Re Estate Grant, deceased

[2018] NSWSC 1031

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Estate Grant, deceased [2018] NSWSC 1031

Hearing dates:

3 and 4 April 2018

Date of orders:

16 July 2018

Decision date:

05 July 2018

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

(1) A Will made by the deceased shortly after dissolution of his first marriage was not “made in contemplation of” his second marriage within the meaning of the Succession Act 2006 NSW, section 12(3), with the consequence that it was revoked upon his re-marriage, and he died intestate.

(2) On terms as to the time within which an election must be made and the price to be paid, the deceased’s widow granted, pursuant to section 117(2) of the Succession Act 2006, an extension of time within which to make an election to acquire property from the deceased’s estate.

(3) A stepson of the deceased, treated by the deceased as a son, granted family provision relief, under Chapter 3 of the Succession Act, in the form of a legacy of $750,000.

Catchwords:

SUCCESSION – Wills, probate and administration – Wills made in contemplation of marriage – Whether deceased’s will revoked by second marriage – No express terms referring to marriage between the deceased and his widow – Where deceased expressed a desire to exclude his first wife and an estranged stepchild of his first marriage – Whether the deceased, at the time of making his will, had in mind again taking on a legally recognised status of marriage – No contemplation of second marriage – Deceased’s estate to be administered as intestate

 

SUCCESSION – Wills, probate and administration – Intestacy – Spousal right of election to estate property – Whether an extension of time should be granted – Whether sufficient cause – Whether appreciation in the value of estate property prejudiced other beneficiaries if election made – Extension granted on terms

  SUCCESSION – Family provision and administration – Failure by testator to make sufficient provision for the applicant – Stepson raised by the deceased as his own child – No contest as to entitlement to provision – Designation of notional estate despite ample actual estate – Whether superannuation entitlement should be designated as notional estate to satisfy family provision relief – Special circumstances required – Where designation would facilitate administration of the deceased’s estate – Notional estate designated – Family provision order made.

Legislation Cited:

Civil Procedure Act 2005 NSW
Conveyancing (Amendment) Act 1930 NSW, section 43(a)
Family Provision Act, 1982 NSW
Interpretation Act 1987
Interpretation Act 1987 NSW
Law of Property Act 1925 (15 George V, chapter 20), section 177
Marriage Act 1961 Cth
Succession Act 2006 NSW
Wills Act 1837 (Eng) (1 Victoria chapter 26), section 18

Cases Cited:

Andrew v Andrew (2012) 81 NSW LR 656
Banks v Goodfellow (1870) LR 5 QB 549
Berry v Bell [2012] WASC 197
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Churton v Christian (1988) 13 NSWLR 241
Commonwealth v Australian Capital Territory (Same Sex Marriage Case) (2013) 250 CLR 441
Dare v Furness (1998) 44 NSWLR 493
Fawcett v Crompton [2010] NSWSC 219
Goodman v Windeyer (1980) 144 CLR 490
Gray v Hart; Estate of Harris (No. 2) 2012 NSWSC 1562
Hoobin v Hoobin [2004] NSWSC 705
Hoobin v Hoobin (No 2) [2004] NSWSC 953
In Re Allen [1922] NZLR 218
In the Will of Page [1969] 1 NSWR 471; (1969) 90 WN (NSW) (Pt 1) 6
Layer v Burns Philp Trustee Co Ltd(1986) 6 NSWLR 60
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker (1957) 97 CLR 566
Mitchell v Gard (1863) 3 Sw & Tr 275
Permanent Trustee Co Limited v Milton (1995) 39 NSWLR 330
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Barker I [1995] 2 VR 439
Re Estate of O’Brien (Dec’d) (2011) 4 IR 687;
Re Estate Wilson, deceased (2017) 93 NSWLR 119
Re Fulop (1987) 8 NSWLR 679
Schneider v Sydney Jewish Museum Inc. [2008] NSWSC 1331
Singh v Singh [2008] NSWSC 715
Steel v Ifrah [2013] VSC 199; 38 VR 186
Warren v McKnight (1996) 40 NSWLR 390

Texts Cited:

NSW Law Reform Commission in Report 47 (1986) - Community Law Reform Program: Wills-Execution and Revocation , paragraphs 9.20-9.21
MS Willmott SC and CP Birtles, “Testamentary Dispositions – Wills and Codicils” (2016) 43 Australian Bar Review 62 at 82-83
Law Reform Commission Report 47, 9.20
De Groot and BW Nickel, Family Provision in Australia (Lexis Nexis Butterworths, Australia, 5th ed, 2017), paragraph [5.12]
NSW Law Reform Commission, Report 116 (Uniform Succession Laws: Intestacy, April 2007), paragraph 5.21. Cf, paragraphs 5.64 and 5.77

Category:

Principal judgment

Parties:

Proceedings 2016/00369836
Plaintiff: Katerina Grant (nee Pitsikas)
First Defendant: Jack Spencer Grant
Second Defendant: Grantrust Pty Ltd ACN 065 306 756

 

Proceedings 2016/00371991
Plaintiff: Maximilian Innes Grant
First Defendant: Katerina Grant
Second Defendant: Jack Spencer Grant
Third Defendant: Lewis McNeill Grant
Fourth Defendant: Grantrust Pty Ltd ACN 065 306 756

  Proceedings 2017/00141397
Plaintiff: Michael John Grant
First Defendant: Katerina Grant
Second Defendant: Jack Spencer Grant

Representation:

Proceedings 2016/00369836
Counsel:
Plaintiff: L Ellison SC
First Defendant: JE Armfield
Second Defendant: No appearance

 

Solicitors:
Plaintiff: Marsdens Law Group
First Defendant: Armstrongs
Second Defendant: No appearance

     

Proceedings 2016/00371991
Counsel:
Plaintiff: S Chapple
First Defendant: L Ellison SC
Second and Third Defendants: JE Armfield
Fourth Defendant: No appearance

 

Solicitors:
Plaintiff: Swaab Attorneys
First Defendant: Marsdens Law Group
Second and Third Defendants: Armstrongs
Fourth Defendant: No appearance

 

Proceedings 2017/00141397
Counsel:
Plaintiff: S Chapple
First Defendant: L Ellison SC
Second Defendant: JE Armfield

  Solicitors:
Plaintiff: Swaab Attorneys
First Defendant: Marsdens Law Group
Second Defendant: Armstrongs

File Number(s):

2016/003698362016/003719912017/00141397

Judgment

INTRODUCTION

The Deceased

1. This judgment determines three related sets of proceedings (by an order of the Court, made with the consent of all parties, heard together) relating to the estate of David William Grant (“the deceased”) who was born in August 1960 and who died in Sydney on 14 December 2015, aged 55 years.

