Noble v Durrant

Case •

[2023] NSWSC 513

•

17 May 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Noble v Durrant [2023] NSWSC 513
Hearing dates: 27, 29-30 June 2022, 1 July 2022
Date of orders: 12 May 2023
Decision date: 17 May 2023
Jurisdiction:Equity - Family Provision List
Before: Richmond J
Decision:

Summons dismissed.

Catchwords:

SUCCESSION – family provision – claim by adult nieces – where plaintiffs lived in deceased’s father’s house during their childhood – whether plaintiffs each an eligible person – whether there were factors warranting plaintiffs’ application – factors warranting application – whether inadequate provision for the proper maintenance, education or advancement in life for each of the plaintiffs – should court exercise its discretion to make an order for provision in favour of either plaintiff – application for provision refused

Legislation Cited:

Family Provision Act 1982 (NSW)

Succession Act2006 (NSW) ss 3, 57, 59, 60

Cases Cited:

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Bassett v Bassett [2021] NSWCA 320

Blendell v Blendell [2020] NSWCA 154

Collings v Vakas [2006] NSWSC 393

Lodin v Lodin [2017] NSWCA 327; 16 ASTLR 576

Mallitt v Gow [2022] NSWSC 1012

Maynard v Maynard [2018] NSWSC 1961

Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4

Re FulopDeceased (1987) 8 NSWLR 679

Sgro v Thompson [2017] NSWCA 326

Singh v Singh [2018] NSWCA 30; 17 ASTLR 317

Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Sreckovic v Sreckovic [2018] NSWSC 1597

Steinmutz v Shannon (2018) 99 NSWLR 687; [2019] NSWCA 114

Stone v Stone [2019] NSWSC 233

Texts Cited:

GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis)

Category:Principal judgment
Parties: Charlotte Noble (First Plaintiff)
Carolyn Noble (Second Plaintiff)
Donald Henry Durrant (First Defendant)
Linda Mae Allen (Second Defendant)
Representation:

Counsel:
D Reid (Plaintiffs)
N Bilinsky (Defendants)

Solicitors:
Premier Compensation Lawyers (Plaintiffs)
Parker & Kissane (Defendants)
File Number(s): 2021/200483

Judgment

  1. Belinda Ruth Noble (the deceased) died on 16 July 2020. At the time of her death, she was 53 years old. By a Summons filed on 13 July 2021, the plaintiffs, Charlotte Noble (Charlotte) and Carolyn Noble (Carolyn), each seek a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) out of the deceased’s estate. The plaintiffs are nieces of the deceased. They also seek an order for their costs of the proceedings to be paid out of the estate.

  2. The defendants are Donald Durrant and Linda Allen who are the executors of the deceased’s estate to whom probate was granted on 19 October 2020.

  3. As is customary in matters of this kind, and without meaning any disrespect, I will refer to the members of the deceased’s family by their first names.

The deceased’s estate

  1. In the inventory of property which was attached to the Grant of Probate, the deceased’s estate was disclosed as comprising cash on deposit with National Australia Bank of $65,209, a farming property at Babyl Creek, Casino, New South Wales (the farm) with an estimated value of $1.7 million, cattle with an estimated value of $154,750, a motor vehicle with an estimated value of $3,000 and an interest as tenant in common with Ms Julie Brus (Julie) of another parcel of land at Babyl Creek (Babyl Creek block) with an estimated value of $261,780. The total estimated value of the estate was $2,184,739.

  2. The defendants filed and served an updating affidavit shortly before the hearing which disclosed that the estimated value of the deceased’s estate at the date of the hearing was $2,042,155 comprising the farm ($1.7 million), a half interest in the Babyl Creek block ($261,780), a half share of cattle ($77,375) and the motor vehicle ($3,000). The cash previously held by the estate in two bank accounts has been used to pay expenses with the balance distributed to Mr Graham Silk (Graham), the residuary beneficiary. The estate has no outstanding liabilities except for the defendants’ legal costs of the current proceedings.

Costs of the proceedings

  1. Mr J Di Michiel, the plaintiffs’ solicitor, gave evidence that as at 30 June 2022 he estimated the plaintiffs’ costs and disbursements of the proceedings to be $120,000 on the ordinary basis and $150,000 on the indemnity basis. He also gave evidence that the plaintiffs had retained his firm under a conditional costs agreement.

  2. In an affidavit sworn on 16 June 2022, Ms S Binney, the defendants’ solicitor, stated that the defendants’ costs and disbursements to that date calculated on an indemnity basis were $34,012 which had been paid out of the estate, and she estimated that the defendants’ costs and disbursements (including counsel’s fees) of the 4-day hearing would be $86,768.

The deceased’s will

  1. By her last will made on 19 December 2019, the deceased left her half share in the Babyl Creek block to Julie, her niece, and the residue of her estate the most significant asset of which is the farm, to Graham, her de facto spouse.

  2. The deceased made a prior will on 16 November 2010, under which she left her entire estate to Graham and if he predeceased her, the entire estate went to Julie.

Witnesses

  1. Charlotte and Carolyn each swore three affidavits in the proceedings and were cross-examined. Evidence was also given in support of their case by Sharon Noble (their aunt), Brian Horrex (the partner of Charlotte), Colleen Wallwork (the mother-in-law of Carolyn), and Jessica West (a friend of Carolyn from childhood). Except for Ms Wallwork, each of them was cross-examined.

  2. Evidence for the defendants was given by Julie, Graham, each of the defendants (both of whom were the deceased’s executors and longstanding friends of the deceased), Melissa Brown (a close friend of the deceased for over 30 years), Douglas Ryan (a neighbour of Graham and the deceased before her death) and Alan Maloney (a livestock and feed supplier to the Noble family), each of whom was cross-examined.

  3. There was some disagreement between the witnesses regarding the role played by the deceased in the early lives of Charlotte and Carolyn when they lived on the farm. There was also a dispute as to the nature of the relationship which Charlotte and Carolyn had with the deceased later in life, in particular in the last few years before her death. Where there was conflict between the witnesses regarding the relationship of each of the plaintiffs with the deceased after they left the farm, I have given particular weight to the evidence of the deceased’s executors and Melissa Brown, each of whom impressed me as an honest witness who had no personal interest in the outcome of the proceedings.

Background facts

  1. Russell was married to Jacqueline Noble and they had three children: the deceased, Anthony Noble and Raymond Noble. Jacqueline Noble was also the mother of Sharon Noble (Sharon) from a previous relationship and Russell was Sharon’s step-father. Russell and Jacqueline separated when all four children were young, but they all (including Sharon) grew up on the farm under the care of Russell.

