Richardson v Richardson (No 2)
[2024] ACTSC 191
•19 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Richardson v Richardson (No 2) |
Citation: | [2024] ACTSC 191 |
Hearing Dates: | 16 – 19 October 2023 |
Decision Date: | 19 June 2024 |
Before: | Curtin AJ |
Decision: | See [385] |
Catchwords: | SUCCESSION – FAMILY PROVISION – Application by adult son for provision out of late mother’s estate – where long period of estrangement between plaintiff and deceased – consideration of the deceased’s testamentary freedom and reasons for bequeathing only small gift to plaintiff – consideration of testator’s moral duty – modest estate – where plaintiff in poor financial position and of poor health – held that community standards require further provision be made for plaintiff – order that provision be made out of property already distributed – order that plaintiff’s legal costs be capped EVIDENCE – WITNESSES – Credibility and reliability – where very little contemporaneous material, objective facts, or wholly independent witnesses available – where corroborative witness shown affidavit of the person whose evidence they were intended to corroborate – infection of testimony by suggestion –utility of affidavit evidence compromised |
Legislation Cited: | Administration and Probate Act 1929 (ACT) s 64 |
Cases Cited: | A.C.N. 627 087 030 Pty Ltd t/as Yates Beaggi Lawyers v Poche [2024] NSWCA 145 |
Texts Cited: | John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 6th ed, 2021) |
Parties: | Stephen Leslie Richardson ( Plaintiff) Kevin William Richardson (as executor of the Estate of the late Brenda Lillian Richardson) ( First Defendant) Kevin William Richardson (Second Defendant) John James Richardson (Third Defendant) |
Representation: | Counsel G Blank ( Plaintiff) Self-represented (First and Second Defendants) |
| Solicitors Gerard Malouf and Partners ( Plaintiff) Self-represented ( First and Second Defendants) | |
File Number: | SC 141 of 2020 |
Introduction
Background
The affidavit and documentary evidence
Affidavit of Stephen Richardson affirmed 28 May 2020
Affidavit of Kevin Richardson affirmed 23 October 2020
Affidavit of Brendan Richardson affirmed 23 October 2020
Affidavit of Stephen Richardson affirmed 13 November 2020
Affidavit of Stephen Richardson affirmed 24 March 2021
Affidavit of Lynn Richardson affirmed 24 March 2021
Affidavit of Lachlan Richardson affirmed 24 March 2021
Affidavit of Anne-Marie Slattery affirmed 23 March 2021
Affidavit of Kevin Richardson affirmed 6 July 2021
Affidavit of Stephen Richardson affirmed 7 October 2021
Affidavit of Stephen Richardson affirmed 14 April 2022
Affidavit of Stephen Richardson affirmed 6 October 2023
Family Provision Act 1969 (ACT)
Some general principles
The two stage approach
The first stage
The second stage
Testator’s moral duty
Community standards
Adult children
The importance of testamentary freedomBeneficiaries
Some principles directed to s 8(3) of the FPA
Character and conduct
Nature and duration of the relationship
Financial and non-financial contributions
Physical and mental capacity for gainful employment
Financial needs and obligations
Submissions
Plaintiff’s submissions
Defendant’s submissions
Decision
Fact finding principles
Credit
Stephen’s credit
Kevin’s Credit
The credit of the remaining witnessesWas adequate provision made for the plaintiff
Costs and the net value of the estate
The amount of further provision
The order for provision from property already distributed
Other orders
Stephen’s costs
Orders
CURTIN AJ:
Introduction
1․Brenda Richardson died on 2 May 2019 at the age of 84.
2․The plaintiff, Stephen Richardson, who is Brenda’s son, brings a claim for provision out of his late mother’s estate pursuant to s 8 of the Family Provision Act 1969 (ACT) (FPA). The claim is within time.
3․As the parties and most witnesses have the same surname, I will refer to them by their first names in this judgment.
4․The first defendant is Kevin Richardson, Brenda’s other son, in his capacity as executor of the estate.
5․The second defendant is Kevin in his personal capacity.
6․The third defendant is John James Richardson, also known as ‘Jamie’, who is a grandson of Brenda, and Kevin’s son.
7․Brenda left a duly executed will dated 2 February 2017 (the 2017 Will).
8․Probate of the 2017 Will was granted on 31 October 2019 and Kevin was appointed as the executor and trustee of Brenda’s estate.
9․Brenda’s estate is worth approximately $810,000 after testamentary expenses.
10․Under the terms of the 2017 Will, Stephen was entitled to a gift of $500, and three friends of Brenda to a gift of $7,000, with 40 per cent of the residue of the estate devised to Jamie and 60 per cent devised to Kevin.
11․In the 2017 Will, Brenda said:
I DIRECT my executors and trustees that I have not seen my son STEPHEN LESLIE RICHARDSON for many years and have had no contact with him over the years and it is for this reason I have only made a small gift to him.
12․In short, Stephen says that he was insufficiently provided for and seeks further provision from the estate in order for him to acquire secure accommodation and be provided funds for the vicissitudes of life.
13․Kevin opposes this claim and submits that, having regard to the nature and history of the relationship between Stephen and Brenda, and for the express reasons stated in Brenda’s 2017 Will, the Court, in its discretion, should refuse the application.
14․Kevin was unrepresented before me, although he had retained solicitors earlier in the proceedings.
15․Jamie did not appear at the hearing and has not appeared in the proceedings at any time. On 1 September 2021, the Court made orders permitting substituted service on Jamie. I am satisfied on the evidence that substituted service was affected in accordance with the Court’s orders.
Background
16․Brenda was married to Bill Richardson. They had two sons, Kevin (born in 1959) and Stephen (born in 1961).
17․The marriage was not always a happy one, and Brenda and Bill separated in 1978, although they were never formally divorced.
18․On the evidence, Brenda made two wills during her lifetime. The first will was dated 13 July 2007 (the 2007 Will) and the second was the 2017 Will.
19․The 2007 Will appointed Kevin as executor and trustee of Brenda’s estate.
20․The 2007 Will included a specific gift to Hazel Visser, a friend of Brenda’s, for $5,000, a specific gift to Jamie for $10,000, and then provided that the residue of the estate was to be distributed as follows:
(a)the entirety of the residue to Kevin in the event he survived Brenda by 30 days; or
(b)in the event Kevin did not survive Brenda by 30 days, the entirety of the residue to Jamie upon him attaining the age of 21; or
(c)in the event Jamie did not survive Kevin, the entirety of the residue to Hazel Visser.
21․Below the clauses setting out those gifts, the 2007 Will said:
I have not provided for my husband, WILLIAM CHARLES RICHARDSON, whilst we are not divorced we have been separated for over 35 years. I have not provided for my other son, STEPHEN LESLIE RICHARDSON, as I have had almost no contact for 3 to 4 years prior to this Will and it was a strained relationship prior to that. Stephen has had severe long term problems with alcohol abuse. I have no relationship with his children. I have not provided for Kevin’s daughter Danielle, as I never hear from her and the relationship between Danielle, Kevin and myself has ended following the break up of Kevin’s marriage as Danielle has ceased all contact with me.
22․I note for completeness that the entirety of the 2007 Will was not in evidence as it was missing the execution page. Notwithstanding that omission, there was no issue raised by Stephen that the 2007 Will did not meet all the required formalities.
23․In 2011, Bill died.
24․On 2 February 2017, Brenda executed the 2017 Will.
25․The 2017 Will included the following provisions:
(a)a specific gift to Stephen of $500;
(b)a specific gift to Hazel Visser of $5,000; and
(c)a specific gift to Colin Rees and Jan Rees, Brenda’s friends, of $2,000 (combined).
26․The 2017 Will provided for the residue of the estate to be distributed:
(a)as to 60 per cent to Kevin; and
(b)as to 40 per cent to Jamie.
27․Below the clauses setting out those gifts, Brenda included the statement quoted at [11] above.
28․Brenda passed away on 2 May 2019.
29․Probate of the 2017 Will was granted on 31 October 2019.
30․The assets of the estate at the time probate was granted were thought to total about $741,000, with the main asset being Brenda’s property in O’Connor in the Australian Capital Territory (ACT). Brenda also had around $11,500 in various financial institutions, $3,900 in shares, and $1,000 in furniture.
31․On or about November 2019, Brenda’s property was sold for approximately $811,360.
32․In February 2020, Kevin distributed the specific gifts to the named beneficiaries (other than Stephen) and 40 per cent of the residue of the estate to Jamie (being $336,247). The balance he transferred to himself.
33․Prior to those distributions, Kevin did not issue a notice of intention to distribute in accordance with s 64 of the Administration and Probate Act 1929 (ACT) (Administration and Probate Act), nor did he provide any informal notice of his intention to do so to Stephen or to Stephen’s solicitors.