The Estate and Notional Estate of the Deceased

2. At core, there are competing claims to:

1. a net estate with an estimated current value of about $4.4 million (excluding personal effects); and

2. a superannuation fund (available to be designated as “notional estate” of the deceased in aid of a family provision order made under chapter 3 of the Succession Act 2006 NSW) with an estimated value of about $858,000.

3. These values are characterised as “estimates” in part because it is agreed between all parties that, in working out the Court’s orders, it will be necessary for adjustments to be made, accounting for the fact that, pending a determination of the proceedings, the superannuation fund is funding payments due on a mortgage charged against the title to the deceased’s principal asset. Since the deceased’s death, the fund has made mortgage payments totalling not less than about $69,000, reducing the available fund from about $858,000 to about $789,000 in the absence of adjustment.

4. The “principal asset” is a residential property in Queen’s Avenue, McMahon’s Point (a suburb of Sydney) which, at the time of the deceased’s death, was the family home of his second wife (now his widow) and himself. The property was purchased, and registered, in the name of the deceased. Beneficially, his estate holds a 94.8% share of the property and his widow holds the remaining 5.2% share.

The Parties and their Respective Proceedings

5. The principal contest in the proceedings is between the deceased’s widow (on the one hand) and (on the other hand) three adult sons of the deceased (particularly that one of the sons who is, in strict terms, a stepson) associated with his first marriage.

6. The deceased’s brother is a party to the proceedings, essentially in the interests of the three sons, insofar as he applies for a grant of probate in respect of a will made by the deceased on 3 January 2014 which names the three sons as the deceased’s sole beneficiaries (in equal shares), and him as executor.

7. Of the three sets of proceedings before the Court:

1. in the proceedings numbered 2016/00369836 (commenced by a summons filed on 9 December 2016), the deceased’s widow applies for a family provision order under section 59 of the Succession Act 2006 and (under section 117 of the Act) an order granting her an extension of time within which to make an election (under section 115 of the Act) to acquire property (namely, the deceased’s interest in the McMahon’s Point property) from the deceased’s (intestate) estate.

2. in the proceedings numbered 2016/00371991 (commenced by a summons filed on 12 December 2016, amended on 4 July 2017), the deceased’s stepson applies for a family provision order under section 59 of the Succession Act.

3. in the proceedings numbered 2017/00141397 (commenced by a statement of claim filed on 11 May 2017), the deceased’s brother applies for an order that letters of administration granted to the widow of the deceased and one of the deceased’s sons on 15 July 2016 (upon an assumption that the deceased died intestate) be revoked, together with an order that, as the executor named in the will of the deceased, he be granted probate of the will in solemn form.

The Central Question – A Question of Probate

8. The central question for determination in the proceedings, taken together, is whether, by operation of section 12 of the Succession Act:

1. the deceased’s will was revoked by his marriage to his second wife (his widow) on 19 September 2015 (section 12(1)); or

2. the will was “made in contemplation of a particular marriage” within the meaning of section 12(3) and, accordingly, exempted from revocation by a section 12(1).

9. The will was not expressed to have been made in contemplation of marriage; but, on the current wording of the Succession Act, that is not, of itself, an impediment to a finding that it was, in fact, made in contemplation of marriage.

10. The deceased’s widow contends that the will was not made in contemplation of marriage and, so, it was revoked by her marriage to the deceased.

11. The deceased’s brother and the three adult children of the deceased named as sole beneficiaries in the will contend that it was made in contemplation of the deceased’s second marriage and, accordingly, that it was not revoked by the marriage and it should be admitted to probate.

12. Although a grant of administration was made by the Court upon an assumption of intestacy:

1. the estate remains, in substance, unadministered; and

2. no interested person contends that the will should not be admitted to probate in the event that it is held not to have been revoked by marriage.

13. The original will cannot presently be located; but there is no dispute as to its terms, or (if not revoked by marriage) its validity.

Family Provision Applications Contingent on Determination of the Probate Question

14. Contingently upon the Court’s determination of the central question as to the validity of the deceased’s will, applications for family provision relief have been made by both the deceased’s widow and the stepson named in the deceased’s will as a beneficiary.

15. If the will is admitted to probate, the stepson does not press his application for family provision relief (because he is entitled to a one third share of the deceased ‘s estate as a beneficiary named in the will), but the widow presses her application for family provision relief (because she stands to acquire nothing under the will).

16. If the will is held to have been revoked, so that the estate is to be administered on an intestacy, the stepson presses his claim for family provision relief (because, as a stepson, he stands to acquire nothing under the intestacy rules for which chapter 4 of the Succession Act provides), and the widow does not press her family provision application (because, under chapter 4, she acquires the bulk of the deceased’s estate).

Other Family Provision Applications Withdrawn

17. In the proceedings numbered 2016/00371991 the two sons of the deceased (twins) were originally named as plaintiffs, together with their step brother, because they too made an application for family provision relief. However, they withdrew their claims for relief and, in the stepson’s amended summons, they are named as defendants rather than as co-plaintiffs.

18. They withdrew their family provision applications because: (a) if the deceased’s will is admitted to probate, they each take a one-third share of the deceased’s estate; and (b) if the will is held to have been revoked by marriage, so that the deceased’s estate is to be administered on an intestacy, then (under chapter 4 of the Succession Act) they each take a one-quarter share of the residue of the deceased’s estate after statutory allowances made in favour of the widow.

The Availability of the Deceased’s Superannuation Fund as Notional Estate

19. The trustee of the deceased’s superannuation fund is a corporation presently under the control of the administrators of his estate; that is, his widow and one of his twin sons. Given the competing claims made in the present proceedings, management of the company is deadlocked.

20. At the tail end of the final hearing of the proceedings, but with the consent of all concerned, the company was joined as a defendant in the proceedings in which family provision relief has been claimed. This was done so as to facilitate (if appropriate) an order for designation of the superannuation fund as notional estate of the deceased.

21. All parties agreed that the company be joined; that, in circumstances in which all interested parties are otherwise represented in the proceedings, any requirement for the company to file an appearance be dispensed with; and that, if required, the superannuation fund is available for designation as notional estate even if, as is common ground, the deceased’s actual estate is of a size sufficient to bear the burden of any family provision order likely to be made.

FAMILY RELATIONSHIPS

Overview

22. The deceased was twice married. He had two children, and two stepchildren, by his first marriage; but he and one of his stepchildren were estranged. There were no children of his second marriage.

