Purnell v Tindale

[2020] NSWSC 746

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Purnell v Tindale [2020] NSWSC 746
Hearing dates:	15 July 2019
Date of orders:	17 June 2020
Decision date:	17 June 2020
Jurisdiction:	Equity - Family Provision List
Before:	Henry J
Decision:	(1) Pursuant to s 58(2) of Succession Act 2006 (NSW), the time for the making of the plaintiff’s application for a family provision order be extended to 12 July 2018. (2)   Dismiss the plaintiff's claim for provision out of the deceased’s estate. (3)   Unless either party makes an application for a different costs order within 14 days, there be no order as to costs with the intent that each party is to bear their own costs of the proceedings.
Catchwords:	SUCCESSION – Family provision – proceedings commenced eleven months out of time – where plaintiff did not receive deceased’s will for six months and not aware of time limit – adequate explanation for delay, no significant prejudice from delay and application not hopeless – extension of time granted  SUCCESSION – Family provision – claim by adult nephew – where plaintiff frequently visited deceased’s house and stayed overnight during his childhood – where defendant was in a relationship with deceased and lived at deceased’s house for over 50 years – where deceased’s will devised house to plaintiff and defendant as tenants in common subject to defendant’s right to live there – whether plaintiff was a member of the same household as deceased – no continual and permanent living arrangements established – whether plaintiff dependent on deceased – plaintiff not dependent on deceased for accommodation, financial or other care and support – plaintiff not an eligible person – whether there were factors warranting plaintiff’s application – where ongoing and close relationship between plaintiff and deceased and plaintiff recognised in deceased’s will – factors warranted application – whether adequate and proper provision made for the plaintiff – deceased not morally obliged or required by community standards to make further provision for plaintiff – application for further provision refused – notional estate – where special circumstances existed to justify notional estate order – where defendant had reasonable expectation to continue to live at deceased’s house
Legislation Cited:	Succession Act 2006 (NSW), ss 57(1)(e), 58(2), 59(1)(b), 59(1)(c), 59(2), 79, 87, 90(2)(b) Civil Procedure Act 2005 (NSW), s 98(1) Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Amprimo v Wynn [2015] NSWCA 286 Austin v Wells [2008] NSWSC 1266 Ball v Newey (1988) 13 NSWLR 489 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Bayssari v Bazouni [2014] NSWSC 910 Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) Bezjak v Wyatt [2018] NSWSC 199 Butler v Morris [2012] NSWSC 748 Campbell v Chabert-McKay [2010] NSWSC 859 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan [2016] NSWCA 222 Charnock v Handley [2011] NSWSC 1408 Dannawi v Dannaway [2019] NSWSC 1287 De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep) Diver v Neal [2009] NSWCA 54 Doyle v Smith (Supreme Court (NSW), McLaughlin M, 21 September 1994, unrep) Estate Pascale [2016] NSWSC 443 Gorton v Parks (1989) 17 NSWLR 1 Harris v Harris [2018] NSWSC 552 John v John [2010] NSWSC 937 Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep). Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep) McCann v Ward [2010] VSC 452 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452 Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep) Neil v Nott (1994) 121 ALR 148; [1994] HCA 23 Page v Page [2017] NSWCA 141 Petrohilos v Hunter (1991) 25 NSWLR 343 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Porthouse v Bridge [2007] NSWSC 686 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sgro v Thompson [2017] NSWCA 326 Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 Singer v Berghouse (1993) 67 ALJR 708; [1993] HCA 35 Skinner v Frappell [2008] NSWCA 296 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino [2017] NSWSC 111 Spata v Tumino [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stone v Stone [2016] NSWSC 605 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Underwood v Gaudron [2018] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Vaughan v Curran [2019] NSWSC 1562 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Wagstaff v Wagstaff (Supreme Court (NSW), Windeyer M, 6 November 1991, unrep) Watson v Foxman (1995) 49 NSWLR 315 Wolff v Deavin [2012] NSWSC 1315
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Inglis Purnell (Plaintiff) Graham Neville Tindale (Defendant)
Representation:	Counsel: K Morrissey (Plaintiff) R Tregenza (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) Lander & Daniel (Defendant)
File Number(s):	2018/215115
Publication restriction:	Nil

Judgment

1. These reasons deal with an application by the plaintiff, John Purnell, for an order for provision under the Succession Act2006 (NSW) (the Act) from the notional estate of his late aunt, Agnes Broadfoot (the deceased).

2. The defendant, Graham Tindale, is the executor appointed under the deceased’s will made on 15 December 2000. Mr Tindale was the deceased’s close companion and lived with her at her home on Chelmsford Ave, Lindfield (Chelmsford Ave house) for over 50 years. The deceased and Mr Tindale never married and they had no children.

3. Under her will, the deceased left her major asset, namely the Chelmsford Ave house, to Mr Tindale and Mr Purnell equally as tenants in common subject to a right in favour of Mr Tindale to live at the Chelmsford Ave house for life. Probate was granted to Mr Tindale and the deceased’s estate was distributed according to her will by August 2017.

4. Mr Purnell commenced these proceedings on 12 July 2018. He claims to be an eligible person to apply for provision because he was, at times, dependent on the deceased and lived for periods at the Chelmsford Ave house as a member of the same household as the deceased.

5. Mr Tindale does not consent to Mr Purnell’s application being brought out of time. Mr Tindale also disputes that Mr Purnell is an eligible person to claim provision from the deceased’s estate and contends there are no factors which warrant the making of his application.

6. Mr Tindale also contends that, if the Court concludes that Mr Purnell was left with inadequate provision, no order for further provision should be made by way of a notional estate order as he has reasonable expectations in relation to the Chelmsford Ave house and there are no special circumstances that justify the making of such an order.

7. The only persons who have been identified by Mr Purnell as eligible persons under the Act are Mr Purnell and Mr Tindale.

8. Accordingly, the issues for determination are:

1. whether Mr Purnell has shown sufficient cause for not making his application for provision within 12 months of the deceased’s death, such that he should be granted an extension of time to do so: s 58(2) of the Act;

2. whether Mr Purnell is an eligible person to apply for a provision order: s 57(1)(e) of the Act;

3. if Mr Purnell is as an eligible person, whether there are factors which warrant the making of Mr Purnell’s application for provision: s 59(1)(b) of the Act; and

4. if Mr Purnell is an eligible person and there are factors warranting the application, whether an order for further provision should be made out of the notional estate of the deceased: ss 59(1), 59(2), 87 and 90(2)(b) of the Act.

9. For the reasons that follow, I have granted Mr Purnell an extension of time. I have refused Mr Purnell’s application for provision for the reason that I am not satisfied that he was, at any time, wholly or partially dependent on the deceased or a member of the household of which she was a member, namely the Chelmsford Ave household, and thus he is not an eligible person under the Act.

The parties

10. The deceased was born on 12 July 1918. She had five brothers and sisters, one of whom was Mr Purnell’s mother, Emily.

11. The deceased lived at the Chelmsford Ave house for most of her life with her parents. The deceased’s mother died in 1961 and her father before then. In 1957, title to the Chelmsford Ave house was transferred to the deceased.

12. The deceased did not work but took in boarders at the Chelmsford Ave house during the period from at least 1962 to sometime in around 1973.

13. Mr Tindale was born on 29 September 1939. He met the deceased in 1962, developed a close friendship with her and moved into the Chelmsford Ave house on 14 January 1963.

14. After Mr Tindale moved into the Chelmsford Ave house, the deceased and Mr Tindale commenced an intimate relationship. Mr Tindale lived with the deceased at the Chelmsford Ave house as her close companion until she was admitted to the Whitehall Aged Care nursing home in Lindfield in August 2015.

15. The deceased died on 12 August 2016 at the age of 98.

16. Mr Purnell was born on 3 July 1953. He is the eldest of five children. His siblings are Jim, Emily, David and Peter.

17. Mr Purnell’s family initially lived at a house on Quarry Road, Ryde. In 1957, they moved to a house on Waimea Road, Lindfield which was about a three minute walk away from the Chelmsford Ave house.

18. Mr Purnell has been married three times, had four children and is currently single, unemployed and living in subsidised government housing in Balmain.

The deceased’s will

19. The deceased’s will was made on 15 December 2000. Mr Tindale was appointed as the sole executor and trustee: cl 2.

20. The will devised the Chelmsford Ave house and its contents to Mr Tindale and Mr Purnell equally as tenants-in-common: cl 3. That devise was subject to an interest conferred on Mr Tindale which provides him with the right to live in and use the contents of the Chelmsford Ave house as long as he wishes or until his death, subject to certain conditions, such as keeping the Chelmsford Ave house in good repair and paying rates: cl 4(a).

21. The will provides that, for so long as Mr Tindale lives at the Chelmsford Ave house, Mr Tindale is entitled to exclusive possession and Mr Purnell is not entitled to any right of possession or entry: cl 4(b).

22. The reason the deceased granted Mr Tindale the right of exclusive possession and occupation is stated in the will to be because Mr Tindale had lived with the deceased for a period exceeding 38 years (as at the date of the will) and, during that period, had been her main source of companionship: cl 4(c).

23. The will also devised $5000 to Dalmar Children’s homes and the residue of the estate to four named charities: cl 5 and 6.

The deceased’s estate

24. At the time of her death, the deceased’s estate was valued at $2,612,932.77, consisting of the Chelmsford Ave house valued at $2,500,000, bank accounts and dividends worth $110,932.77, and household furniture and contents valued at $2,000.

25. Probate of the deceased’s will was granted to Mr Tindale on 14 November 2016. The $5000 legacy to the Dalmar Children’s home was paid on 20 December 2016. On 13 February 2017, title to the Chelmsford Ave house was registered by transmission to Mr Tindale as executor and trustee of the deceased’s estate.

26. On 16 February 2017, the lawyers for the deceased’s estate, Lander & Lander, sent a letter to Mr Purnell enclosing a copy of the probate certificate and the deceased’s will. The letter states that Mr Purnell was bequeathed the Chelmsford Ave house as a tenant in common in equal shares with Mr Tindale but that the bequest was subject to a life estate in favour of Mr Tindale. The letter also states that Mr Tindale and Mr Purnell owned the Chelmsford Ave house subject to Mr Tindale’s right of exclusive occupation for the rest of his life or until he may elect to leave the house which meant that Mr Purnell was not entitled to enter the property at any time.

27. Mr Purnell is legally blind. His evidence is that he could not read the Lander & Lander letter and had someone read it to him (T26:41-47).

28. On 22 February 2017, Mr Purnell sent an email to Lander & Lander in response to the 16 February letter. Mr Purnell’s email refers to his grief at the loss of the deceased and refers to her as “my real mum”. The email also states:

On the face of it, as the will stands, I have zero excitement or positive feeling towards having a half share in the property.

The will in itself has no fault at all and is in no way the subject of any contest by me.

As I am not sure how your company and/or Graham Tindale, the executor and trustee of the estate imposes and defines the simple word EXCLUSIVE in following attached clauses following the actual will, is of great interest to me and very many others. Embarrassing for you.

In law it is seen to be a demand made by the resident executor to totally ban me from all entry to the property.

….

29. Mr Purnell’s email raises a range of further matters including that there may be a need to go to the “federal court for a decision” about the ban on Mr Purnell’s entry from “the property” and that there may be a need for an investigation into the “probate details” and “mental health and ability of the trustee to be legally rational and honest”. Mr Purnell’s email also refers to concerns regarding the privacy of the will and Mr Tindale’s failure to contact Mr Purnell about the death of the deceased and invite him to the crematorium service. The email ends stating “I am legally and very blind…..in poverty”.