34․On 21 April 2020, Stephen commenced these proceedings. This was within 6 months of probate being granted, as required by s 9(1) of the FPA. Stephen is an eligible applicant, being Brenda’s son: FPA s 7(1)(c).
35․On 28 April 2022, Stephen and Kevin (then represented by solicitors) purported to reach an agreement to settle the proceedings. Kevin later resiled from that agreement.
36․Stephen then filed an application seeking orders that the settlement agreement be enforced.
37․On 18 November 2022, that application came before Mossop J. The application was dismissed: see Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 (Richardson).
38․The reasons for the dismissal of that application need not be considered here. However, I mention the application because the plaintiff submitted that Mossop J’s factual finding that the parties had reached an agreement that further provision in the amount of $100,000 be provided for Stephen was some evidence (in the case before me) which supported Stephen’s case. I do not agree and have not taken that agreement into account in this case. In my view it is not relevant. The Court determines the amount of any further provision, not the parties.
The affidavit and documentary evidence
39․A number of affidavits relied on by the parties before me were also read on the application before Mossop J without objections being heard (because of the nature of the application). Those affidavits were helpfully and comprehensively summarised by his Honour in Richardson. I gratefully adopt his Honour’s summaries, although I shall add some further material from the affidavits which are relevant in this case, but which were unnecessary for Mossop J to summarise in Richardson.
40․Where his Honour’s summary included material that I rejected, I have disregarded that evidence, and I will indicate what has been rejected and disregarded by striking through that part of his Honour’s summary. Where the evidence was admitted on a limited basis, I will identify that evidence in square brackets and add a notation as to the limitation.
41․I shall summarise the affidavits generally in the order in which they were filed and irrespective of the party for whom they were filed because several affidavits responded to affidavits filed by the opposing party, and it will aid comprehension of the background facts and these reasons if the affidavit evidence is summarised chronologically.
42․I will not set out every factual matter mentioned in the affidavits in this judgment, although I have taken them into account. Nor will I set out the many contested matters. Rather, I will set out the matters which I find bear the greatest weight in determining the issues before me.
43․In summarising the affidavits below, and where convenient, I shall include some additional facts from time to time to aid understanding of the background facts revealed by the affidavit evidence, even though those facts may have been proved elsewhere.
Affidavit of Stephen Richardson affirmed 28 May 2020
44․Stephen was born on 25 March 1961 and is presently 63 years old and single. He has four adult children, none of whom depend upon him.
45․Justice Mossop summarised Stephen’s affidavit affirmed 28 May 2020. His Honour said at 51-52:
[45] The affidavit of Stephen Richardson dated 28 May 2020 indicated that he was the youngest son of the deceased who died on 2 May 2019, aged 84. Probate was granted on 31 October 2019 to Kevin. It indicated he had written to Kevin on a number of occasions and received no response to his request for information about the estate. He received a copy of the probate document on 30 April 2020 from the Supreme Court. He estimated the value of the deceased’s property in O’Connor, Canberra as being between $875,000 and $950,000.
[46] He is one of his mother’s two children. He lived at the O’Connor property until 1978. He described his childhood as “not pleasant” and that his brother “taunted me every day and assaulted my friends”. He says that his mother did nothing about this and it seemed to him that she supported his brother’s actions. He described being “dragged around with my mother” during school holidays while his brother was sent to school holiday programs. He said he rarely got new clothes and generally got only his brother’s “hand me-downs”. He described his parents as failing to play a supporting role in his life while they were “always busy making a fuss about my brother”.
[47] He moved out of the home in 1978. He lived in Aranda until 1980. He then lived in Duffy until 1996. While living in Aranda he continued to have contact with his mother who would make his lunch and assist him in doing his washing. When living in Duffy, up until 1988 he would see his mother fortnightly and talk on the phone.
[48] In 1986 he married Anne-Marie Slattery and had twins in 1988. His mother visited Anne Marie and the children in hospital but “after that time there was very little effort on her part to come and see us”. He recalls a conversation in which his mother said it was too far to drive to come and see them. After that point he would see his mother every two to three weeks and spend one to two hours at her house.
[49] In 1990 his wife gave birth to a second set of twins. The deceased did not visit the hospital and Stephen says he was deeply hurt by this. He describes another conversation in which his mother said it was too far for her to drive to see them. He said that despite this, he would visit the deceased on his own every three weeks to monthly.
[50] In 1995 Stephen and his wife separated and eventually divorced. He saw his mother weekly. In 1998 he moved to a different property in Duffy and rented various houses in the same area. He described his mother as not participating in his family affairs. He said that in 2003 he had convinced his mother to come to his house for Christmas but instead she went to Kevin’s. He said he continued to visit his mother monthly until 2010 or 2012. He described an incident when he was trying to collect some wedding photos from his old room in the O’Connor house when his mother did not cooperate with him. He described another incident when his sons were not allowed to use the toilet in the deceased’s house, yet Kevin’s son was. He described the event involving the collection of family photos as “the last straw” for which he thought she should apologise. But she never did. He said:
Throughout my life I was constantly saddened by the fact that my mother failed to participate in my life the way I wanted her too [sic].
Apart from the last eight years, I have always made myself available to assist mum in all aspects of her life. I have involved her in my, and my family’s life, however she has showed little to no interest, often secluding herself and attempting to remove me from involvement in her life.
[51] He described his circumstances as follows:
(a) he was aged 59 and unemployed as a result of “ongoing lumbar problems”;
(b) he was at that time on Jobseeker payments;
(c) he was a carpenter and joiner by trade earning approximately $500 per week;
(d) he was renting in Waramanga for $170 per week;
(e) he was single;
(f) he did not have any dependent children;
(g) he had a superannuation balance of $1916;
(h) his bank accounts showed net debts; and
(i) he owned two vehicles with approximate values of $1500 and $10,000 and a boat with an approximate value of $12,000.
[52] His affidavit asserted that “Should funds be made available I will require the following for my proper education, maintenance and advancement”. That included a house ($350,000 - $500,000 plus stamp duty and ancillary costs of $50,000), $10,000 for household items, funds to meet current debts of $57,559, medical intervention in relation to his back of $20,000 and $100,000 for “contingencies of life”.
46․I would add that Stephen said that he presently resided at an address in Waramanga in the ACT, which is the address of his former partner, Lynn Richardson, who also gave evidence in the proceedings. He said that residing there cost him $170 per week and annexed a “rental receipt” to his affidavit.
47․Stephen also annexed a report from his general practitioner, Dr Dillon, who had been his general practitioner since 2005. In a report dated 13 December 2018, Dr Dillon said that he was of the view that Stephen was unable to continue with his current work pattern and hours due to a range of medical conditions. Stephen’s main and most disabling condition was a persisting lumber intervertebral disc and facet joint injury which had gradually worsened over time despite surgery a few years before. Dr Dillon also said that Stephen suffered from bilateral degenerative patello-femoral injuries relating to constant kneeling at work. He said that Stephen also suffered from a chronic depressive condition invariably exacerbated by his physical symptoms and limitations. This made him tired, anxious, socially withdrawn, and poorly motivated. In a subsequent report dated 12 December 2019, Dr Dillon certified that Stephen had a long-standing bilateral inguinal herniae which could limit his ability to undertake his usual manual work tasks.
Affidavit of Kevin Richardson affirmed 23 October 2020
48․Kevin was born on 5 April 1959 and is currently 65 years old.
49․Justice Mossop summarised the contents of this affidavit as follows:
[53] The affidavit of Kevin Richardson was dated 23 October 2020 and appears to have been prepared without legal assistance. Substantial parts would have been inadmissible. He deposed that probate of the will was granted on 31 October 2019. The affidavit then provides: [“The Plaintiff’s affidavit is misleading and is a litany of untruths and straight out lies. I believe the Plaintiff’s has perjured himself to the Court in his Affidavit.” – admitted as submission only.]
[54] He denied ever having been written to in the manner described in Stephen’s affidavit. He deposed to being told by his mother that, having received legal advice, she had left Stephen a sum of money in her will so that it would be clear that he was not left out or forgotten. He says that the assertions of unequal care by the deceased are false and that Stephen
“caused endless trouble and worry for my mother in his youth, highlighted by alcohol, drugs and arrests”. He addressed statements in individual paragraphs of Stephen’s affidavit. He said that Stephen had not supported the deceased emotionally or physically in any way. He had no contact with her from 2003 until he visited her for one hour whilst she was in palliative care at the end of her life. He asserts that Stephen inaccurately recorded his superannuation balance, that Stephen had a capacity to service substantial expenses and had failed to disclose loans from the deceased and debts to the child support agency. The affidavit asserts inadequacies in the documentation concerning Stephen’s incapacity.[55] The affidavit points to Stephen’s actions in relation to his father, Bill’s, estate and asserts improper conduct in relation to the dealings with the assets of that estate. It asserts that Stephen perpetrated elder abuse against his father. While many portions of this affidavit contain material that is in inadmissible form, it is clear that the deponent wished to make a very direct challenge to the honesty and reliability of the evidence put forward by Stephen.