The Deceased’s First Marriage

23. Between 14 October 1989 and 5 November 2013 the deceased was married to Lisa. That marriage ended in divorce, preceded by a property settlement (as between the deceased and Lisa) formally approved by the Family Court of Australia. The date and terms of the property settlement are not in evidence.

24. For practical purposes, there are four children of the deceased’s marriage to Lisa. The deceased treated her two sons from an earlier relationship as sons of his own.

25. The deceased met Lisa in about 1987 or 1988. She moved into his home in February 1989. At that time she had two young children: Siegfried and Maximilian. In January 1990 they changed their surname to “Grant” to match that of the deceased.

26. Siegfried (“Zig”) was born in 1983 and is presently aged about 35 years. He and the deceased were estranged.

27. Maximilian (“Max”) was born in 1988 in the presence of the deceased. The deceased chose his name. He is presently aged about 30 years. He is the stepson named as a beneficiary in the deceased’s will. He is an applicant for family provision relief if the will is not admitted to probate.

28. Twin sons were born to the deceased and Lisa in 1990. They are presently aged about 27 years. Jackson (“Jack”) is the son to whom, with the deceased’s widow, a grant of administration of the deceased’s estate has been made. Lewis is the other twin.

The Deceased’s Second Marriage

29. The deceased’s second marriage, to Katerina, grew out of what was an extra marital affair between co-workers which commenced in 2006 (within a year or so of Katerina commencing employment with the deceased) and continued, intermittently, until he and his first wife finally separated in April 2012.

30. In retrospect, Katerina regards herself as having commenced living in a de facto relationship with the deceased in April 2012, notwithstanding that they had an “on again/off-again” relationship extending back to 2006 and they did live together for several months in 2011.

31. There is no real dispute between the parties that the deceased and Katerina did in fact live in a de facto relationship that commenced in April 2012, coincidently with the deceased’s final, formal separation from Lisa.

32. Although the deceased and Katerina can be taken to have commenced living in a de facto relationship in and from April 2012:

1. they maintained separate residences until November 2014 or thereabouts, when Katerina moved into the McMahon’s Point property. For several months before they commenced full time cohabitation at that property, in about November 2014, Max and Jack lived there with the deceased as part of a process of allowing the boys to bond with their father and to become acclimatised to his relationship with Katerina.

2. they did not immediately reveal their relationship to all members of their respective families or friends. Max was first introduced to Katerina as his father’s “girlfriend/partner” in about February 2014, though he had known her earlier as one of his father’s work colleagues. The first time the deceased’s good friend and solicitor (Mr GN Beattie) met Katerina was in about July 2014.

33. The deceased and Katerina collaborated in purchase of the McMahon’s Point property in 2013. It was bought in the name of the deceased, at an auction held on 26 October 2013, for a purchase price of $3.64 million. The purchase was completed on 25 November 2013. Stamp duty payable on the purchase contract was $195,310. Accordingly, the total amount paid for the property (not including legal costs) was $3,835,310. That sum was funded by: (a) a contribution of $2,635,310 made by the deceased; (b) a contribution of $200,000 made by Katerina; and (c) a loan of $1 million from the ANZ Bank secured against the property. The bank loan was made to the deceased alone but, as between themselves, the deceased and Katerina agreed that they would service the loan (with regular payments of principal and interest), and pay all outgoings on the property, in equal proportions.

34. On 28 November 2014 (a year after completion of the purchase) they executed a deed of trust which formalised their informal arrangement for ownership of the property. The deed made no mention of the parties’ de facto relationship. It appears in the guise of an arm’s length commercial arrangement. The parties’ beneficial co-ownership of the property was characterised as a tenancy in common. Their respective shares were expressed as proportionate to their money contribution to the total cost of acquisition of the property: $200,000 represents 5.214702% of $3,835,310. The deed contains an express acknowledgement that Katerina’s share in the property might increase in accordance with loan repayments. It also contains an acknowledgement of her entitlements to lodge a caveat on the title and to call for a transfer to her of her share of the legal estate.

35. The deed was executed at about the same time as the couple commenced full-time cohabitation at the property. At about that same time Max and Jack, who had been living with their father, moved out so as to allow the deceased and Katerina space for their relationship.

36. Although the solicitor who prepared the deceased’s will (Mr Beattie) was a close personal friend of the deceased, the deceased did not introduce Katerina to him until several months after the will was prepared. At the time the will was prepared, the deceased’s expressed, perceived need for a will was a desire to ensure that Lisa and Siegfried obtained no benefit from his estate should he unexpectedly die. As between the solicitor and the deceased, there was no mention made of Katerina, or a general possibility that the deceased would remarry.

33. In the course of an established but developing personal relationship, in which marriage was expressly discussed from time to time, the deceased formally proposed marriage to Katerina on 6 June 2015, and they were married on 19 September 2015.

34. Married the day after her 36th birthday, Katerina was left a widow within three months of her marriage.

35. The deceased died of a brain cancer first diagnosed in February 2015. Having mentored Katerina at the commencement of her career he was, by that time, a consultant working for her. On 3 March 2015 he executed instruments appointing her as his enduring attorney and enduring guardian, appointments she accepted that same day. Although he continued working until about April-May 2015, he was too debilitated by medical treatment to continue working beyond that time.

THE WILL : The Succession Act, Chapter 2 (especially, section 12)

40. Although the deceased’s will was prepared by a solicitor, it was not executed at or about the time of preparation or under the direct supervision of the solicitor. The solicitor prepared the document as a draft, anticipating confirmatory or supplementary instructions before settling its terms. No such instructions were received.

41. In fairness to the solicitor (who proffered the deceased no advice about the operation of section 13 of the Succession Act, let alone section 12), the deceased did not submit to an ordinary solicitor-client relationship with Mr Beattie. He approached the relationship casually, treating Mr Beattie as a resource to be used as and when convenient to himself rather than as an adviser to be consulted for guidance in matters of substance.

42. In broad terms, whereas section 12 of the Succession Act deals with revocation of a will by marriage, section 13 deals with revocation by divorce of provision made in a will for a (subsequently divorced) spouse.

43. Section 13 was not a complete answer to the deceased’s concerns about his pre-divorce will in favour of his first family. He wanted to disinherit Siegfried as well as Lisa, and he wanted to reinforce their disinheritance with an express repudiation of Siegfried (and implicitly Lisa) in a new will.

44. Although it is common ground that the will was executed on or about 3 January 2014, the document bears no date of execution beyond the typed date “2013”. The deceased and the two lay witnesses in whose presence he executed the will neglected to date it.