30. Mr Purnell sent a further email to Lander & Lander on 23 February 2017. In this email, Mr Purnell suggests that he may be able to negotiate a loan based on the will and his “50% share I will always have in the property” and that he may be able to block Mr Tindale from mortgaging the property in his capacity as title holder.

31. On 3 August 2017, Mr Tindale distributed the residue of the deceased’s estate to the four named charities in accordance with the will, after payment of legal fees, funeral expenses and other costs relating to the estate totalling $16,259.60.

32. The parties agree that the current value of the deceased’s “estate” is $2,502,000.00, representing the estimated value of the Chelmsford Ave house and the household contents, and that there are no current liabilities.

Comments on the evidence

33. Before dealing with other aspects of the case, it is appropriate to record some matters about the evidence.

34. Mr Purnell was the only relevant witness in his case. He gave evidence in five affidavits and was cross-examined.

35. Mr Tindale and Wendy Anne Davies, the deceased’s eldest niece and Mr Purnell’s cousin, gave evidence by affidavit for the defence. Mr Tindale was cross-examined. Ms Davies was not.

36. Mr Purnell’s claims in this case are based principally on his own testimonial evidence and a challenge was made about the reliability of his evidence and his memory generally.

37. Much of Mr Purnell’s evidence relates to periods during Mr Purnell’s childhood and events which occurred over 50 years ago. In my view, the distance of time and aspects of his evidence in cross-examination raise real doubts about the reliability of his evidence regarding that period. Other aspects of his evidence in cross-examination also raise doubts about the reliability of his evidence regarding later periods of his life.

38. In cross-examination, Mr Purnell acknowledged he had a “major problem with his memory” (T37:22). Mr Purnell also accepted that his memory had been impacted by his medical treatments, that portions were absolutely blank and that he could not remember with clarity at all (T44:40-45:7; T44:47-48; T45:6-7).

39. He also accepted that he did not have an actual memory about certain matters during the period from 1954 to 1956 about which he gave evidence, and that his evidence was likely based on what others told him, such as his father and the deceased, and his “feelings” that certain things had happened and were true (T32:9-17; T32:35-39; T33:41-49; T34:23-24). He also accepted that he did not understand about his mother’s drinking because he was too young (T32:35-43).

40. Mr Purnell accepted that he could not recall, had no actual memory and could not be specific about when and how often he stayed at the Chelmsford Ave house during the period from 1956 to 1965 (T36:1-13; T37:15-34).

41. Other parts of Mr Purnell’s evidence relating to his childhood were also shown to be inaccurate or undermined by other evidence. I refer this evidence later in these reasons at [175]-[178], [181]-[187] and [191]-[192].

42. In addition to these matters, in my view, it is inherently implausible that Mr Purnell’s testimonial evidence about events and his relationship with the deceased between 1954 and 1956, when he was between the ages of one and three when his family lived at Quarry Road Ryde, could be based on any reliable recollections from his own memory. Similarly, for the period from 1957 to say 1963, when he was between the ages of four and nine and his family lived at the Waimea house.

43. There were also discrepancies with Mr Purnell’s evidence about later periods of his life, such as his assertion that he stayed at the Chelmsford Ave house during two periods in the 1970’s and 1980’s. He accepted that he could not be specific as to the years or periods he stayed there and that his affidavit evidence could have been wrong (T37:43-49; T45:9-12; T44:13-21).

44. Mr Purnell did not lead evidence from any corroborating witnesses or advance any documentary evidence (other than Mr Purnell’s 22 February 2017 email to Lander & Lander and the record in medical notes of a statement by Mr Purnell to a doctor in 2016 that the deceased “brought him up”) which support his claims that his relationship with the deceased was akin to mother and son or that he lived with her at the Chelmsford Ave house, at a particular point in time, during his childhood or later in life and that he depended on her. No letters, cards or other documents from the deceased to Mr Purnell have been produced.

45. While the lack of documentary evidence may be partly explicable due to Mr Purnell’s circumstances, it is a significant gap in the context where Mr Purnell has advanced no corroborating witnesses and the evidence from Mr Tindale and Ms Davies does not, in my view, speak to a relationship between the deceased and Mr Purnell as anything other than a close and loving one between a nephew and a childless aunt who loved children.

46. Mr Purnell also relies on uncorroborated statements made to him by the deceased. His evidence is that the deceased told him that his mother came around to the Chelmsford Ave house between 1954 and 1956 and shouted to the deceased to “give me back my son” and that sometime between 1957 and 1969 the deceased said to him that “[the Chelmsford Ave house] is my home and one day it will be yours” (Affidavit, John Purnell, 4 September 2018 at [17], [30]). Both of those statements were made over 50 years ago. He also gives evidence about other conversations with the deceased during later periods of his life, such as his evidence that, in 1983, the deceased told him that “my house is your house” (Affidavit, John Purnell, 4 September 2018 at [91]). None of the uncorroborated statements attributed to the deceased can now be tested and need to be treated with caution.

47. It follows, in my view, that the comments of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, although written in the context of a claim for misleading and deceptive conduct, are particularly apposite to Mr Purnell’s evidence. As His Honour noted:

….human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

48. I do not doubt that Mr Purnell sought to give truthful evidence to the best of his recollection. But in view of the above matters and Mr Purnell’s own self-interest, I have significant reservations about Mr Purnell’s evidence and am not inclined to accept it without corroboration, particularly where it is the subject of challenge or other contradictory evidence.

49. As to the evidence from Mr Tindale, in final submissions, no attack was made on his credibility. Mr Tindale also has an interest in the outcome of these proceedings and there were some aspects of his evidence which were not satisfactory. For example, he accepted that he did not tell the truth about his single status (T63:14-15).

50. Mr Tindale’s evidence is at odds with Mr Purnell’s in a number of significant respects and he was not cross-examined on some aspects of his evidence which differs to Mr Purnell’s, such as whether Mr Purnell stayed at the Chelmsford Ave house after 1963. During cross-examination Mr Tindale did not display any memory difficulties and in my view, he made concessions where appropriate (T63:41-44; T74:28-36; T74:40-75:1).

51. Accordingly, and in the light of the issues identified with Mr Purnell’s evidence, I prefer Mr Tindale’s evidence over that of Mr Purnell where their evidence differs.

Mr Purnell – further facts and relationship with the deceased

1954 to 1969

52. Mr Purnell’s evidence is that, from 1954 to 1969, he visited the deceased at the Chelmsford Ave house on a regular basis and that he stayed there overnight, sometimes for weeks, because his mother left him there or he ran away from his parents’ home. Mr Purnell’s evidence is that his mother was an alcoholic and could become abusive and, from 1957, his father was often away on business. He also gives evidence that the deceased took care of him and provided him with care, love and support.

53. I accept there is evidence that Mr Purnell’s mother had a drinking problem and could be verbally and physically abusive. Mr Tindale gives evidence that, from time to time, he and the deceased received calls from Mr Purnell’s mother when she was “clearly intoxicated” and that she abused him on one occasion after he and the deceased had taken Mr Purnell and his brothers on an outing, but the abusive calls were never about Mr Purnell spending time with them.

54. Mr Purnell’s evidence about this period of his life, his claim that he stayed at the Chelmsford Ave house during this time and his reliance on the deceased are the subject of dispute. I deal with Mr Purnell’s evidence about those matters in more detail later in these reasons at [166]-[199].

1971 to 2008

55. Mr Purnell’s first marriage, in 1971, was to Marjory McGuire. They had three children, Rosemary born in 1971, Wendy born in 1973 and Timothy born in 1975. Mr Purnell and Marjory divorced in 1975. Sometime in 1976, Mr Purnell and Marjory’s three children were placed into foster care. During his marriage to Marjory, Mr Purnell was diagnosed with depression and agoraphobia.

56. In or around 1976, Mr Purnell was involved in a serious motorbike accident and was hospitalised.

57. After leaving hospital, Mr Purnell moved into his parents’ house at Waimea Road.

58. Mr Purnell’s evidence is that, for about three months of his recuperation and although his mobility was difficult, he visited the deceased several times a week, he often stayed the night at the Chelmsford Ave house and that the deceased helped care for him. His evidence is that, from sometime in 1976, he lived between his parents’ house and the Chelmsford Ave house for around a year.

59. Mr Tindale disputes that Mr Purnell lived at the Chelmsford Ave house at this time. His evidence, which I accept, is that Mr Purnell did not live or stay at the Chelmsford Ave house at this time or any other time after Mr Tindale moved into the Chelmsford Ave house in 1963. Mr Tindale also disputes that Mr Purnell visited the deceased several times a week around this time.

60. In 1979, Mr Purnell married Penni Kendall, a nurse at Balmain Hospital. Their daughter, Ebony, was born in 1980. Mr Purnell and Penni separated in 1983.

61. From around mid-1983, Mr Purnell became reclusive, ceased going to work and ran out of money. His evidence is that he accepted an invitation from the deceased to come and live with her and Mr Tindale and that he stayed at the Chelmsford Ave house for about eight months without being required to pay rent or board. As noted above, Mr Tindale’s evidence, which I accept, is that Mr Purnell did not live or stay at the Chelmsford Ave house at any time after Mr Tindale started living there with the deceased.

62. In around late 1983, Mr Purnell was involved in a motor vehicle accident. He recalls that the deceased agreed to his request to store some of his car parts at the Chelmsford Ave house but says that Mr Tindale demanded that he remove them. Mr Tindale’s evidence is that he asked Mr Purnell to remove the car parts because the deceased asked him to do so.

63. Mr Purnell’s evidence is that, in or around 1983, the deceased became aware that he was short of money and that she used to give him between $20 and $50 when he visited her. He says that, during one of his visits to the deceased in or around late 1983, the deceased said she wanted to give him more money but did not and told him that Mr Tindale would get “mad at me”. Mr Purnell also gives evidence that Mr Tindale told him that he could not move back in. Mr Tindale denies this conversation. Mr Tindale’s evidence is that he was aware that the deceased used to give Mr Purnell some cash around the time of his first and second marriages, usually in amounts up to $50, and that he expressed no objection to the deceased doing so.

64. In 1983, Mr Purnell commenced a relationship with Kerry Mina. They married in 1989. Mr Tindale was Mr Purnell’s best man at this wedding. Initially, Mr Purnell and Kerry lived in Balmain, Gladesville and Hunters Hill. In 1991, they bought and moved to a house in Roseville.

65. Mr Purnell’s evidence is that, between 1984 and 1988, he visited the deceased almost weekly at the Chelmsford Ave home, also called to check up on her and to update her on his life. Mr Tindale disputes this.

66. Mr Purnell also gives evidence that between 1991 and 2009, he visited the deceased at least twice a month and she would usually give him $20 when he saw her. Mr Tindale also disputes this. His evidence is that he does not recall Mr Purnell visiting the deceased during the period 1991 to 2009 or the deceased telling him that Mr Purnell had called in while he was out of the house. Mr Tindale’s evidence is that he rarely saw Mr Purnell after his third marriage in 1989.

67. While I accept that there may have been occasions between 1984 and 2009 that Mr Tindale was absent from the Chelmsford Ave house when Mr Purnell visited the deceased, I am not persuaded that Mr Purnell’s evidence can be fully relied on as a sound and accurate account of the regularity of the visits he made or contact he had with the deceased during that period.

2009 - 2017

68. In 2009, Mr Purnell and Kerry divorced. Prior to his divorce, Mr Purnell had started living at a friend’s house in Newport where he stayed for about 6 months.