[56] The affidavit then contains evidence relating to the conduct of Stephen. It refers to damage to Stephen's family home at Duffy caused by Stephen after the settlement relating to his divorce from Anne-Marie Slattery. It indicates that Stephen was subsequently arrested and was also pursued by the Australian Taxation Office for outstanding debts. The affidavit deposes to the deceased commenting to Kevin on many occasions that she was upset by Stephen’s lack of care for his children and former family. [It deposes in general terms to a history of violence including assaults against his partners, children, family members and friends. – admitted as submission only]. It deposes to statements by the deceased that she was afraid of him. Kevin deposes to being responsible for the care of his mother when she fell seriously ill and began her decline. He also said that he took care of the maintenance and repairs on her home.
[57] He said that during the 17 years of Stephen’s estrangement from his mother, he did not write or call her for her birthday, Christmas, Easter or Mother’s Day. The plaintiff’s partner and his daughter made visits to her in hospital, but the plaintiff did not. He described Stephen’s role in the funeral of his father and the exclusion of Kevin and his mother from what was said at the funeral. He described the response of his mother to that exclusion and his mother saying “I will never forgive him”.
50․I would add that Kevin deposed that, contrary to Stephen’s evidence, Stephen never did odd jobs for Brenda around her home. He said that Brenda was very caring to both Kevin and Stephen. He said that Brenda worked two jobs to provide them with the best life possible, and that she was a good mother who parented them without any support from their father.
51․He denied that Stephen had regular monthly contact with their mother. He said that Stephen did not have any contact with her after 2003 following her refusal to lend him any further money to fund his lifestyle. The evidence referred to in this paragraph was admitted as to Kevin’s observations only.
52․Kevin said that Stephen had not supported Brenda emotionally or physically in any way. He said that Stephen had no contact with Brenda from 2003 until he visited her for one hour whilst she was in palliative care at the end of her life. He said that during this visit, Stephen’s only conversation with Brenda was to tell her about his financial position.
53․Kevin said that he (Kevin) cared for and protected their mother from 1977 when their father departed. He said he later became her full-time carer when she became increasingly ill. As well as all her care needs, he also took care of the maintenance and repairs of her home.
Affidavit of Brendan Richardson affirmed 23 October 2020
54․Brendan is the oldest son of Stephen and grandson of Brenda. This affidavit was filed by Kevin in support of Kevin’s case.
55․Brendan was born on 28 August 1988 and is currently 35 years old.
56․Justice Mossop summarised the contents of this affidavit at 53-55 as follows:
[58] The affidavit of Brendan Richardson was dated 23 October 2020. It appears to have been prepared without legal assistance. Brendan is the eldest son of Stephen and was 32 years old. He records that his grandmother (the deceased) and grandfather (Bill) referred to Stephen as being “entitled” and having “temper problems” that prevented him from getting along with anyone.
[59] He said that in the years 2014 to 2019 his grandmother described Stephen’s behaviour in more detail.
[60] In response to Stephen’s affidavit and the description in that affidavit that he felt neglected by the deceased, Brendan said:
During this time, my father spent little to no time at all with his children and wife (my mother: Anne-Marie Elizabeth Slattery) and neglected us. He drank heavily and spent all his time outside of work doing so with his friends. His alcoholism and neglect was the cause of my parent’s divorce in approximately 1994.
[61] He describes discreditable conduct on Stephen’s part in relation to the shared custody of the children of Stephen and Anne Marie Slattery:
(a) bragging about his lifestyle to the children and criticising Ms Slattery;
(b) failing to pay child support so that the children were left wanting;
(c) demeaning Ms Slattery and encouraging the children to do so when returning the children after custody visits; and
(d) describing Brendan as an “asshole” and saying that he was just like Kevin.
[62] He refers to Stephen having said to his children that he would arrange a hitman to kill Ms Slattery and that this occurred more frequently up to and during the finalisation of the divorce settlement in 1997-1998. He contradicted the evidence of Stephen in relation to wanting to “keep the peace”, referring to the approaches that he took to the resolution of the divorce settlement with Ms Slattery. He refers to an incident in 1998 when Stephen received documents finalising his divorce from Ms Slattery, became intoxicated and smashed the windows of the house, furniture and appliances. He describes there being a siege with police for several hours before Stephen was arrested.
[63] He said that his father had ample opportunity to own a house throughout his lifetime however his actions cost him continued ownership of the house in Duffy. This included “working for cash in hand, selling cheques from his clients to the now deceased owner of Duffy shops to avoid tax and child support and literally smashing his share of the divorce settlement”. He said that after the Duffy property was sold, Stephen drilled and poisoned all the trees and poured quick-set cement down all the external drainpipes. He gave evidence of conversations with his grandfather and the deceased about Stephen having borrowed money from each of them and not having paid it back. He said that the deceased said that in 2002-2003 this was more than $68,000.
[64] Brendan deposed that in 1999 he was assaulted by his father who also destroyed some of his possessions and, after that, he went to live with his mother and had little contact with his father until 2002.
[65] He returned to live with his father in 2002 and was treated differently to his twin brother who was also living at the address. During that time, Stephen assaulted his then partner which resulted in Brendan and his twin brother having to spend two months living with another family. He said that in this period his father was not working and the deceased lent him substantial amounts of money. He denies that there were any plans for the deceased to come to Christmas in 2002/2003.
[66] He says that his father “coerced” his twin brother and himself to start a kitchen and bathroom business. He later understood that this was a scheme to avoid paying tax and child support and that he and his brother received no income from the business.
[67] He described an incident where a female friend of his was indecently assaulted by Stephen.
[68] He described an incident where his father made arrangements for him and his brother to assist a neighbour to move house, but then confiscated the income that each of them had earned from doing so.
[69] Brendan also deposed that in late 2003 his father was continuing to borrow sums of money from the deceased. However, when she refused, he said that he would cut her off from his family. Although they visited subsequently and Stephen acted as though the previous visit had never happened, that was the last visit to the deceased’s house for more than a decade. He deposed that Stephen’s description of the final visit and being required to urinate behind the shed was “completely false and a disgusting perversion of what my final visit to my grandmother’s house was like in 2003”.
[70] He gave evidence of having worked for his father between 2011 and 2012 but that Stephen often failed to pay him the agreed amount of $100 per day and some weeks he was not paid at all.
[71] He described the circumstances after his grandfather, Bill’s, death. He describes his father telling him that he, his brother and his cousin were named in the will and that Bill’s home had been left to them. He described that the program for the funeral did not make reference to the deceased or Kevin or his children, although it did make reference to Stephen and his children. He referred to the terms of the eulogy and unpleasant and manipulative conduct on the part of Stephen on the evening of the funeral.
[72] He referred to his search for any grant of probate in relation to Bill’s will and says that there was no record of such a grant. He stated his belief that Stephen “fraudulently transferred all of Pop’s estate to himself and has not executed pops will correctly under the law”. He referred to Stephen’s acquisition of a four-wheel drive vehicle and boat shortly after Bill’s death.
[73] He referred to Stephen’s conduct in relation to child support and pressure brought on Brendan and his siblings in relation to the pursuit by the Child Support Agency of amounts Stephen owed.
[74] Brendan refers to the support that he gave to the deceased between 2014 and 2019. It also refers to the fact that Kevin was the full-time carer for the deceased for seven years from 2012 until 2019.
57․I would add that Brendan deposed that Stephen’s claims that "apart from the last 8 years" he had always been available to assist Brenda were “completely false”. He said that Brenda had stated to him that she had not seen Stephen since the end of 2003. He said that Stephen’s claims of always being supportive of Brenda were “blatant lies” and that Stephen had been a financial burden on Brenda all his life and had given little in return.
Affidavit of Stephen Richardson affirmed 13 November 2020
58․This affidavit was filed in response to Brendan’s affidavit of 23 October 2020 and, in terms, said it was limited to those paragraphs in Brendan’s affidavit that related to Stephen’s claim on Brenda’s estate.
59․Justice Mossop summarised the contents of this affidavit at 55-56 [75] as follows:
Stephen affirmed an affidavit dated 13 November 2020 in response to Brendan’s affidavit. In that affidavit he said that in the period when Brendan deposed to Stephen having spent little time with his children and wife, he was working six or seven days a week to support the family. He said that his financial situation was not such as to permit him to acquire a house and that he had declared bankruptcy prior to the year 2000. He said that the only loan that he had from his mother was $350 to pay an electricity bill. In relation to Bill’s funeral, he said that the program was in line with his father’s wishes. So far as Bill’s estate was concerned, he said that he was the sole beneficiary and that if he predeceased Bill then the estate would go to his daughter Kristy. He said he had sought legal advice and no probate was required.