45. The date “3 January 2014” attributed to the will as the date of execution coincides with the date upon which, by an email, the deceased sent a copy of the signed will to both his solicitor and his executor.

46. The will was prepared for execution in late November 2013, at about the time of completion of the deceased’s purchase of the McMahon’s Point property. Instructions for the preparation of a will were first given, via email, on 21 November 2013. After further exchanges, via email and telephone conversations between the deceased and his solicitor, the solicitor sent the will to the deceased via email on 27 November 2013. Despite the deceased’s expressed anxiety for the preparation of a new will as soon as possible, he evidently made no arrangements for its execution until 3 January 2014, as he rushed to meet a travel commitment. He travelled to the Gold Coast, Queensland, for a prestigious celebrity horse sale.

47. At that point, without engaging his solicitor in the process of settling its terms or attending to its execution, the defendant arranged to sign the will in the presence of witnesses arranged for that purpose by himself.

48. That this was a disjointed process appears on the face of the will in the incomplete identification of an alternate executor.

49. The material provisions of the will are found in clauses 5-8, here reproduced:

“5.   (a)   I appoint my brother, MICHAEL JOHN GRANT my Executor and my Trustee which includes my personal representatives and executors for the time being (my “Executor”) provided that if he does not survive me by thirty (30) days or refuses or is unable to act or continue to act as my Executor then I appoint [PLEASE ADVISE] as my Executor and Trustee.

6.   I GIVE DEVISE AND BEQUEATH the residue of my estate to my Executor to hold on trust to give the residue of my Estate to step-son, MAXIMILIAN INNES GRANT, my son, JACK SPENCER GRANT and my son, LEWIS MCNEILL GRANT (the “Beneficiaries”) as tenants in common and in equal proportions PROVIDED THAT if one of my Beneficiaries has already died or dies before me before attaining a vested interest or part of his share but leaves children who attain the age of twenty one (21) years of age, then those children will take equally the share which my Beneficiary would otherwise have taken and FURTHER PROVIDED that if one of my Beneficiaries has already died or dies without leaving any children then their share or shares are to be added equally to the other share or shares the trust of which have not then so lapsed or failed.

7.   In the event that all the trusts set out in paragraph 6 above fail or lapse because no person attains a vested interest in all the shares, then I GIVE, DEVISE AND BEQUEATH the residue of my Estate to my Executor to hold on trust to give the residue of my Estate to my brothers, PETER GRANT and MICHAEL JOHN GRANT as tenants in common and in equal proportions PROVIDED THAT if one of my brothers has already died or dies before attaining a vested interest or part of his share but leaves children who attain the age of twenty one (21) years of age, then those children will take equally the share which my brother would otherwise have taken.

8.   I WISH it to be known that I have intentionally left nothing to my former wife, LISA JANE GRANT’s son, SIEGRIED [sic] HEINDRICH GRANT (born Vienna, Australia [sic] on 31 March, 1983) as we have had a hostile relationship since he was 15 and he has publicly disowned any relationship with me and continues to speak ill of me. Due to our irreconcilable differences he is not to share in any part of my Estate.”

INTERESTS ON AN INTESTACY : Succession Act, Chapter 4

50. Upon an assumption that the deceased’s will was revoked by marriage, and that he accordingly died intestate, his beneficiaries (by operation of chapter 4 of the Succession Act) are:

1. the deceased’s widow Katerina (under sections 104(a) and 113 of the Succession Act), as to:

1. the deceased’s personal effects (as defined by section 101 of the Act) ;

2. a statutory legacy (as defined by sections 101 and 106 of the Act) ; and

3. one-half of the remainder of the deceased’s estate; and

2. the deceased’s twins sons Jack and Lewis (under section 127(2) of the Succession Act), as to the other half of the remainder of the estate.

51. Of a net estate with an estimated value of about $4.4 million (not including personal effects), Katerina’s share is estimated to be worth about $2.4 million and the respective shares of Jack and Lewis are estimated to be worth about $990,000 each (subject to orders for costs made in these proceedings). The total costs incurred by all parties to the proceedings are of the order of about $500,000.

52. Subject to accounting adjustments consequent upon the Court’s orders, it is agreed between all parties to the proceedings that, in administration of the deceased’s estate as an intestate estate:

1. the deceased’s “personal effects” comprise the whole of the deceased’s assets (identified in an inventory attached to the letters of administration granted on 15 July 2016) other than the deceased’s beneficial interest in the McMahon’s Point property. In the inventory of property, the personal effects are attributed estimated values of the order of about $280,000 in total.

2. as the deceased’s widow, Katerina is entitled to a statutory legacy in the sum of $451,080.

3. under sections 115-117 of the Succession Act, Katerina had an entitlement to elect to acquire property from the deceased’s estate; but, absent an extension of time granted by the Court, she was required to make any such election within three months after the Court’s grant of administration of the estate (that is, no later than 15 October 2016).

4. subject to a grant to Katerina (under section 117 of the Succession Act) of an extension of time within which to make such an election, she is still entitled (under section 115(1) of the Succession Act) to elect to acquire property from the deceased’s estate.

5. any order for an extension of time made by the Court under section 117 of the Succession Act can (as is confirmed by section 86 of the Civil Procedure Act 2005 NSW) be made on such terms and conditions as the Court thinks fit.

53. The importance of the availability of a conditional order is that there has been a substantial increase in the value of the McMahon’s Point property since the date of the deceased’s death, and the deceased’s sons are anxious that Katerina not be permitted to benefit economically from her delay in making an election.

54. There is no direct, expert evidence of the value of the McMahon’s Point property at the time of the deceased’s death. The best evidence (upon which all parties invite the Court to act) is an estimate of value of the deceased’s 94.8% beneficial interest in the property (after deducting a mortgage liability of $962,918) found in the inventory of property attached to the letters of administration issued to Katerina and Jack on 15 July 2016. That estimate of $2.7 million translates into a value of approximately $3.811 million for the whole of the property.

55. The current market value of the property is agreed between all parties to be $5.625 million. 94.8% of that figure (indicative of the value of the deceased’s share of the property) is $5,332,500 (subject to the ANZ Bank mortgage secured on the property).

THE FAMILY PROVISION PROCEEDINGS : Succession Act, Chapter 3

Identification of Competing Claims

56. Each of Katerina and Max makes an application for a family provision order contingent upon determination of the “probate proceedings”. Both applications were made within the time limited by section 58(2) of the Succession Act.