69. During 2009 and 2010, Mr Purnell was admitted to hospital on three occasions for mental health related issues and received 12 sessions of electroconvulsive therapy. When he was not in hospital, Mr Purnell lived with his mother; his father had died in 2008.

70. Mr Purnell’s evidence is that, while living at his mother’s house, he would often walk to the Chelmsford Ave house to visit the deceased. He says she was aware he was not in a good financial situation. Mr Purnell also gives evidence that Mr Tindale was hostile and cold towards him and believes that Mr Tindale forced the deceased not to allow Mr Purnell to live at the Chelmsford Ave house or provide him with any financial support. Mr Tindale disputes this and says that the assertions about him are untrue and do not represent anything he said or did in relation to the deceased. I prefer Mr Tindale’s evidence to Mr Purnell’s on this aspect of the evidence.

71. In around mid-2010, Mr Purnell moved out of his mother’s house and was homeless for a period.

72. In early 2011, Mr Purnell moved into a subsidised housing commission unit in South Strathfield where he lived until late in 2017. During that period, Mr Purnell was diagnosed as legally blind and his son, Timothy, died from cancer.

73. During the period from 2011 to 2015, Mr Tindale drove the deceased to visit Mr Purnell on four occasions. The deceased gave Mr Purnell some small household items, including a chair, and food. On one occasion, Mr Tindale gave Mr Purnell $200 and some other items for Mr Purnell’s unit. Mr Purnell claims that, during this period, he telephoned the deceased at least every two weeks to check up on her. Mr Tindale says he was not aware of this and the deceased did not mention to him that Mr Purnell had called her.

74. In February 2016, Mr Purnell became aware that the deceased was living in the Whitehall Aged Care nursing home when his brother, Peter, told him. Mr Purnell did not visit the deceased while she was there and spoke to her once. There is a dispute between him and Mr Tindale as to why. Mr Purnell’s evidence is that he was informed by the facility that Mr Tindale did not approve any visits. Mr Tindale’s evidence, which I accept, is that he directed the nursing staff not to allow Mr Purnell to speak to the deceased because the deceased had told him that Mr Purnell had been calling and upsetting her.

75. Mr Purnell found out about the deceased’s death from his brother, Peter, in or around the end of August 2016. His evidence is that he was upset that his family and Mr Tindale did not notify him of the deceased’s death and that he did not have the chance to say goodbye to the deceased properly. Mr Tindale confirmed that he did not inform Mr Purnell about the death of the deceased but informed Peter and Mr Purnell’s other brother, Jim. Mr Tindale’s evidence is that there was no funeral or service according to the deceased’s wishes.

76. On 13 July 2017, Mr Purnell’s mother died. Mr Tindale’s evidence is that he saw Mr Purnell at his mother’s wake.

77. Mr Purnell is a beneficiary under his mother’s will, in the amount of $1,015,000.

Mr Purnell’s current circumstances and claimed needs

78. At the hearing, Mr Purnell was 66, unemployed and was living in a subsidised government housing commission unit in Nicolson Street, in Balmain. He has lived there since November 2017.

79. Mr Purnell suffers from a range of health issues. He has chronic obstructive pulmonary disease, is legally blind and suffers from anxiety, depression, psychosis, agoraphobia and borderline personality disorder. He also has eczema, brain matter decay which has led to memory loss, high blood pressure, back and neck pains due to injuries to discs C1 and C2 on his spine and issues with his teeth which will require teeth implants.

80. As a consequence of his health issues, Mr Purnell has been out of work for many years and is unlikely to gain any future employment.

81. Mr Purnell has no property, no superannuation and no income other than fortnightly payment of $701.30 by way of the aged pension after his rent has been deducted. In the past, he has received a disability pension. He has been accepted into the National Disability Insurance Scheme (NDIS).

82. Mr Purnell bequest from his mother’s estate is valued at $1,015,000. He has received an interim distribution of $600,000 and expected to receive the balance in late 2019.

83. As at the date of the hearing, Mr Purnell had spent $183,071.37 from the interim distribution. $74,234.40 was spent on legal fees relating to these proceedings, just under $50,000 was spent to repay loans and $50,000 was spent on household effects, including a new mobile phone, computer, keyboard, speaker and adaptive computer accessories.

84. After receipt of the final distribution from his mother’s estate, Mr Purnell expects to have a balance in the amount of $774,028.64 from the distribution of his mother’s estate, which represents his only asset other than his personal and household effects.

85. Mr Purnell’s current monthly expenditure is estimated to be $2,266 and is expected to increase to $3,566 a month as he will lose his current rental subsidy when the distribution from his mother’s estate is received into his bank account.

86. Mr Purnell’s evidence of his present needs is as follows:

Item

Cost

Fumigation of Department of Housing Unit

$4,000.00

Ground floor unit in the Balmain area

$1,000,000.00

Stamp duty on purchase

$40,774.00

Conveyancing

$2,000.00

Washing machine

$2,680.00

Furniture

$5,106.00

Bed frame and mattress

$6,278.00

New clothes

$2,500.00

Bupa ultimate health cover

$80,226.42

Philips Respironics SimplyGo Portable Oxygen Concentrator

$2,999.00

Air Conditioner and installation costs

$1,449.00

Talking single induction hob and talking microwave

$830.00

Amplified big button phone

$130.00

Daylight ultra-slim LED magnifying lamp and

Prodigi Desktop 20

$3,145.00

Guide Dog

$35,000.00

BUPA Pet insurance for 9 years

$4,935.51

Domestic Carer (Initial block of 23 hours and then 8 hours a week for 10 years)

$244,914.65

Contingency Fund

$300,000.00

Dental Implants

$35,000.00

Total

$1,771,967.58

(not inclusive of Dementia treatment and medication)

87. A number of observations may be made about those needs.

88. First, the bulk of the costs relates to the purchase of a two bedroom unit in Balmain. Mr Purnell’s evidence is that he needs a comfortable place to live, preferably in Balmain because it is an area with which he is familiar.

89. Mr Purnell’s claim to need to live in Balmain was challenged in cross-examination. His evidence is that he does not want to go somewhere else as his supports are in Balmain and he does not want to move out of the area (T51:17-24).

90. In support of his need to live in Balmain, Mr Purnell relies on a report prepared by Helen Wood, Occupational Therapist, dated 12 December 2018. Ms Wood’s report states that, if Mr Purnell was to move from his current unit to alternative housing, there may be some benefit to him remaining in the Balmain area close to his general practitioner and local connections. Because of his health issues, Ms Wood’s report recommends a property with level access, bright natural light, close to public transport, close to shops and with limited or no stairs.

91. Ms Wood’s report also states that Mr Purnell’s current housing does not meet his needs and requires substantial cleaning and fumigation, due to the reported presence of bed bugs. Relevantly, Mr Purnell’s claim for $4000 for fumigating his Balmain unit is no longer necessary as he gave evidence that it has been paid for by the NDIS.

92. Ms Wood does not consider alternative housing options available to Mr Purnell, including retirement or other accommodation with support facilities, that might be more suitable for Mr Purnell having regard to his current health issues and age.

93. Second, and assuming that Mr Purnell moves from his current unit, Mr Purnell’s Counsel accepts that a one bedroom unit may be adequate for Mr Purnell’s needs. The evidence suggests that a one bedroom unit in Balmain would cost somewhere from $690,000 to $900,000.

94. Third, the claim of $244,914.65 for domestic care is also based on Ms Wood’s report. She estimates that, if Mr Purnell were to continue to reside in his current unit, he would require an initial block of 23 hours of care (for cleaning) and between six and seven hours of domestic and personal care services per week to maintain his hygiene at an acceptable level and to assist Mr Purnell with daily tasks that are difficult due to his vision impairment and other physical and mental health issues. If Mr Purnell was to move, Ms Woods estimates that he would require a similar level of initial domestic care and slightly higher hours of care on an ongoing basis.

95. Ms Wood’s report also notes that Mr Purnell would benefit from the provision of a number of aids and equipment, an assessment from a physiotherapist and a review with a psychologist, psychiatrist, respiratory physician and ophthalmologist.

96. Fourth, Mr Purnell makes a claim of $80,226.42 for BUPA private health insurance which is based on an ultimate health cover plan costing $3,802.20 a year. Presumably, Mr Purnell has, to date, had his health needs met by the public health system and could continue to do so in the future. As noted previously, he has also been accepted into the NDIS.

97. Fifth, there was no evidence before the Court supporting the estimated cost of a guide dog for $35,000 and the contingency fund of $300,000 has not been itemised.

98. Sixth, the estimate of $25,117 on household and personal effects includes the cost of a range of items which appear to be excessive for a single man, such as a nine kilogram washing machine and a nine kilogram dryer. I also note that that Mr Purnell has already spent $50,000 on household effects and personal items, which have not been fully itemised.

99. It follows that I have approached Mr Purnell’s needs estimate with caution and consider that the estimates are, in many respects, excessive. In particular, I am not satisfied that $1 million is required if Mr Purnell were to move into alternative accommodation in the Balmain area.

100. Based on Ms Wood’s report, I am also satisfied that a viable option for Mr Purnell would be to stay in his current Balmain unit and spend money on the appropriate aids, equipment and cleaning. In that case, the amount required to cover the cost of his estimated present needs would be significantly reduced, closer to $600,000 taking into account the other aspects which appear excessive, and would be covered by the balance of the distribution from his mother’s estate.

The deceased’s relationship with Mr Tindale

101. Mr Tindale and the deceased maintained a long term personal, domestic and sexual relationship, shared household duties, went on holidays together and were recognised as a couple. Mr Tindale paid for most of the food and household supplies and half the cost of the outgoings in respect of the Chelmsford Ave house. He also undertook household maintenance.

102. While they shared the payment of outgoings, the deceased and Mr Tindale maintained separate bank accounts and did not share ownership of any property. The deceased owned the Chelmsford Ave house and Mr Tindale owned two home units, one in Collaroy and the other in Manly Vale, which he sold in 1989 and 1991 respectively. Later in the deceased’s life, Mr Tindale assisted the deceased with the management of her financial affairs. He also became a co-signatory to the deceased’s accounts.

103. In 2012, Mr Tindale became the deceased’s carer. He remained her carer until she moved into the nursing home. Mr Tindale visited the deceased at the nursing home every day except for one.

104. Before the deceased passed away, Mr Tindale had made provision in two of his wills for the deceased. In his second will made on 3 August 2000, he made provision for her to enjoy the whole of his estate on trust during her life.

Mr Tindale’s circumstances

105. Mr Tindale is the only other person identified by Mr Purnell as an eligible person under the Act. As a beneficiary under the deceased’s will, Mr Tindale’s interests cannot be disregarded in this case: s 61 of the Act.

106. Mr Tindale has put forward evidence of his circumstances which is relevant to a consideration of the adequacy of the provision already made and whether additional provision should be made for Mr Purnell under the deceased’s will.

107. At the hearing, Mr Tindale was 80, retired and in good health.

108. Mr Tindale was employed by Qantas in varying positions until he retired in 1991, at the age of 51. After retiring from Qantas, Mr Tindale worked for himself as a handyman and gardener until he fully retired in 2005, at the age of 65. At that time, he started to receive the aged pension.

105. Mr Tindale has continued to live at the Chelmsford Ave house since the deceased’s death. Mr Tindale does not anticipate needing to move out of the Chelmsford Ave house and live in a retirement village or nursing home in the foreseeable future and intends to continue to reside at the Chelmsford Ave for as long as he can.

