Robertson v McCann - [2023] NSWSC 159

Supreme Court

New South Wales

Medium Neutral Citation: Robertson v McCann [2023] NSWSC 159
Hearing dates: 13 – 14 February 2023
Date of orders: 28 February 2023
Decision date: 28 February 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Plaintiff’s claim dismissed

Catchwords:
SUCCESSION — Family provision — Claim by niece of deceased who with her sister went to live with the deceased and initially his mother in mid-1960s when niece was 7 years old following death of plaintiff’s father — Niece remained living with the deceased for 10 years to age approximately 17 — Niece returned to live with the deceased approximately 8 years later for a period of 15 months — Subsequent ongoing close relationship with the deceased
EVIDENCE — Assessment of evidence of party previously convicted of perjury
SUCCESSION — Family provision — Eligibility — Eligibility not disputed nonetheless there must be some material to enliven jurisdiction — Jurisdiction cannot be conferred by consent on the Court — Requirements of membership of household and dependency
SUCCESSION — Family provision — Factors warranting — Consideration of factors warranting – Plaintiff’s position or status de facto akin to that of a child of the deceased
SUCCESSION — Family provision — Adequacy of provision — Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life — Expressing a preference for a proposed expenditure, if the preference is soundly based, may inform what is proper maintenance or advancement for an applicant
SUCCESSION — Family provision — Adequacy of provision — Reference point for assessing inadequacy of provision — Whilst plaintiff de facto akin in some respects to a child of the deceased, the deceased did not assume de jure obligations of a parent — Plaintiff in strong financial position with unencumbered house and other financial resources totalling approximately $1.6M — Plaintiff has minimal quantifiable financial needs — Plaintiff unable to point to any particular item whether by form of maintenance or advancement in life unable to be met out of existing resources — Such fact not conclusive or decisive of dismissal of claim nor is lack of financial need to be elided with adequacy of provision but nonetheless a significant fact in assessing adequacy of provision
SUCCESSION – Strong competing claim of defendant (plaintiff’s son and deceased’s grandnephew) who lived with deceased in remaining years of his life to retain provision to him of residential property gifted under Will — Defendant provided care for deceased particularly in later years — Defendant reliant on deceased for accommodation

Legislation Cited:
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Cases Cited:
Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep)
Bladwell v Davis [2004] NSWCA 170
Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290
Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317
Chisak v Presot [2022] NSWCA 100
Churton v Christian (1988) 13 NSWLR 241
Dulhunty v Dewhirst [2005] NSWSC 350
Georgopoulos vTsiokanis [2022] NSWSC 563
Gorton v Parkes (1989) 17 NSWLR 1
Kingsland v McIndoe [1989] VR 273
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Mallitt v Gow [2022] NSWSC 1012
Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep)
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep)
Petrohilos v Hunter (1991) 25 NSWLR 343
Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113
Porthouse v Bridge [2007] NSWSC 686
R v Moore; ex parte Australian Workers’ Union (1976) 11 ALR 449
Re Fulop(deceased) (1987) 8 NSWLR 679
Robinson v Tame [1994] NSWCA 266
Sadiq v NSW Trustee & Guardian [2015] NSWSC 716
Scott v Scott [2021] NSWSC 1619
Scott v Scott [2022] NSWCA 182
Sgro v Thompson [2017] NSWCA 326
Shymko v Lach [2022] NSWSC 1096
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114
Strang v Steiner [2019] NSWCA 143
Yee v Yee [2017] NSWCA 305

Texts Cited:
Bible - New Revised Standard Version, Anglicised
Heydon JD and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Category: Principal judgment
Parties: Julie Linda Robertson (Plaintiff)
Jason McCann as Executor of the Estate of Raymond Leslie Smith (Defendant)
Representation:
Counsel:
I Davidson SC (Plaintiff)
C Wood SC (Defendant)
Solicitors:
Vobis Equity Attorneys (Plaintiff)
AJB Stevens Lawyers (Defendant)

File Number(s): 2021/296002

JUDGMENT

HIS HONOUR: The application before the Court is a family provision claim by a niece, Julianne Linda Robertson (the plaintiff), in respect of the estate of the late Raymond Leslie Smith (the deceased) who died on 20 October 2020 aged 90 years.
Jason McCann (the defendant) is one of two children of the plaintiff, and great-nephew of the deceased.
The deceased left a Will dated 17 April 2018 probate of which was granted to the defendant on 29 September 2021.
The plaintiff commenced these proceedings by summons filed on 18 October 2021 seeking a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Succession Act).
I have determined that the plaintiff’s claim for a family provision order should be dismissed.
Without intending any disrespect, it is convenient to refer to various of the deceased’s family relations (many of whom bear common surnames) by reference to their given or familiar family names.
The parties provided written submissions both prior to the hearing and on the final day of hearing in addition to their counsel making oral submissions on the final day of the hearing.
I will make reference to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows: the plaintiff’s opening written submissions (POS); the defendant’s opening written submissions (DOS) and defendant’s concluding written submissions (DCS).

Family details

The deceased

The deceased was born in June 1930 being one of two children of Leslie James Smith and Louise Mary Smith (albeit that some evidence refers to her as Louisa: CB 659).
The deceased lived for most of his life in a property at 384 Young Street, Annandale (the property). The precise genesis of that is unclear. The defendant’s submissions suggest that the property has been in the Smith family for many decades, that the deceased was raised there by his parents in the 1930s and that he subsequently bought the property in the mid-1950s. I have not been able to find any specific evidence to clarify when the deceased acquired the property.
There is evidence that from the time of the plaintiff’s birth in 1956 the deceased was living in the property at that time with her maternal grandparents: CB 132 [10].
It is nonetheless correct to say that various extended family members came into the property and left over the years: DOS [28].
The deceased married Joan Guthrie (Joan G) in 1969. Joan G died in 1972.
The deceased was a carriage builder (CB 77) and worked at least part of his life at Redfern Railways: CB 689, 690. The plaintiff indicates that he was a carpenter by trade: CB 56 [39].
The property appears to be a two-storey house with two bedrooms (circa 2018 CB 593), with front and back gardens and a back patio: CB 194 [74].
In January 2019, the house was described as having a main living area at street level with two internal steps from the hallway to a lounge room with a rail. There were 11 steps to a downstairs bathroom and laundry: CB 672.
The deceased commenced living in the property in or about 1935, when he was aged five: CB 690. He remained living in the property until approximately February 2020 when he entered a BUPA Aged Care Nursing Home in Ashfield (BUPA Nursing Home): CB 195 [79].
The deceased’s health started to fail him in his final years. The defendant indicates he installed handrails to assist the deceased to access and use the house despite his mobility issues: CB 194 [74], 593.
In early 2020, he was admitted to Royal Prince Alfred Hospital (RPA) for chest pain, and it seems this was a precursor for the assessment that he needed to enter into a BUPA Nursing Home, which occurred later in 2020: CB 195 [78].