57. Each of Lisa, Jack and Lewis has expressly disclaimed any intention to apply for family provision relief.

58. Having been served with notice of the proceedings, Siegfried has made no application for a family provision order. The time within which he was required (by section 58(2) of the Succession Act) to apply for such an order expired on 14 December 2016, 12 months after the date of the deceased’s death. Unlike Lisa, Max, Jack and Lewis, he has given no evidence in the proceedings. On the face of the record, he has played no role in the proceedings at all. Although he could claim the status of an “eligible person” on the same basis as Max, he has not done so. In determining the applications for a family provision order made by Katerina and Max, the Court is authorised by section 61 of the Succession Act to disregard his interests. No party contends that some allowance should nevertheless be made for those interests.

Eligibility to Claim Family Provision Relief : Succession Act, section 59(1)(a)

59. There is no dispute about the eligibility of Katerina and Max to make a claim for family provision relief. As the deceased’s widow, Katerina is an “eligible person” within the meaning of section 57(1)(a) of the Succession Act. All parties accept that Max is an “eligible person”, within the meaning of section 57(1)(e) of the Act, as a person who was, during his youth, a dependent member of the deceased’s household. In each case, the jurisdictional requirement for the making of a family provision order found in section 59(1)(a) of the Act – namely, that the Court be satisfied that the claimant is an “eligible person” – is satisfied.

No Issue about “Factors Warranting” : Succession Act, section 59(1)(b)

60. Nor is there any dispute that, if Max’s family provision application is pressed, then, in terms of section 59(1)(b) of the Succession Act, there are factors which warrant the making of his application. Not until he was 17 years old did he discover the truth about his paternity. He was treated by the deceased, as a son, on a par with the deceased’s own twin sons. He was, thus, a natural object of the deceased’s bounty: Re Fulop (1987) 8 NSWLR 679 at 681 Churton v Christian (1988) 13 NSWLR 241 at 254. If the deceased’s estate is to be administered on intestacy, he is not a beneficiary even though under the deceased’s will he stood to receive one-third of the deceased’s estate, on a par with the deceased’s twin sons. In common with Lisa and his step brothers, he was advised by the deceased of the terms of the will via email on 3 January 2014, the day it was executed. His application satisfies the jurisdictional requirement in section 59(1)(b) that the Court be satisfied that, having regard to all circumstances, there are factors which warrant the making of his application.

61. As the deceased’s widow, Katerina is not required by section 59(1)(b) of the Succession Act to prove “factors warranting”.

No Dispute Max Left without Adequate Provision : Succession Act, section 59(1)(c)

62. If Max’s application for a family provision order is pressed (because the estate is to be administered on intestacy), there is no dispute that, within the meaning of section 59(1)(c) of the Succession Act, he has been left without adequate provision for his proper maintenance, education or advancement in life. He is a young adult, without substantial assets, despite an expectation (fostered by the deceased) that he would inherit a one-third share of the deceased’s estate, an object of which testamentary provision was, in the mind of the deceased, to assist Max to acquire his own residential accommodation.

63. Upon an intestacy, he has no entitlements. There is no opposition to a finding (which I make) that he has satisfied the jurisdictional requirement of section 59(1)(c).

The Contest Concerning Max’s Family Provision Application : Succession Act, section 59(2)

64. The substantial battleground on Max’s family provision application is:

1. within the meaning of section 59(2) of the Succession Act, what provision “ought” to be made for Max’s maintenance, education or advancement in life?

2. should the burden of any family provision order made in favour of Max be borne by Katerina, or Jack and Lewis, or some combination of their respective interests?

3. should any family provision order made in favour of Max be charged against the deceased’s superannuation entitlements, designated as “notional estate”?

65. No party suggests that no provision should be made for Max upon an application of the Succession Act, section 59(2). The controversial questions are “how much?” and “who pays?”.

66. Max’s primary contentions are that he should be treated equally with Jack and Lewis, and that Katerina alone should bear the burden of any provision made for him.

67. In advancing those contentions, Max acknowledges that the family provision jurisdiction is not designed to be a vehicle for ensuring that an estate is distributed “fairly” or in “equal” portions. Without oversimplifying the list of factors to be taken into account specified by section 60(2) of the Succession Act, the practical focus upon an exercise of family provision jurisdiction is upon whether a claimant for relief has any “need” which might properly be characterised as a well-founded claim on the bounty of the deceased.

68. Max’s case is that, in common with his stepbrothers, he is a young person in need of assistance from the deceased, and the Court has before it (in the deceased’s will and associated statements made by the deceased) evidence that the deceased himself thought that all three should be treated equally or, avoiding the word “equally”, on substantially the same terms in meeting their similar needs.

69. Supported by his stepbrothers, Max invites the Court to designate the deceased’s superannuation fund as notional estate for the purpose of funding a family provision order, in the nature of a legacy, in his favour. An added attraction for the boys in this submission is that Katerina claims to be the only person to whom the deceased’s superannuation entitlement can, under the governing deed and rules of the fund, be paid.

The Contest Concerning Katerina’s Family Provision Application : Succession Act, sections 59(1)(c) and 59(2)

70. If pressed (because the deceased’s will is admitted to probate, leaving her with nothing from the estate of the deceased), Katerina’s family provision application is opposed by Max, Jack and Lewis – by reference to both section 59(1)(c) and section 59(2) of the Succession Act – essentially because: (a) Katerina is a successful businesswoman with wealth independent of any interest she may have in the deceased’s estate, or any entitlement she may have to his superannuation entitlements; and (b) she was assisted in establishing her business by mentoring efforts made by the deceased during his lifetime. They point also to the short duration of the deceased’s marriage to Katerina.

71. For her part, Katerina acknowledges that the facts of her case do not neatly fit the classic paradigm generally discussed by reference to Luciano v Rosenblum (1985) 2 NSWLR 65 at 69. In that case, Powell J observed that, as a broad general rule, and in the absence of special circumstances, the duty of a testator under family provision legislation, to make a “adequate provision for the proper maintenance, etc.” of his widow, requires that, to the extent to which his assets permit him to do so, a testator ensure that his widow is secure in her home, that she has an income sufficient to permit her to live in the style to which she is accustomed, and that she has available to her a fund to which she might resort in order to meet any unforeseen contingencies.

72. Katerina’s marriage to the deceased was admittedly short, but it was preceded by a de facto relationship of about three years and a personal relationship of longer duration. Through her own efforts, as well as early assistance from the deceased, she has built up a successful business (dependent largely upon her continuing, personal exertions), enjoying a substantial income and acquiring property in her own right along the way.