  2. Sharon was the mother of Charlotte, Carolyn and Julie. While they each share the same mother, they do not share the same father. Sharon died on 17 November 1988 at the age of 23. At the time of Sharon’s death, Julie was 7 years old, Charlotte was 5 years old and Carolyn was 4 years old.

  3. Shortly after their mother’s death, Julie, Charlotte and Carolyn went to live with their step-grandfather, Russell, on the farm. He ran cattle on the farm and lived there with his daughter, the deceased, who was then 21 years old and spent weekends with Graham in Casino as indicated below. Prior to their mother’s death, the three girls would often visit the farm with their mother. While the evidence is not entirely clear, I infer that the three girls were placed under the informal guardianship of Russell rather than the deceased because she was financially dependent on Russell at this stage of her life. That is consistent with the evidence of Graham, then aged 23, who was in a relationship with the deceased at that time.

  4. When Carolyn and Julie moved to the farm, the only other person living there was the deceased. There was a three-bedroom house on the farm and Charlotte, Carolyn and Julie shared a bedroom, and the deceased and Russell each had their own bedroom.

  5. In 1988 when Julie, Charlotte and Carolyn arrived to live on the farm, the deceased was already in a relationship with Graham who lived in Casino. They had first met when the deceased was 19 and Graham was 21. By 1988, the deceased and Graham were in a committed relationship which generally involved the deceased staying with Graham on weekends at the house he rented at Spring Grove, Casino, and then returning to the farm where she stayed from Monday to Friday working for her father on the farm. This arrangement continued throughout the period that Julie, Charlotte and Carolyn were living on the farm, only ceasing in 1998 when Graham moved to live with the deceased on the farm.

  6. During the period that Julie, Charlotte and Carolyn lived on the farm, they were looked after by Russell, the deceased, and also by other members of the extended Noble family including Russell’s sister, Ruth Noble (Ruth) who lived on an adjoining property during the initial years that the girls lived on the farm. At some time before 1996, Ruth relocated to live in Casino. Ruth did not have children of her own and was close to the girls particularly Carolyn, the youngest. It was common for her to stay at the farm for three or four nights at a time, a few times a month. Ruth died in 2014.

  7. Russell’s son Anthony lived on a property which adjoined the farm and he and his wife Sharon (Mrs Noble), had Julie, Charlotte and Carolyn to stay on weekends regularly in order to assist Russell and the deceased with their care.

  8. In 1995, Russell started living part of the time in Casino with his new partner, Olive. Also in 1995, Graham moved from the house at Spring Grove to a rental property at Babyl Creek and the deceased stayed with him on weekends there from this time until 1998 when he moved to live with her on the farm.

  9. In around 1996, when she was 16, Julie left the farm and went to live first with a friend in Casino and then moved to Lismore where she lived for around two years before returning to live in a property at Babyl Creek which was close to the farm in 2002.

  10. In 1998, Russell retired from the farm and moved to live in Casino permanently. That year, Graham then moved to live with the deceased on the farm and has lived there ever since. Graham’s evidence was that from time to time Russell visited the farm to help out the deceased and Graham, but on the deceased’s birthday in 2001 Russell handed the property over to the deceased. Russell died in 2009 and title formally may not have passed until then, but nothing turns on this. From 2001 the deceased and Graham ran the property themselves as a beef cattle operation and, from 2010 until the deceased’s death, they conducted the business in partnership. It is clear that, by the time that Graham moved there in 1998 following Russell’s retirement, Charlotte (who was then 15) and Carolyn (who was then 14) had ceased living on the farm.

  11. In around 1998, when Charlotte was 15, she went to stay with her cousin, Linda Vidler who lived in Casino, and then with Russell at his house in Casino. In around 2002, when she was 19 years old, Charlotte moved to Queensland where she has lived ever since.

  12. In around 1997, when she was 13, Carolyn went to live with Ruth, her great aunt, at her home in Casino. In around 1998, when she was 14, Carolyn lived for around 3 months with Julie in Lismore and then, when she was 15 or 16, she moved with her boyfriend to Mackay in Queensland. While she returned to the Casino area in 2007, she never again lived with the deceased.

  13. There are aspects of the evidence of Charlotte and Carolyn regarding the role which the deceased played in their lives in the period that they lived at the farm which is disputed by the defendants’ witnesses. However, the defendants do accept that the deceased, like her father and her aunt Ruth, did assist on some level with looking after the plaintiffs.

  14. There is also some dispute as to the extent to which Charlotte and Carolyn remained in contact with the deceased after they moved away from the farm.

  15. There is a suggestion in the evidence of Charlotte and Carolyn that the deceased and Graham were not in a loving relationship. Each put into evidence text messages which the deceased sent to each of them in 2012 and in 2019. Graham gave evidence in his first two affidavits about the context of these text messages, on which he was not cross-examined. I accept his explanation for the text messages and his evidence that he and the deceased were in a loving, committed and genuine relationship for over 30 years. Graham’s evidence was corroborated by the evidence of Julie who lived close to the farm for many years from 2002 and had a close relationship with the deceased during the last 18 years of her life. It was also corroborated by the evidence of two close female friends of the deceased, who had known her for over 25 years (being the second defendant and Melissa Brown).

  16. The deceased and Graham tried to have children, but were unable to do so. The deceased suffered from endometriosis which caused her a great deal of pain over the years and in around 2007 she had a full hysterectomy.

  17. The deceased was diagnosed with breast cancer in 2018 and commenced chemotherapy treatment. The evidence is not precise as to how long the treatment lasted for, or the nature of her subsequent medical advice. However, it is apparent that she could not maintain the chemotherapy treatment because her body reacted badly to it and the treatment had ceased by early 2019. She died on 16 July 2020 at the age of 53 years.

Role of the deceased in bringing up Charlotte and Carolyn on the farm

  1. Charlotte and Carolyn each gave evidence that during the period that they were growing up on the farm, the person who mainly cared for them and Julie was the deceased because Russell spent most of his time working on the farm. Julie’s recollection was different in that she gave greater emphasis to the role played by Russell in the girls’ day to day lives

  2. Charlotte’s evidence was that the deceased was the person who signed permission forms for school, attended parent/teacher nights, acted as the parent helper with school excursions and plays, picked her up if she became sick at school and needed to be taken home early, made school lunches, shopped with her for clothes, cooked her meals and washed her laundry, took her to various sporting activities including training, took her to medical appointments, and provided her with comfort when she was feeling sick or upset. Charlotte said that Russell did none of these things but on “very rare occasions” he did cook a meal at dinner time. She accepted in cross-examination that there were other people who provided support and care for her during her upbringing, including Russell, Ruth, Anthony and his wife Mrs Noble who lived nearby and her cousin, Linda Vidler and her husband who lived in Casino.