106. Mr Tindale received $418,331.42 from the estate of his brother, who died on 17 July 2016. He applied $250,000 of that money to buy a Challenger Annuity. He also used $39,873 of it to pay for improvements to the Chelmsford Ave house.

107. Mr Tindale’s current assets total $691,815.41, the bulk of which is made up of two annuities and a pension account worth just over $580,000. He owns two motor vehicles valued at $16,000, and a model train collection valued at $2,000. He has no debts.

108. Mr Tindale’s monthly income is $3,219.37. Most of that income comes from the annuities and his pension account. He also receives $206.90 by way of the aged pension.

109. Mr Tindale estimates his monthly expenses to be $3,258.12.

110. Mr Tindale anticipates that he will need to have cataract surgery and dental treatment in the future, the cost of which is expected to be around $3,500.

Legal costs

115. Mr Purnell’s legal costs are estimated to be $79,280.64 on an ordinary basis, and $132,134.40 on an indemnity basis, of which he has paid $74,234.40.

116. Mr Tindale’s legal costs in relation to these proceedings on an indemnity basis are estimated to be $88,000, and on an ordinary basis to be $76,000. As at the date of the hearing, $16,080.72 of those costs have been paid by Mr Tindale personally.

117. On the assumption that both parties’ costs are to be paid out of the notional estate, with Mr Tindale’s costs (as executor) to be paid on an indemnity basis and the plaintiff’s costs to be paid on an ordinary basis, the total costs would be $167,280.64. Assuming the Chelmsford Ave house was sold at the agreed value, the value of the available notional estate would be $2,332,719.36.

Should an extension of time for making the application be granted?

118. An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders, on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: s 58(2) of the Act.

119. The principles to be applied on an application to extend time under s 58(2) of the Act were not in dispute at the hearing. The decision of the court whether to extend the time to bring an application is a discretionary one: Verzar v Verzar [2014] NSWCA 45 at [23].

120. Mr Purnell must provide sufficient cause for bringing his claim late. The Court will look to factors such as whether Mr Tindale’s interests, as a beneficiary, would or might be affected by the making of an order to extend the time and prejudiced because of the delay; whether there has been conduct on the part of Mr Purnell or Mr Tindale which might justify the grant or refusal of the application to extend time; and the strength of Mr Purnell’s case: Verzar v Verzar [2014] NSWCA 45 at [24] and [25] (Meagher JA).

121. The relevant prejudice is that which is caused to Mr Tindale by the delay in the claim being brought, as distinct from any disappointment that might occur upon readjustment of the interests under the will in order to make provision: Cetojevic v Cetojevic [2006] NSWSC 431 at [58]; McCann v Ward [2010] VSC 452 at [11].

122. The Court will also consider whether there has been any unconscionable conduct on the part of Mr Purnell, such as deliberately holding off making a claim in a way designed to lull Mr Tindale into a false sense of security so that he orders his affairs on the basis that his legacies could not be disturbed: De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep); Stone v Stone [2016] NSWSC 605 at [36].

123. As justice is the paramount consideration in determining whether to extend the time for making an application, the strength of the case and whether the application as made has sufficient prospects of success to justify an extension is a relevant factor. In the absence of prejudice and where there is a strong claim, it may be an injustice to refuse to grant the extension: Butler v Morris [2012] NSWSC 748 at [117]; Verzar v Verzar [2014] NSWCA 45 at [33]; Valbe v Irlicht [2001] VSC 53 and [31]; Underwood v Gaudron [2018] NSWCA 269 at [89].

124. Turning to the facts in this case, Mr Purnell found out about the deceased’s death in late August 2016, the month she died, although he did not receive details about his entitlement under the deceased’s will until receiving Lander & Lander’s letter dated 16 February 2017.

125. The first occasion on which Mr Purnell sought legal advice was in or around July 2017, from Theo Voros, a solicitor in Burwood. Mr Purnell’s explanation for his delay in seeking legal advice was that her death and the loss of opportunity to farewell the deceased aggravated his struggle with depression. This, he says, prevented him from leaving his Strathfield unit for a few months, led him to becoming physically unwell from infected bed bug bites and then being admitted to Concord hospital at the end of 2016 and in early 2017.

126. Mr Voros informed Mr Purnell that he may have a family provision claim against the deceased’s estate but, according to Mr Purnell, did not inform him there was a time limit to bring such a claim or that it needed to be brought soon. Mr Voros required Mr Purnell to pay him $5,000 upfront, which Mr Purnell was unable to pay following a denial of his legal aid application.

127. Mr Purnell did nothing about his potential claim until he contacted Santone Lawyers in the Sydney CBD in early 2018. Mr Purnell’s evidence is that he was informed they could not act as “the matter was too complicated” and did not tell him there was a time limit in which to bring a family provision claim against the deceased’s estate. Mr Purnell’s evidence is that, between seeing Mr Voros and speaking to Santone Lawyers in early 2018, his mental and physical health declined, he was admitted into the Concord Centre for treatment of mental health issues and an infection from the bed bugs at his unit, and he also spent time applying for and moving into the unit in Balmain in which he currently resides.

128. On 18 June 2018, Mr Purnell sought legal advice from Turner Freeman Lawyers, his current solicitors. Mr Purnell met with Janine Foo on 12 July 2018. Ms Foo told Mr Purnell that he was out of time to bring a family provision claim as it had to be brought within 12 months from the date of the deceased’s death. Upon finding out about the time limit, Mr Purnell instructed Ms Foo to commence action which was done by filing a Summons on 12 July 2018.

129. Mr Tindale submits that Mr Purnell’s has failed to establish sufficient cause for not commencing the proceedings in time. He relies on Mr Purnell’s email of 22 February 2017 which, he submits, indicates that Mr Purnell understood the terms of the deceased’s will, understood Lander & Lander’s 16 February 2017 letter and had decided not to make any claim. He also points to the fact that Mr Purnell had spoken to two firms of solicitors within a year of learning about his entitlements under the deceased’s will.

130. Mr Tindale also raises prejudice as a basis for refusing Mr Purnell’s application for an extension of time.

131. Mr Tindale’s evidence is that he would not have distributed the legacies and residue to the charitable institutions in accordance with the deceased’s will, purchased the Challenger Annuity or spent money on improvements to the Chelmsford Ave house if he had been on notice of Mr Purnell’s claim. In other words, he claims he would be prejudiced by the grant of an extension because, relying on Mr Purnell’s February emails, Mr Tindale completed distribution of the cash held by the deceased’s estate and also used other of his funds which, together, may have been sufficient to discharge any order made for Mr Tindale’s provision.

132. Finally, Mr Tindale submits that Mr Purnell’s prospects of success in obtaining an order for provisions are weak in this case, particularly as any order would have to be made against notional estate and Mr Purnell will not be able to satisfy the Court that there are special circumstances which warrant a notional estate order being made 12 months after the deceased’s death and because Mr Tindale has a reasonable expectation to continue to live at the property.

133. In my view, Mr Purnell has adequately explained the delay in making his application for provision. Prior to receiving Lander & Lander’s latter dated 16 February 2017, Mr Purnell had not seen a copy of the deceased’s will. Accordingly, at least six months of the delay can be explained by Mr Purnell’s ignorance of his entitlement under the deceased’s will.

134. Mr Purnell’s evidence that he suffered a series of mental and physical health issues between August 2016 and early 2018 was not challenged by Mr Tindale and there are medical records in evidence which support Mr Purnell’s evidence. In July 2017, when Mr Purnell first learned of a right to make a claim for provision, he did not have the financial resources to take action at that time. While perhaps surprising that he had not been informed by two firms of solicitors that his claim for provision had to be brought within 12 months of the deceased’s death, in cross-examination, Mr Purnell maintained that Mr Voros did not tell him of the 12 month time limit. His lack of knowledge of the time limit, his bad health and his parlous financial circumstances are all matters that were likely to have impacted Mr Purnell’s judgment and ability to take steps to prosecute his claims in a timely manner: Neil v Nott (1994) 121 ALR 148; [1994] HCA 23 at 151; Taylor v Farrugia [2009] NSWSC 801 at [15].

135. That leads me to the other discretionary factors raised by Mr Tindale.

136. Mr Purnell was cross-examined about Lander & Lander’s 16 February 2017 letter and his 22 February email in response. He stated that someone read the letter and will to him but said that, at the time, he didn’t understand what it meant (T17:26-42). Later, he accepted that when the will and letter were read out to him he understood that Mr Tindale was to have occupation and sole residence of the Chelmsford Ave house but he did not understand the conditions of “what he (Mr Tindale) had to do to stay there” (T20:36-47).

137. Mr Purnell later asserted that he found the will “very difficult to come to grips with” but that he understood that Mr Tindale had “an exclusive right to live in the (Chelmsford Ave) house” and that he (Mr Purnell) had been given fifty per cent of the property on Mr Tindale’s departure or death (T28:35-46).

138. When asked whether he intended to convey that he accepted the terms of the will when he sent his 22 February email, Mr Purnell’s response was “I'd say it was a mistake” (T18:15). He later repeated that it was sent as “a mistake”, was written in “anger and disappointment” and that he was “not well at the time” (T18:23, T18:32-35, T24:16, T24:7-48, T26:25-32, T27:15-20).

139. I accept that aspects of Mr Purnell’s oral evidence about what he intended to convey by his 22 February 2017 email and his understanding of the deceased’s will were not entirely satisfactory. His email was in terms that Mr Tindale could have understood to mean that Mr Purnell would not be contesting any aspect of the deceased’s will.

140. That said, Mr Purnell’s February emails make a range of assertions and do not refer to a potential claim for provision under the Act. They were also sent prior to Mr Purnell receiving legal advice about the possibility of a claim under the Act and at a time when his mental and physical health issues could be expected to have had an effect upon his decision making ability. In that context, I do not consider that his 22 February email should be taken as an informed decision on the part of Mr Purnell not to pursue a claim for provision or conduct that disentitles him to an extension of time.

141. As to prejudice, Mr Tindale submits that he spent his own money improving the Chelmsford Ave house in the expectation that it would continue to be his home and that he would not have done so if Mr Purnell’s claim had been brought in time. The difficulty with that submission is that the deceased’s will requires Mr Tindale to keep the Chelmsford Ave house property in “good condition and state of repair” while he lives there. Based on their descriptions, many of the items paid for by Mr Tindale appear likely to be expenditures of that nature; for example, internal and external painting, carpet cleaning, pest control work, hot water system, plumbing, installation of a carpet, and ceiling insulation and roofing repairs.

142. The evidence also indicates that Mr Tindale may be able to cash in the Challenger Annuity and recover the value of his investment if needed to cover any order for provision.

143. The residue of the deceased’s estate was distributed in August 2017. If Mr Purnell had brought his claim in time, it may have been available to be put to Mr Purnell’s claim for provision (assuming an order is made) and reduce any impost on Mr Tindale personally. That said, the residue distributed to the named charities was just under $100,000 and would not have met the nature of the claim for provision as currently sought by Mr Purnell, which equates to 50% of the sale proceeds of the Chelmsford Ave house.

144. In cross-examination, Mr Tindale also accepted that it has not made much difference to him that Mr Purnell’s claim was brought 11 months out of time compared to if he had brought the claim within time (T74:22-36).

145. In light of these matters, I am not persuaded that Mr Tindale has suffered any material prejudice as a result of Mr Purnell’s delay in bringing his claim.