73. By her family provision application, she seeks to secure a continuing right to live in the McMahon’s Point property (accepting an obligation to service the mortgage charged on the property) and, if the property must be sold, she seeks an entitlement to not less than one-half of the net proceeds of sale, free of any obligations to repay the mortgage principal.

THE PROBATE QUESTION : Succession Act, section 12(3)

The Deceased’s road to a Second Marriage : The Factual Matrix

74. Max (with the support of his step brothers, and that of his uncle named as executor in the deceased’s will) relies upon the following facts (as I find them to be) in support of his contention that the will was “made in contemplation of [the deceased’s second] marriage” so as to attract the operation of section 12(3) of the Succession Act:

1. First, the deceased and Katerina began their relationship (at that time a clandestine, extra marital affair) as early as 2006, several years before the deceased gave instructions for the preparation of his will.

2. Secondly, when the deceased and Lisa first discussed separation in about 2010 (after Lisa had learned of the deceased’s relationship with Katerina), the deceased started to discuss “long term plans” with Katerina, during which discussions on many occasions he told Katerina that he was going to marry her “one day”.

3. Thirdly, when the deceased made such statements to her in or about 2010 Katerina responded to the effect that she was willing to discuss marriage with him if and when he was in a position to marry her; meaning, that he first had to separate from Lisa, divorce Lisa and then ask Katerina to accept a marriage proposal.

4. Fourthly, via an exchange of text messages on 2 January 2011, the deceased sent to Katerina a message to the effect “marry me”, to which she replied to the effect, “I will when you ask me properly one day”.

1. Fifthly, in April 2012 the deceased and Lisa formally, and finally, separated, and the deceased and Katerina commenced their de facto relationship.

2. Sixthly, at that time the deceased had a will that left his estate to Lisa and, if she predeceased him, favoured their four children (including Siegfried).

3. Seventhly, in early 2013, on his own initiative, the deceased consulted a Fertility Clinic about reversal of a vasectomy procedure to which he had previously submitted.

4. Eighthly, at about the same time, at the instigation of the deceased, Katerina also attended the Fertility Clinic to ascertain whether, if the deceased’s vasectomy were to be reversed, there was a prospect that she might conceive a child.

5. Ninthly, on 26 October 2013, the deceased and Katerina attended the auction at which the McMahon’s Point property was purchased in the deceased’s name (with a financial contribution by Katerina), an experience which she described in her evidence as a shared moment that signified the solidification of their future together.

6. Tenthly, on 5 November 2013 the marriage between the deceased and Lisa ended in a divorce, preceded (at a time earlier that year not specified in the evidence) by a property settlement.

7. Eleventhly, in 2013 and 2014 (including on occasions before the McMahon’s Point property was purchased) discussions of marriage between the deceased and Katerina took the form of “when we marry”, not “if we marry”.

8. Twelfthly, in their sundry discussions about marriage at about this time the deceased openly talked about his desire that Lisa and Siegfried obtain nothing from his estate. As Katerina records in an affidavit: “He discussed with me that he had wanted to ensure we had enough money set aside for our kids’ education but that when we married … he also wanted to ensure that he had money set aside that we both agreed he could use to contribute to a deposit on a unit or home for his sons when they reached that stage of their lives. He wanted to make sure that even though we planned to have children that our circumstances wouldn’t change his ability to do this.” She was comfortable about that.

9. Thirteenthly, although Katerina was imprecise in her recollection of when conversations with the deceased about “disinheritance” of Lisa and Siegfried occurred, such conversations must have occurred before 3 January 2014 or thereabouts, at which time the deceased acted upon an intention to execute a will disclaiming Lisa and Siegfried as beneficiaries of his estate.

10. Fourteenthly, in his communications with his solicitor between 21 November 2013 and 3 January 2014 (inclusive) about his making a new will, the deceased explained to the solicitor that he was motivated to make a new will for the purpose of disclaiming Lisa and Siegfried as beneficiaries.

75. This last point needs to be set in the context that the deceased did not communicate to the solicitor any intention to marry Katerina, and the solicitor did not interrogate him about future prospects of marriage or advise him about the effects of divorce and (re)marriage on the effectiveness of a will.

76. The penultimate point needs to be set in the context of the following paragraphs in an affidavit affirmed by Katerina on 23 February 2017, admitted into evidence without objection and not cross examined upon directly (but obliquely) in the course of the final hearing (with emphasis added):

“[31]   The Will of the Deceased was undated and did not reflect his testamentary intentions at the time of his death. Soon after the divorce of the Deceased, in late 2013, he talked to me about his Will and he expressed that he wanted to ensure that [Siegfried] and his first wife [Lisa] were excluded from any entitlement immediately following his divorce. We discussed that when we married we would put in place Wills that included each other as beneficiaries. The Deceased mentioned on numerous occasions [in reference to the McMahon’s Point property] that ‘ this is our house’.

[32]   The Deceased and I had numerous discussions, prior to the Deceased’s diagnosis [of brain cancer in February 2015], where the Deceased expressed his strong wishes for me to continue to live in our marital home and continue a similar life style to our current life style should he pass away before me. The deceased mentioned on numerous occasions that he wanted to make sure that I was looked after if he was not around. He expressed a wish that each of his three boys should receive monies to put towards a deposit on a house or apartment although the amount was never defined. As what went to the boys would come out of the share for me and any children born of our marriage the Deceased told me that he wanted to talk this through with me. We never got the opportunity to do this”.

77. As life unfolded, the deceased and Katerina had no children. After he was diagnosed with brain cancer in February 2015, he arranged for his sperm be available for Katerina to have children by him. Shortly after their wedding on 19 September 2015 he was admitted to hospital and told that medical treatment of his cancer was no longer effective, leaving him four-six months to live. He told Katerina that he still “wanted to try for her to get pregnant” before he died, which she took as an ultimate expression of love. She told him that they needed to focus on him and their relationship in the short time still available to them.

78. Counsel for Max emphasised a course of events between the early discussions of 2010 through to the time when the will was executed in which, he submits: the deceased expressed a desire for marriage; Katerina identified three impediments to marriage (namely, the absence of separation, divorce and a marriage proposal capable of acceptance); there was a removal of the first two of those three impediments; “contemporaneous” steps were taken by the deceased towards establishment of a new home and planning for children; and, in that context, there were discussions about the deceased’s testamentary arrangements for disinheritance of Lisa and Siegfried and the making of provision for Max, Jack and Lewis as children towards whom the deceased felt ongoing family obligations.