The plaintiff

The plaintiff’s given name, as noted above, is Julianne. However, she is known by the name Julie: T3.
The deceased’s sister (Enid) married Jack Irwin (Jack), and they are the parents of the plaintiff.
Enid and Jack had, apart from the plaintiff, five other children.
The plaintiff was born in November 1956 and is aged 66.
The plaintiff has two children namely the defendant born in March 1973, aged 49 and Elisha born in November 1979, aged 43.
The plaintiff married Steven Paul McCann (CB 188 [9]) (or Stephen see T 16.39-46) (Mr McCann) in 1979 and they separated in 1982.
The plaintiff married Greg Robertson (Greg) in May 1988. They remained married until his death on 11 February 2015. However, the plaintiff indicates that they were separated at the time of his death.
The plaintiff has a sister Sharon Dempsey (born 1954) and four brothers, Wayne, Glenn (born February 1958), John and Mark. There are several Sharons referred to in the evidence, and, accordingly, I will refer to Sharon Dempsey as “Aunty Sharon”.
Wayne died in March 1988 and John died in December 1999.

The defendant

The defendant has had a number of marriages or relationships.
He has four children from those relationships:

Dylan born in September 1993 (there initially being some varying evidence and doubt over his actual date of birth (T 17) which was cleared up by agreement (T 24)) currently aged 29 – his mother is Clare Talty;

Justin born in November 1995 currently aged 27 – his mother is Rachel Unwin;

Rory born in November 2000 and who died on 10 May 2020 – his mother being Danielle McCann (Danielle); and

Megan born in June 2003 and currently aged 19 – her mother being Danielle.

On 7 July 2021, the defendant married Sharon Febers (Ms Febers) who was born in South Africa in December 1972 and is aged 50. Ms Febers has two children (Amelia aged about 19 and Riley aged about 18) from a prior marriage to Stephen Jackson (Mr Jackson): CB 329 [5].

Others

Elisha is partnered to David Lewis, and she has two children: Kaylee and Kallem.
Greg’s mother Joan Robertson (Joan R), a pensioner, died on 8 November 2020.
Aunty Sharon is or was married to Frank.
Wayne has daughters: Rachel Irwin (Rachel) and Jodie.

Will and estate

The Wills

The deceased made a number of Wills including Wills relevantly on 20 July 1987 (1987 Will), 3 November 2003 (2003 Will) and 17 April 2018 (2018 Will).
The deceased by the 1987 Will nominated the NSW Public Trustee (as the NSW Trustee & Guardian then was) to be his executor and left the property together with all his household chattels to the plaintiff absolutely.
He left the residue of his estate in three equal parts with one part to the plaintiff, the second part to Aunty Sharon and the remaining third part for such of his nephews Glenn, Wayne and John living at his death and if more than one in equal shares.
The deceased by the 2003 Will appointed the plaintiff as executrix and left his estate as to 50% to the plaintiff, 30% to Aunty Sharon and 20% to Glenn.
The deceased, by the 2018 Will, appointed the plaintiff as “executor” unless she was unable or unwilling to act or continue to act in which event he appointed the defendant as executor.
In the events that occurred, the deceased left his estate on trust for sale and conversion to pay his debts funeral and testamentary expenses as well as any legacies.
He gave to the defendant his property, including the household contents therein, and all AMP shares as he might hold at the date of his death.
He gave to the plaintiff, Aunty Sharon and Glenn all funds held in any bank accounts he held as of the date of his death as tenants-in-common in equal shares and the residue of the estate to the defendant absolutely.

Probate

The plaintiff, as instituted executor, did not take any steps to obtain probate and did not formally renounce her executorship.
The defendant was granted probate with leave reserved to the plaintiff to come in subsequently and apply for a grant: CB 167 [5].

The estate

Value at date of death

According to the inventory of property, the deceased held an amount of $2694.58 in two Endeavour Mutual Bank (EMB) accounts and the property, which for probate purposes, was valued at $1.4 million.
As will be noted below, the deceased also held AMP shares at the date of his death. Those shares (for reasons unexplained) are not recorded in the inventory of property attached to the grant of probate.
On the basis that the inventory of property set out the extent of the deceased’s estate, there was no residue.
Leaving aside expenses of the estate, each of the plaintiff, Ms Dempsey and Glenn would have been entitled to no more than approximately $898 each.
As at 19 April 2018, close to the date of the April 2018 Will, one of the deceased’s EMB accounts (described as the “S1 Account”) had a balance of $5989.85: CB 517.
The deceased’s other EMB account (described as the “S70 Account”) had a balance, as at 30 April 2018, of $1331.47.
The parties, in compliance with pre-trial directions, prepared an agreed schedule regarding assets and liabilities of the estate and costs.
The schedule accords with the inventory of property of the deceased’s estate as of the date of the deceased’s death with the exception that it additionally indicates that the deceased held 1017 AMP shares at $1.16 per share bearing the value of $1,179.72.
The total assets at the date of death was said to be $1,403,874.30.
The deceased had a liability being an invoice from BUPA Aged Care Australia Pty Ltd (BUPA) in the sum of $1,672.14, leaving a net estate of $1,402,202.16.

Value proximate to date of hearing

As at 31 January 2023, the parties agreed that the assets of the deceased’s estate comprise the following items (CB 48):

the property valued at $1,325,000;

monies held in Annandale Lawyers’ trust account ($3597.31); and

the AMP shares ($1.34 per share) ($1362.78).

Total: $1,329,960.09.

As at the time of the hearing a revised figure for the property is agreed to be $1,387,500 (T 19, 24) with the result that the total assets are $1,392,460.09.

Liabilities

A number of liabilities in respect of the deceased’s estate have been identified in the agreed schedule as follows:

BUPA invoice $1,672.14;

property expenses paid by the defendant and Ms Febers $14,509.44;

funeral expenses paid by family members $7,152;

legal fees for probate application $6,297.67; and

amounts paid to fund settlements of related proceedings $30,000.

Total: $59,631.25

Details of the above amounts appear in the evidence, including the BUPA invoice: CB 216.
Amounts for the property expenses paid by the defendant and Ms Febers are detailed at CB 216.
The net estate is $1,332,828.84, subject to some further potential expenses (if the property is sold) and costs.

Further potential expenses if property is sold

However, the joint schedule indicates that, in the event that the property is required to be sold, further expenses will be incurred.
Figures were provided for the agreed schedule: CB 49. Those figures included commission based on a property value of $1.325M. Although updated figures were not provided it appears appropriate to revise the commission fee (calculated at 2.75% of the property value) to reflect the agreed value of the property being $1,387,500.
Based on the revised property value ($1,387,500) and assuming that there is no alteration to the agreed figures for the advertising/marketing budget and costs to ready the property for sale, the expenses that will be incurred in the event that the property is required to be sold are as follows:

real estate agent commission fee at 2.75% (on total property value $1,387,500) – the amount is $38,156.25;

advertising/marketing budget $5,000; and

costs to ready property for sale $5,000.