146. As to the strength of Mr Purnell’s claim for provision, the first point to note is that allowing Mr Purnell to pursue his claim out of time would not, in my view, have the effect of strengthening his claim: Verzar v Verzar [2014] NSWCA 45 at [34]. To the contrary, it seems to me that the strength of his application may have weakened because, considered as at 15 July 2019, the value of Mr Purnell’s distribution from his mother’s estate was known.

147. In De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep), Powell JA considered that, as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

148. In Underwood v Gaudron [2018] NSWCA 269 at [89], Basten JA concluded that evidence of prejudice resulting from the delay, an incomplete justification for delay and lack of notice to the respondents, would permit the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to “otherwise order” an extension of time pursuant to s 58(2).

149. In this case, I have concluded that Mr Purnell had sufficient cause for not making the application within time and that his change of mind was explicable in the context where his 22 February email was sent without the benefit of legal advice and knowledge of his rights. I have also concluded that no significant prejudice to Mr Tindale has been shown to arise from the delay. While I have ultimately found that Mr Purnell is not entitled to relief, I do not consider that his application was bound to fail and have approached the question of the prospects of success as a neutral factor in considering whether to grant an extension of time. It follows, in my view, that I should exercise my discretion and grant Mr Purnell an extension of time to bring the proceedings.

Is Mr Purnell an eligible person?

150. The Court may only make an order for provision if it is satisfied that the person to whom the order is made is an eligible person: s 59(1)(a) of the Act.

151. Mr Purnell relies on s 57(1)(e) of the Act in support of his claim that he is an eligible person, which relevantly provides that an "eligible person" includes:

(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.

152. The first requirement under s 57(1)(e) is of a relationship of dependence, whether whole or partial.

153. The question of whether a person is wholly or partially dependent on another is a question of fact: Spata v Tumino [2018] NSWCA 17 at [68].

154. In its ordinary sense, dependency means the condition of depending on something or someone for what is needed. The whole relationship must be considered to determine whether there is dependency, considering past events and future possibilities: Ball v Newey (1988) 13 NSWLR 489 at 491, cited with approval in Spata v Tumino [2018] NSWCA 17 at [68] and [78] (Payne JA).

155. Dependency is not limited to purely financial or material matters, although it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough:  Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347; Skinner v Frappell [2008] NSWCA 296 at [85].

156. Reliance on someone for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Spata v Tumino [2018] NSWCA 17 at [82]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]-[111].

157. The second requirement is that the applicant has been a member of the same household as the deceased for some period of time.

158. The Act does not specify a particular length of time during which Mr Purnell must have been a member of the same household as the deceased and the period during which he and the deceased shared the same household does not necessarily have to coincide with the period during which he says he was wholly or partly dependent on her: Wolff v Deavin [2012] NSWSC 1315 at [30] (Macready AsJ).

159. Central to the concept of being a member of a household is people “living together” in a home: Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep). This is consistent with the Oxford English Dictionary definition of “household” being "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)".

160. Prima facie, there must be some element of residence or living of the two people concerned in the same house. It is not sufficient for a person to visit on a regular basis without regularly staying overnight: Wagstaff v Wagstaff (Supreme Court (NSW), Windeyer M, 6 November 1991, unrep); Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Bezjak v Wyatt at [79].

161. The phrase ‘household’ is abstract and is to be contrasted to the word ‘house’. There are no hard and fast rules as to what constitutes a household, and the point at which a living arrangement becomes a household is one of degree. A person can be a member of two households. As Hallen J notes, it is the characteristics and dimension of the domestic relationship that makes a “house” a “household”: Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [38], [39]; Spata v Tumino [2017] NSWSC 111 at [48], not disturbed on appeal, Spata v Tumino [2018] NSWCA 17 at [58]; Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Wolff v Deavin [2012] NSWSC 1315.

162. The concept of membership of a household also connotes a degree of continuity and permanency of mutual living arrangements. There is no set period of time in which a person has to be a member of the household, but they must be a member of the same household as the deceased for some period: Bezjak v Wyatt [2018] NSWSC 199 at [78] and [79]; Amprimo v Wynn [2015] NSWCA 286 at [90] citing with approval statements made by Bryson AJ in Porthouse v Bridge [2007] NSWSC 686 and McLelland J in Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep); Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35] to [51] and the cases cited there.

Factual findings

163. Whether Mr Purnell was a member of the same household as the deceased and was wholly or partly dependent on her for a period of time is a question of fact.

164. As noted above, Mr Purnell’s claim that he is an eligible person is based principally upon his own testimonial evidence. Thus, it is necessary to deal with his evidence and record my findings in the context where I have significant doubts as to the reliability of Mr Purnell’s evidence. I also deal with the evidence from Mr Tindale and Ms Davies, which I find persuasive and which, in my view, contradicts and undermines aspects of Mr Purnell’s evidence.

165. Mr Purnell’s evidence falls into two periods of his life. The first relates to the period 1954 to 1969, when he was aged one to sixteen. The second period relates to the period from 1973 to about 2009. I deal with each period separately.

1954 to 1969

166. Mr Purnell’s evidence is that during the years 1954 to 1956, when Mr Purnell was between the ages of one and three years old and living with his parents at their house on Quarry Road, Ryde, his mother left him at the Chelmsford Ave house for “indefinite periods” and the deceased took care of him for the day and, at times, for weeks as she cooked for him, bathed him, clothed him and toilet trained him. Mr Purnell’s evidence is that his mother was an alcoholic and would forget she left him at the Chelmsford Ave house and would come to the house and ask his grandparents and the deceased to give back her son and to not deal with him.

167. Mr Purnell gives evidence that from 1957 to 1969, when Mr Purnell was between the ages of four and sixteen and living with his parents at the Waimea Road house in Lindfield, he remembers being disciplined by his mother, often running away and hiding under the Chelmsford Ave house and staying there for the evening or for a couple of days. He also claims to have often walked himself to the Chelmsford Ave house where he would stay for the day, the evening, a couple of days, and sometimes for weeks, and that the deceased would call Mr Purnell’s mother to let her know he was staying there. He says that he had his “own” bedroom at the Chelmsford Ave house, which was the middle bedroom in which his clothes were kept, and that he sometimes went to school from there.

168. Mr Purnell’s evidence is that each time he visited the deceased and stayed with her, they cared for the garden, walked the deceased’s dogs, prepared food together and generally enjoyed each other’s company. He claims that the deceased gave him the warmth and comfort he did not receive from his mother. He also says that the deceased would give him a few shillings or dollars (sometimes a $5 or $10 note) and she took him on day trips to Strathfield railway station.

169. Mr Purnell says that, in around 1960, the deceased taught him to mow lawns, remove weeds and care for gardens and that he would visit her almost every day to check in on her. From around 1961 to 1969, he says that the deceased and Mr Tindale took him to Lake Macquarie most years for one to two weeks for holidays and the deceased paid for his trips.

170. Mr Purnell also gives evidence that during this period, his mother forgot that she had left him to be cared for by the deceased or that Mr Purnell was staying at the Chelmsford Ave house and would demand that he go home with her. He recalls being scared of his mother when “she was intoxicated or abusing drugs”.

171. As to Mr Purnell’s evidence about the period between 1954 and 1956, when he was between the ages of one and three, as noted at [39], Mr Purnell accepted that he did not have an actual memory about certain matters and relied on what others told him and his feelings about what happened. To the extent his evidence is that he can recall, I do not accept Mr Purnell’s evidence to be a reliable account based on his own memory.

172. I am also unpersuaded by Mr Purnell’s explanation in cross-examination that his evidence that he stayed at the Chelmsford Ave house for periods during this time or that his mother forgot him and then demanded him back accurately reflects what he was told by the deceased and his father. That explanation was not referred to in Mr Purnell’s affidavit evidence and relies on statements from persons who cannot be called to corroborate them.

173. There is also Mr Tindale’s evidence that the deceased never said to him or suggested that she had cared for Mr Purnell between 1954 and 1956 or that she cooked, bathed, clothed or toilet trained him during that period. While not direct evidence or in any sense determinative, I have taken it into account as, in my view, it reflects the tenor of the evidence given by Ms Davies which I deal with below, at [184]-[188].

174. As to the period from 1957 to 1969, as noted at [40], Mr Purnell accepted that he had difficulty recalling aspects of his evidence. While not surprising given the passage of time, Mr Purnell’s evidence was also of a very general nature, referring to being over at the Chelmsford Ave house “a lot”, for a “few days” or “weeks”. There are also other aspects of Mr Purnell’s evidence regarding this period which were shown to be incorrect or undermined.

175. For example, his evidence that the deceased was living alone from 1960 and he visited her almost every day was shown to be incorrect and undermined by the evidence that the deceased’s mother lived with the deceased until she passed away in 1961; Ms Davies’ evidence that from October 1961 to February 1962, the deceased stayed with her family in Woombye, Queensland and then Ms Davies stayed with the deceased in Sydney; and the evidence that the deceased took in boarders to live with her, the first of which were the McDonald family.

176. Mr Purnell’s evidence that boarders (the McDonald family) left the deceased’s house and returned to England in 1960 was also incorrect. Ms Davies’ contemporaneous diary referred to them leaving on 14 January 1963, the day that Mr Tindale moved in to the Chelmsford Ave house.

177. Mr Purnell also had no memory of another boarder who lived at the Chelmsford Ave house at the same time as Mr Tindale, a Mr Jennings, yet Mr Purnell asserts that he visited almost daily and had his own bedroom at the Chelmsford Ave house during that period (T43:17 – 24, Affidavit, Wendy Davies, 5 November 2018, at [14]). He also could not recall whether he stayed at the Chelmsford Ave house after Mr Tindale moved in (T38:13-15), could not recall leaving for school after spending the night at the Chelmsford Ave house (T38:47-39:18) and suggested that he only left to go to school from there before Mr Tindale moved in when he was in kindergarten or first class (T 38:40-45).

178. His evidence that he was paid between $5 to $10 for gardening work when he was a young boy was also tested, undermined and shown to be based on a faulty memory (T41:11-32).

179. Mr Purnell’s evidence that he noticed that the deceased was lonely living at the Chelmsford Ave house alone from 1960, that he was worried about her when her mood would dip and she would become sad and depressed and that he would visit her almost every day to check in on her is also implausible given he was also only six or seven at the time.

180. Mr Tindale and Ms Davies’ evidence also raises, in my view, significant doubts that Mr Purnell regularly stayed overnight or for extended periods at the Chelmsford Ave house during his childhood, and doubts about Mr Purnell’s evidence regarding this period and the nature of his relationship with the deceased more generally.

181. Mr Tindale’s evidence that Mr Purnell did not spend the night, live or stay at the Chelmsford Ave house at any time after he commenced living there with the deceased directly contradicts Mr Purnell’s evidence that he stayed overnight during the period from 14 January 1963 to 1969. As does Mr Tindale’s evidence that Mr Purnell did not have his own bedroom or keep clothes at the Chelmsford Ave house and there was no occasion when he appeared to go to school from there. I prefer Mr Tindale’s evidence to that of Mr Purnell.

182. Mr Tindale also gives evidence that, from the time he moved in, the deceased never made mention of Mr Purnell staying over.

183. I also consider it to be very unlikely that if, during the period from 1957 to January 1963, Mr Purnell stayed overnight at the Chelmsford Ave house with the deceased as regularly and depended on the deceased for the reasons he says he did (being to seek refuge from his mother and obtain the love and support from his “real mum”), he would cease staying there at the age of nine when Mr Tindale moved in as a boarder.

