] In Collins v McGain, Tobias JA said:
42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
…
[113] ‘Need’, of course, is a relative concept… It is different from ‘want’. The latent difference between the words was stated by Lord Neuberger of Abbotsbury …in the House of Lords decision, R (on the application of M) v Slough Borough Council …:
‘Need’ is a more flexible word than it might first appear. In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.
…
[115] As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased ‘is not to be decided in a vacuum’ or ‘by looking simply to the question whether the applicant has enough on which to survive or live comfortably’. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
·“… [W]here the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if the circumstances permit”: Blore v Lang (1960) 104 CLR 124 at 135 per Fullager and Menzie JJ.
·“Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the back yard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail”: Re Harris [1936] SASR 497 at 501.
·“‘Proper maintenance’ is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility”: Alexander v Jansson [2010] NSWCA 176 per Brereton J (with whom Basten JA and Handley AJA agreed), referred to in Kohari v Snow [2013] NSWSC 452 (Hallen J).
·“The next of the indications [that moral considerations may be relevant] is the expression, in comprehensive language, of the sorts of provision that the court may order, that is, provision by way of maintenance, support, education or advancement. ‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support’ similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote ‘advancement’ would ordinarily be provision beyond the necessaries of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education …”: Vigolo v Bostin at [115] per Callinan and Heydon JJ.
·The questions of what provision for a person’s maintenance, education or advancement in life is “proper” and whether the provision made by the deceased for a person was “adequate” for that person’s maintenance, education or advancement in life, involve value judgments on which minds may legitimately differ and there are no definite criteria by which those questions can be answered: Palagiano v Mankarios [2011] NSWSC 61 [72] per White J.
·“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359, at 366 – 367 per Callaway JA, referred to in Baird v Harris [2015] NSWSC 803 (Hallen J).
·“Baston JA in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction ‘depends upon a multi-faceted evaluative judgment’. In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved ‘an intuitive assessment’. Stevenson J has described it as ‘an evaluative determination of a discretionary nature, not susceptible of complete exposition’ and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’: Szypica v O’Beirne [2013] NSWSC 297, at [40]: Baird v Harris [2015] NSWSC 803 at [74] per Hallen J.
The nature and content of what is adequate provision is not fixed or static. It is “a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards”. What is adequate and proper provision is necessarily fact specific: Camernik v Reholc [2012] NSWSC 1537 (Hallen J), adopted in Rocco Condello v Sung Soo Kim [2018] NSWSC 394 (Kunc J).
Counsel for the applicants submitted, “Depending on the circumstances of the case, [adequate provision] extends to the advancement in life of an applicant to whom the deceased owed a moral obligation” and referred to the following authorities (emphasis by counsel for the applicants):
In Thompson v Sgro, Hallen J said:[17]
‘Although the existence or absence of ‘needs’ which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for his or her proper maintenance, education and advancement in life.’
And in Jones v Smith, Ferguson JA said that although it was essential to success that an applicant establish ‘need’, ‘need’ is a relative concept which is:[18]
‘… to be assessed in light of all of the circumstances … It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant’s assets and income are just two facts that go into the melting pot to determine whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant.’
In considering what provision a wise and just person in the position of the deceased would have made in all the circumstances, as White J said in Slack v Rogan:[19]
‘… respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s [41] of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life … The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed.’
[17] [2016] NSWSC 1869 at [40].
[18] [2016] VCA 178 [38]. [65] – [66].
[19] (2013) 85 NSWLR 253 at 284 [127].
The applicants submitted that it was impossible not to be critical of Cecilia’s conduct as executor. They referred to Collett v Knox, quoting from it extensively, and submitted that Cecilia had failed in her duty as executor in several ways.
The applicants complained that in pursuing the de facto property proceedings for another three years after the deceased’s death, she incurred legal costs (plus interest) of $534,150.15 before settling it on the basis that the estate would pay $800,000 to Jennifer (including her costs of about $300,000).