60․Stephen said that he did not have any knowledge of Kevin being the full-time carer for their mother.
61․Other than those matters, the balance of the affidavit refuted Brendan’s evidence in very generalised and conclusionary terms.
Affidavit of Stephen Richardson affirmed 24 March 2021
62․This affidavit was filed, it said, to update Stephen’s personal circumstances since his affidavit affirmed 28 May 2020.
63․Justice Mossop summarised the contents of this affidavit at 57-58 as follows:
[85] Stephen’s affidavit dated 24 March 2021 indicated that he lived in a caravan park in Leeton, New South Wales and had moved there two months previously. He had worked at a joinery business assembling kitchens earning $1800 net per week. In February 2021 he had suffered a workplace injury involving a left distal bicep tendon rupture which required surgery. As a result of his accident and his poor health, he had “significant doubts” as to whether he would be able to resume any form of employment. He had moved into Leeton as a temporary measure. He intended to return to Canberra to live. He hoped to live in a free-standing house 15 to 25km outside Canberra. He had a superannuation balance of $1433. He had a bank account balance of $56. He had not been able to locate the will of his father.
[86] He deposed that the closing balance of his father’s bank account had been $60,323.35. After payment of debts, there was $50,000 remaining which he used to purchase a motor vehicle for $71,000 which he still owned. An attached value estimate indicated that it was worth between $15,000 and $22,000. An attached value estimate for his other vehicle showed that it was worth between $1800 and $4100. He had purchased the motorboat for $26,000 in September 2011 and an attached document indicated a value between $12,000 and $14,000. The annexures to the affidavit included a letter from the plaintiff’s general practitioner indicating that he suffered from:
(a) chronic mood disorder;
(b) chronic lumbar spinal injury and nerve entrapment despite decompression surgery;
(c) narcolepsy;
(d) likely seronegative arthritis causing chronic lower spinal and pelvic girdle pain;
(e) recent repair work to left sided biceps muscle;
(f) left shoulder tendinitis and chronic suprascapular tendon tear; and
(g) chronic impetigo.
[87] The doctor indicated that Stephen’s prognosis in relation to a return to work was “quite guarded”.
64․I observe that Stephen had been able to work as an acting foreman assembling kitchens from October 2020 until February 2021 even though he had been, as of May 2020 (according to his affidavit affirmed 28 May 2020), unemployed due to ongoing lumbar problems. How that was possible in light of the medical evidence is unknown.
65․Stephen said that he was the executor and sole beneficiary under his father’s will, had taken the whole of Bill’s estate for himself, and said he had been unable to locate his father’s will despite extensive searches. He said that he had been told that he did not need to obtain probate of his father’s will.
66․It is apparent that Stephen did not, for example, issue a notice of intention to distribute in accordance with s 64 of the Administration and Probate Act, nor did he provide any informal notice of his intention to do so to Kevin or other members of the family, including Brenda.
Affidavit of Lynn Richardson affirmed 24 March 2021
67․Lynn is Stephen’s former partner. She first met Stephen in March 1996 and met Brenda soon thereafter. She separated from Stephen in 2009. This affidavit was read in support of Stephen’s case.
68․Justice Mossop summarised the contents of this affidavit at 57 as follows:
[82] An affidavit of Stephen’s former partner, Lynn Richardson, deposed to the following matters. Whenever she and Stephen went to visit the deceased, Stephen rang to check that Kevin was not there. They had a daughter, Kristy, born in 1997. They would go with Kristy and Stephen and other children to visit the deceased. If Kevin turned up, then the deceased would go from “chatty & friendly to quiet & withdrawn”. She described adverse interactions between Kevin and Kristy. She described visiting the deceased’s house between 2001 and 2005. She said that Stephen would mow the grass and look after the outdoor areas but that if Kevin turned up then they would leave shortly afterwards. She describes (an) incident in 2005 and 2006 consistent with the deceased giving preference to assisting Kevin. She said that towards the end of 2008 Stephen asked the deceased questions about his childhood and the fact that he felt ignored as a child and that the deceased did not really answer the questions he was asking.
[83] She and Stephen separated in February 2009. She would take Kristy to see the deceased every one or two months until about 2014 when Kristy would go by herself. However, they only went when Kevin would not be there. She was not aware of Stephen seeing the deceased after about January 2011. She described Stephen being hurt that she could not answer his questions about feeling ignored as a child. She said that shortly before Bill died in 2011, he had apologised to Stephen and said he felt bad about how Stephen had been treated. She said that the deceased described Kevin as a bully and that she often used to hear Kevin described as “the stand over man”. When she visited the deceased after she had separated from Stephen, the deceased would ask after Stephen. Lynn would encourage her to call him. At the hospital before she died, the deceased asked for Stephen who came to the hospital immediately. The deceased said “I’m sorry” and “Stevie I am glad you are here”.
[84] She also gave detailed evidence in response to the affidavit of Brendan Richardson. That evidence corroborated Stephen’s about the failure to attend Christmas in 2003. She gave evidence about the content of Stephen’s father’s will and that it left his possessions to Stephen. She described acting in accordance with advice from a solicitor to discharge the liabilities of the estate.
69․Lynn said that for about 12 months after the year 2000 she saw Stephen attempting to contact Brenda, but Brenda said she was busy babysitting Kevin’s children.
70․From 2001 to 2005, she said she and Stephen only visited Brenda irregularly, and “[s]ometimes we saw her and sometimes not”. She said they also visited Brenda every two months when Stephen would mow the grass and look after the outdoor areas.
71․Lynn gave some further generalised evidence to the effect that Brenda preferred Kevin and Kevin’s family to Stephen and Stephen’s family. She said that things became tense between Stephen and Brenda toward the end of 2008, and as best as she could recall, Stephen had not seen Brenda after January 2011, about three months before Kevin and Stephen’s father died.
72․Contrary to Stephen’s affidavit evidence, Lynn said that Stephen did not reside at her home at Waramanga, and never had.
73․During examination in chief, Lynn clarified that she had helped Stephen with the administration of Bill’s estate, but she does not have any folders or documents relating to that assistance.
Affidavit of Lachlan Richardson affirmed 24 March 2021
74․Lachlan is one of Stephen’s sons and the brother of Brendan. This affidavit was read in support of Stephen’s case and in response to Brendan’s affidavit affirmed 23 October 2020.
75․Justice Mossop summarised the contents of this affidavit at 58 [88] as follows:
The affidavit of Lachlan Richardson indicated that he is one of the sons of the plaintiff. His affidavit was made in response to the affidavit of Brendan Richardson. He describes the relationship with Bill who, at that stage, lived in a caravan park near Ulladulla. He records his perception that the deceased always treated Stephen and Kevin differently. Further, he describes Stephen and Kevin as not being on good terms.
76․Lachlan said that in about 2018, he was visiting Brenda by himself. He had done this a few times in 2018. On one occasion in 2018, he said that Brenda was getting sad that not everyone could come and see her at the same time and said words to the effect that, "I wish everyone could get along”. An aunty who was there at the same time said to Brenda that Brenda had cast Stephen aside and treated Kevin as the favourite. Brenda replied, “yes you are right”.
77․In general terms, he took issue with much of Brendan’s evidence in relation to their upbringing, Stephen’s relationship with Bill, and some other less significant matters.
78․Lachlan gave evidence that when Brenda was in hospital, he told Stephen that Brenda was dying a few days before she died. He said he saw Stephen, Lynn and their daughter, Kristy, visit Brenda, and did not hear Stephen talk with Brenda about money.
Affidavit of Anne-Marie Slattery affirmed 23 March 2021
79․Ms Slattery is Stephen’s former wife. They started living together in 1982, were married in 1986, separated in 1995, and were divorced in 1998. This affidavit was read in support of Stephen’s case.
80․Justice Mossop summarised the contents of this affidavit at 56-57 as follows:
[76] An affidavit of Stephen’s former wife indicated that she had met him in 1981 when he was living in O’Connor. She was surprised to observe that Stephen and Kevin did not get along. She says that Stephen felt that his brother had bullied him since he was young. In 2018 the deceased had described the two brothers as never having got along. Ms Slattery observed that on some occasions, the brothers were treated differently. Kevin and his girlfriend were permitted to live at the O’Connor house for many years until they bought their own house. When they extended their own house, the deceased lent the money to do it. However, the deceased did not give Stephen and her any assistance when they bought their house. In 1983 when living with Stephen in Downer, they visited his parents in O’Connor every couple of weeks. When his parents separated, they would visit both at their separate residences regularly. In 1987 and 1988 they installed an irrigation system in the deceased’s front garden and Stephen assisted her with outdoor maintenance and by installing wardrobes in two bedrooms. Stephen acted as a go between for his separated parents. Stephen’s father Bill only got a last-minute invitation to Kevin’s wedding. Stephen was not invited to the wedding. Neither attended the wedding.