  3. Carolyn’s evidence regarding the role of the deceased was very similar to Charlotte’s evidence referred to in the previous paragraph.

  4. Julie, on the other hand, recalled that Russell played a rather more significant role in their early lives, including cooking meals, making school lunches, buying clothes for them from the “Op Shop” in Casino, driving them to and from school, attending sporting events and other important events at school, taking them to medical appointments and so on. She accepted that the deceased also played a role in some of these activities. She also gave emphasis to the role played by Ruth who stayed on a regular basis at the farm and assisting with such matters as school homework, teaching them how to cook, providing emotional support, giving them tuck-shop money when they needed it. Russell was the person who interacted with the school if any of the girls were “ever in trouble” and he was the one who disciplined them if they misbehaved as children.

  5. It is not surprising that each of the girls has a slightly different recollection of the role played by the deceased in their early lives. Both Charlotte and Carolyn accepted in cross-examination that their recollections of the support they say they received from the deceased was impressionistic, given how young they were at the time. Ultimately, nothing turns on which recollection is correct because each is consistent with the conclusion that both the deceased and Russell along with other family members, played a role in the care provided for each of the girls while they were growing up on the farm and ultimately there was no dispute that during the time Charlotte and Carolyn were growing up on the farm they were partly dependent on the deceased and lived in the same household as her.

  6. Each of Charlotte and Carolyn gave evidence that she regarded the deceased as being the mother figure in the home throughout their childhood on the farm. However, this evidence needs to be qualified because each of them accepted that their recollections were impressionistic and there was another important female figure in the household, Ruth. As noted above, Ruth stayed at the farm regularly, often for 3 or 4 nights at a time, a few times per month and would sleep in the same bed as Carolyn when she was a small child. Carolyn would often refer to Ruth as her “mum”, including in Facebook posts.

  7. Each of Charlotte, Carolyn and Julie gave evidence that the deceased received a regular but small allowance from Centrelink as a carer for the girls. It appears from the evidence that she received this allowance rather than Russell because of a concern that Russell would not qualify for it due to his ownership of the farm. This allowance was the deceased’s only income because she was dependent on Russell for whom she worked on the farm throughout the period up to 1998 and he was the person who managed the finances of the family up to that time. It appears from all the evidence that this Centrelink allowance was paid by the deceased over to Russell to assist him with meeting the family’s living expenses but ultimately nothing turns on this.

Charlotte’s subsequent relationship with the deceased

  1. Charlotte stated in her first affidavit that she maintained her relationship with the deceased after she moved to Queensland mainly through telephone and text messages, but in her third affidavit Charlotte said (in response to Graham’s affidavit evidence that Charlotte telephoned the deceased only occasionally) that she spoke to the deceased only on very few occasions by telephone and mainly interacted by text or social media. She said in her affidavit that she would meet up with the deceased when she visited Casino roughly once every six months and continued to have a good mother/daughter relationship with her. However, when she visited Casino, she stayed with her cousin, Linda Vidler, and not with the deceased on the farm.

  2. Charlotte did not receive any material financial assistance from the deceased after she left the farm.

  3. In late 2018, Charlotte made a sexual harassment claim against her previous employer which led to her ceasing work in February 2019. The sexual harassment claim was settled in November 2020 and she received approximately $100,000 from which she paid her legal costs of $50,000. Her evidence was that this caused her considerable distress and trauma which led her to cease to bother to maintain any kind of contact with the deceased (or other members of the Noble family) during the period from late 2018 until the deceased death in July 2020.

  4. Charlotte had an exchange of text messages with the deceased in March 2019 around the time she decided to stop her chemotherapy sessions. These texts discussed possible natural therapies for her cancer and do indicate that, at this time, Charlotte was being supportive of the deceased.

  1. Charlotte gave evidence that she received a telephone call from Mrs Noble informing her the deceased had died, and that she attended the funeral. She acknowledged that she had received a text from the deceased’s phone on around 14 July 2020 stating “stay away from me now and after” but stated that she did not believe that the deceased sent it. I deal with the provenance of this text below.

Carolyn’s subsequent relationship with the deceased

  1. When she was about 13 years of age, Carolyn started living partly with her aunt Ruth in Casino and partly on the farm. Her evidence in cross-examination was that she ceased living on the farm when she was 13 or 14 which I infer was in 1998 when Russell left the farm, and that when she was around 15, she met an older man with whom she commenced a relationship. She became pregnant and in January 2001, when she was around 16 she and her partner moved to Mackay in Queensland. She remained there until 2007 when she moved back to Leeville in the Casino area and lived for a period with Ruth in her home. She did not return to live on the farm with the deceased at any time after she moved to Queensland in 2001.

  2. She accepted she did not receive any material financial assistance from the deceased after she moved to Queensland in 2001. She may have received on occasion some small assistance with purchasing groceries, but she accepted in cross-examination that it was not material. However, she did receive significant financial support from Ruth (around $80,000), although her evidence was that she repaid all these amounts to Ruth before her death.

  3. Carolyn gave evidence in her affidavit that she kept in contact with the deceased after she moved to Queensland in 2001, including by telephone, letter and occasional visits (between 2 to 4 per year) until she returned to live in Casino in 2007. Following her return to Casino in 2007, the deceased often looked after her children, to whom she was close, particularly when they visited the farm. The deceased acted as Carolyn’s support person when she had her last child in 2015, and was with her at the time of birth. She also gave evidence that she saw the deceased for Christmas and Easter celebrations each year from the time she lived in Leeville from 2007 and also in Ballina from 2013. When the deceased was diagnosed with cancer in 2018, Carolyn stated in her first affidavit she took her to all her medical appointments apart from the chemotherapy treatments, but this was contradicted by Graham and I accept Graham’s version as more reliable.

  4. In mid-2019, Carolyn went to Ireland for a holiday with her then husband and her evidence was that she spoke to the deceased every day but noticed on her return to Casino after the holiday that there was a change in her relationship with the deceased which appears to have been caused by the dispute concerning the administration of Ruth’s estate. Despite this it appears that the deceased did travel to the Gold Coast Hospital in January 2020 to see Carolyn’s son, Trevor, who was receiving treatment for a serious car accident. Carolyn’s evidence was that after this visit, she did speak to the deceased on a few occasions in the period up to her death but accepted that her relationship with the deceased was fractious at times, in particular from 2019 until the deceased’s death.

  5. Carolyn received a text message from the deceased’s phone which told her that the deceased did not want her at her funeral and for that reason did not attend it.