Total: $48,156.25.

Status of administration

The property and the deceased’s AMP shares both remain registered in the name of the deceased and have not been transmitted to the defendant as beneficiary: CB 215.
The BUPA invoice remains unpaid. It, apart from the costs of the proceedings, is the only unpaid liability of the estate.
The figure for funeral expenses is an amount which was paid in one third equal shares by each of the defendant, the plaintiff and Sharon. The defendant has indicated that he does not seek reimbursement of the funeral expenses paid by him. He states that he has not been informed by the plaintiff or Aunty Sharon that they seek reimbursement.
However, the defendant referred in his evidence to the fact that Aunty Sharon had in her affidavit stated that she and the plaintiff seek reimbursement of their contribution to funeral expenses: CB 168 [11]. The reference to that evidence is in fact to a paragraph of Aunty Sharon’s affidavit which was not read: CB 146 [116].
Irrespective of the fact that the particular paragraph was not read, unless the plaintiff and Aunty Sharon have agreed otherwise (about which there is no evidence) they should be entitled to be refunded the portion of the funeral expenses that have been paid by them. It appears to be an amount of $2,384 each (being one third of $7,152).
The amount for the legal fees for probate expenses is an invoice paid by the defendant personally: CB 169 [19].
The defendant does not seek nor claim commission in relation to administration of the estate: CB 169 [20].
On 18 October 2021, Aunty Sharon and Glenn commenced family provision proceedings against the defendant in respect of the deceased’s estate.
The amount of $30,000 relates to amounts paid by the defendant in respect of family provision proceedings brought by each of Aunty Sharon (2021/00296005) and Glenn (2021/00296008) (related proceedings).
On 12 July 2022, Francis Farmakidis (the plaintiff’s solicitor) (Mr Farmakidis), who was acting for Aunty Sharon and Glenn in the related proceedings caused to be filed notices of discontinuance with the consent of the solicitor for the defendant which were signed and dated 14 July 2022.
On 19 July 2022, orders were made disposing of the related proceedings and noting the discontinuance on the basis that an ex gratia payment had been made in the sum of $15,000 to each of Aunty Sharon and Glenn: CB 216-217 [14], 229-234.
The effect of the above is that if the property is to be sold the net estate is $1,332,828.84 less:

$4,768 (if the plaintiff and Aunty Sharon are to be reimbursed for funeral expenses);

$48,156.25 (sale expenses); and

$148,000 (defendant’s costs)

Total: $1,131,904.59.

The defendant has provided alternate figures on the basis that he will not seek reimbursement from the estate of certain payments if he were to be able to retain the property. The amounts that he would not seek reimbursement for include property expenses ($14,509.44), his share of funeral expenses ($2,384), probate expenses ($6,297.67) and amounts to fund the settlements of the related proceedings ($30,000).
Additionally, on that scenario, there would be no sale expenses for the property and the defendant would absorb the cost of his legal expenses to retain the property.

Costs

The plaintiff’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of a two-day hearing are $98,000 plus GST on the ordinary basis, and $146,000 plus GST on the indemnity basis.

The defendant’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of a two-day hearing (incorporating the costs and disbursements incurred in the related proceedings) are $104,000 plus GST on the ordinary basis and $148,000 plus GST on the indemnity basis.
The orders made in each of the related proceedings relevantly provided that there would be no orders as to the defendant’s costs to the intent that he would bear his own costs of those proceedings: CB 230-234.
The defendant’s estimated costs and disbursements, inclusive of counsel’s fees, up to and including the conclusion of the two-day hearing (not incorporating the costs and disbursements incurred in relation to the related proceedings) are $76,000 plus GST on the ordinary basis and $108,000 plus GST on the indemnity basis.
To date, the plaintiff has paid $60,997.24 on account of her costs and disbursements.
The defendant paid $4,180 to the mediator Martin Gorrick for a mediation on 20 January 2022 as well as $7788 in counsel’s fees.
There is a sum of $18,032 held in trust, paid by the defendant, to be applied to further costs and disbursements: CB 51.

Issues

Some formal matters

The plaintiff’s summons is filed within time.
The plaintiff identified herself, the defendant, Aunty Sharon and Glenn as being persons who are or may be eligible persons: CB 6. There is evidence that Tony Barakat (Mr Barakat), a solicitor with the carriage of the proceedings on behalf of the defendant as at 18 November 2021, served, on that date, notices of claim relevantly on Aunty Sharon and Glenn: CB 476-479.

Eligibility

The defendant does not dispute that the plaintiff is an eligible person within the meaning of s 57(1)(e) of the Succession Act being a person who was, at any particular time, wholly or partly dependent upon the deceased and who was, at that particular time or at any other time, a member of the household which the deceased was a member.
Whilst the defendant does not dispute the eligibility of the plaintiff, it is nonetheless necessary to at least briefly consider the basis of the plaintiff’s eligibility. The reason for that is that generally speaking, parties cannot by consent confer jurisdiction on a Court to make orders which the Court lacks power to make: e.g. R v Moore; ex parte Australian Workers’ Union (1976) 11 ALR 449 at 453 per Barwick CJ (Gibbs, Stephen, Mason and Jacobs JJ agreeing).
Despite the defendant not disputing the plaintiff’s eligibility, the Court should be satisfied that there is at least some evidence to satisfy the jurisdictional requirement of eligibility.

Real issues in dispute

The main issues for determination on the application are:

Whether having regard to all the circumstances of the case there are factors which warrant the making of the plaintiff’s application?

Whether at the time the Court is considering the application, adequate provision for the plaintiff’s proper maintenance, education or advancement in life has not been made by the deceased’s Will?

If satisfied as to (1) and (2), what provision, if any, ought to be made for the plaintiff?

Specific issues bearing upon the real issues

In opening the matter Mr Davidson SC identified a number of matters which he submitted were relevant to assessing the plaintiff’s claim.
The matters were as follows:

That the plaintiff’s claim should be assessed on the basis that she ought to be treated as equivalent to an adult daughter (equivalent adult daughter submission): T 3.

That adequate provision is not limited to financial necessities: citing Scott v Scott [2022] NSWCA 182 at [15] (adequacy transcends financial needs submission): T 4.

That the Court should have regard to the fact that the gift to the plaintiff under the deceased will was “meaningless” (T 4) essentially in a sense that the value of it was of little financial worth (meagre Will entitlement submission): T 4.

The defendant had systematically taken cash from the deceased’s bank accounts (unauthorised withdrawals submission): T 4.