184. Ms Davies evidence, which was not challenged and which I accept, is that, until January 1964, she spent a substantial part of each summer school holiday staying at the Chelmsford Ave house (with the exception of the summer of 1960-1961) and that each winter the deceased (and her mother while she was alive) would visit her family in Queensland.

185. She also gives evidence that Mr Purnell did not live or sleep over at the Chelmsford Ave house while she was there, that he visited the Chelmsford Ave house from time to time during the period 3 January 1962 to 1 February 1962, and also accompanied her and/or her brother on a few outings in the summers of 1963 to 1964.

186. Ms Davies stayed at the Chelmsford Ave house from 20 December 1962 to 24 January 1963, and records 14 January 1963 as the day on which Mr Tindale moved in as a boarder in her diary, an extract of which was in evidence. Ms Davies’ evidence is that, during that period, Mr Purnell did not live or sleep over at the Chelmsford Ave house. She also gives evidence that during this period, the deceased referred to Mr Purnell as “her little boy” but did not say anything to her which suggested that Mr Purnell had lived or was living at the Chelmsford Ave house or that he stayed overnight there.

187. Ms Davies produced letters from her and Mr Purnell’s grandmother. The letter dated 29 August 1958 refers to “Johnnie B Purnell” coming round to us nearly “every day” and “Emily Anne & Matthew... staying with us for a few days”. The letter dated 24 November 1958 refers to the deceased taking “Johnny” and his sister (Emily Anne) for a walk, taking them “home to 21 Waimea Road” and giving them “their tea for Auntie Emily”.

188. In cross-examination, Mr Purnell did not accept that the reference in the 29 August 1958 letter to “Johnny B Purnell” was a reference to him. I accept there is doubt about that given Mr Purnell’s middle name is “Inglis” and the 24 November 1958 refers to “Johnny”, which I accept to be a reference to Mr Purnell.

189. In cases involving events many years ago, such as this, contemporaneous documents usually provide valuable and more revealing information than what can be considered to be flawed attempts at recollection of facts by persons with an interest in the outcome of litigation, particularly where they have been prepared by a person with no reason to mis-state the facts: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247].

190. Counsel for Mr Purnell submits that Ms Davies’ evidence is not inconsistent with Mr Purnell being a member of the deceased’s household as he likely stayed at the Chelmsford Ave house at times when Ms Davies was not there. He also relies on Ms Davies’ evidence that in 1962 the deceased referred to Mr Purnell as “her little boy” as evidence that they had a relationship akin to a mother and son. I am not persuaded by those submissions.

191. If Mr Purnell stayed overnight at the Chelmsford Ave house as regularly and for the reasons he suggests, namely to escape his mother and obtain emotional support from the deceased, it might be expected that he would have visited more regularly than from time to time and stayed overnight during at least one of Ms Davies’ visits. It might also be expected that the deceased would have made mention of Mr Purnell staying at the Chelmsford Ave house for some period or periods at other times to Ms Davies or to Mr Tindale. Their evidence is that she did not do so.

192. The combination of Ms Davies’ testimonial evidence and the contents of her diaries and her grandmother’s letters are, in my view, revealing and persuasive as they do not refer to Mr Purnell visiting the deceased or staying overnight at the Chelmsford Ave house. Rather, the only contemporaneous documentary evidence refers to Mr Purnell’s home as his parents’ home in Waimea Road. It also refers to other nieces and nephews staying overnight at the Chelmsford Ave house, which is consistent with the tenor of Mr Tindale’s and Ms Davies’ evidence that the deceased loved children and often had her nieces and nephews to stay.

193. I am also not persuaded by the suggestion that the deceased’s reference to Mr Purnell as “her little boy” demonstrates that the deceased considered Mr Purnell to be akin to a son or that the deceased had taken on the role of loco parentis. In my view, it is equally open to conclude that the statement was made as a sign of affection by a loving aunt who spent time with her nephew as a child. Even as a statement that speaks to a close and loving relationship between the deceased and Mr Purnell at that time, it does not say anything about whether Mr Purnell lived with or stayed overnight at the Chelmsford Ave house with the deceased on a regular or permanent basis or whether he was dependent on her.

194. Based on all of the above matters, I am not persuaded that Mr Purnell’s evidence establishes that, during the period from 1954 to 1956, he lived at the Chelmsford Ave house for indefinite periods of time, stayed there for some weeks or that he stayed there overnight on a regular basis. I have concluded that it is more likely that, during that period, Mr Purnell was taken by one or other of his parents to visit the Chelmsford Ave house and that he may have stayed there overnight on occasion when needs arose but not on any regular basis. I accept that he visited or stayed overnight at the Chelmsford Ave house and the deceased and/or his grandparents provided Mr Purnell with the care required of a child between the ages of one and three.

195. As to 1957 to 19 December 1962, I accept that Mr Purnell frequently visited the deceased at the Chelmsford Ave house during that period. I also accept that he stayed overnight and likely stayed for a period of a week or more on occasion, as other of the deceased’s nieces and nephews did. I am not satisfied that the evidence demonstrates that Mr Purnell stayed overnight for days or weeks on anything other than on an intermittent basis.

196. During this period, the evidence also demonstrates that the deceased assisted Mr Purnell’s mother by looking after Mr Purnell and his siblings on occasion, sometimes at the Waimea Road house.

197. I do not accept that the middle bedroom was set aside for Mr Purnell as his own bedroom during his childhood. Rather, I conclude that the middle bedroom was available for all visiting relatives, such as Ms Davies and her brother, Mr Purnell’s siblings, as well as Mr Purnell, and may have been used by boarders for part of that period.

198. I accept that when Mr Purnell visited and stayed overnight, the deceased provided him with the care required of a child between the ages of four and nine and also provided Mr Purnell with love and emotional support.

199. As to the period from 19 December 1962 to 1969, I find that Mr Purnell was a regular visitor to the Chelmsford Ave house but did not stay there overnight. He went on outings with the deceased and Mr Tindale and also went on holiday with them.

1970’s to 1980’s

200. Mr Purnell’s evidence is that he lived at the Chelmsford Ave house for two later periods. In his affidavit evidence, he says that the first period was sometime in 1976, after his first marriage breakdown, when he claims to have lived between his parents’ house at Waimea Road and the Chelmsford Ave house but cannot recall the exact duration he stayed at each of them.

201. The second period is from around the middle of 1983 to the end of that year for a period of about eight months.

202. In cross-examination, Mr Purnell’s evidence was that he stayed at the Chelmsford Ave house for a period between marriages in the veranda room for what might have been a couple of months but he did not have a clue “as to what year” (T37:43-49).

203. As noted at [59]-[61], Mr Tindale’s evidence directly contradicts Mr Purnell’s evidence that he stayed overnight or lived at the Chelmsford Ave house during the later periods. I prefer Mr Tindale’s evidence to Mr Purnell’s for the reasons I have earlier explained.

204. As to Mr Purnell’s claim that the deceased provided him with financial support later in life, his evidence is that, in or around 1983, the deceased became aware that he was short of money and that she used to give him between $20 and $50 when he visited her. He says that, during one of his visits to the deceased in or around late 1993, she told him she would love to give him more money but said that Mr Tindale would get “mad at me”. He also claims that the deceased would usually give him $20 when he visited during the later periods, after 1984, and on special occasions such as birthdays and Christmas, she would give him $50 or more.

205. Mr Tindale was aware that the deceased gave Mr Purnell cash up to $50 on occasion in the period from 1971 to 1983, during the time of his first and second marriages, but claims that she did not do so during his third marriage.

206. I find that Mr Purnell visited the deceased at the Chelmsford Ave house on regular occasions up until 1989 but did not stay overnight or for lengthy periods of weeks or months in the 1970’s or 1980’s. I accept that the deceased gave cash to Mr Purnell, in amounts of $20 and $50 on occasion, most likely during 1983, and also gave him cash gifts on special occasions such as birthdays, Christmas and weddings.

Consideration and determination on eligibility

207. Mr Purnell submits that his evidence establishes that, for a number of years during his childhood, he lived between his parents’ house in Ryde and in Waimea Road and the Chelmsford Ave house, and that he depended on the deceased like a mother. He submits that it establishes that he had an especially close relationship with the deceased and relies on Ms Davies’ evidence that, in 1962, the deceased referred to Mr Purnell as “her little boy”. He also submits that the evidence establishes that the deceased provided accommodation to him as an adult and that Mr Purnell depended on her financially for the cash gifts of between $20 and $50 given to him when he visited her and on special occasions such as his birthday or Christmas.

208. Mr Tindale takes issue with Mr Purnell’s claims that he was someone who was dependent upon the deceased and that he formed part of the same household as the deceased. He disputes Mr Purnell’s evidence that he lived for periods at the Chelmsford Ave house but accepts that Mr Purnell and the deceased had a long relationship dating back to his childhood and that Mr Purnell had a deep affection for her (T71:20-23).

209. Mr Tindale also submits that, even if the Court were to accept Mr Purnell’s evidence, it is not sufficient to establish the degree of continuity and permanency of living arrangements required by the authorities and that Mr Tindale has not established dependency.

210. Based on my conclusions on the evidence at [194], I am not satisfied that Mr Purnell has established that he was a member of the same household as the deceased during the years 1954 to 1956 or after 19 December 1962.

211. Mr Purnell’s visits to the Chelmsford Ave house during the years 1954 and 1956 were not accompanied by regular overnight stays: Bezjak v Wyatt [2018] NSWSC 199 at [79]; Wagstaff v Wagstaff (Supreme Court (NSW), Windeyer M, 6 November 1991, unrep) at 5.

212. Based on Ms Davies’ and Mr Tindale’s evidence, I have found that Mr Purnell did not stay overnight at the Chelmsford Ave house after 19 December 1962. Thus, he could not be said to have lived or resided at the Chelmsford Ave house as a member of the household between 19 December 1962 and 1969 or during the later periods.

244. Clearly the deceased considered Mr Purnell as someone who should be recognised in her will and obtain some benefit from her estate. That Mr Purnell was the deceased’s only relative that received benefaction suggests that the deceased recognised a closer relationship with Mr Purnell to that which she had with her other nieces and nephews. To my mind, that recognition evinces the deceased’s acknowledgement of Mr Purnell as being her “favourite nephew”, that they had a close and loving relationship and, perhaps, that the deceased recognised that Mr Purnell had faced challenges in life and may have needs in the future.

245. While neither Counsel referred me to any particular case during submissions, the authorities recognise the significance of recognition in a will for the purposes of s 59(1)(b) of the Act: see for example, Diver v Neal [2009] NSWCA 54 at [31]; Estate Pascale [2016] NSWSC 443 at [29]; Dannawi v Dannaway [2019] NSWSC 1287 at [103]. In each of those cases, the Court considered the recognition of each plaintiff by the testator’s will to be persuasive on the question of whether there were factors warranting the applications made.

246. Mr Purnell’s evidence also suggests that he and the deceased formed such an emotional bond that meant he might have expected recognition in the deceased’s will.

247. On balance, these matters together would have led me to conclude that a fair-minded and objective observer would consider Mr Purnell to be a natural object of the deceased’s benefaction.

248. As to the submission that Mr Purnell has been left without adequate and proper provision as his enjoyment of the deceased’s benefaction has been postponed, I am not persuaded that this is a significant factor which warrants Mr Purnell’s application. To my mind, it is a submission that goes more to the question of the adequacy of the provision made by the deceased’s will rather than the question of whether Mr Purnell should be considered as a natural object of the deceased’s testamentary bounty: Lodin v Lodin [2017] NSWCA 327 at [13] and [126].

If Mr Purnell was an eligible person and there were factors warranting the application, would an order for provision have been made?