79. Katerina’s counsel emphasised that: (a) the deceased did not make a formal proposal of marriage to Katerina until 6 June 2015; (b) at no time before then, and particularly at no time in the early discussions of 2010, did Katerina commit herself to marriage in advance of a proposal capable of acceptance; (c) in the 2010 discussions, Katerina said no more than that she was prepared to discuss marriage with the deceased if and when he was able to make, and he did make, a proposal of marriage capable of acceptance; (d) at the time he executed his will on 3 January 2014, the deceased did not have in contemplation marriage to Katerina, only freeing himself from his marriage to Lisa; and (e) the will was prepared in haste and, after procrastination on the part of the deceased, executed in haste as a “stop gap” will (admittedly as a fully operational will, not as a “stop gap” will of the type of informal will described in Permanent Trustee Co Limited v Milton (1995) 39 NSWLR 330 at 335 D-E) to be reviewed at leisure later at an unspecified time.

80. At no time between the date the will was provided to him by the solicitor in draft and the time of his death, did the deceased show a copy of the document to Katerina.

81. In November 2014 the deceased and Katerina commenced full time cohabitation at the McMahon’s Point property and they executed their “deed of trust” (which did not refer to the nature of their domestic relationship or any prospect of marriage) designed to acknowledge: (a) Katerina’s beneficial interest in the property; and (b) her agreement to bear 50% of the burden of servicing the mortgage and paying outgoings.

82. The deceased stopped working on his own account in about late 2011, and took up a paid consultancy role in Katerina’s then newly established business.

83. In February 2015 the deceased was diagnosed with brain cancer. By about April of that year he was suffering too greatly from his illness, and the medical treatment designed to cure it, to be able to work. In June he proposed marriage, a proposal unhesitatingly accepted. Thereafter, his mental facilities began to fail such that, when his brother on one occasion suggested to him that marriage would revoke his will, one could not be certain about: (a) whether he understood the suggestion; or (b) the meaning of his response. The marriage took place, as planned, on 19 September 2015; Max, Jack and Lewis served as groomsmen, Mr Beattie as best man. On 14 December 2015 death intervened.

A Will made in contemplation of a particular marriage : Succession Act, section 12(3)

84. Section 12 of the Succession Act is and was at all material times in the following terms (with emphasis added):

“12. Effect of marriage on a will

(1) A will is revoked by the marriage of a testator.

(2) Despite subsection (1), the following are not revoked by the marriage of the testator:

(a) a disposition to the person to whom the testator is married at the time of his or her death,

(b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death,

(c) a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised.

(3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.

(4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.”

85. Section 12 is in substantially the same terms as its predecessor (the Wills, Probate and Administration Act 1898 NSW, section 15) at the time of its repeal.

86. Section 12 of the Succession Act (and section 15 of the Wills, Probate and Administration Act 1898) reflect three stages of development of Anglo-Australian law.

87. First, section 15 initially provided that “[every] will made by any person shall be revoked by his [or her] marriage…”. This provision (now found in section 12(1) of the Succession Act) can be traced back to the English Wills Act 1837 (1 Victoria chapter 26, section 18), expressly adopted in NSW, in 1840, by (1839) 3 Victoria No. 5. By adoption of the English legislation, the NSW Parliament ostensibly abolished an earlier “doctrine of implied revocation of wills by change of circumstances” developed in England (and, semble, assumed to have been received as law in NSW) under the general law, substituting the narrower rule of revocation of a will by marriage.

88. A convenient, if not authoritative, exposition of the old “doctrine” can be found in the NSW Law Reform Commission Report (Report 47 (1986) - Community Law Reform Program: Wills - Execution and Revocation) which recommended amendments to section 15 of the Wills Probate and Administration Act (which, in due course, became section 12 of the Succession Act). Omitting footnotes, paragraphs 9.2 and 9.3 of the Commission’s Report were in the following terms:

“[9.2]   By the seventeenth century, under the general and ecclesiastical law of England, marriage in certain circumstances had the effect of revoking a will. A woman’s will was revoked by her marriage, because the law stated that on marriage she lost her capacity to make a new will or to change an earlier will. However a man’s will was not revoked merely on marriage, because his wife, not being [the husband’s] heir at common law, could not benefit by the revocation of his will. In the case of men, wills were only revoked by subsequent marriage coupled with the birth of children of that marriage. It was considered that the birth of a child caused such a change in a man’s domestic circumstances that it was presumed by the law that he intended to revoke his prior will. The rule was evolved in order to protect his heir, not his wife. If a man married and then made a new will, the subsequent birth of children did not revoke that will, as it was assumed that it was made in contemplation of there being children to the marriage. When a man’s will or marriage settlement provided for future children, the will was not revoked by the subsequent marriage and birth of children. These rules relating to revocation were initially confined to personal property, but finally in 1771 it was held that they also applied to real property.

[9.3]   For a considerable period the ecclesiastical courts held that the rules relating to the revocation by marriage of wills of males only constituted a presumption that could be rebutted on proof of a contrary intention. However, the common law and equity courts took the view that the presumption was absolute and irrebuttable. Finally, it was established in Marston v Roe (1838) 7 Ad & El 14 at 58; 112 ER 742 at 758 that the presumption could not be rebutted by contrary evidence. Tindal CJ pointed out:

‘[it is] a principle of law, of which the foundation [is] a tacit condition annexed to the will itself when made, that it should not take effect if there should be a total change in the situation of the testator’s family’.”

89. The old “doctrine” was replaced by what we now recognise as the marriage revocation rule (Succession Act, section 12(1)), itself modified by exceptions. The old “doctrine” could not survive changes in thinking about property law, the law of inheritance generally, the status of women and divorce. Nevertheless, notice should be taken of the fact that the law focused attention on the actual, or presumed, intention of a person vis á vis claims on testamentary bounty associated with obligations of “family”.

90. A second stage of development of the law came to NSW in 1930, when section 15 was amended to introduce an exception to the general marriage revocation rule by including a new subsection 15(2). With emphasis added, it provided that a will “… which is expressed to be made in contemplation of marriage, shall not be revoked by the solemnisation of the marriage contemplated”: Conveyancing (Amendment) Act 1930 NSW, section 43(a). This legislation in substance adopted a reform effected by the English Law of Property Act 1925 (15 George V chapter 20), section 177.

91. The third stage of development of NSW law came in 1989. A new subsection 15(3) was introduced. It provided (with emphasis added) that “[a] will made… in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated: Wills, Probate and Administration (Amendment) Act, 1989 NSW. By the same amending Act, a new section 15(4) was introduced to preserve “a will … expressed to be made in contemplation of marriage generally”.