The deceased was suffering from dementia, and I should not give much primacy to the deceased’s assessment of adequate provision for the plaintiff by his Will by reason of the fact that the deceased had cognitive impairment and did not properly appreciate the full circumstances of the plaintiff’s position and, in particular, purportedly disbelieved that the plaintiff had a mortgage to pay (testamentary deference submission): T 4.

Evidence

Affidavits

On the hearing the plaintiff read and relied upon substantive affidavits from herself, Elisha, Glenn and Aunty Sharon.
The plaintiff also relied on an affidavit from John Carrington sworn on 9 February 2023 which was not part of the Court Book but nonetheless was read in the proceedings. He was not required for cross-examination.
The defendant read affidavits of himself and Ms Febers.
There was a further affidavit of Rachel. Initially, the affidavit of Rachel was not read by Mr Wood SC as she had been required for cross-examination, but he was unable to make her available for cross-examination: T 29.
Ultimately, following discussions as between Mr Wood SC and Mr Davidson SC, Rachel’s affidavit sworn 4 April 2022 was read without objection to any particular paragraph in the affidavit. Although notice was given for her to be available for cross‑examination, and she was not available for cross‑examination, Mr Davidson SC released her from that requirement: T 81.18-23. However, that was in a context in which he intimated that the weight that could be attached to the evidence without her being available for cross-examination might be affected: T 81.9.
There were formal affidavits read on each side. The plaintiff read an affidavit (as to costs) of her solicitor, Mr Farmakidis. The defendant read an affidavit (as to service of notice claims) of Mr Barakat, solicitor, and an affidavit (as to costs) of Steven Mousas. None of those solicitors were required for cross-examination.

Documentary evidence

Each party, apart from affidavit evidence, adduced documentary material. The documentary material included bank account records, medical documents in respect of the deceased and other materials including NSW Police Force Computerised Operational Policing System (COPS) records in respect of both the plaintiff and the defendant.

Findings

A significant amount of material in the proceedings in the affidavits was not strongly disputed. Further, a large degree of the documentary material included bank account records, medical records and COPS records.
In light of that, I set out below facts in relation to background details as well as details regarding the parties’ relationship with the deceased and financial and material circumstances.
The facts that I set out in relation to those matters should be regarded as findings of the Court unless qualified or otherwise indicated.
Nonetheless, there are a number of disputed issues and I have separately addressed those issues below when addressing issues regarding the credit and reliability of the parties and various witnesses.

Some background

Family deaths lead to plaintiff living with the deceased (1964-1973/74)

In about June 1964, Jack, who had earlier in that year contracted pneumonia and a golden staph infection whilst in hospital, deteriorated in health. Enid had kidney problems and jaundice and had also suffered a heart attack: CB 54.
At about this time, the plaintiff and Aunty Sharon moved in to live with the deceased in the property. At that stage, the deceased was residing with his mother.
In about July 1964, Jack died. The plaintiff was seven years of age at that time.
The plaintiff states that she and her siblings became “wards of the state”. Subject to one matter I will come to the evidence leaves unexplained any detail regarding that.
The plaintiff indicates that she and Aunty Sharon continued to live with the deceased at the property whilst her mother Enid and brothers went to live with their paternal grandfather in Lane Cove.
In early May 1968, Enid died: CB 54; T 79.
The plaintiff was about 11 years old at that time and continued to live with the deceased. She states that the deceased and her grandmother provided everything to continue raising her and paying for her education.
In about 1969, the deceased married Joan G who moved into the property. The plaintiff says she has shared a bedroom with her grandmother.
In 1971, the plaintiff left school after completing year 10. The plaintiff indicates that after she left school the deceased took her for her first job interview with the Greater Union Theatre Organisation.
In about 1972, Joan G died.
In or about late June 1972, the plaintiff became pregnant. She states that as she was under the age of 18 the New South Wales Child Welfare Agency tried to remove her from living with the deceased. However, she says that he made an application for her to continue to live with him which was ultimately successful. During the plaintiff’s pregnancy Wayne moved into the property to live: CB 54 [22].
In about July 1972, the plaintiff’s grandmother died. The plaintiff indicates that she continued to live with the deceased after this time and took on additional household responsibilities including some general maintenance, cooking, cleaning laundry and grocery shopping: CB 54 [21].

The plaintiff has children and marries (1973-1979)

In March 1973, the plaintiff gave birth to the defendant.
In about December 1973 or January 1974, the plaintiff moved out the property to live in a unit with the defendant and his father in Leichardt.
Shortly after that occurred Wayne also moved out of the property and Glenn moved in to live with the deceased in the property.
Following the death of his mother in 1972, the deceased insisted that the “whole family” (being the plaintiff, her siblings any partners and children) spend Christmas Day together with him at the property. For a few Christmases thereafter the plaintiff prepared lunch for the whole family and would take the deceased shopping so that he could buy Christmas presents for everyone: CB 55 [28].
However, as the family grew and expanded the property became too small to host Christmas and so from about 1990 onwards the plaintiff and Aunty Sharon hosted Christmas at their residences in alternative years. Nonetheless, the plaintiff says she continued to assist the deceased with Christmas gift shopping: CB 55 [29].
In 1979, when the plaintiff married Mr McCann, the deceased walked the plaintiff down the aisle during the wedding ceremony: CB 55 [30].

The plaintiff separates and returns to live with the deceased (1982-1983)

In 1982, when the plaintiff separated from Mr McCann, she moved back into live with the deceased at the property with the defendant and Elisha for a 15-month period during which she states she undertook all home duties for him, and the two children shared a bedroom with her: CB 56 [33].
In about 1983, the plaintiff and her children moved out of the property as it was not practical, there being only two bedrooms. The plaintiff continued to spend time with the deceased at least twice a week for lunch or dinner and he also often took her and the children on different outings on the weekends: CB 56 [34]-[35].

The plaintiff progresses career, remarries and interacts with the deceased (1986-2009)

In about 1986, when the plaintiff was working at AMP Corporate, she suggested the deceased invest some of his superannuation with AMP. She states he did so: CB 56 [36].
In 1987 or 1988 the deceased spent 3 months living with the plaintiff at her home to recuperate from a kidney operation (first stay): CB 56 [37].
From about 1987 until 2015, the plaintiff took the deceased to all of his medical appointments including his eye and heart specialists and arranged for him to attend a podiatrist in Five Dock. She states that she was the primary contact for him for all his treating medical practitioners and for RPA: CB 58 [48].
From about 1987 onwards, the plaintiff held a power of attorney for the deceased: CB 58 [49].
In May 1988, the plaintiff married Greg and the deceased walked her down the aisle.
In 1989, the plaintiff and Greg bought a property at Kings Road, Five Dock (Five Dock property).
In 1990, the plaintiff organised a surprise birthday party at her home in Five Dock for the deceased to celebrate his 60th birthday: CB 55 [31].
In about 1994, whilst living with her, the deceased joined the Canada Bay Club which was around the corner from the plaintiff’s Five Dock home. From this time for about 20 years (until about 2014) every Thursday night they would go to the club for dinner and join in the raffle draws: CB 57 [42].
In about 1995, the deceased became a member of the Sydney Harbour Casino (which the plaintiff indicates is now The Star Sydney) and for many years the deceased took her and Aunty Sharon there for lunch and to see shows: CB 57 [42].
In 1997, the deceased spent 2 months living with the plaintiff at her home to recuperate after the deceased had contracted hepatitis (second stay): CB 57 [45].
In 2000, the plaintiff organised a birthday party for the deceased at her home on his 70th birthday: CB 55 [31].
In 2007, the deceased spent 6 or 7 months living with the plaintiff at her home to recuperate after the deceased had open heart surgery (third stay): CB 57 [47].