[77] Following the birth of two sets of twins in 1988 and 1991, Ms Slattery and Stephen regularly visited the deceased, usually monthly. While the deceased babysat Kevin’s children, the deceased did not babysit Stephen and her children or help her at her house. She gave evidence that there was tension around inviting both the deceased and Bill to events at their house.
[78] She separated from Stephen in 1995. She described their divorce in 1998 and the split of the modest equity that they had in the Duffy house. She described an incident in about 1999 when, at the request of one of her children, she attempted to make contact with the deceased. When Ms Slattery said that she had not seen the deceased for a few years, the deceased replied “that’s good”. From this she gained a clear impression that the deceased did not want to see her grandchildren.
[79] She described the failure by Stephen to pay any significant maintenance in relation to the children.
[80] She described reconnecting with the deceased in 2016 and participating in a knitting group together. The deceased said that she did not see Stephen anymore because “we had a falling out and it is all too hard”. She said “I don’t wish him ill and hope he was alright. I still think about him”. At one point in 2018 she indicated an intention to change her will. She described conversations with the deceased about loans made to Kevin and to Jamie, his son. She describes Kevin’s role in caring for her after a hospital admission. She also described her role in looking for aged care accommodation for the deceased.
[81] She also responded to some of the matters in Brendan Richardson’s affidavit. That included recording that the divorce between Stephen and her was acrimonious.
81․Ms Slattery said that from 1995 until her and Stephen’s children were adults (about 2009), Stephen paid less than $500 in maintenance despite the amount owing reaching a total of $21,000. She said that Stephen was working at the time and she thought he was avoiding paying child support. Ms Slattery was asked about the child support payments and their current status. She said that she had written to the child support agency and told them to stop trying to collect that money. She also wrote to the tax office and Centrelink to the same effect to ensure that it would not be “deemed” that she received the money and therefore might have to pay tax on it.
82․Ms Slattery said it was difficult raising two sets of twins as a single parent on a pension and part-time income. Ms Slattery said that Stephen did not offer to pay for anything but said that he once bought some clothes for the girls, some shoes for the boys, and some food. When asked if Stephen had ever tried to organise paying child support, Ms Slattery said she could not recall.
Affidavit of Kevin Richardson affirmed 6 July 2021
83․Justice Mossop summarised the contents of this affidavit at 58-59 as follows:
[89] Kevin affirmed a further affidavit on 6 July 2021. This affidavit was prepared with the assistance of solicitors. It identifies that the gross value of the estate after paying testamentary expenses was $810,000 and that all of the gifts provided for in the will, except that of $500 to the plaintiff, had been made. In relation to the gift to Stephen, the affidavit says that Stephen “at all times refused to accept the gift”.
[90] The affidavit describes Kevin’s financial circumstances. It indicates that in May 2013 he ceased work in order to become a full-time carer for the deceased who was suffering from a number of health conditions. As a result, since May 2013 he has been unemployed. He received a part carer’s pension from 2017 until 2019. It indicates he has been receiving anti-anxiety and anti-depressant medication and that he suffers from arthritis in his right hip and back. He said that he spent approximately 16 hours each day in bed. It describes that he has a loan balance of $98,000 owing on his property and is also liable for legal costs and expenses associated with the proceedings.
[91] He described his assets as follows:
(a) a property currently valued at $880,000;
(b) two motor vehicles totalling approximately $16,400; and
(c) approximately $5200 in the bank.
[92] He said that he used the residue of the estate which he received to satisfy personal debts which he had incurred to a number of individuals during the period when he was a full-time carer for the deceased.
[93] He describes an earlier will made by the deceased in 2007. That made specific reference to the position of Bill and Stephen and explained why no provision was made for them. It includes recording a statement from the deceased: “I don’t want Stephen to have a thing. He has hurt me so much.” The will, which is annexed, says in relation to Stephen:
I have not provided for my other son, Stephen Leslie Richardson, as I have had almost no contact for 3 to 4 years prior to this Will and it was a strained relationship prior to that. Stephen has had severe long term problems with alcohol abuse. I have no relationship with his children.
[94] It also explains why there is no provision for Bill or for Kevin’s daughter, Danielle.
[95] The affidavit records that in 2017 the deceased made a new will with assistance from a firm of solicitors in O’Connor. Following that occurring, the deceased said to Kevin: “I’ve included Stephen in the will on the advice of my solicitor, so he is not forgotten. I do not want him coming after you for more money.”
[96] The affidavit then responds to various matters in Stephen’s affidavit of 28 May 2020 and 24 March 2021. There are also some responses to matters in an affidavit of the plaintiff’s solicitor, Christopher Michael, affirmed 15 March 2021.
[97] The affidavit provides as evidence of Stephen’s “abusive and deceptive behaviour”:
(a) calling the deceased when under the influence of alcohol and yelling at her, which resulted in the deceased installing an answering machine so she could screen telephone calls; and
(b) asking for loans from the deceased and failing to repay them, instead using the money to buy alcohol and drugs.
Affidavit of Stephen Richardson affirmed 7 October 2021
84․This affidavit was not read on the application before Mossop J. It was read in the hearing before me as a reply to Kevin’s affidavit affirmed 7 July 2021.
85․In this affidavit, Stephen, by reference to some company and internet searches, said he did not think Kevin was frank with the Court regarding his assets.
86․He agreed that he, Stephen, drank alcohol heavily sometimes, but denied being a regular or serious drug user or that he cultivated illegal drugs. He agreed he was aggressive at times in the past, resulting in police attending his home on one occasion.
87․He said he still resided at Leeton in New South Wales but stayed with Lynn at Waramanga from 1 March 2021 until the middle of April 2021 in order to have surgery and the necessary follow-ups with medical practitioners.
88․He said he had a shoulder reconstruction in August 2021.
Affidavit of Stephen Richardson affirmed 14 April 2022
89․This affidavit was not read on the application before Mossop J. It was read in the hearing before me as an update to Stephen’s personal circumstances.
90․In this affidavit, Stephen said that he had not returned to work because of the severity of his bicep injury resulting from the workplace accident in February 2021, and he had significant doubts whether he would be able to resume any form of employment.
91․He tendered a report from an orthopaedic surgeon, Dr Morgan Prince, dated 31 January 2022. Dr Prince said that in order for Stephen to be successfully reintegrated into the workplace, he needed some permanent limits on the use of his left shoulder so he would not be living with intractable pain or problems. The surgeon said that Stephen should not lift more than 10kg below or 2kg above shoulder height with both hands and should observe a half hour limit on repetitive use of the left arm before he had an adequate break to recover.
92․Stephen tendered a report from a neurosurgeon, Dr Justin Pik, dated 30 November 2021. Dr Pik said that it had been 14 years since Stephen’s successful lumbar fusion from L4 down to S1. He reported that Stephen had been reporting increasing low back pain with radiation down both legs. Symptoms were aggravated by bending, walking for more than 250m, as well as physical exertion. The surgeon reported that Stephen had clinical features that suggested mechanical low back pain with neurogenic claudication due to the adjacent segment degeneration at L3/4 and L2/3. He recommended Stephen undergo decompression and extension of the previous fusion up to L1.
93․Stephen said that he was presently in receipt of $1,293 per week from his workers compensation insurer. He was not receiving any Centrelink benefits.
94․He said that his medical condition was not presently stable.
95․He said that, as stated in his earlier affidavit affirmed 28 May 2020, his business was not doing too well, and he had experienced poor health for many years. He said that he was unable to find competent and reliable staff, and his kitchen installation business had slowed down as a result of the introduction of flatpack kitchens into the market.
96․He said he was in debit on a business overdraft account with the ANZ bank of about $55,000 and had minimal credit balances in a few other accounts. I note that Stephen never tendered detailed bank statements for this business overdraft account, which logically would have shown income and expenses for his business.
97․He said he had a credit card debt of about $7,600, a debt to Storage King of about $2,700, and a debt to Canberra Containers of about $4,800.
98․He said he had two vehicles with a combined approximate value of $11,500 and a boat valued at $12,000.
99․He said his monthly expenditure was about $6,700 per month. He annexed a Monthly Expenditure document which said that he spent, amongst other things, $2,660 per month on “storage”, which seems an extraordinary liability for a man in his circumstances to maintain.
100․I note that, although Stephen received about $18,500 from his workers compensation insurer on 15 February 2023, a total of $10,900 from another unidentified Westpac account, and $18,500 from another person on 27 February 2023, there are no transfers that I can see to the ANZ bank in part payment of the business overdraft debt, nor to Storage King or Canberra Containers. The fact that nothing was paid to the ANZ, Storage King, or Canberra Containers is confirmed by his later affidavit affirmed 6 October 2023 in which he said, in effect, that those debts remained substantially the same.