Dispute regarding Ruth’s estate

  1. Ruth died on 20 July 2014. Under her will, she left a property at Babyl Creek to the deceased and Julie in equal shares, another property at Babyl Creek (referred to as the “back block”) to Julie, Carolyn and Charlotte as tenants in common in equal shares, and her home in Casino to Carolyn. The executors of the will were the deceased and Julie to whom probate was granted on 19 January 2015. It is clear from the evidence that Charlotte and Carolyn refused to take a transfer of their respective interests in these properties. In particular, the executors’ solicitors sent letters to them on 20 December 2019, 21 January 2020 and 14 May 2020 requesting that they sign the relevant documents to which no response was ever received (Ex 6).

  2. The evidence indicates that there were three areas of dispute regarding the administration of Ruth’s estate. The first was that the executors were required to transfer Ruth’s house in Casino to Carolyn. However, she refused to sign the documentation necessary for this to take place until 9 October 2020 (ie. three months after the deceased’s death). Her evidence was that the delay was caused because the Casino house had been damaged by a fire and some vandalism after Ruth’s death. It appears that Carolyn wanted the executors to pay the costs of repairs to the property and they declined to so. However, there are text messages in evidence from Carolyn to the deceased where Carolyn asks for the property to be transferred to her son, Riley, and her interest in the “back block” to “Trev” who I assume is another of her sons, Trevor. This is consistent with Julie’s evidence and a number of letters and emails in evidence, indicating that Carolyn refused to co-operate with the executors’ attempts to distribute the Casino house to her as the named beneficiary in the will.

  3. Carolyn’s position on this issue was never properly explained either in correspondence with the executors or in her evidence. The executors had a duty to distribute the Casino house to Carolyn promptly after paying the expenses and liabilities of the testator (Ruth): GE Dal Pont, Law of Succession (3rd Ed, 2021) at [12.1]. There is no suggestion that there were any expenses or liabilities of the testator to hold up the transfer. Accordingly, Carolyn and Charlotte should have been encouraging the executors (the deceased and Julie) to distribute the two properties in accordance with the will, rather than the reverse.

  4. The second area of dispute was that up to the deceased’s death, Charlotte and Carolyn refused to take a transfer of their entitlement to one-third each of the back block (Ex 6). After the deceased’s death Julie offered to buy out Charlotte and Carolyn, but this did not proceed because she separated from her husband and did not have the financial resources to make the purchase. Ultimately, the property was sold to a third party at a public auction and the proceeds were deposited into the trust account of the executors’ solicitors ($137,842.43 each) and those proceeds had still not been distributed to Charlotte and Carolyn at the time of the hearing due to their failure to co-operate with the executors’ solicitors (Ex 6). There is a suggestion in an email dated 26 August 2021 sent by solicitors acting for Charlotte and Carolyn at that time that they objected to the distribution of the funds because they disputed the price for which the property was sold. However, it is unclear what the dispute could be as the sale was at a public auction. In any event, Charlotte and Carolyn’s delay in resolving this issue before the deceased’s death by signing the documents necessary to transfer title to the property into their name is unexplained.

  5. A third area of dispute was that Charlotte and Carolyn believed that Ruth had made a loan to the deceased to allow her to purchase a tractor for the farm, costing $50,000, and asserted that the deceased needed to repay that to the Estate. There is a text message from Charlotte to Julie which confirms that this was raised as an issue. Graham denies that this is so and gave evidence that he and the deceased funded the purchase from their own funds. I accept Graham’s evidence.

  6. Charlotte accepted in cross-examination that she made a number of complaints to Julie and the deceased regarding the handling of the estate’s administration. Charlotte indicated in cross-examination that she had particularised the complaints in correspondence to the executors’ solicitors, but no correspondence to that effect was produced, either in her affidavits or when called upon in cross-examination. She accepted in cross-examination that the complaints that she made caused a serious rift between her and the deceased towards the end of her life. The rift became so significant that the deceased did not wish Charlotte or Carolyn to attend her funeral. That the rift involved unpleasant and upsetting conversations between each of Charlotte and Carolyn on the one hand and the deceased on the other is confirmed by the evidence of Julie and Graham, which in turn is corroborated by Melissa Brown and the defendants.

  7. Based on the evidence on this application, I conclude that each of Charlotte and Carolyn caused unnecessary distress to the deceased over her role as executor of Ruth’s estate during the final years of her life when she was suffering from cancer. This is difficult to reconcile with the assertions in their evidence that they each regarded the deceased as a “mother figure’.

Text messages shortly before the deceased’s death

  1. Shortly before the deceased’s death, Carolyn received a text message from the deceased’s mobile phone which stated that she should not attend the deceased’s funeral. As a consequence of this text message, Carolyn did not attend the funeral.

  2. This text message is not in evidence, but Charlotte tendered a text she received from the deceased on 14 July 2020, just a few days before she died, which said “stay away from me now and after” and I infer that the text received by Carolyn from the deceased was similar.

  3. It was submitted for Charlotte and Carolyn that while these texts were sent from the deceased’s mobile phone, the Court should infer they were sent by Julie using the deceased’s phone. I reject that submission. First, it is contrary to Graham’s evidence that the deceased kept control of her mobile phone until she died. Second, it is likely that the deceased did send the text messages which Charlotte and Carolyn received given that on 14 July 2020 (the same day as the text received by Charlotte), the deceased had an exchange of text messages with Julie in which the deceased said, among other things, “And I’m telling [Charlotte and Carolyn] not to come to my funeral they are nothing to me I only want good people there … If I know they won’t be there I can finally be free of them …”. There are also text messages between the deceased and Melissa Brown at around this time to the same effect. At the time of these text messages, Charlotte and Carolyn were still objecting to the distribution of Ruth’s estate under her will, despite their knowledge of the deceased’s very serious illness and without properly particularising why the distribution was objected to.

  4. Carolyn gave evidence of a telephone call which the deceased made to Carolyn towards the end of 2019 in which she told Carolyn that her conduct in relation to the estate was “disgusting”.

Charlotte’s financial position and needs

  1. Charlotte was born on 28 January 1983. At the time of the hearing, Charlotte was 39 years old and did not have any children. She is married to Brian Horrex and they have been together for about four years. He has a 17 year old son from a previous relationship who lives with his mother. Charlotte and Mr Horrex live in a house in Toowoomba which is owned by Mr Horrex. Charlotte sets out in her first affidavit made on 19 August 2021 her assets and liabilities. Her assets at that time were superannuation ($101,677.60); Samsung phone ($300); NAB Savings Account ($50); St George Savings Account ($21,140) (jointly with Mr Horrex); and the benefit of a gift under Ruth’s will ($137,842.43). Her liabilities at that time were fees for Certificate III and IV in fitness ($6,000).