The applicants observed that the legal costs incurred in her pursuit of Clayton Utz over its fees were wholly disproportionate to the amount in issue. Cecilia incurred $243,051.31 in legal fees to challenge bills totalling $194,012.70, when the best case scenario contemplated by her would be a reduction in those fees by 15 per cent. In doing so, she exposed the estate to an out of pocket loss of as much as $145,497.24 were she to “win”; or $502,093.12 were she to lose against Clayton Utz.
They characterised her thinking in relation to the Clayton Utz costs proceeding as “rigid and unyielding”. The referred to her evidence to the effect that she regarded it as necessary to see the proceeding through to the end – to “reveal everything” to the court – regardless of the uncommerciality of the position which has developed.
They submitted that she had been similarly unyielding in her approach to the present proceeding and the costs of defending it. They referred to her evidence to the effect that she considered herself obliged to defend the proceedings and to follow her husband’s wishes, even though she feels “very sorry for the estate”.
Also, the applicants contended, issues which arose between the deceased and Jennifer have influenced Cecilia’s decisions, as was apparent from her affidavit evidence.
The applicants submitted that Cecilia had not performed her duty as executor, in objectively assessing the evidence and impartially assessing the merits of Cameron and Naomi’s claims in the light of the moral duty imposed on the deceased via section 41. All of the litigation in which Cecilia engaged had been protracted and very expensive. Whatever justification there may have been at the outset to initiate or defend proceedings, the duty of an executor is not to carry on to the bitter end, regardless of the costs incurred along the way. Her duty was to get in and protect the estate for distribution to the persons entitled to it. She has breached her duty. The applicants submitted that the fact that the children of the deceased’s first marriage acquiesced in the respondent’s conduct made it no better.
Respondent’s submissions in response to complaints made about her conduct as executor
The respondent defended her decisions about the conduct of the various litigation as decisions made in the course of her performing her primary duty as executor by “defend[ing] the estate and uphold[ing] the will”, relying on Bovaird v Frost [2009] NSWSC 917 at [19]. The context in which that statement was made in Bovaird v Frost was very different from the present context. Regardless, I acknowledge that it has been said over many years that it is the duty of executors either to compromise a claim for further provision out of an estate, or to contest it and to seek to uphold the provisions of the will.
The respondent submitted that she “had to” continue the de facto property dispute for another three years before it resolved. Whilst she acknowledged that her pursuit of Clayton Utz now looked unreasonable, she initiated it on the basis of legal advice that she had been overcharged. She did not expect the fees to be “flung out of all proportion”. The amount spent – $243,051 – was spent over 11 years. It was not an unreasonable amount and, as noted, the other named beneficiaries acquiesced in her challenging Clayton Utz’s costs.
In relation to the present litigation, she was following her husband’s wishes in challenging the applicants’ assertion that the deceased was their father. She observed that the estate’s costs in these proceedings are similar to the costs incurred by the applicants.
Her ultimate written submission in this context was –
In any event, the issue as to whether or not Cecilia has acted against the interests of the estate is not the purpose of the current proceedings. Therefore, it is not up to this court to decide this issue in this proceeding. That would involve a separate proceeding being commenced against the executor/trustee involving pleadings and a full examination of all of the evidence regarding the conduct of Cecelia [sic] throughout the various proceedings in the administration of the estate over the previous eleven (11) year period.
A primary duty of an executor is to “defend the estate and uphold the will”. To the extent Cecelia [sic] is criticised for having done this, it is premature in this proceeding, to criticise an executor for not conceding applicants’ claims until this trial, when: [there was no procedure requiring formal concessions; she was not able to give any evidence about what occurred at the mediation; and her advice has been to defend these proceedings].
Conclusion about exonerating the matrimonial home
I consider that there is authority for my taking into account Cecilia’s conduct as executor, and any knowing pursuit by her of litigation to the detriment of the estate, in deciding whether to exonerate the matrimonial home. However, in this matter, I consider myself able to make a decision about exonerating the matrimonial home without resort to that issue. The authorities make it plain that there is no unqualified principle that primacy is to be afforded to claims by widows. I would be in error were I to exonerate the gift to Cecilia of the matrimonial home regardless of all of the circumstances and the stages of consideration described in Singer v Berghouse (Bladwell v Davis & Anor).