Affidavit of Stephen Richardson affirmed 6 October 2023
101․This affidavit post-dated the application before Mossop J. It was read in the hearing before me as an update to Stephen’s personal circumstances.
102․He said that he continued to live in a caravan park in Leeton and paid $275 per week in rent. He had not returned to any form of employment as his health conditions remained “active”.
103․He said he received $1,340 per week from a previous workers compensation claim. He was not in receipt of any Centrelink benefits or payments from an income protection insurer.
104․He was scheduled to undergo surgery at a private hospital on 8 November 2023, this being a revision lumbar fusion from L1-S1 and an L1-L4 laminectomy. He said the surgeon would charge $10,770 (but Medicare would refund $4,270) but that the surgery would likely cost $15,000-20,000 overall once other fees were taken into account. He said that his back injury had not been accepted by his insurer (although no corroborative evidence was adduced of this fact, nor why the surgery could not be done as a public patient at a public hospital).
105․He said that his Westpac accounts had an available balance of $41.02 and $627.28 as of September 2023. His superannuation balance was between $200 to $300.
106․He said he had an outstanding claim under a Total and Permanent Disablement (TPD) Policy with CBUS Super totalling $48,000, but at this time that claim had not been determined.
107․Of his two cars, he said one had been discarded due to its condition and the other had an approximate value of $10,000. He had sold his boat in about March 2023 for $19,000.
108․His said his monthly expenditure remained unchanged other than that his rent had increased from $250 to $275 per week.
109․He said he owned no shares, no real estate, and had no other assets or debts other than those set out in his affidavits.
Family Provision Act 1969 (ACT)
110․The plaintiff is a child of Brenda and so is eligible to make an application under the FPA: FPA s 7(1)(c).
111․Section 8(1) of the FPA says that the Court “may” (not must) order that provision be made out of the estate to an eligible person.
112․Section 8(2) of the FPA says that the Court shall only make an order under s 8(1) if satisfied that, as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available (in this case) under the will of the deceased after considering the criteria set out in s 8(3).
113․Section 8(3) of the FPA says:
8 Family provision orders
…
(3)The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows:
(a)the character and conduct of the applicant;
(b)the nature and duration of the relationship between the applicant and the deceased;
(c)any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;
(d)any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;
(e)the income, property and financial resources of the applicant and the deceased;
(f)the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;
(g)the financial needs and obligations of the applicant and the deceased (during the life of the deceased);
(h)the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;
(i)the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;
(j)any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;
(k)any other matter the court considers relevant.
…
114․Section 9(1) requires any application under s 8 to be made within a period of 6 months after the date when administration in respect of the estate of the deceased person has been granted.
115․Section 11(1) says that any order under s 8 shall specify the amount and nature of the provision (if any) to be made and may specify conditions, restrictions and limitations subject to which the provision is to be made that the Court thinks fit to impose.
116․Section 11(2) says that unless the Court orders otherwise, the burden of the provision ordered by the Court to be made for the benefit of a person shall be borne between the persons beneficially entitled to the estate of the deceased person (other than the applicant), in proportion to the values of their respective interests in the estate.
117․Section 22(1) requires the Court to consider the testator’s reasons for making the dispositions made by will or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under the FPA in determining an application for family provision.
Some general principles
The two stage approach
118․The test to be applied in relation to a claim for provision under family provision legislation was described by the majority of the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 (Singer) at 208 as “a two-stage process”. This approach is applicable in the ACT: Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237 (Armouti v Nenes) at 242 [19] per Elkaim ACJ and Rangiah J.
119․In Singer, the majority of the Court said at 208:
The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.
120․In short, the two-stage process explained in Singer requires the Court to firstly decide whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. If satisfied they have not, then the Court proceeds to determine what further provision, if any, is appropriate.
The first stage
121․The first stage was labelled by the majority of the Court in Singer at 208-209 as a “jurisdictional question”, meaning that the Court’s power to make an order for provision is conditioned upon the Court being satisfied of the state of affairs that are predicated in s 8(2)(a) of the FPA.
122․In relation to the first stage, the majority of the Court explained in Singer from 210-211 that:
Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
…
Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.
123․Broadly, this means that a court’s power to make an order for family provision is conditioned upon the Court being satisfied that “adequate provision for the proper maintenance, education or advancement in life of the applicant” is not available under the will of the deceased, or if the deceased died intestate, under the law applicable to intestacy: FPA s 8(2).
124․The meaning of “proper” and “adequate” were the subject of attention by Gibbs J in Goodman v Windeyer (1980) 144 CLR 490 (Goodman) at 502:
As Dixon C.J. pointed out in Pontifical Society for the Propagation of the Faith v Scales, the words “adequate” and “proper” are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards: see In re Hodgson, deceased, per Sholl J.
(Citations omitted.)
125․Justices Callinan and Heydon contemplated “proper”, “adequate” and “maintenance” in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 (Vigolo) and said at 228-231:
[114] [T]he use of the word “proper” … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here. … The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.
[115] “Maintenance” may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. … And, furthermore, provision to secure or promote “advancement” would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.
…
[122] Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances. … The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
126․“Proper maintenance” is not limited to the bare sustenance of an applicant and invites consideration of the environs to which they are accustomed and their level of mobility: Alexander v Jansson [2010] NSWCA 176 at [18] per Brereton J, Basten JA agreeing at [1], Handley AJA agreeing at [2]. In determining what is “proper”, it is “not merely the parties’ financial circumstances” which regard should be had to: Sgro v Thompson [2017] NSWCA 326 at [6] per Payne JA. In Crossman v Riedel [2004] ACTSC 127, Gray J said at [47] that relevant circumstances to consider may include “the effects of inflation” and “whether the applicant is able-bodied”.
127․Justice Hallen considered the distinction between “adequate” and “proper” in Aubrey v Kain [2014] NSWSC 15, and held at [63] that:
The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, whereas “proper” prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77].
128․In Kulczycki v Public Trustee [2013] ACTSC 230 at [92], Mossop M (as his Honour then was) said at [92] that “advancement” is a phrase of wide import. Justice Gray similarly stated in Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 (Turner) at [53] that “advancement in life” is not limited to “payments, directly or indirectly enabling the discharge of the recurring costs of living expenses”.
The second stage
129․In relation to the second stage, the majority of the Court said in Singer at 211:
The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense. … The fact that the court has a discretion … means that, as stated above, it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
130․That the decision at the second stage is discretionary is confirmed by the use of the word “may” in s 8(1) of the FPA in relation to the Court’s power to make an order for family provision. This is because s 146(1) of the Legislation Act 2001 (ACT) provides that where an Act uses the word "may" in relation to a function, the function may be exercised or not exercised, at the Court’s discretion.
131․In Family Provision in Australia (LexisNexis Butterworths, 6th ed, 2021) (Family Provision in Australia), John de Groot and Bruce Nickel comment on the difficulties of determining the second stage at 13:
There are no guidelines or mathematical formulae that can be used to assist in this task. However, decisions made by other courts on roughly similar fact situations may be of assistance … Of course they cannot be expected to solve the problem of deciding what provision ought to be made in a given case. This will always be a matter for judicial discretion.
132․At this point, it is appropriate to touch on a number of underlying principles which bear on the matters to be determined under the two stages.
Testator’s moral duty
133․From the earliest family provision cases, courts have considered the criterion of “moral duty”, “moral obligation”, and “moral claim” as informing the determination of an application: Re Rush (1901) 20 NZLR 249 at 253; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 972-973; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479. The justification for interfering with the testamentary intentions of a deceased was grounded on the testator’s “moral duty” to make provision for their spouse and children: Vigolo at 199-200 [12].
134․This principle was articulated by Salmon J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218 at 220-221:
The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.
135․In Stewart v McDougall (Supreme Court of New South Wales, Young J, 19 November 1987), Young J formulated it as a question of “whether the testatrix by her Will failed in her moral duty to those who had a claim on her.”
136․In Henry v Hancock [2016] NSWSC 71 (Henry), Brereton J said:
[68] It is important also to bear in mind the principle articulated by Young J, as he then was, in Stewart v McDougall, in explaining that the court's role is limited to making adequate provision for an eligible person's proper maintenance and advancement:
It is important to state what the Family Provision Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equal, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty.
[69] Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of “community standards”, although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty — subject to the qualification that the court’s determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator’s will or death.
[70] Fair and reasonable members of the community may well differ as to whether a parent owes a moral or natural obligation to an able-bodied adult child such as to fetter the parent’s testamentary freedom. In Taylor v Farrugia, in a passage which appears subsequently to have received general approval, I said of a claim by an adult child:
These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].
Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.
(Citations omitted.)