Plaintiff’s conviction for perjury (mid-2009)

In mid-2009, the plaintiff was convicted for perjury. I will address this in more detail below.
In 2010, the plaintiff organised a birthday party for the deceased to celebrate his 80th birthday at the Canada Bay Club: CB 55 [31].

The defendant commences living with the deceased (2014)

Following his 80^th birthday and within the period of his early 80s there was a realignment of the deceased’s relationship with the plaintiff and the defendant.
One aspect of this is that the defendant commenced living with the deceased.
The defendant had been living with his cousin Rachel for a period of about four years and says that he moved to live with the deceased in the property in 2012: CB 194 [70].
The plaintiff asserts that the permanent living arrangement for the defendant commenced from 2014. The defendant submits that nothing material turns upon the difference in the evidence: DOS [29].
In or about 2014, the plaintiff says (contrary to the defendant’s evidence) that the defendant was living with herself and Greg at the Five Dock property.
The plaintiff indicates that at this time Greg was diagnosed with Stage IV cancer (the cancer being unidentified) and one day at about this time the defendant was intoxicated, and assaulted Greg and she told the defendant he would have to leave otherwise they would call the police. She says following this incident the defendant moved in with the deceased at the property: CB 62.
The defendant was cross-examined about the timing. He accepted that given his addictions as at 2014, he could not be too certain about when his move occurred: T 111. The plaintiff, on the other hand, referenced the move to the occasion of the defendant’s behaviour impacting upon her then husband Mr McCann and her requesting the defendant to leave the Five Dock property in 2014.
Each of Aunty Sharon (CB 141 [79]) and Glenn also gave evidence to the effect that the defendant started living with the deceased from about 2014: CB 113 [53].
I accept the plaintiff’s evidence, Aunty Sharon’s evidence and Glenn’s evidence that the timing of the defendant’s move to live with the deceased was in 2014, or at least closer to 2014 than 2012.
A second aspect of the realignment is that in or about 2014 the deceased started to be more reluctant to leave the family home.
The plaintiff asserts that the deceased became frightened to go out at nighttime and that the reason the deceased limited his outings is, she believes, due to the defendant’s struggles with drugs and alcohol: CB 57 [42], [45].
The plaintiff indicates that from about this time (2014) the deceased ceased to go out at night-time and stopped going to the races every Wednesday and Saturday (which he had been doing since he was 17): CB 57 [44].
In any event, whatever the precise reason, it seems undisputed that the deceased had such a reluctance to go out and the impression I have is that he spent more time in the company of the defendant and resultingly less time in the company of the plaintiff.
A third aspect of the realignment is that the defendant says that because of the plaintiff’s conviction for perjury the deceased became somewhat less trusting of the plaintiff. I refer to this more particularly below.
The defendant’s drug and alcohol issues persisted until about March 2017.

The deceased experiences health issues (January 2018)

On 5 January 2018, the deceased was admitted to RPA. He was discharged on 9 January 2018. He presented with symptoms of shaking: CB 584.
The note of the entry on 5 January 2018 indicates “nephew cognitive decline”: CB 584.
There is reference in the progress notes (at CB 587) to:

3. Mild delirium on background of 12 months of cognitive decline
Nephew (caerer [sic], lives with pt) gave history to team of cognitive decline
- 12 months of decline
- maybe slightly more confused now than usual
- cognitively at present largely the same

Further, on 5 January 2018 or thereabouts, the deceased underwent a Mini Mental State Examination on which he scored 26/30: CB 589, 590.
The progress notes make reference to the deceased’s nephew. There is no suggestion that Glenn or Mark were present with the deceased on his attendances at RPA.
The notes in particular have a number of references which identify the defendant as a nephew living with the deceased. Without being exhaustive, I note the entries “lives with nephew” (CB 587), “Jason lives with PT” (CB 593) and “Lives with Nephew Jason…”: CB 593.
I proceed on the basis that the medical note references to a nephew are, unless context suggests otherwise, a reference to the defendant. Mr Davidson SC cross-examined on that basis and Mr Wood SC did not dispute that.
On 8 January 2018, the progress notes record the following (at CB 593):

-Pt’s family consists of his sister Julie? who lives in Five Dock, nephew Jason and a niece [sic]
-Jason lives with pt and tends to all domestic AIDLs. Pt is (I) with personal care. Jason does not work and is on the DSP for epilepsy and is a recovering alcoholic. Jason reports he will care for pt at home for as long as possible as he does not plan on returning to work
-Pt reports he catches the bus to the shops in Leichhardt but lately Jason has been doing most of the shopping
-Pt’s bedroom is upstairs and the bathroom is downstairs. Pt reports one fall down the stairs years ago but no issues since. As per pt and Jason, Jason has done a lot of maintenance to the house and is able to do minor mods if required
-SW discussed process of accessing aged care services. Pt and Jason declined the need now but Jason was happy for SW to provide My Aged Care information for future reference
Plan
Nil further SW required, pt for d/c home with nephew
Julia
80712

There is a more precise note in the medical records which refers to the deceased: “lives with grandnephew”: CB 603.

The deceased makes a new Will (April 2018)

The deceased made the 2018 Will on 17 April 2018. There was some evidence adduced regarding the catalyst for that which I refer to briefly below.
Leaving aside for the moment the plaintiff’s claims regarding the defendant’s involvement in the making of the Will, it is clear that the Will in its terms represented in financial terms for the plaintiff a significant reduction from the provision for her under the prior Wills.

The deceased’s deteriorating health and move to a nursing home (October 2018-2020)

On 12 October 2018, the deceased was further admitted to RPA, having fallen several days prior, presenting with shaking of his upper limbs and with mild confusion reported: CB 603. There is specific reference in the notes to “grandnephew reports of having more ataxic gait and increase of confusion”: CB 603.