Cecilia relied upon nothing other than her status as widow in seeking the exoneration of the matrimonial home. She gave no evidence of a particular attachment to it, or her inability to find or fund a suitable replacement for it were it not exonerated. There was no suggestion that were I not to exonerate the matrimonial home, she would be forced to live other than in the way in which she had become accustomed.
There was virtually no evidence led about Cecilia’s financial or other circumstances. There was no suggestion that she is at risk of financial insecurity were I not to accord her primacy by way of exonerating the matrimonial home.
On the state of the evidence, as counsel for the respondent acknowledged, I may proceed on the basis that Cecilia is able to meet her needs from her own resources and has no needs based claim on the estate. Indeed, she has shown no concern about the risk of financial loss to herself (as a beneficiary) in her pursuit of litigation on “principle”.
Cecilia is relatively young. She was a confident witness. I infer, from the fact that the deceased entrusted her with the control of the family trust, and the way in which she handled cross-examination about the financial position of the estate, that she has some business nous. She has demonstrated no requirement for the allocation of resources in her aid. Indeed, it is Cecilia who is more likely than the applicants to improve her position in life. Cameron and Naomi are unlikely ever to be employed.
In the circumstances of this case, I do not consider it appropriate to apply the broad general rule that primacy be accorded to widows. It follows that I do not consider it appropriate to exonerate the matrimonial home from the resources available to me in determining proper provision for the applicants.
That leaves for my consideration at the second stage an estate worth about $2 million.
Proper provision for Cameron and Naomi (second stage)
I am now to determine the amount of the provision I think fit to be made out of the estate for Cameron and Naomi.
My role is not to redistribute the estate in accordance with a sense of “fairness or equality” (Steinmetz v Shannon). I must respect the deceased’s freedom of testamentary disposition (Pontifical Society for the Propagation of the Faith v Scales) and interfere with the will only to the extent necessary to make provision for the applicants’ proper maintenance and support (Re Fulop deceased). However, if substantial interference with the will is required to make proper provision for the applicants, then I must so interfere (Gardiner v Gardiner).
The assessment of what provision is “proper” requires an evaluative determination of a discretionary character; not susceptible of complete exposition; in-exact; non-scientific; and not purely mathematical (Foley v Ellis; Szypica v O’Beirne; Baird v Harris). It is necessarily fact specific (Camernik v Reholc) and, depending on the circumstances, extends to provision for enhancement of life.
Applicants’ submissions
The applicants nominated the following as relevant to the determination of proper provision –
· They are relatively young (29 and 35);
· They will suffer from ASD for the rest of their lives;
· It is unlikely that either of them will ever be able to obtain, and then retain, employment;
· They have been dependent on their mother’s care and support all of their lives;
· They are currently dependent on her for accommodation;
· They are each other’s only friend and support – apart from their mother;
Their mother is 71 and is finding it increasingly difficult to provide the care and support she has always provided to them;
·
· Their pension income (pooled with their mother’s) is sufficient to meet their essential needs;
· They will be unable to live independently, and will require at a minimum, 8 hours per day of support, if not a live in carer, so as to allow them to live in the community;
· They will remain dependent upon the disability support pension and NDIS support to meet their essential needs and their care and support needs (to the extent to which government support is able to replace the care and support provided by a mother).
In those circumstances, the applicants submitted that they have a need for –
·accommodation, which might be met by a fund which would enable them to find accommodation were they unable to reside with Jennifer at Robina. Whilst Cameron and Naomi are the beneficiaries of their mother’s will, there is no way of knowing what they might in fact inherit or what their accommodation needs might be in the future;
·enhancement of life, which might be met by a fund out of which they might purchase clothes, or furniture, medical or psychological care, community support (beyond that provided by the NDIS), driving lessons for Naomi or a holiday. The applicants relied upon Abrahams v Abrahams);
·private health insurance, so as to allow them to access better, greater, or more timely, treatment;
·a financial buffer against contingencies or a reserve to meet their future demands, including demands for psychological or medical health care;
·financial security, so as to allow them to be well provided for, rather than at risk of having to fend for themselves or at risk of changing government policy leaving them without, or with reduced, government support.