137․The value of the moral duty criterion was the subject of extensive consideration by the Court in Vigolo. Notwithstanding the well-reasoned dissent of Gummow and Hayne JJ (see 216-218 [64]-[73]), the majority, comprising Gleeson CJ, Callinan and Heydon JJ, confirmed the continuing relevance of the expressions “moral duty”, “moral obligation”, and “moral claim” to the determination of family provision claims. The application of these concepts to the correct interpretation of the FPA is best summarised by Gleeson CJ at 204-205 [25]:
In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description "moral". As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.
138․In regard to the variation between the references to “moral duty” and “moral claim” and the like, the learned authors of Family Provision in Australia explain at 18 that:
The terms are, of course, opposite sides of the same coin. The deceased is said to be under a moral duty to provide for his or her family and the family in turn has a moral claim on the deceased’s estate if the deceased breaches his or her moral duty.
(Citations omitted.)
Community standards
139․The presence of a testator’s moral duty is to be characterised in light of “community standards” which “change and develop over time”: Vigolo at 204 [25] (Gleeson CJ). This was explained by McWilliam J in Tong v Tong [2023] ACTSC 163 at [214]:
[I]n making such an assessment about duty, the Court takes into account community expectations and judgments of the fair and reasonable person in the community… It is not always self-evident what the community expects, or what its standards or values are… The Court must be cautious not to extrapolate general principles from statements in authorities based on a particular factual assessment of circumstances by reference to human and societal values…
(Citations omitted.)
140․These community standards or expectations were approached with similar caution by Brereton J in Henry at [69], as quoted above at [136].
141․Justice Hallen provided a useful summary of the intersection between a testator’s moral duty, community standards, and the relevance of the person applying for family provision in Camernik v Reholc [2012] NSWSC 1537 (Camernik) at [155]:
An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to “connect the general but value-laden language of the statute to the community standards”.
142․It is relevant to reflect on whether the community would expect greater benefaction to have been made for an ‘adult child’.
Adult children
143․The age of the applicant in a family provision claim is material: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 (Hughes) at 147 per Gibbs J.
348․In Richardson, Mossop J said this about Stephen’s solicitor/party costs at 60 [101]:
These fees seem to be disproportionate to the complexity of the case in the volume of evidence required to be prepared, even taking into account that the passage of the proceedings towards hearing was not entirely smooth and that there were some complications relating to attempts to serve the third defendant overseas.
349․Stephen’s solicitor/party costs before Mossop J and before me, both inclusive of GST, are summarised in the following table (rounded to the nearest dollar):
Before Mossop J
Before Curtin AJ
Difference
Solicitor’s fees
$135,428
$170,500
$35,072
Counsel’s fees
$56,209
$87,498
$31,289
Solicitor’s disbursements (other than counsel's fees)
$27,636
$56,012
$28,376
Total
$219,273
$314,010
$94,737
350․Stephen’s party/party costs (inclusive of GST) by the end of the hearing before me were expected to be:
(a)solicitor’s fees of $93,500;
(b)counsel’s fees of $59,498; and
(c)disbursements of $35,000,
making a total of $187,998.
351․I appreciate that there has been some prolongation of the litigation as a result of a number of things occurring, including the hearing of Richardson before Mossop J, but even taking those matters into account, I regard both the plaintiff’s solicitor/party and party/party costs to be excessive in the circumstances. Given Mossop J’s orders about updating affidavits, and the lack of anything substantive occurring between the hearing before Mossop J and the hearing before me, I cannot fathom how the plaintiff’s costs increased by a little under $95,000 between the hearing in Richardson and the hearing before me.
352․Justice Mossop expressed disquiet about the costs incurred. His Honour said at 70:
[114] I have referred above at [99] to the evidence as to the costs incurred by the plaintiff in pursuing this claim. It must be noted that those costs reflect the costs unaffected by the decision on the present application which will inevitably mean that the costs of the proceedings will be increased. I have indicated above that, notwithstanding the complexities of the case up to the point where they were estimated, those costs were disproportionate to the requirements of the case. When regard is had to the significant solicitor and client component within the solicitor’s costs, the amount that would have been recovered by the plaintiff had the settlement agreement been approved would have been reduced to a very modest amount. If the legal expenses incurred by the estate are added in, the overall cost-effectiveness of the dispute resolution process (or lack of it) could be estimated.
[115] The extent of legal costs incurred in family provision claims creates distorted incentives that encourage the making of claims and has the potential to significantly affect smaller estates where, as here, a single residential dwelling is the principal asset of the estate. In other areas of the law there are costs constraints designed to achieve particular public policy goals. Examples are r 1725 of the Court Procedures Rules2006 (ACT) and s 181 of the Civil Law (Wrongs) Act 2002 (ACT). Further, where there is the facility available under court rules, costs limitation orders are an available mechanism to impose some costs discipline in family provision claims in smaller estates: for example, Uniform Civil Procedure Rules 2005 (NSW) s 42.4, New South Wales Supreme Court Practice Note No SC EQ 7 at [24].
[116] If the costs incurred in this case are reflective of the quantum of costs arising from the current regime for claims under the FP Act, then it is likely to be indicative of a discontinuity between community expectations of what might be appropriate outcomes in relation to such claims and what is occurring in practice. In my view, some consideration of these issues by the legislature and the rules committee would be appropriate.
353․In NSW, judges have expressed similar concerns about costs incurred in family provision litigation. For example, in Plummer v Montgomery [2023] NSWSC 175, Hallen J said at [64]:
Other judges, and I, have repeated many times in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness(No 2) [2012] NSWSC 35 at [18].
354․I note in that case, which ran for two days, the plaintiff’s party/party costs were $80,000 and the defendant’s solicitor/party costs were $100,000. The gross value of the estate was $1,125,140, leaving the estimated value of the estate out of which any order for provision could be made to be $945,140.
355․In Baychek v Baychek [2010] NSWSC 987, Ball J said the following about costs in cases relating to the Family Provision Act 1982 (NSW) at [21]:
Consequently, in awarding costs in Family Provisions Act cases the court is willing to consider the overall justice of the case: Singer v Berghouse (1993) 114 ALR 521 at pp 521–2 per Gaudron J. In many cases, that will still mean that an unsuccessful party will have to pay costs: see Moussa v Moussa [2006] NSWSC 509; Jvancich v Kennedy (No 2) [2004] NSWCA 397; Carey v Robson [2009] NSWSC 1199. However, in some cases, the court is willing, for example, not to order that an unsuccessful applicant, whose claim was not without merit, pay the estate’s costs of the application. Similarly, it is often difficult to separate the claim or claims from the costs orders that follow from them, since, for example, those costs orders when made out of the estate in favour of a party have some of the characteristics of a distribution to that party and, at the same time, affect the ultimate amount available for distribution to others. Consequently, there will be cases where, when considering the overall justice of the case, it is appropriate to make no order for costs in favour of a successful party or, more often, to cap those costs — particularly where the estate is not large. Of course, another way of dealing with this second type of case is to make an adjustment to the amount awarded to the applicant having regard to the fact that the applicant will also recover costs. However, there seems to be no reason why either avenue should not be open to the court. Practice Note SC Eq 7 recognises that fact.
(Emphasis added.)
356․The real point about what fell from Ball J is that the issue of costs in FPA claims is really at large, and attention must be paid to the fact, especially in small estates, that there is a fixed pool of assets in issue.
357․In Drummond v Drummond [2019] NSWSC 993, Hallen J made the following observations about costs in family provision claims:
[28] Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
[29] As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]:
In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.
[30] However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 ; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 ; Harkness v Harkness (No 2) [2012] NSWSC 35 . I have made this statement, many times, in the context of a claim for a family provision order, particularly, in relation to estates with a relatively small value.
(Emphasis added.)
358․The evidence was that the value of the estate, after probate expenses and the like, was $810,000. Kevin’s costs, which will be paid out of the estate, are $32,244. I will cap Stephen’s recoverable costs at $40,000, having regard to those authorities, the modest size of the estate, and taking into account proportionality between the amount awarded and the costs payable.
359․I endorse the remarks made by Mossop J and Hallen J as quoted above at [352] and [357].
The amount of further provision
360․In my view, Stephen should be provided a legacy of $74,000, being approximately 10 per cent of the net value of the estate after deduction of the parties’ legal expenses. I have calculated the net value of the estate to be $737,756.
361․This is a much smaller sum than that sought by Stephen. In general terms, he sought a sum sufficient to buy himself a modest house on the outskirts of Canberra. In his case, he emphasised his needs. But his needs do not determine the amount of provision. As Basten JA said in Chan v Chan at [22], Simpson JA agreeing at [74], Payne JA agreeing at [75]:
The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs required determination of the size of the estate and the claims of others on the beneficence of the testator.