On 22 January 2019, the deceased underwent an Addenbrooke’s Cognitive Examination: CB 623. He achieved a score of 66/100: CB 628.
The notes at the end of the page recording the scoring indicate normative results based on 63 controls of patients aged 52 to 75 and 172 dementia patients aged 46 to 86. Test result scores under 88 and 82 suggest a respective likelihood of, or certainty of, dementia: CB 628.
On 24 January 2019, the progress notes recall an interview with a trainee specialist prior to the deceased being admitted to Balmain Hospital. The notes indicate (at CB 629):

Delightful 88M from home with nephew with general decline (reduced intake and reluctance to get out of bed, assoc with deconditioning), newly diagnosed cognitive decline (Addenbrookes 66/100), and carer stress (could do with more services)

It seems that the deceased was admitted to Balmain Hospital for a few days.
On 27 January 2019, the deceased self-discharged from Balmain Hospital: CB 663.
On 31 January 2019, there was an Aged Care Assessment Team (ACAT) Assessment: CB 660-675.
The ACAT notes redact reference to persons other than the deceased: CB 660-675.
The notes indicate that an unidentified person (name redacted) was spoken to in order to make the appointment, was present at the assessment and that most of the information collected came from that person: CB 662. The notes indicate that “Raymond enjoyed having a chat, but found it difficult to answer questions directly or reliably remember events and timings”: CB 662.
Despite the name being redacted, having regard to the references on that page and the fact that there is no suggestion on the evidence that any person other than the defendant was living with the deceased at the time, it seems to me that the person who was present with the deceased for the ACAT Assessment and provided information to the assessor was the defendant.
The ACAT notes indicate that the deceased was admitted to RPA following a period of increased confusion and that his primary health condition was “Dementia in Alzheimer’s disease”: CB 670.
The notes further indicate that “Raymond experiences dementia. He was diagnosed around two years ago with a rapid decline reported over the past 3–6 months” and “Client has dementia, is confused and disoriented”: CB 671.
In 2020, the deceased celebrated his 90th birthday at the BUPA Nursing Home during the COVID-19 pandemic. The plaintiff indicates that during that period she visited him as often as she could at least once or twice a week: CB 55 [31].

Credit issues

Following the conclusion of evidence, I requested counsel to identify for me particular issues regarding credibility which they considered that I needed to resolve.
Mr Davidson SC submitted that there were no key factual issues which would ultimately swing the case one way or the other: T 140.
Nonetheless, he submitted that were important factual issues where there were conflicts of evidence: T 140. A particular instance of this which he indicated was whether or not the defendant had told anyone before the 2018 Will was changed of an intention by him to persuade the deceased to leave him the property: T 140, 152.
I have addressed this issue below. In fact, I reject the defendant’s evidence that he did not have discussions regarding any intention to persuade his uncle to leave him the house.
However, whilst Mr Davidson SC submitted that I should make findings in respect of that (which I have done) it is far from clear to me why I should give any great or decisive significance to the evidence regarding the defendant’s involvement in encouraging the deceased to make a Will to benefit the defendant.
Apart from that, there were some submissions in relation to the credit of each of the plaintiff and the defendant which I note below.

Credit and reliability of the plaintiff

There was quite a degree of evidence given by the plaintiff which related to her upbringing, her marriages, her work and her relationship with the deceased which was not really contentious or disputed.
Indeed, the defendant does not cavil with much of the plaintiff’s characterisation of her relationship with the deceased after leaving the property for the second time in the early 1980s, to the effect that she maintained a close and loving relationship with the deceased marked by “mutual care, respect and assistance” except to say that (DOS [47]):

from 2008, when the plaintiff pleaded guilty to, and served a sentence for, a charge of perjury, the relationship was adversely affected and marked by the deceased expressing some distrust and wariness of the plaintiff; and

the plaintiff’s evidence about how often she visited the deceased following his admission to the BUPA Nursing Home in 2020 prior to his death is overstated, based on the defendant’s own visits and observations.

Mr Wood SC described Julie as a “liar of the worst kind”: DCS [26].
When I asked Mr Wood SC what of the plaintiff’s evidence he submitted I should not accept, he raised with me a number of matters: T 155.
Essentially, they related to the plaintiff’s perjury, nondisclosure of financial resources and circumspection regarding the plaintiff’s alleged needs. I address these matters below.

Perjury

An issue which was raised in the affidavit evidence and in the pre-trial submissions and DCS related to the fact that the plaintiff had a conviction for perjury: DCS [26]-[29].
Neither counsel referred me to any particular caselaw to address what approach I should take in relation to assessing the evidence of such a witness.
Mr Wood SC ultimately indicated that where someone is demonstrated to have lied when they were under an obligation to tell the truth, the Court would be more cautious about accepting their uncorroborated evidence. He essentially indicated that that was a matter of general principle and consistent with the Evidence Act 1995 (NSW) (Evidence Act) provisions regarding cross-examination on credibility: T 155.
In Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290, Ward CJ in Eq (as her Honour then was) stated the following with respect to the Court’s approach to the credibility of witnesses where their veracity is questioned:

305. At the outset I note that where the veracity of part of a witness’ evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (per Handley JA in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 — that being a case where a finding of perjury had been made on one part of the evidence), though this does not mean that the balance of that witness’ testimony can never be accepted without corroboration (Heydon JA, as his Honour then was, in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 719; [2001] NSWCA 305).

The decision of the Court of Appeal in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Malco) concerned a worker who had applied for compensation in respect of three injuries said to have been sustained while in employment of the appellant. In the application and at the hearing, the respondent falsely claimed that his wife was wholly dependent upon him and gave deliberately false evidence as to the nature and extent of the disabilities from which he suffered.
Malco is an extreme example of damage to a witness’ credibility, given that the perjury was demonstrated to have occurred within the trial itself. This, of course, differs from the present case, where the damage to credibility consists of a historical conviction for perjury in unrelated criminal proceedings.
Nonetheless, I consider that Handley JA’s mandate of “carefully” assessing the witness’ evidence to determine its honesty and reliability is a prudent course in the present circumstances, involving a historical conviction for perjury.
The conviction for the plaintiff’s perjury arose in the following circumstances.
The defendant gave evidence regarding the plaintiff’s charge for perjury. His version was to the effect that in 2008, an acquaintance of the plaintiff was charged with possession of stolen goods worth approximately $300,000 and cash in the vicinity of $60,000. He says the plaintiff gave false evidence under oath during the hearing: CB 192 [51], [53].
The official records certainly revealed there was a charge of perjury. However, there were some material differences in the details.
According to the COPS records at CB 686:

In December 2005, the police executed a search warrant at premises and located a large amount of stolen property estimated to be over $100,000 in value.

Subsequently, [the accused] was charged with a number of offences and there was a hearing in September 2007 at the Downing Centre.

The plaintiff was called to give evidence for the defence. She made a false statement under oath knowing the statement to be false concerning a matter material to the proceedings, namely that on or about 23 November 2005, a withdrawal she made in the sum of approximately $17,597 from her Westpac account was in the form of a cheque for $10,500 and an amount of cash, of which she handed $7000 in cash to [redacted names].