On the issue of the applicants’ pension and NDIS support, counsel referred to Whitmont v Lloyd and in particular its statement that “[w]here wealth is available, it should be used to meet needs for maintenance, education and advancement of eligible persons”.
It was submitted that I ought to disregard criticisms of Cameron and Naomi’s spending (for example, on organic food or their (first) holiday) (see the submissions of the respondent below).
It was submitted that the intuitive assessment, or multi-faceted evaluation which was required of me, should have regard to Cameron and Naomi’s current pension eligibility criteria and make an order which preserved their pension entitlements, which were means tested (the NDIS is not).
The applicants analysed the following decisions and calculated the percentage of the estate which was ultimately distributed to the eligible applicant. I did not consider the calculation of those percentages to be of any particular assistance to me in this case, dependent as they were upon the competing claims, and their number, upon the estates –
Baird v Harris
19 year old son with ASD – executor also with needs
38.87%
Abrahams v Abrahams
adult child with Down Syndrome and other medical conditions
31.6%
Rocco Condello v Kim
estranged adult child, problem gambler, with disabilities, on a pension and receiving significant government funded care
25%
Respondent’s submissions
The respondent submitted that Cameron and Naomi’s “needs” did not include accommodation. She submitted that the applicants were in “secure accommodation for the rest of their lives”. She submitted that there was no evidence of any other particular need that either might have. She pointed to their recent holiday. She also submitted that Cameron and Naomi were “self-sufficient” in many aspects of their daily lives.
She submitted that the NDIS would assess and meet their “actual support needs”. Their mother’s care by way of support could not be replicated or purchased.
She submitted, in Cameron’s case, “Cameron won’t even let his mother into his bedroom. Clearly this limits the amount of ‘care’ that can possibly even be provided”. She noted that he could wash his clothes, prepare and cook meals, tie his shoelaces and “[g]enerally provide for his own day to day needs”. She submitted that he could “learn new tasks” including how to cook and go to the grocery store and he could catch public transport.
She submitted that $100,000 “has got to be a sum that’s more than sufficient to cover the costs of any of his needs that may not be met by the NDIS, and your Honour has to take into account that there’s a real probability that all his needs could be [met by the NDIS]”.
In relation to Naomi, the respondent referred to the fact that Naomi was able to purchase alcohol, electronic entertainment and “expensive organic produce” as evidence of the absence of Naomi’s “needs”. She was able to manage her own finances.
As to the children of the deceased’s first wife, the respondent submitted that I was entitled to proceed on the basis that they had no competing needs (in the sense that they have no needs which they cannot meet out of their own resources) but they were competing claims, not to be ignored.
She also acknowledged that were I to find that the deceased’s wishes as to the distribution of his estate were based on incorrect assumptions, then I was entitled to disregard his wishes.[31]
[31] Transcript 2 – 33 lines 23 – 43.
The respondent referred to Naomi’s false affidavits and submitted that clearly Naomi lied intentionally “for the purposes of getting more money from the estate”. This coloured everything Naomi said and required me to carefully evaluate her evidence. The respondent did not submit that Jennifer’s awareness of Naomi’s false affidavits was something that should be visited upon Naomi (or Cameron).
The respondent also referred to three comparable cases – Re Anderson,[32] McGarry v McGarry,[33] and Duffy v Duffy,[34] which were cases in which the children of a deceased were awarded very little, or nothing at all, on their applications for provision.
[32] Supreme Court of Queensland, Kelly J, 13 May 1984, unreported.
[33] [2009] NSWSC 504.
[34] [2014] NSWSC 216.