92. These reforms implemented recommendations made by the NSW Law Reform Commission’s Report 47 at paragraphs 9.20-9.21.

93. The 1989 Act also introduced into the Wills, Probate and Administration Act section15A (the precursor to section 13 of the Succession Act) directed towards revocation by divorce of provision made in a will for a (subsequently divorced) spouse. This reform of the law was recommended by the Law Reform Commission in Report 47, paragraphs 10.16 et seq.

94. The two types of legislative reform came into operation as a twin package. Two events common in modern society – marriage and divorce – are likely uniquely to bear upon claims upon the bounty of a will-maker. By their very nature, they each require a re-think of testamentary arrangements, failing which succession to property may of necessity have to be governed by general rules of intestacy, or be left to an exercise of discretionary family provision jurisdiction.

95. When the Succession Act commenced operation on 1 March 2008, it enacted as chapter 2 of the Act provisions (including section 12) relating to the making, alteration, revocation and revival of wills. Those provisions replaced provisions earlier found in the Wills, Probate and Administration Act, renamed the Probate and Administration Act 1898 NSW.

96. In approaching section 12 of the Succession Act, the parties agree (and I accept) that:

1. the references to “marriage” in the Succession Act, section 12, are references to a marriage registered, or recognised, under the Marriage Act 1961 Cth.

2. a party who alleges that a will was made in contemplation of marriage bears the legal onus of proof on that issue: Steel v Ifrah (2013) 38 VR 186 at [1] and [21].

3. the expression “in contemplation of” found in subsections 12(3) and 12(4) has the same meaning notwithstanding that each involves a different object of contemplation: Cf,Hoobin v Hoobin [2004] NSWSC 705 at [52].

4. a testator’s silence about a contemplated marriage when giving instructions to a solicitor for a will, and when executing the will, is not determinative of whether the will was or was not made in contemplation of the marriage: Steel v Ifrah (2013) 38 VR 186 at [22].

5. in the absence of any direct statement by a testator about what was, or was not, in his or her contemplation when making his or her will, the Court must consider the combined or cumulative effect of the whole of the evidence; the overall effect of evidentiary detail is not necessarily the same as the sum total of individual details: Steel v Ifrah (2013) 38 VR 186 at [21].

97. A “marriage” which is “in contemplation” for the purpose of section 12(3) is a “marriage” which, but for section 12(3), would result in a will being revoked by operation of section 12(1). Section 12(3) refers to a marriage which, at the time a will is made, is a future prospect.

98. That said, there is force in the following observations made by Dixon J in Steel v Ifrah [2013] VSC 199; 38 VR 186 at [12], here adapted editorially to a NSW setting and with emphasis added:

“Marriage is an event that it is commonly understood to naturally affect a testator’s intentions about the distribution of his or her estate after death. Undoubtedly, the changing mores of Australian society concerning marriage, divorce, children, blended families and the holding and distribution of wealth and assets motivated the reform, in 1997, of the marriage revocation rule [in line with the provisions now found in sections 12(3)-(4) of the NSW Succession Act]. Where once it might have been expected that a marriage would result in an intention not to distribute to the beneficiaries that had been selected prior to a marriage in order to favour the new husband or wife and the children of the union, the legislature considers it unsafe for the law to now make that assumption. An expectation of a second marriage, or a marriage following a union that resulted in children, may result in an intention to protect the entitlement of the children of that former union, rather than an intention to recognise the claims of or through a new marriage partner. What is important is that there be contemplation of a marriage when determining how, and to whom, one’s estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that may apply when it comes into effect that is the mischief”.

99. A return must be made, later in this judgment, to Dixon J’s concluding comment about “what is important”.

100. In the present proceedings Max and those who support his cause contend that the deceased’s will was not revoked by his second marriage because, at the time he made the will, the deceased had that marriage in mind when, with a backward glance towards his first family, he settled the terms upon which he intended to make testamentary provision for them.

101. The parties’ debate about how section 12(3) of the Succession Act must operate in the factual setting of these proceedings focused attention on differently nuanced expositions of comparable legislation by White J in Hoobin v Hoobin [2004] NSWSC 705 at [34]-[53] and Dixon J in Steel v Ifrah (2013) 38 VR 186, each acknowledging earlier observations of Mahoney JA in Layer v Burns Philp Trustee Co Ltd(1986) 6 NSWLR 60 at 67.

10. RESERVE to all parties liberty to apply for consequential relief in the working out of these orders or those made in the proceedings respectively numbered 2016/00371991 and 2017/00141397.

(C)   Max’s Family Provision proceedings (Case No. 2016/00371991)

1. ORDER that the entitlement of the deceased as a member of the David Grant Special Events Superannuation Fund be designated as notional estate of the deceased, so far as may be necessary to allow for a family provision order to be made in favour of the plaintiff (Maximillian Innes Grant) in the terms set forth in order 2 of these orders and for orders made for the costs of these proceedings and the related proceedings numbered 2016/00369836.

2. ORDER that provision be made for the plaintiff, out of the notional estate of the deceased, by way of a lump sum of $750,000 as the first charge on the notional estate.

3. ORDER that the costs of the plaintiff, calculated on the ordinary basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased.

4. ORDER that the costs of the first defendant (Katerina Grant), calculated on the indemnity basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased.

5. ORDER that the costs of the second defendant (Jack Spencer Grant) from 4 July 2017, calculated on the indemnity basis, be paid out of the notional estate of the deceased and, to the extent that the notional estate is deficient, out of the estate of the deceased.

6. NOTE that no orders are made as to the costs of the third and fourth defendants (respectively, Lewis McNeill Grant and Grantrust Pty Ltd).

7. RESERVE to all parties liberty to apply for consequential relief in the working out of these orders or thosemade in the proceedings respectively numbered 2016/00369836 and 2017/00141397.

254. The notations made in paragraphs 9 and 10 of the orders made in Katerina’s proceedings are made in those proceedings, rather than (as counsel for the first family suggested) the probate proceedings, because Grantrust Pty Ltd is a party to the former, not the latter. If there is to be an order for accounts, all affected parties should be in the mix.

255. As a general precaution, liberty to apply for consequential relief in the working out of orders made in any or all of the proceedings is reserved. That is appropriate given the interconnectedness of the proceedings and the fact that, by an earlier order of the Court made with the consent of the parties, the proceedings were heard and determined together.

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Amendments

06 July 2018 - Cover Sheet, Armstrongs Solicitors amended to Armstrong Legal

16 July 2018 - Addendum (16 July 2018)

08 August 2018 - Paragraph 170 amended to read s115(6) and s116(2).

Decision last updated: 08 August 2018