Witness accounts and bank statements proved the evidence was false.

On 20 May 2009, the plaintiff was arrested and charged with making a false statement on oath amounting to perjury.

It appears that on or about 7 July 2009, in a context of offering no evidence, the plaintiff was convicted of perjury (CB 677, 686) and was sentenced to 6 months of weekend detention: CB 192 [53]. I pause to note that the plaintiff was cross-examined briefly on the timing for the conviction. It was suggested to her and she accepted that the evidence that she had given in Jodie’s proceedings was in May 2007 and her conviction was on 20 May 2009: T 62-63.
The precise timing is not important. Nonetheless, in light of the COPS records I find that the false evidence that she had given in Jodie’s proceedings was in September 2007 and the date of 20 May 2009 was the date of her being charged rather than the date of her conviction.
The plaintiff gave an explanation both in her affidavit in respect of the charge and conviction for perjury. She stated (at CB 84 [22]):

… I acknowledge that committing perjury was wrong and have now served the sentence for doing so. I pleaded guilty to the charge of perjury and was initially sentenced to six months of weekend detention. After about three months, I was permitted to serve the rest of my sentence by performing community service. I state that my intention at the time was to protect my niece from suffering a harsh sentence. I regret my actions and have learnt from this event in my life.

The defendant says that he observed that this conviction affected the deceased’s relationship with the plaintiff stating the deceased did not seem as happy to see the plaintiff as he used to be. The defendant says that on more than one occasion, the deceased said to him words to the following effect (at CB 192 [54]):

I don't believe what your mother tells me anymore, she can't be trusted.

Mr Wood SC cross-examined the plaintiff regarding the effect that the conviction for perjury had on her relationship with the deceased. The plaintiff denied that it had any effect on the relationship. Her evidence was as follows (T 63):

Q. After your conviction for perjury, your relationship with Raymond became fractious, didn't it?
A. Definitely not. My uncle was not my uncle, my uncle was my father, he raised me from the time I was seven years old. My uncle knew about that and it made no difference whatsoever to him. The only thing he said to me was that I should never have done it for Jodie.
Q. Trust was an important aspect of your relationship with Raymond and vice versa, wasn't it?
A. Absolutely.
Q. Following your conviction for perjury, Raymond indicated that he felt there had been a breakdown in that trust, didn't he?
A. Absolutely not.
Q. What followed from your conviction of perjury was a breakdown in your relationship with Raymond, that's right, isn't it?
A. No, that's incorrect. We continued having our Sunday bake, roast dinners every week at my home, I continued going to Canada Bay Club with my uncle every Thursday night for dinner, and I continued going when he would invite my sister and I to the casino. There was never ever a breakdown in the relationship between myself and my - and I will refer to him as my father.

I have scrutinised the plaintiff’s evidence with care.
I accept that the plaintiff did continue to have dinners with the deceased and go out with him on occasions.
I am less convinced that there was no breakdown in trust.
Even on the plaintiff’s own evidence she had conversations with the deceased about a number of topics in which he indicated that he did not believe what she had told him.
One instance was in 2014 in which she says that Greg and the deceased had not spoken since 2012. She states that the deceased did not remember that, and (in 2014) they had a conversation as follows (at CB 63 [81]):

The Deceased: Greg is such a lovely fellow. I’m sad that Greg has cancer.
Me: He had gambled a lot of our money away.
The Deceased: No, that can't be right. I don't believe you.

Another instance is an occasion in May 2018 in which she says she had become aware that the deceased changed his Will, and she had a conversation with the deceased to the following effect (CB 61 [72]):

Me:         I've learned that you changed your will.
The Deceased:   Yes, I changed it because you, Sharon, and Glenn all own your own homes and don't have mortgages. I'm leaving you all my money though.
Me:    Uncle Ray, you must be confused. You've left everything to Jason such as the house and your AMP annuities and there's no money in the bank so you're not leaving us anything. We all still have mortgages on our houses.
The Deceased:    I don't believe you.

The tenor of the plaintiff’s evidence in respect of these matters was that the explanation for the deceased’s disbelief was that he had a failing memory and was affected by dementia.
I think the more likely explanation is that the deceased was, as he had mentioned to the defendant (which evidence I accept) more circumspect with and somewhat less trusting of the plaintiff in what she said to him at least in some instances.

Financial resources – home contents

Mr Wood SC submitted that the plaintiff failed to reveal her home contents as an asset: DCS [45]-[47]. None of the plaintiff’s affidavits indicated any item or attributed value to home contents.
The plaintiff was cross-examined regarding home contents.
As at 5 October 2020, the plaintiff had building and contents insurance in relation to the Five Dock property.
That insurance was held with CommInsure covering an amount of $603,658 for building insurance and $201,220 for contents. The total annual premium was $2,316.10: CB 711.
The plaintiff was cross-examined about contents insurance and indicated that at the moment she had not got around to insuring either house or the contents: T 49.
When asked about the CommInsure policy that she had organised it was unclear how the figures had been allocated. She indicated that an insured could nominate the amount they wanted although qualified that by indicating that she probably would have gone off the policy from the year before in terms of nominating an amount: T 49-50.
When asked about her contents she indicated that she disposed of some furniture items (coffee tables, wall units and general decluttering): T 50-51.
However, when she purchased the Berkeley Vale property, she did purchase some furniture items: T 51.
When was put to her that she had not mentioned any figure in her initial affidavit in her schedule of assets for home contents she initially asserted “I wasn't aware that I had to” and then quickly responded “I assumed I would have included it in the house”: T 51.
Her answer in this regard did not particularly impress me. She was further cross-examined regarding this, and it was evident that in the later affidavits the figure that she had put for the Berkeley Vale property was the purchase price of the property without any reference to including within that figure a figure for contents: T 52.
The plaintiff denied that she had in the witness box opportunistically sought to explain the absence of including any figure in her first affidavit for contents of her house by asserting that she had included it in the value of the Five Dock property and that it was false evidence: T 52.
However, she could not provide any answer as to why if that was the case, she had changed her practice when setting out her assets in her December 2022 affidavit in allocating the purchase price as being the value of the Berkeley Vale property without any reference to a figure for contents: T 53.
Ultimately, the effect of the evidence left me with a slight unease regarding the plaintiff’s evidence.
Self-evidently, the plaintiff has home contents. Yet she did not appear to explain the lack of any mention of contents or a figure for it other than what I have described above.
Ultimately, it is clear that the plaintiff has some contents of value. Whether the value is in the order of $201,000 or some other figure is unclear.
Generally, home contents are not usually considered by the Court to be a significant financial resource available to a plaintiff. Of course, each case will depend upon its own facts.
Here the evidence leaves unclear whether there are any items of particular value that the plaintiff has in the home which might be a saleable resource to her.