362․Kevin is, broadly speaking, in the same position as Stephen in terms of finances and health, aside from the fact that Kevin owns a home encumbered by a small mortgage. But, importantly, on the evidence, he had a close and loving relationship with his mother, cared for her from 2003, and became her fulltime carer in 2013 when her health declined. Stephen, on the other hand, had no contact with Brenda for the last 16-odd years of her life. The further provision should not come out of Kevin’s share of the estate.
363․I pay due regard to Brenda’s testamentary intentions, Stephen’s regrettable character and conduct, the estrangement between Stephen and Brenda and its causes, and Stephen’s lack of candour regarding various aspects as to his financial situation. At the end of the day, I am of the view any further provision should be modest.
364․Jamie is in a different category to Kevin. As mentioned earlier, Jamie gave no evidence and I have inferred from his silence that he has no need for provision from the estate and, on a comparative basis, he is significantly better off than Stephen.
365․In making those observations, I am not engaging in an exercise of determining what is fair or equitable between Stephen, Kevin, and Jamie. Rather, I am noting their respective financial needs and claims on the bounty of the estate.
The order for provision from property already distributed
366․The plaintiff submitted that I am able to order that any provision for Stephen be paid out of the property distributed to Jamie. I accept that submission.
367․Section 20 of the FPA says:
20 Property available for provision
(1)Subject to subsection (2), notwithstanding any distribution of property forming part of the estate of a deceased person made by the administrator of the estate, the Supreme Court may, in an order under section 8 or 9A in relation to that estate, direct that provision be made for a person out of that property.
(2)In an order under section 8 or 9A, the Supreme Court shall not direct that provision be made for a person out of any property that has been the subject of a distribution referred to in subsection (1) if—
(a)the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before the death of the deceased person; or
(b)the distribution was made—
(i) more than 6 months after the date when administration of the estate was granted; and
(ii) before the administrator had notice of the application for the order or, if an application was made under section 9 for an extension of time within which an application for an order under section 8 may be made, the application under section 9;
and the property that was so distributed has vested in possession of any person.
368․Section 20(1) of the FPA says that subject to sub-s (2), an order for provision under s 8 may direct that provision be made out of property already distributed. The monies paid to Jamie fall within the description of property forming part of the estate which has already been distributed.
369․Section 20(2) says that such a direction cannot be made if either the conditions in sub-s (2)(a) or (b) are met.
370․The conditions in sub-s (2)(a) are not met in this case because there is no evidence that Jamie was totally or partially dependent on Brenda immediately before her passing. Nor is there any evidence that it was “properly made” for any of the stated purposes.
371․The conditions in sub-s (2)(b) are not met in this case because the distribution was made within six months of probate being granted. Probate was granted on 31 October 2019, and the distribution to Jamie was made on 14 February 2020, a little less than four months after probate.
372․In my view, the costs to be paid to Stephen, capped at $40,000, should also be paid out of the property distributed to Jamie. Jamie should pay those monies to Kevin (as executor). Such an order was not sought in the Amended Originating Application, but
r 419 of the Court Procedures Rules 2006 (ACT) (the Rules) says that the Court may grant relief other than that stated in the pleadings, whether or not other relief is expressly claimed in the pleadings. Section 5A of the Court Procedures Act 2004 (ACT) says that the main purpose of the Rules is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.373․In Richardson, Mossop J reserved the question of costs of the application determined by his Honour, with the trial judge to determine those costs. I see no reason why costs should not follow the event in relation to that application, especially where the plaintiff has obtained a lesser sum in this judgment than he sought in the earlier application.
Other orders
374․As the money is repayable, it will be quick, efficient and relatively inexpensive for me to make that order now, rather than impose on Kevin the need to commence proceedings against Jamie. In my view, the nature of this case requires such an order: Rules
r 1600(1).375․Kevin should also be ordered to indemnify the estate if he, as executor, is unable to recover the funds from Jamie. He made the distribution to Jamie less than six months after probate, at time when he was on notice of Stephen’s claim against the estate, and without issuing any notice of intention to distribute in accordance with s 64 of the Administration and Probate Act. Accordingly, he does not have the protection of
s 21 of the FPA.376․In cross-examination, Kevin said that he distributed the monies from the estate to himself because it was, in his view, his money. I infer he had the same reasoning when distributing the estate funds to Jamie. He was wrong to do so in circumstances where he was aware of Stephen’s claim and wrong to do so without complying with an executor’s duties under s 64 of the Administration and Probate Act.
377․It is unfortunate that he is now in the position he is. That is, having to claw back monies paid to Jamie and having to indemnify the estate if he fails to do so. But that is a situation of his own making in failing to comply with an executor’s legal duties.
378․Finally, certain oral evidence of Kevin’s whilst in cross-examination was taken on the voir dire. That evidence is admitted.
Stephen’s costs
379․In Nudd v Mannix [2009] NSWCA 327 (Nudd v Mannix), Handley AJA said, McColl and Macfarlan JJA agreeing at [1]-[2], that:
[33] The court became concerned during the oral argument that the effect of the appellant’s no-win, no-pay retainer of her solicitors and the order capping her party and party costs of the trial at $60,000 might leave her liable to her solicitors for solicitor-client costs of $22,200 or more. If that were the case an order that she receive a legacy of $120,000 to enable her to acquire independent accommodation would not achieve its purpose. The court expressed its concerns and after a short adjournment the solicitors for the appellant, through counsel, gave the following undertaking to the court (t.40):
The solicitors for the appellant undertake to the Court that they will not seek to recover any costs, charges and disbursements including any uplift factor from the appellant except to the extent that those costs are recovered from the estate.
[34] The court accepted that undertaking …
380․Whilst my judgment was reserved, my Associate emailed the parties, drew their attention to those passages, and enquired whether the plaintiff's solicitors would be prepared to provide a similar undertaking. The plaintiff’s solicitors replied that they would be content that I fix a sum for costs, and that in general terms, they were willing to give an undertaking in the terms suggested in Nudd v Mannix, although they noted that there were external disbursements that they submitted should be paid in full. For example, they submitted, there were Court filing and hearing fees and disbursements associated with the Court orders to locate and serve Jamie who was located in England, and there were agent’s and counsel’s fees.
381․In short, the plaintiff’s solicitors said that their non-counsel disbursements were $56,011.80 (inclusive of GST), counsel’s disbursements were $87,498 (inclusive of GST), and solicitor’s fees were $170,500 (inclusive of GST).
382․As I have earlier said, those costs are out of proportion to the size of the estate and the amount awarded by way of further provision. That is not to say, I emphasise, that the costs were not legitimately incurred in the sense that the charges reflect work that was done. I say nothing about the rates per hour or day charged as I do not have any information about whether or not they were market rates or not. What I simply wish to convey is that the total costs incurred by the plaintiff were out of proportion to the size of the estate (per what is said above about costs in this type of litigation), and any costs awarded must be proportionate to the size of the further provision awarded.
383․In addition, proportionality is an applicable principle that may be applied to the costs between solicitor and client: see A.C.N. 627 087 030 Pty Ltd t/as Yates Beaggi Lawyers v Poche [2024] NSWCA 145.
384․For present purposes, I shall award a capped sum of $40,000 to the plaintiff for costs and will stand the matter over to determine what further orders, if any, should be made in relation to my Nudd v Mannix concern.
Orders
385․I make the following orders:
(1)Pursuant to s 8 of the Family Provision Act 1969 (ACT), and in addition to the provision made for him in the will of the late Brenda Richardson dated 2 February 2017, the plaintiff is to receive by way of further provision the sum of $74,000 out of the estate of the late Brenda Richardson.
(2)The provision referred to in Order 1 above is to be paid out of the distribution of property made to the third defendant out of the estate of the late Brenda Richardson.
(3)The plaintiff is to pay the defendants’ costs of and incidental to the hearing of the application in proceeding dated 25 August 2022 determined in Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37.
(4)The plaintiff’s costs and disbursements of the proceedings, other than the costs referred to in Order 3 above, are to be paid out of the estate of the late Brenda Richardson on the party/party basis, capped at the sum of $40,000 (inclusive of GST).
(5)The costs referred to in Order 4 above are to be paid out of the distribution of property made to the third defendant out of the estate of the late Brenda Richardson.
(6)The first defendant’s costs and disbursements of the proceedings are to be paid out of the estate of the late Brenda Richardson on the indemnity basis.
(7)The third defendant is to pay the first defendant the sum of $115,000, referred to in Orders 1 and 4 above, within 28 days of the date of this judgment.
(8)Should the first defendant be unable to recover all or part of the sums referred to in Orders 1 and 4 above from the third defendant, the first defendant is to indemnify the estate to the extent of any shortfall.
(9)Interest is not to run on any amount payable pursuant to Orders 1 to 8 above until 28 days after the date of this judgment.
| I certify that the preceding three hundred and eighty-five [385] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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