  2. Mr Horrex included in his affidavit made on 5 November 2021 a statement of his assets and liabilities. His assets at that time were a house ($260,000); superannuation ($231,636.53); St George Savings Account ($21,140) and a Land Cruiser GXL ($110,000), having a total estimated value of $605,116.53. His liabilities at that time were stated to be Mortgage – Home Loan ($232,000); Credit Card ($15,000); HUMM Credit Card ($9,000); and Land Cruiser GXL ($110,000), being a total of $366,000.

  3. Charlotte and Mr Horrex did not provide any updating affidavit to show their financial position as at the date of the hearing.

  4. Charlotte stated in her first affidavit made on 19 August 2021 that after she stopped working in February 2019, she had commenced a course to qualify her to be a personal trainer. She also stated that she was receiving $1,951 per month from Workcover as a result of her sexual harassment claim. She did not update this evidence prior to the hearing. It became apparent from Mr Horrex’s evidence that at the time of the hearing he worked for a company carrying on a trucking business of which his father was managing director and Charlotte was doing “some training” in that business but there was no updating evidence as to her income from this work, nor was their updating evidence of his salary from this company. Despite a call being made for his contract of employment, nothing was produced.

  5. Charlotte gave evidence as to her needs in her first affidavit made on 19 August 2021, but not updated for the hearing as follows:

  1. to purchase a property for accommodation of my own so that my future is secure in the event that something happens to my relationship with Brian;

  2. a need for a lump to provide for the possibility of future psychological treatment expenses that I might have to fund myself;

  3. a need for a sum of money to cover the start-up expenses for my planned personal training business and to cover some living expenses for me whilst I am establishing this business in the amount of $300,000 - $350,000;

  4. a need for a lump sum to cover the unforeseen vicissitudes of life.

  1. Charlotte accepted in cross-examination that the first time that she had disclosed the address of the property owned by her husband was when giving her evidence at the hearing. This was despite requests previously made for the address by the defendants, including by a Notice to Produce. She also accepted, correctly, that this meant that the defendants had been given no opportunity to evaluate the assertion in her affidavit that the house owned by her husband was worth $260,000.

Carolyn’s financial position and needs

  1. Carolyn was born on 29 February 1984. At the date of the hearing, Carolyn was 38 years old. In her first affidavit made on 20 August 2021 she stated that she was single and had four children, aged between 5 and 20, all of whom lived with her at home and were financially dependent upon her. Her oldest child, Trevor, is still suffering from injuries resulting from the car accident referred to above and will remain financially dependent on her. She is self-employed as a National Disability Support Scheme Support Worker.

  2. Her affidavit made on 20 August 2021 included a statement of her assets and liabilities at that time. Her assets were a house in Ballina ($600,000.00); the house in Casino bequeathed to her by Ruth ($200,000.00); a Hyundai 30 car ($8,000.00) and her entitlement under Ruth’s will to an interest in the back block ($137,842.43), being a total of $945,842.40. Her liabilities were stated to be a Mortgage secured on the Ballina property ($320,000.00).

  3. Carolyn did not provide any further evidence to update her financial position as at the date of the hearing, except that she tendered an email indicating that the loan facility secured on the Ballina property as at 2 August 2021 was $320,000. This email provides no assistance as to the amount of the liability as at the date of the hearing.

  4. In addition, there is some doubt as to the accuracy of the estimate Carolyn gave in her affidavit made on 20 August 2021 as to the value of the two properties she owns. Julie included in her evidence “curb side” valuations of the two properties, which in the case of the Ballina property was $800,000 - $850,000 and in the case of the Casino property, $230,000 - $240,000 as at 14 October 2021 and 21 October 2021 respectively.

Julie’s financial position and needs

  1. At the date of the hearing Julie was 41 years of age. She owned her own home in Casino where she lived with her three children aged 16, 18 and 21. The oldest two children are both working and pay an amount to Julie by way of board. The youngest is financially dependent on Julie as she is still at school. She is divorced from her former husband and relies solely on her own financial means. Her total annual income is approximately $58,864 derived from work as a swimming instructor and other odd jobs and rental income from the Babyl Creek block. This is the land adjacent to the farm in which she held a half interest acquired under Ruth’s will and the balance under the deceased’s will.

  2. In her affidavit made shortly before the hearing she gave an estimate of her assets and liabilities. Her assets comprised her home at Casino ($400,000) which is subject to a registered mortgage of approximately $120,000; the Babyl Creek block (approximately $520,000); a Holden motor vehicle ($6,500); bank accounts with a total balance of approximately $9,150, and superannuation (approximately $2,000). Due to the floods experienced in the first half of 2022, there were a number of repairs to fences that needed to be undertaken to the Babyl Creek block with an estimated cost of $12,000.

  3. She also gave evidence that due to a serious car accident in which she was involved when 4 years old, she suffers from a number of physical difficulties including that the right side of her face has irreversible nerve and muscle damage, she is completely deaf in her right ear and her right eye will not fully close and does not produce tears. These injuries and the memories of the accident continue to cause her emotional distress for which she receives regular treatment from her general practitioner.

Graham’s financial position and needs

  1. Graham made an affidavit shortly before the hearing in which he updated his evidence as to his financial position and needs.

  2. Graham is fully occupied in the conduct of the grazing operations on the farm which provides his sole source of income. The farm is 700 acres and also uses the Babyl Creek block which is a parcel of around 50 acres which adjoins the farm under a licence arrangement with Julie (who received a half interest in it under Ruth’s will). He uses the Babyl Creek block to agist his cattle. The land is used to run a single cattle operation. His only assets are his interest in the farm derived under the deceased’s will, a business farm bank account with a balance of approximately $70,000 which balance is set aside for the purposes of meeting costs of the farming operation and his superannuation entitlement (approximately $54,000). At the time of the hearing his income (before expenses) from his farming operations was approximately $80,000 for the 2022 year and he had farming expenses of between $10,000 and $15,000.

  3. At the date of the hearing Graham was 56 years of age. He is in good physical health and expects to continue to conduct farming operations on the farm for many years to come. His plan is to spend the next five years seeking to build and improve the farm and hopefully make it completely self-sufficient. This will involve improving the pastures and continue with improving the paddocks to enable regular rotations of paddocks to prevent over-grazing.

Statutory Scheme

  1. Chapter 3 of the Act governs the making of a “family provision order” being an order made by the Court “in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of life of an eligible person” (s 3(1)).