In Re Anderson, the net value of the deceased’s estate at his death was $1 million (in 1979). At the date of the hearing of the application for provision, it was worth between $2 million and $2,500,000. He made provision in his will for his wife and sister. He made no provision for his son or daughter. The estate was of a sufficient size to enable all moral claims upon the bounty of the testator to be met. Provision was made for the (employed) son and daughter (both of whom were entitled to superannuation benefits) in the amount of $75,000 each. It is enough to say that the circumstances of that case, including the circumstances of the applicants; the origins of the largest asset of the deceased’s estate and promises by the deceased to his father about how he would divide the proceeds of the largest asset’s sale, are very different to those in the present case. It is of virtually no assistance.
In McGarry v McGarry, the deceased left the whole of his estate to his widow (the defendant). The deceased had two children – the plaintiff, who was 23 and the child of the deceased and another woman, and his 16 year old child with the defendant.
The deceased’s obligation to his widow was held to have primacy over his other obligations. At his death, he and the defendant owned, jointly, net assets of $1,600,000, of which the family home was worth $600,000. The deceased satisfied his obligation to the defendant widow.
The defendant was “a robust, intelligent and capable lady” who was likely to hold down a responsible job for years to come. She had no disability. She was not suffering from ill health. There was no suggestion that she would be forced to retire or lose her job.
The plaintiff lived (rent free) with her mother, who was 59 years old and employed as a meat packer. She had no assets of substance. Nor did the plaintiff herself have assets of substance.
The plaintiff had “extensive and debilitating medical problems” including cystic fibrosis, diabetes, asthma and depression. She was vulnerable to skin cancer, and needed orthodontic work and plastic surgery. Her medical expenses were “extensive”. She was only able to work part time and was in receipt of a disability pension.
She submitted that she had a “need” for a home – but Forster J observed that her present accommodation was “perfectly adequate” and that very few 23 year olds owned their own home. Forster J observed that she was “an attractive young woman” and there was “no evidence to suggest that … she will not be able to marry and live a relatively normal life”. His Honour recognised though that a legacy from the deceased would have represented a significant improvement in the quality of her life.
His Honour found that the deceased did more than “adequately discharge” his primary obligation to provide for his widow. “Accordingly”, he made inadequate provision for the plaintiff. By the time of the hearing, the net asset position of the defendant had declined by $300,000 to $400,000 but her circumstances were still relatively comfortable. A legacy of $100,000 was made for the applicant – taking into account the financial and other circumstances of the applicant and the defendant and the needs of the deceased’s minor daughter.
There was no appeal from that decision.
With respect to his Honour, I do not consider it appropriate to limit my consideration of the applicants’ need for accommodation to their immediate need for it. I also note his Honour’s reference to the marriage prospects of the applicant in that case. No submissions were made to me about the “marriage prospects” of the present applicants and I will therefore say nothing about my view of the relevance or otherwise of that consideration.
In Duffy v Duffy, the estate was small. The adult son of the deceased, through his tutor (his mother) sought provision from his estate. The principle defence of the defendant, the deceased widow after 16 years of marriage, was that as the resources of the estate were modest, she was entitled to primacy. Lindsay J found the case difficult. The adult son was 33. He suffered from chronic schizophrenia and intellectual disability. His capacity for remunerative employment was constrained and he was dependent upon his mother for his day to day care. He had a meritorious claim on the deceased’s bounty but the property available was “of modest dimensions”. Indeed, the evidence suggested that the deceased was, at his death, “borderline insolvent”. The widow’s claim to primacy was based on evidence of her contributions to any accumulation of wealth by the deceased and her health.
The widow had contributed substantially all of her savings and earnings towards the purchase and maintenance of the matrimonial homes in which she and the deceased lived. She was in receipt of a widow’s pension and other very modest rental income. If she retained ownership of the matrimonial home, then she would be able to get by and keep the deceased’s creditors at bay. Also, she was in poor health and might be in need of private long term private nursing care and accommodation.
The plaintiff’s mother asked for a legacy of $100,000 for the plaintiff to fund renovations to the property owned by her in which they both lived.