264. Had Mr Purnell satisfied me that he was an eligible person and having found there were factors which warranted making a family provision order, the next question is whether the Court would have made an order for provision in favour of Mr Purnell. 

265. The Court may make an order for Mr Purnell’s provision out of the deceased’s estate as the Court considers ought be made if it is satisfied that, at the time when the Court is considering the application, adequate provision for Mr Purnell’s proper maintenance, education or advancement in life has not been made by the deceased’s will: ss 59(1) of the Act.

266. The Court’s assessment is undertaken having regard to the facts known at the time when it is considering the application, and not when the deceased’s will was made, at the time of her death or the date on which the application for provision was first made. This is relevant in this case as Mr Purnell’s mother died and he became entitled to a significant legacy under her will between the deceased’s death and the hearing on 15 July 2019.

267. Section 60(1)(b) of the Act provides that the Court may have regard to a range of matters set out in sub-section (2) for the purposes of determining whether to make a provision order and the nature of such an order: Harris v Harris [2018] NSWSC 552 at [29].

268. The Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2) to which the Court may have regard for the purpose of considering whether adequate provision has been made for the proper maintenance and advancement in Mr Purnell’s life and determining whether to make a provision order and the nature of any such order.

269. A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the proper maintenance and advancement in Mr Purnell’s life: Sgro v Thompson [2017] NSWCA 326 at [6]-[7] and [66]-[67].

270. The relevant circumstances include a consideration of Mr Purnell’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs: Chan v Chan [2016] NSWCA 222 at [22].

271. Mr Purnell’s needs are different to his “wants” and do not simply equate to his “demands” or “desires”: Bezjak v Wyatt [2018] NSWSC 199 at [120].

272. Although the existence of needs which Mr Purnell cannot meet from his own resources is highly relevant, the issue to be determined is whether the disposition of the deceased's estate was not such as to make adequate provision for his proper maintenance and advancement in life.

273. The question of what is “adequate” and “proper” for Mr Purnell enables the Court to consider such matters as the ‘station in life’ of Mr Purnell, Mr Tindale and the deceased and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how they lived and might reasonably expect to have lived in the future, as well as the size and nature of the deceased’s estate, the totality of the relationship between Mr Purnell and the deceased, and the relationship between the deceased and Mr Tindale as another person who has a legitimate claims upon her bounty: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at 228; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 210.

274. Before considering Mr Purnell’s claim for provision, I also note that if any order for provision is to be made, it would need to be by way of a notional estate order as it is accepted that the deceased’s estate has been fully distributed.

275. Section 79 of the Act deals with the designation of property where the estate of the deceased has been distributed and relevantly provides:

79 Notional estate order may be made where property of estate distributed

The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

276. The hearing proceeded on the basis that the relevant property the subject of any notional estate order would be the Chelmsford Ave house. It is currently held by Mr Tindale on his own behalf as a beneficiary and as a person who has an exclusive right of occupation, as well as trustee for Mr Purnell’s interest in the Chelmsford Ave house, which is a vested interest in the house even though his right to possession or enjoyment of that property is postponed: Austin v Wells [2008] NSWSC 1266 at [12].

277. Section 87 of the Act relevantly provides that the Court must not make a notional estate order unless it has considered the following:

1. the importance of not interfering with reasonable expectations in relation to property,

2. the substantial justice and merits involved in making or refusing to make the order,

3. any other matter it considers relevant in the circumstances.

278. As is evident, s 87 prescribes that consideration of these factors is a threshold to making a ‘notional estate order’.

279. The parties also accept that, as Mr Purnell’s application was brought out of time and the Chelmsford Ave property has vested in interest to Mr Tindale and Mr Purnell as beneficiaries under the deceased’s will, the Court must also be satisfied that there are other special circumstances that justify the making of any notional estate order: s 90(2)(b) of the Act.

Consideration of Mr Purnell’s claim for provision

280. Mr Purnell seeks an order for provision by way of a lump sum payment of half of the net proceeds of sale of the Chelmsford Ave house, which at the value ascribed at the date of the hearing amounts to $1.25 million.

281. He claims that the current provision made in the deceased’s will is inadequate for his proper maintenance and advancement in life and that further provision should be made to enable him to pay for his future identified financial needs, the most important of which is to obtain security of suitable accommodation, being a one bedroom unit in Balmain. In support of that claim, Mr Purnell relies on his long and loving relationship with the deceased akin to mother and son, his poor health and financial needs.

282. Mr Purnell submits that Mr Tindale does not need a three bedroom house in Lindfield to himself, has income that currently meets his needs and would be in a position to buy a one bedroom unit in Lindfield with 50% of the sale proceeds of the Chelmsford Ave house.

283. Mr Purnell also submits that, by granting Mr Tindale a right to occupy and possess the Chelmsford Ave house for life, the deceased may have effectively deprived Mr Purnell from enjoying what she intended him to receive under the will, being a 50% interest as a joint tenant.

284. If Mr Purnell was an eligible person and there were factors warranting his application, it would have been because the evidence established that he had a special relationship with the deceased, having lived with and been dependent on her for various periods of his life, most likely during his childhood. Those factors would have made him a natural object of her testamentary bounty. But even if that were so, I would not have concluded that Mr Purnell had not been left with adequate provision for his proper maintenance and advancement in life from the deceased’s estate.

285. This is not a case where the deceased made no provision for Mr Purnell. Rather, the deceased has provided him with a significant legacy, being a 50% interest in the Chelmsford Ave house. That legacy has, however, been deferred for the reason set out in the deceased’s will; namely, the deceased wished to ensure that Mr Tindale, her close companion, could continue to live in the Chelmsford Ave house, the place that had been their home for over 50 years when she died.

286. While the deceased’s testamentary intentions are but one factor, I accept Mr Tindale’s submission that the terms of the deceased’s will makes clear that the deceased gave real and due consideration to the competing claims on her estate and what she should do with her main asset, namely the Chelmsford Ave house, as between Mr Purnell and Mr Tindale.

287. I consider that considerable weight should be given to the deceased’s testamentary intentions in this case as the deceased was the person who was in the better position to assess her obligations based on her knowledge of the nature of her relationships with Mr Purnell and with Mr Tindale. Her will recognises her obligation to provide for Mr Tindale as well to Mr Purnell, although Mr Purnell’s benefaction was to be received sometime in the future: Slack v Rogan;Palffyv Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]; Sgro v Thompson [2017] NSWCA 326 at [86]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [50]-[51] and [89].

288. That is not to say that I approached this case on the basis that the deceased’s testamentary freedom should not be interfered with. Rather, it is to recognise that when making her will the deceased did not overlook her relationship with Mr Purnell but made a judgment based on what she considered to be appropriate at the time in the context of her relationship with Mr Tindale.

289. The evidence does not suggest that the nature of the deceased’s relationships with Mr Tindale and Mr Purnell changed after the deceased made her will such that Mr Purnell should be recognised by the deceased’s will in some other way. To the contrary, the evidence indicates that Mr Tindale continued to be a loving and close companion to the deceased and then became her carer.

290. In contrast, the evidence indicates that Mr Purnell’s contact with the deceased was sporadic after 2000. There is also evidence that some of Mr Purnell’s later contact with the deceased caused her distress.

291. Accepting that Mr Purnell’s relationship with the deceased prior to 2000 was close and she considered him to be, at least during Mr Purnell’s childhood, a special person in her life, it was a relationship of loving aunt and nephew. Even on Mr Purnell’s evidence, the periods that Mr Purnell lived with the deceased, including during his childhood, were intermittent and brief, and the financial support she gave him was minimal and ad hoc.

292. Mr Purnell ordinarily lived at his parents’ house during his childhood and relied on his mother to provide him with accommodation when he had needs later in life, such as after his motorbike accident in the 1970’s and when he had mental health issues in 2009-2010. I also do not regard the deceased’s gifts of some furniture and cash later in Mr Purnell’s life as evidence that the deceased assumed some parental-like responsibility or had any social, moral or domestic obligation to provide for Mr Purnell while she was alive.

293. In my view, the deceased was also under no legal or other obligation to provide for Mr Purnell.

294. There is also no evidence that Mr Purnell contributed in any way to the deceased’s estate. Nor do I consider that could it be said that, as an adult, Mr Purnell contributed to the deceased’s welfare. That role was taken on solely by Mr Tindale.

295. There is no doubt that Mr Purnell had had a difficult life and has significant needs, even allowing for some adjustments for the reasons referred to at [88]-[100].

296. The evidence relating to Mr Purnell’s circumstances also demonstrates that his health and financial position deteriorated after the deceased made her will in December 2000.

297. That said, the deceased was aware at the time she made her will that Mr Purnell had experienced challenges in his life as a result of his marriage break downs, and that he had health and financial issues. She was also aware of Mr Purnell’s significant needs later in life, yet there is no evidence that she provided him with anything of substance to assist him or that she recognised any obligation to do so while she was alive, such as providing him with accommodation at the Chelmsford Ave house, as one might expect if their relationship was akin to mother and son.

298. Another very relevant factor in this case is that Mr Purnell has received a significant bounty, of more than $1 million, from his mother’s estate since the deceased’s death and these proceedings were commenced. This is not a case where Mr Purnell’s mother, the person who ordinarily would be regarded as having the social, moral and domestic obligation to provide for Mr Purnell, was unwilling or unable to do so. Mr Purnell is the recipient of a significant legacy from her estate, as are his siblings.

299. Even if I were to accept that Mr Purnell considered the deceased to be like a mother and they had a special relationship, I do not consider that the deceased was morally obliged or that community standards would expect her to provide funds to enable Mr Purnell to acquire an unencumbered unit in Balmain, particularly where there was someone else, in this case his actual mother, who had provided him with a significant sum that means he is now not destitute: Taylor v Farrugia [2009] NSWSC 801 at [57] and [58].

300. As I have also found, Mr Purnell was not financially dependent on the deceased throughout his life. That he does not, now, own his own home, was not caused by the deceased because of some lack of provision by the deceased in the past.

301. Although not sufficient to pay for a two bedroom unit in Balmain, what remains from the legacy from Mr Purnell’s mother’s estate should be sufficient to meet his estimated and adjusted needs if he were to stay in his current unit, which I consider to be an option for Mr Purnell. Mr Purnell’s cash reserves might also be sufficient if he chose to move out of the Balmain area or to alternative accommodation that might be better suited to his longer term needs, although no evidence was led on the cost of such housing.

302. Mr Purnell gave evidence that he doesn’t “want to go somewhere else” and that he “[doesn’t] want to move out of the area at all” (T51:17-23) and Ms Woods’ report identified some benefits to him staying in the Balmain area. But Mr Purnell’s claimed desire to stay in Balmain is to be assessed and weighed in the context of his claim for provision that would, if granted, result in Mr Tindale having to move from his home of more than 50 years, somewhere he also gave evidence that he does not want to leave.

303. There is no doubt that Mr Tindale is, compared to Mr Purnell, in an overall better financial position as he will benefit from living at the Chelmsford Ave house rent-free, albeit with responsibility for payment of all outgoings and maintenance of the house. Mr Tindale’s current monthly income covers his estimated outgoings, although his cash producing assets are valued at less than the cash available to Mr Purnell from what remains from Mr Purnell’s mother’s estate. That said, Mr Tindale’s competing claim is not founded only upon a competing financial need or for continuing accommodation, but on his relationship with the deceased and contributions to her welfare, both financially and in other ways, particularly during the deceased’s declining years.