  2. Persons eligible to apply for family provision orders are set out in s 57(1) of the Act, which provides as follows:

57 Eligible persons

(1)   The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a)    a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b)    a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c)    a child of the deceased person,

(d)    a former spouse of the deceased person,

(e)    a person—

(i)    who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)    who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f)    a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

  1. Charlotte and Carolyn rely on s 57(1)(e) in this application.

  2. The power to make a family provision order is contained s 59 of the Act, which provides relevantly as follows:

59   When family provision order may be made

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

(a)     the person in whose favour the order is to be made is an eligible person, and

(b)     in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

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

(2)     The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

…

  1. Section 60(2) sets out the matters which may be considered by the Court for the purpose of determining whether the applicant for the order is an eligible person and also whether to make the order and the nature of any such order. Section 60 is in the following terms:

60   Matters to be considered by Court

(1)     The Court may have regard to the matters set out in subsection (2) for the purpose of determining—

(a)     whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and

(b)     whether to make a family provision order and the nature of any such order.

(2)     The following matters may be considered by the Court—

(a)     any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)     the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)     the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)     the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)     if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)     any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)    the age of the applicant when the application is being considered,

(h)     any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)     any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)     any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)     whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)     whether any other person is liable to support the applicant,

(m)     the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)     the conduct of any other person before and after the date of the death of the deceased person,

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

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

  1. The power conferred on the Court by s 59 to make a family provision order is subject to the pre-conditions stated in paras (a), (b) and (c) of s 59(1), which are that the Court is satisfied that first, the applicant is an eligible person; second, if the applicant is an eligible person by reason of paras (d), (e) or (f) of s 57(1) that, having regard to all the circumstances of the case (present or future), there are factors which warrant the making of the application; and third, that when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased. Each of these questions is referred to as “jurisdictional” in nature.

  2. The first two questions relate to the eligibility of the applicant.

  3. A niece of a deceased will be eligible to make a family provision claim if the niece was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time or at any other time, a member of the household of which the deceased was a member: s 57(1)(e).

  4. The word “dependent” has its ordinary meaning being “the condition of depending on something or on someone for what is needed”, so that the question is whether the applicant had, at the relevant time, reliance on another to fulfil a need: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [78]. It was ultimately conceded by the defendants that both Charlotte and Carolyn satisfied s 57(1)(e) on the basis that each was partly dependent on the deceased when they lived on the farm as children and were members of the same household as the deceased at that time.

  5. If s 57(1)(e) is satisfied, then it becomes necessary to determine if there are factors warranting the making of the application within the meaning of s 59(1)(b). In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J (as his Honour then was) said that these “factors” are “factors which when added to facts which render the applicant an ‘eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased”.

  6. In Lodin v Lodin [2017] NSWCA 327 Sackville AJA (with whom Basten and White JJA agreed) said at [114]:

Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant.

  1. While his Honour refers in this passage to a former spouse or grandchild (who are also covered by s 57(1)(e)), it is clear that his observations are equally applicable to a niece or nephew. Their correctness has been confirmed in subsequent decisions: see e.g. Spata v Tumino at [97].

  2. Where the requirements of s 59(1)(a) and (b) are met, it then becomes necessary to determine whether the provision made for the applicant in the will of the deceased is adequate for the proper maintenance, education or advancement in life of the applicant. It is clear from the structure of s 59(1) that the mere fact that there are factors warranting the application does not mean that the Court should necessarily find that a family provision order should be made in the applicant’s favour: Lodin at [106(ii)] and [113].

  3. Section 60(2) sets out matters to which the Court may have regard for the purposes of determining the question posed by s 59(1)(c) (as well as in deciding the nature of any order for provision to be made in accordance with s 59(2)). This is an evaluative judgment, taking into account the matters set out in s 60(2). In relation to these matters, Hallen J said in Mallitt v Gow [2022] NSWSC 1012:

[220]    It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

[221]   In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote (Gleeson JA agreeing):

Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant ‘is an eligible person’ and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the ‘nature of any such order’, which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b).

[222]    The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

[223]    The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

[224]    A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub‐section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

  1. There has been some debate in the Court of Appeal as to whether the two-stage analysis applicable to claims for family provision orders under the Family Provision Act 1982 (NSW) also applies to claims for family provision orders under Chapter 3 of the Act: see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [26] – [41] per Basten JA and [94] – [103] per Barrett JA; Singh v Singh [2018] NSWCA 30; 17 ASTLR 317 at [279] – [281]; Bassett v Bassett [2021] NSWCA 320 at [84] – [85]. However, it is not necessary to explore this issue in the present case. First, as recognised in Sgro v Thompson [2017] NSWCA 326 at [69], the question should have no real significance provided that the nature of the first stage of the enquiry is not misunderstood, which is that s 59(1)(c) requires an evaluative assessment of whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life, taking into account all relevant matters and not just the applicant’s financial needs.

  2. Second, whether the analysis is described as a “two-stage process” or something else, the terms of s 59 are clear in requiring that the Court must address first the question posed by s 59(1)(c) which is whether it is satisfied that adequate provision is made for the proper maintenance, education or advancement in life of the applicant by the will of the deceased. If the Court is so satisfied, the Court is given power under s 59(2) to make such order for provision out of the deceased’s estate as it thinks ought to be made. I note that Basten JA accepted that this is what s 59 requires in Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [112]. In addressing each of these questions regard may be had to the matters listed in s 60(2).

  3. Third, it was not suggested by any of the parties that it was inappropriate for the Court, as the statute requires, to focus first on the question posed by s 59(1)(c) which is whether “adequate” provision for the “proper” maintenance, education or advancement in life of each plaintiff has not been made before proceeding (if adequate provision was not made) to determine what, if any, order ought to be made.

  4. In Spata v Tumino, Payne JA said the following regarding the terms “adequate” and “proper”:

[112]    In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that:

[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.

[113]    What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. The Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

[114]    In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated:

Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular ‘proper’ and ‘ought’. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted.

[115] Allsop P acknowledged that orders made by reference to “perceived prevailing community standards of what is right and appropriate” referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125] – [127].

Issues for determination

  1. On the basis that the plaintiffs are “eligible persons”, the following issues arise for determination:

  1. are there “factors warranting the making of the [plaintiffs'] application" (s 59(1)(b) of the Act);

  2. if so, has inadequate provision for the proper maintenance, education or advancement in life been made for each of the plaintiffs under the will of the deceased (s 59(1)(c) of the Act); and

  3. if the will did not make adequate provision for either plaintiff, should the Court exercise its discretion to make an order for provision in favour of either plaintiff (ss 59(1)(c) and (2) of the Act).