In dismissing the application (which was for an extension of time within which to make an application for provision), Lindsay J said –
[48] A fundamental problem is that there is not enough material wealth to meet all the claims on the deceased’s bounty. Leaving aside any question whether a family provision order could justifiably be made in favour of the plaintiff to fund renovations to a property owned by his mother, the sad reality is that, allowing for the defendant’s legitimate expectations, and reasonable needs, there is insufficient property available to make any provision for the plaintiff.
[49] The assets available to do justice to competing claims on the bounty of the deceased are too few. There is not enough cake to cut. Whatever there is must be left for the defendant.
[50] Viewed in the abstract, the plaintiff scores well in meeting the indicative criteria for which s 59-60 of the Succession Act 2006 NSW provide. He is a son of the deceased. Through no fault of his own, he is in need of material assistance arising from physical [sic - ? psychiatric] disability. He received little assistance from his father in life, and none on his father’s death.
…
[54] Given [the defendant’s] personal circumstances, the length of her marriage to the deceased, her contribution to the common weal and the property available to meet her needs, the plaintiff’s claim must fail.
The obvious points of distinction between that case and the present matter are the size of the estate and the vastly difference circumstances of the widows – in particular, Cecilia’s absence of need and there being no evidence of her making substantial contributions to the building up of the assets of the deceased’s estate.
Preliminary matter for second stage: Conclusion about Naomi’s false affidavits
I find that Naomi lied about her ownership of the house because she feared that revealing it would detrimentally affect this claim or that somehow she might lose it.
Being frank with her lawyers at the beginning might have allayed those fears. But they were understandable having regard to her father’s choosing not to pursue contact with her or Cameron; his denying paternity; and the history of the property litigation between her parents.
I find too that a desire to avoid thinking about the sexual abuse she endured; a misplaced sense of shame about the circumstances in which she came to own the house; and embarrassment about the number of times she had changed her name played into her decision to conceal (until April 2015) her ownership of the house in these proceedings.
Against the background of her making false affidavits (the seriousness of which I do not underestimate), I have evaluated her evidence carefully.
I found Naomi a credible witness. I have no reason to doubt that her life is as limited and as challenging as she describes. Further, her evidence about her life and her experience of the world is corroborated by the several reports of doctors and allied health specialists in evidence.
Conclusion as to proper provision (second stage)
My search at this stage is not for the provision which a wise and just testator in the position of the deceased would have made for Cameron and Naomi. There will be a range of appropriate provisions. An intuitive assessment is required and minds may differ as to the provision which should be made (cf, e.g. Palagiano v Mankarios).
The availability of the pension or NDIS support does not relieve the deceased from Cameron and Naomi’s claim upon his estate in the circumstances of this case.
I am to proceed on the basis that none of the other beneficiaries have competing needs for provision out of the estate – but I am not to ignore them or fail to acknowledge the deceased’s intention to benefit them in his will.
Although Naomi is not as disabled as Cameron, she suffers from PTSD which is difficult to treat. The applicants have not asked me to differentiate between them in determining appropriate provision.
At the moment, Jennifer is able to provide for Cameron and Naomi a home environment which accommodates their various concerns and fears (albeit to her inconvenience and detriment).
Whilst Cameron and Naomi’s accommodation is secure for the moment and whilst their pensions, pooled with Jennifer’s pension, provide enough money to pay for the usual outgoings of the property, it requires maintenance which they cannot afford. (In saying that, I note the complications of making provision for maintenance to a house not owned by the applicants (cf Duffy v Duffy). But I have mentioned the property’s need for maintenance to illustrate the limit to the property expenses which Cameron and Naomi are able to finance.)
It cannot be assumed that Jennifer’s house will always be available as a residence for Cameron and Naomi after her death. It might have to be sold to meet Jennifer’s own care needs, particularly because it is reasonable to infer that the applicants themselves do not have the personal resources to care for her as she ages and her needs are likely to increase.
Even if the property does not need to be sold to meet Jennifer’s needs (or other contingencies) it is reasonable to assume that, without their mother contributing, Cameron and Naomi will find it difficult to meet the usual outgoings of the property from their combined pension. And, as the property ages, it is reasonable to assume that the cost of its repair and maintenance is likely to be beyond the reach of their combined pensions.