304. Mr Tindale’s relationship with deceased was her most significant and enduring one, akin to a de facto relationship, and was expressly recognised by the terms of the deceased’s will.

305. The role of the Court is not to achieve “an overall fair” or equal disposition of the deceased’s estate between Mr Tindale and Mr Purnell: Gorton v Parks (1989) 17 NSWLR 1 at 6.

306. In that context, I do not accept Mr Purnell’s submission that Mr Tindale has had “a good go” over the years, including because he has already enjoyed three years of uninterrupted occupation of the Chelmsford Ave house since the deceased died, and that he will not be unduly prejudiced if the Chelmsford Ave house had to be sold, to be persuasive.

307. Nor do I find persuasive Mr Purnell’s submission that Mr Tindale’s right to occupy for life might have the effect of defeating entirely what the deceased intended Mr Purnell to receive under the will. Leaving to one side the speculative nature of that submission, the terms of the will make clear what the deceased intended, which was for Mr Tindale to have security of accommodation in the Chelmsford Ave house for as long as he wished. Implicit in granting Mr Tindale that right was an acceptance by the deceased that Mr Purnell’s enjoyment of her benefaction would be deferred, possibly for many years.

308. In making a determination whether to interfere with freedom of testation, the Court should consider the “moral duty” of a testator to make provision. There may not be much difference between what “community standards” expect a person in the position of the deceased to do by way of provision for the plaintiff and what the deceased is morally obliged to do in that respect: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44], [46] and [109].

309. In this case, I am not persuaded that the deceased was morally obliged or required by community standards to provide more to Mr Purnell that she did by way of her testamentary disposition having regard to the circumstances of the case as at the date of the hearing.

310. The remaining legacy provided to Mr Purnell from his mother’s estate is significant and should, other than buying a unit in Balmain, meet his needs. In that regard, I note Mr Purnell chose to significantly deplete his mother’s legacy by incurring the costs of these proceedings.

311. Mr Purnell’s relationship with the deceased was close and he may have been a special person in her life, but the relationship was evidenced by Mr Purnell staying with the deceased during his childhood for short and intermittent periods, regular visits and sporadic contact in later years. While the value of the “estate” is not small, it comprises the Chelmsford Ave house which is the home that the deceased shared with Mr Tindale, her closest companion and carer, for over 50 years and to which Mr Tindale has made contributions during the course of their very long relationship.

280. It follows that if I had found Mr Purnell to be eligible and there were factors that warranted his application, I would not have been satisfied that, having regards to all the facts known at the date of the hearing of the application, adequate provision for Mr Purnell’s proper maintenance and advancement in life had not been made by the deceased’s will and I would have declined to make an order for his further provision by way of a notional estate order.

281. If I was wrong to conclude that adequate provision had not been made by the deceased for Mr Purnell’s proper maintenance and advancement in life, I would not have accepted the amount of provision as sought by Mr Purnell to be proper. For Mr Purnell to receive 50% of the sale proceeds of the Chelmsford Ave house would result in Mr Purnell receiving about $1.25 million (and having total cash assets of over $2 million), more than required for adequate provision for Mr Purnell’s proper maintenance and advancement in life in the circumstances of this case.

282. In my view, a much smaller amount, say of $250,000, would be adequate and proper provision to be made in this case for his maintenance in life as a contribution towards the cost of his ongoing care, noting that Mr Purnell could also expect to receive the balance of his benefaction under the deceased’s will at a later time.

Should a notional estate order be made?

315. As I am not satisfied that adequate provision had not been made by the deceased for Mr Purnell’s proper maintenance and advancement in life, the question of whether a notional estate order should be made does not arise. As submissions were made at the hearing, I have provided my reasons in a shortened form on the issues raised by the parties.

316. The first question is whether, having regard to the factors in s 87 of the Act, the Court would make a notional estate order.

317. Mr Tindale relies on s 87(a) of the Act, namely, the importance of not interfering with his reasonable expectations in relation to the Chelmsford Ave house. He submits that, having lived there for so long, Mr Tindale has reasonable expectations that he would continue to be able to do so until he died or was unable to stay there.

318. Mr Purnell disputes this. He submits that it is not reasonable for Mr Tindale to expect to continue to live in the Chelmsford Ave house given its size and he is the only occupant. He also argues that Mr Tindale has had “a good go” and “done well” over the years as the deceased made a huge amount of provision to Mr Tindale during his life, accepting that he provided companionship in return.

319. The expectations of Mr Tindale and the deceased are relevant and appropriate to take into account: John v John [2010] NSWSC 937 at [118] to [120]; Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [105]-[109] (Beazley P, as Her Excellency then was, and with whom Meagher JA relevantly agreed).

320. In my view, Mr Tindale’s expectation that he would be able to remain in the Chelmsford Ave house after the deceased’s death having lived there with the deceased for over 50 years, contributing to the household on an ongoing basis and providing loving care and companionship to the deceased was a reasonable one.

321. While perhaps not in the same position as a surviving spouse who had purchased the Chelmsford Ave house with joint funds, Mr Tindale’s relationship and role in the deceased’s life was a most significant and enduring one, and was expressly recognised by the terms of the deceased’s will. Mr Tindale is 80 years old and his expectation that he would have the security of remaining in his very long term home, rather than having to move to new accommodation for who knows how long, is reasonable: Doyle v Smith (Supreme Court (NSW), McLaughlin M, 21 September 1994, unrep).

322. While not a determinative factor, there is also evidence that Mr Tindale has spent his own money on installing security doors and other security items at the Chelmsford Ave house in early 2018, and that he spent the money in the expectation that it would continue to be his home. Relevantly, Mr Tindale spent that money after the prescribed period expired for Mr Purnell to make a claim and Mr Purnell had sent his 22 February 2017 email advising that he would not be challenging the deceased’s will. While the amount spent by Mr Tindale was small, at the time he did so, Mr Tindale could have reasonably expected Mr Purnell would not be making a claim.

323. As to Mr Purnell’s expectations, to the extent they are relevant, his evidence is that during his last conversation with the deceased, he told her that he did not want her to give him anything (Affidavit, John Purnell, 4 September 2018 at [135]), which might suggest that he did not expect to obtain an immediate interest in the Chelmsford Ave house on the deceased’s death.

324. For these and my reasons for concluding that adequate provision for Mr Purnell’s proper maintenance and advancement in life had been made by the deceased’s will, in my view, the justice and merits of this case also dictate that a notional estate order should not be made in favour of Mr Purnell that would require Mr Tindale to leave the Chelmsford Ave house and for it to be sold.

325. In coming to this conclusion, I note that no submission was made, nor evidence led, as to the prospect of obtaining finance against the Chelmsford Ave house to enable a lump sum payment of provision to Mr Purnell of $250,000 to be made some way other than by sale of the Chelmsford Ave house, such as via a reverse mortgage. If such an option had been advanced, then my conclusion as to whether to refuse to make a notional estate order may have differed. Such an amount and any interest could, presumably, be deducted from the value of Mr Purnell’s interest in the Chelmsford Ave house as and when his entitlement to enjoy his interest fully accrued.

326. The second issue in dispute is whether Mr Purnell has established there were other special circumstances that justify the making of any notional estate order: s 90(2)(b) of the Act.

327. The authorities indicate that more is required to establish special circumstances than to justify an extension of time; the latter requires sufficient cause to be shown. That said, to establish such special circumstances, does not require the court to exclude circumstances considered under s 58(2) of the Act: Campbell v Chabert-McKay [2010] NSWSC 859 at [86]; Stone v Stone [2016] NSWSC 605 at [71].

328. Other special circumstances may exist for the purpose of s 90 notwithstanding that there has been a change in beneficial ownership in the Chelmsford Ave house by reason of the facts surrounding the property in question and the identity of the person or persons to whom the property has been distributed: Vaughan v Curran [2019] NSWSC 1562 at [43] (Emmett AJA, sitting at first instance).

329. Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual. They need not be unique: Charnock v Handley [2011] NSWSC 1408 at [89] (Hallen AsJ, as his Honour then was); Campbell v Chabert-McKay [2010] NSWSC 859 at [91].

330. In written submissions and during oral closing submissions, Mr Tindale’s Counsel submitted that Mr Purnell had not identified any special circumstances in this case.

331. In closing oral submission in reply, Mr Purnell’s Counsel argued that the special circumstances that justify the making of the notional estate order in this case are that Mr Purnell’s enjoyment of the benefaction under the deceased’s will has been postponed until the time when Mr Tindale leaves the Chelmsford Ave house, with the risk that Mr Purnell may never get to enjoy it, and there are personal and financial circumstances which warrant him having access to some of the proceeds of the Chelmsford Ave house now.

332. If I had concluded that further provision should be made for Mr Purnell, I would have been satisfied that special circumstances exist that would justify the making of a notional estate order under s 90(2) of the Act. In addition to sufficient cause having been shown for the lateness in bringing this application, the Chelmsford Ave house is the only asset out of which further provision for Mr Purnell could be made, the only dealing with the Chelmsford Ave house after the deceased’s death has been to transfer title to Mr Tindale, and Mr Purnell already had a vested interest in the Chelmsford Ave house.

Costs and orders

333. The parties did not address on the issue of costs and so the following takes into account the circumstances of the case as I know them.

334. While the usual rule that costs follow the event applies to family provision proceedings, the award of costs is a matter in the exercise of the Court's discretion, which is unfettered other than to exercise it judicially: Civil Procedure Act2005 (NSW), s 98(1); Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

335. The Court has also recognised that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course in accordance with the rules referred to above. As noted by Gaudron J in Singer v Berghouse (1993) 67 ALJR 708; [1993] HCA 35 at 709:

Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the [Family Provision] Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate. (citations omitted)

336. It has also been recognised that family provision cases often involve elements of judgment and discretion and can involve parties who are more concerned with vindicating their position than resolving the dispute as efficiently and cost-effectively as possible: Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 at 273, 278.

337. Mr Purnell’s claim could not, in my view, be described as frivolous or without any prospects of success. It is also a case in respect of which minds may differ, which is often the position in family provision cases.

338. Mr Purnell is not currently in a financial position to readily meet an order to pay for Mr Tindale’s legal costs, which are estimated to $76,000 on an ordinary basis. While there are funds available from the remainder of his mother’s legacy, to require him to pay those costs would see Mr Purnell’s limited financial reserves reduced by approximately 10%.

339. In those circumstances, my view is that the overall justice of the case requires that the usual rule that costs follow the event should not apply and that no order should be made for Mr Purnell to pay Mr Tindale’s costs.

340. As to Mr Tindale’s costs as executor, as the estate has been fully distributed and I have not made any family provision order, Mr Tindale will bear his own costs of the proceedings.

341. Accordingly, I propose to make no order as to costs with the intent that each party is to pay their own costs of the proceedings. I will, however, defer entry of that cost order for 14 days to enable the parties an opportunity to consider these reasons and whether they wish to seek a different order. If either party wishes to do so, they should confer with the other party as to a timetable for the exchange of short written submissions and whether they are content for me to deal with the issue on the papers and notify my chambers by 1 July 2020.

342. For these reasons, the Court makes the following orders:

1. Pursuant to s 58(2) of Succession Act 2006 (NSW), the time for the making of the plaintiff’s application for a family provision order be extended to 12 July 2018.

2. Dismiss the plaintiff's claim for provision out of the deceased’s estate.

3. Unless either party makes an application for a different costs order within 14 days, there be no order as to costs with the intent that each party is to bear their own costs of the proceedings.

Amendments

27 July 2020 - Jurisdiction inserted.

Decision last updated: 27 July 2020