Are there factors warranting the application

  1. For the plaintiffs it was submitted that Charlotte and Carolyn were properly regarded as natural objects of testamentary recognition by the deceased relying on three matters. First, it was submitted that both Charlotte and Carolyn had a substantial relationship with the deceased after they ceased living on the farm, keeping in touch on a regular basis. Their situation was analogous to any child who leaves home but stays in touch with his or her parents. Charlotte kept in touch with the deceased while she was suffering from cancer, texting her about natural medicines and the deceased was supportive of Charlotte during her sexual harassment matter. In the case of Carolyn, whilst the relationship was bumpy at times, it was a fairly substantial relationship none the less, as indicated by Carolyn offering to be the surrogate mother for the deceased and the deceased being present at the birth of Carolyn’s last child in 2015. The rift that developed regarding the administration of Ruth’s estate does not detract from the fact that each plaintiff had a substantial and long standing relationship with the deceased during their adult life.

  2. Second, it was submitted that the size of the estate, coupled with the deceased’s past relationship with Charlotte and Carolyn, meant that they should have been the natural object of the deceased’s testamentary disposition. It was submitted that this could be done by Graham raising a mortgage of $250,000 on the security of the farm, Julie raising a mortgage of $200,000 based on her equity in the Casino home and the Babyl Creek block. This would allow them to raise $450,000 of which $300,000 (inclusive of costs) would go to Charlotte and $150,000 (inclusive of costs) would go to Carolyn. I note that the evidence does not establish that either Graham or Julie could raise or service borrowings of this kind.

  3. Third, it was submitted that the fact that the deceased recognised Julie in the will was an indication that each of Charlotte and Carolyn, who are Julie’s half-sisters, were also natural objects of testamentary disposition.

  4. For the defendants it was submitted that there were no factors warranting the making of either plaintiff’s application because neither should be seen as natural objects of testamentary recognition for the following reasons:

  1. Neither plaintiff was made an object of bounty under any will of the deceased, even a substitutionary beneficiary under the deceased's will.

  1. The plaintiffs never lived with the deceased just on their own, either as children or adults. After Russell moved off the farm and passed the property to the deceased, neither plaintiff lived with the deceased at the farm. As adults, the plaintiffs lived most of their life well away from the deceased. Even in periods of personal turmoil, when at times they returned to live in the local area, neither plaintiff turned to the deceased for refuge or asked her for support or a place to live.

  2. The plaintiffs were never materially financially dependent upon the deceased, either as children or adults - such money as the deceased obtained from Centrelink during the period when they were all living on the farm was passed directly on to her father to assist him with meeting the family's expenses, which now included three small children.

  3. The deceased never independently provided material financial assistance to the plaintiffs. She did not have the money to give. Such things as the giving of "tuck shop money" do not add up to material financial dependency. Any extra financial help the plaintiffs received came from elsewhere - namely their grandfather or their great aunt Ruth.

  4. Neither plaintiff contributed in any material way to the welfare of the deceased or the building up of her estate.

  5. There is no evidence that the deceased had ever identified herself as the plaintiffs' mother or as fulfilling that role in their lives.

  6. The deceased never encouraged in the plaintiffs a belief or expectation that she would make them beneficiaries of her eventual estate.

  7. For many years prior to the deceased's death, the plaintiffs had fallen out with the deceased and had greatly upset her to the point where the deceased did not want them to attend her funeral.

  1. In my opinion, the evidence supports each of the matters advanced for the defendants as set out in the previous paragraph.

  2. Further, in my opinion, none of the matters relied on by the plaintiffs supports the conclusion that there are factors warranting their application. In relation to the first (substantial relationship), the evidence does not, in my opinion, elevate their relationship beyond that of an aunt/niece relationship into one which placed on the deceased a social, domestic or moral obligation to provide for them, either in life or in death.

  3. The deceased and Russell were thrust by Sharon’s death into the role of caring for the plaintiffs. The deceased undertook this role at the relatively young age of 21 and she brought them up to the best of her ability, in conjunction with Russell and other members of the Noble family, until they left the farm as teenagers. In my view, in doing so she did more for the plaintiffs than the community generally expects of an aunt in her position. This did not impose on her a moral obligation to provide for them after they left the farm, in particular after her death, and nothing in their subsequent relationship can be said to have imposed on her such a moral obligation. I regard it as particularly significant that in her time of greatest need, the plaintiffs were at best absent, and at worst disruptive and uncaring of her needs and predicament.

  4. As to the second (size of the estate), I do not regard this as relevant given that it was comprised of essentially two assets, and each of these were transferred to the persons to whom the deceased recognised she had a significant moral obligation.

  5. As to the third (Julie is also a niece), I regard the fact that the deceased made provision for Julie in her will as telling, as it indicates that she recognised that in Julie’s case there were matters going beyond the aunt/niece relationship which made Julie a natural object of testamentary disposition. I infer that the deceased recognised that the loving and supportive relationship which she had with Julie over many years prior to her death, and the fact that Julie suffers from a physical disability with which she has been burdened for almost her entire life, made her a natural object of her testamentary recognition.

  6. For these reasons, I conclude that s 59(1)(b) is not satisfied.

If there were factors warranting the applications of Charlotte and Carolyn would an order for provision have been made

  1. In case I am wrong in the conclusion I have reached that the pre-condition in s 59(1)(b) is not satisfied, I will now address the pre-condition in s 59(1)(c) on the premise that s 59(1)(b) is (contrary to my view) satisfied. I will so do by addressing each of the relevant considerations under s 60(2).

Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship:

  1. The plaintiffs are the nieces of the deceased who helped bring them up when they were young children living on the farm from the ages of 5 to 16 (in the case of Charlotte) and 4 to 13 (in the case of Carolyn). The evidence does not establish that they had a particularly close relationship with the deceased after each of them left the farm. Charlotte lived in Queensland and, while Carolyn lived in the Casino area from 2007, neither of them lived with the deceased again after they left the farm when aged 16 and 13 respectively. The impression left by the evidence is that their relationship with the deceased did not go beyond that of a normal aunt/niece relationship.

The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate:

  1. The expressions “obligations” and “responsibilities” are not defined and have their ordinary meaning. What is to be considered is the nature and extent of any legal or moral obligations or responsibilities of the deceased not only to the applicant, but also to the other beneficiary or beneficiaries, which involves a balancing of potentially competing obligations: Sreckovic v Sreckovic [2018] NSWSC 1597 at [214].

  2. The deceased did not have any legal obligation or responsibility in relation to either Charlotte or Carolyn. I have already concluded that she did not have a moral obligation to either of them. However, on the assumption that I am wrong in that conclusion, (with the result that there are factors warranting the making of the application) in my view the deceased had a competing and greater moral obligation to both Graham and Julie. In relation to Graham, he had been her de facto spouse for over 30 years and he was the one who cared for her throughout that period in a committed relationship. In so far as Julie is concerned, she was clearly an important part of the deceased’s life after 2002 when she returned to live in a property adjoining the farm and was also an important support to her during her treatment for cancer. The Court can infer from the provision made for Julie in the deceased’s will that she recognised this when making her last will.

The nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered:

  1. The value of the net distributable estate is significant, being approximately $2,042,155, but essentially comprises two properties, the farm and the deceased’s half interest in the Babyl Creek block (co-owned with Julie) which adjoins the farm. Graham has a superior claim to the farm given the long period he has lived there and the significant work he has done to maintain and improve it about which he gave evidence. The Babyl Creek block has been used for a number of years for the purpose of the farming operation conducted on the farm and that will be its use in the future if the dispositions in the will are not disturbed.

  2. The gift to Julie (who owns the other half interest) enables that use to continue as part of Graham’s cattle operation on the farm. She also, in my view, has a superior claim to that of the plaintiffs.

The financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate:

  1. I have set out above the financial resources and needs of Charlotte and Carolyn based on the evidence relied on by them. However, neither put before the Court updating evidence of their financial resources and needs. This is significant because the Court must have, at least in broad outline, the whole picture regarding the financial position of the applicant: Collings v Vakas [2006] NSWSC 393 at [66] – [68]; Stone v Stone [2019] NSWSC 233 at [58] – [66]; Blendell v Blendell [2020] NSWCA 154 at [29] and [33]. That is not so in the present case for either plaintiff for the reasons given at [58] – [63] and [64] – [67] above.

  2. I have set out above the evidence of Julie and Graham as to their financial resources and needs which in each case are significant.

If the applicant is cohabiting with another person—the financial circumstances of the other person:

  1. This fact is relevant only to Charlotte who at the time of the hearing was married to Mr Horrex. As noted above, the Court does not have sufficient evidence to determine at the time of the hearing his financial circumstances.

Any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

  1. The evidence of both Charlotte and Carolyn indicates that they have had difficult lives, but it was not suggested that either of them suffered from any physical, intellectual or mental disability. In the case of Julie, on the other hand, it is clear that she does suffer a physical disability of a significant kind which is a matter supporting the preference given by the deceased for making a testamentary disposition in her favour under the deceased’s will.

The age of the applicant when the application is being considered:

  1. At the time of the hearing, Charlotte and Carolyn were 40 and 39 years old respectively.

Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant:

  1. There is no evidence of either Charlotte or Carolyn making any contribution, financial or otherwise to the acquisition, conservation or improvement of the deceased’s estate or to the welfare of the deceased or a member of her family (being relevantly, Graham).

Any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate:

  1. There is no evidence of any provision made by the deceased during her lifetime for either Charlotte or Carolyn.

Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person:

  1. In neither of her wills did the deceased recognise the plaintiffs as proper objects of her testamentary bounty. I infer that the deceased had her mortality in mind when she prepared her final will and that it reflects her assessment of the benefit that should be given to those having legitimate claims upon her bounty: Maynard v Maynard [2018] NSWSC 1961 at [7]. It represents her considered view as to those, among the persons who had an expectation to share in her bounty, for whom provision should be made which is a relevant consideration under the Act: s 60(2)(j); Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] (approved in Steinmutz v Shannon (2018) 99 NSWLR 687; [2019] NSWCA 114 at [50] and [89]).

Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so:

  1. This factor is not relevant.

Whether any other person is liable to support the applicant:

  1. This factor is not relevant.

The character and conduct of the applicant before and after the date of the death of the deceased person:

  1. Relevant here is the evidence of the breakdown in the relationship between the deceased and each of Charlotte and Carolyn after Ruth’s death, arising out of the administration of Ruth’s estate. It is clear from the evidence that while each of Charlotte and Carolyn had some contact with the deceased after her cancer diagnosis, the relationship of each of them with the deceased from that time until her death was fractious and in my opinion fell short of what an objective observer would regard as appropriate conduct towards an aunt suffering from such a serious illness, particularly someone who they contend was a “mother figure” to them. It is clear from the timing of the deceased’s last will that she took this into account when making the testamentary disposition in favour of Julie in her last will, rather than her other two nieces.

The conduct of any other person before and after the date of the death of the deceased person:

  1. Julie and Graham had a caring and supportive relationship with the deceased, particularly in the last few years of her life as she was coping with her cancer diagnosis and illness. This evidence is corroborated by the evidence of Melissa Brown (who was a friend of the deceased for over 30 years) and the executors. None of those witnesses had a personal interest in the outcome of the proceedings and each of them observed, first-hand, the relationship between the deceased and each of Julie and Graham.

Any other matter the Court considers relevant:

  1. The only other matter which I consider to be relevant is that Charlotte and Carolyn each received significant gifts under Ruth’s will, particularly Carolyn who received Ruth’s house in Casino. Ruth had a close relationship with each of Charlotte and Carolyn (particularly Carolyn) and assisted each of them financially after they left the farm. They have each, through their relationship with Ruth, received a testamentary benefit.

Conclusion on s 59(1)(c)

  1. In my opinion, when all these matters are taken into account, it should be concluded that this is not a case where inadequate provision has been made for the proper maintenance, education or advancement in life of either Charlotte or Carolyn. The deceased quite properly recognised Graham as having the primary moral claim upon her bounty and the provision for Julie also recognises a superior moral claim to that of the plaintiffs and complements the gift made to Graham because, as a neighbouring property which has been used in conjunction with the farm for a number of years, a gift to Julie ensures that this will continue to help him with his cattle operation.

  2. Second, both Graham and Julie have competing needs to Charlotte to Carolyn. Charlotte and Carolyn have not put before the Court adequate up to date evidence of their financial position and needs which does not allow the Court to make the evaluative judgment required by s 59(1)(c): see [109] above. It was clear from the evidence of Mr Di Michiel that he was at all relevant times aware of the requirements of Practice Note SC Eq 7 for the provision of updating affidavits. As is clear from the Practice Note, this requirement exists to enable the Court to make the evaluative judgment required by s 59(1)(c).

Conclusion and orders

  1. For the above reasons, in my opinion the plaintiffs’ summons should be dismissed. As the parties did not make submissions on costs, I will make orders giving each party time to make submissions on costs.

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Amendments

17 May 2023 - Typographical error at [87] amended.

12 July 2023 - Typographical error at [88] amended.

Decision last updated: 12 July 2023

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Cases Citing This Decision

1

Noble v Durrant (No 2) [2023] NSWSC 835
Cases Cited

22

Statutory Material Cited

2

Andrew v Andrew [2012] NSWCA 308
Andrew v Andrew [2012] NSWCA 308
Andrew v Andrew [2012] NSWCA 308