I consider that Cameron and Naomi have a need for an amount of money to meet their accommodation requirements in the future – in whatever form those requirements might take.
Cameron and Naomi’s ASD makes the world a hostile place for them. On the evidence, they live a small life – mostly confined to their home. Naomi is further burdened by her PTSD, which is difficult to treat because of her ASD.
Their proper maintenance is not limited to their bare sustenance or the sufficiency of their material circumstances (Vigolo v Bostin, Blore v Lang, Alexander v Jansson).
In my view, the size of this estate, and the absence of competing needs-based claims upon it, allows for provision for their advancement by way of an enhancement in their “dignity” (Whitmont v Lloyd) or more generally, whether that be by way of psychological counselling or support beyond that which is funded by the NDIS or new clothes or furniture or the purchase of items which will accommodate their allergies or family holidays or educational courses or driving lessons for Naomi or dental work for Cameron.
Their need for private health care is obvious and has been demonstrated by Naomi’s experience of the delays in the public system. More generally, it will provide them with access to broader, greater or more timely treatment. It may also fund dental work.
Jennifer is currently able to care and support Cameron and Naomi by way of prompting, guidance and solace as well as more hands-on support, including by providing them with transport. But she is in her seventies and there is the obvious potential for her own personal future needs to take away from her ability to be as devoted to Cameron and Naomi as she is now. And of course, she will not live forever. Given their dependence upon her, it is likely that upon Jennifer’s passing, Cameron and Naomi will require careful psychological support and care. Apart from the need for a reserve to deal with that contingency, I consider that they have a need for a buffer or a reserve to meet future demands including for psychological or mental health support.
I consider that the applicants have a need for financial security. They are unable to work. They ought not to be left at risk of having to fend for themselves.
The applicants have quantified their claim by reference to the maximum amount they may each receive whilst retaining their pension and its benefit – rather than by reference to an attempted quantification of their needs.
The respondent submitted that $100,000 had to be enough for Cameron, without reference to any particular benchmark or calculations upon which that figure was based. The respondent submitted that no provision ought to be made for Naomi.
In determining the amount of proper provision, I must be mindful of the deceased’s intention to provide for his widow and the children of his first marriage out of his estate. As noted, there are no other needs based claims upon the estate. Cecilia, and apparently the children of the deceased first marriage, are unfazed by the depletion of the estate in the pursuit of uncommercial litigation. I have also taken into account Cameron and Naomi’s dependence on each other and the likelihood that they will live together into the future.
As I understand the submissions of the respondent, and exhibit 2, the estate was distributed by the deceased among the beneficiaries as follows:
Cecilia 56.8%
Christine 15.91%
Gregory 13.65%
Bryan 13.65%
Obviously, those percentages depended on the value of the assets of the estate at the relevant time, over which the deceased had no control. Nevertheless it may be assumed that the deceased intended that the gift to Cecilia would be the most generous and at least equal to the sum of the gifts to his children. In other words, it may be assumed that the deceased intended that his third wife receive about one half of his estate, with the other half to be distributed among his three children roughly equally.
Whilst I am to interfere with the will only to the extent necessary to give effect to the legislation, interference of a significant kind might be necessary to ensure that proper provision is made for the applicants in all of the circumstances.
In the present case, I consider the amount of $400,000 to be proper provision for each of the applicants in all of the circumstances. If the other beneficiaries contribute rateably to that provision, the estate will ultimately be distributed as follows (approximately):
Cecilia 34.25%
Christine 9.6%
Gregory 8.2%
Bryan 8.2%
Naomi 19.85%
Cameron 19.85%
In my view, that distribution preserves Cecilia’s position as the beneficiary to whom the deceased wished to be most generous; allows for gifts of a reasonable size to the three children of the deceased’s first marriage as the deceased intended; and recognises the needs based claims of the applicants upon the estate in the context of the other claims by claimants without needs.
I will hear the parties as to the form of orders and costs.
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