Financial resources – inheritance from Joan R’s estate

The plaintiff had available to her a financial resource in terms of an inheritance, that had not been disclosed by her in any affidavit evidence prior to trial. Mr Wood SC indicated that the plaintiff had misled the Court in this regard: DCS [49].
Counsel for the parties asked me to record as an agreed fact that the Court Book had been served on 7 February 2023: T 134.
The relevance of that is that incorporated within the Court Book was an exemplification of probate attained by the defendant’s solicitors on his behalf on 27 January 2023 in respect of the estate of Joan R: CB 772.
That exemplification had been obtained on the defendant’s behalf it seems (T 157) for the purposes of demonstrating that the plaintiff had not properly disclosed an inheritance from Joan R’s estate as a financial resource available to the plaintiff.
The exemplification recorded that probate had been obtained of Joan R’s Will dated 21 August 2015 (slightly in excess of six months after the date of Greg’s death) by which Joan R appointed John Carrington and the plaintiff as executors of her Will: CB 775.
Joan R gifted the whole of her estate after payment of debts, funeral and testamentary expenses to the plaintiff: CB 775.
Probate of the Will was obtained on 10 August 2021 (well before the plaintiff’s first affidavit in these proceedings).
The inventory of property of Joan R’s estate disclosed the following assets:

Leasehold of a retirement village unit estimated $200,000; and

Westpac account savings $73,279.84.

Prior to the hearing, the plaintiff herself did not swear any affidavit addressing this inheritance.
John Carrington’s affidavit indicates that he is the nephew of Joan R and since obtaining probate has on behalf of himself and the plaintiff been attempting to carry out the practical obligations of the estate and managing the estate on a day-to-day basis.
He refers to dealing with real estate agents in order to sell the leasehold interest in the Strathfield unit noting that it had not been able to be sold at that point.
The affidavit annexed a statement in relation to fees or charges incurred in respect of the unit.
The statement was dated 30 January 2023 and indicates that a total of $22,518.91 was then outstanding in respect of fees associated with the Strathfield unit. The statement appears to disclose monthly charges in the order of $865.13.

The plaintiff was cross-examined in relation to this asset.
When she was asked whether she took care to ensure that her initial affidavit covered all the relevant assets she agreed with that proposition: T 36. However, as the cross-examination developed from that point, she readily volunteered that she had another potential asset being what she described as “a claim to my late mother-in-law’s estate”: T 36.
The plaintiff disputed that it was likely to sell for about $250,000: T 36. She indicated that “we” (I take it herself and John Carrington) had tried to sell it for what Joan R had purchased it for namely $235,000: T 37.
She indicated that it had been on the market since Joan R had died (November 2020) and they had reduced it down to $200,000 and it still cannot be sold. She asserted that there are five units within the complex including Joan R’s unit that cannot be sold: T 37. When asked about the fact that she had not taken steps to include reference to the inheritance in her initial affidavit the plaintiff said as follows (at T 37):

Q. You knew as at 18 October 2021, when you prepared your main affidavit in these proceedings, that you would receive something from Joan's estate when it was fully administered, didn't you?
A. I did, yes.
Q. Yet you didn't take any steps to deal with that matter in your affidavit evidence, did you?
A. That just slipped my mind. I have not been dealing with anything to do with the sale of the will.
Q. You had a substantial inheritance coming your way, that's right, isn't it?
A. Possibly.
Q. The only thing that needed to happen was that the estate be administered and its assets sold and then you would get your money, that's right, isn't it?
A. Yes.
Q. That was the position as at 18 October 2021 when you sat down to do your affidavit, isn't it?
A. Yes, yes.
Q. I suggest to you it didn't slip your mind, you declined to include it because you thought it would not advance your case, do you agree with that?
A. That's, that's incorrect.

During submissions, I attempted to clarify with Mr Davidson SC what value ought properly to be attributed to the inheritance.
He did not cavil with the proposition that I should assume that it was valued at less than $200,000: T 147. He asserted the monthly figures were approximately $900 a month (in fact $865). On a basic rough and ready calculation, assuming that it might take another year for the property to sell and having regard to existing outstanding charges and accumulating charges, Mr Davidson SC did not dispute that the inheritance would have a value in the order of approximately $240,000: T 148.

Financial needs

Mr Wood SC under the general heading of “misle[ading] the Court about her assets” made particular reference to aspects of the plaintiff’s claim for provision regarding landscaping and a swimming pool: DCS [48].
Mr Wood SC indicated that I should be very circumspect of the plaintiff’s need for a swimming pool: T 155. He went so far as to indicate that I should find the plaintiff had deliberately referred to the need for a pool to create a claim for financial need without ever having any intention of putting in such a pool: T 155-156.
He supported that by reference to the fact that the plaintiff had referred to a need for landscaping which he eventually accepted had been done before she moved into the house. Perhaps more significantly, he referred to her description of the size of her backyard and indicated that it was difficult to see how a pool could ever be constructed in the backyard of such a limited size: T 155-156.
Apart from mention of the prospect of a pool, there was a complete absence of detail regarding whether a pool could in fact be constructed and details as to the costing of that. In light of that lack of detail I have some doubt about how realistic it is for the plaintiff to arrange for a pool to be constructed in her backyard. However, I do not consider that the plaintiff has intentionally created a false need with no intention of ever putting in such a pool.

Credit and reliability of the plaintiff’s other witnesses

Each of Elisha (T 72-74), Glenn (T 75-78), and Aunty Sharon (T 81-85) were cross-examined. My general impression was that each of them gave their evidence in a clear and straightforward way.
It was put to Elisha relevantly that the conversation she said that she had had with Rachel never took place and that she had made up the entire contents of that conversation. She denied that. Elisha was not otherwise challenged in cross-examination on her credit.
Mr Wood SC in his DCS submitted that Elisha had an incentive to lie because she was an obvious and natural subject of her mother’s estate and noted that Rachel had called her a liar: DCS [25].
I do not regard the future possibility that Elisha might receive some benefit from her mother’s estate as being a sound basis to find that she had an incentive to lie. In any event, as noted, I accept her evidence.
Glenn was asked about his conversations with the deceased in the mid-late 1970s. He accepted that during his lifetime the deceased stepped in and always helped all of the family members. He also accepted that the accommodation needs of members of the deceased’s family changed between the mid-late 1970s when he had had conversations with the deceased: T 78. Glenn was not otherwise challenged as to his conversations with the defendant.
Aunty Sharon gave evidence as follows (at CB 144 [105]):

In about February or March 2018, I recall having a conversation with my uncle where the words to the following effect were spoken:
The Deceased: Jason is threatening to move out if I don't change my will and give him a good reason to stay.
Me: Don't worry, Jason won't leave.

Mr Wood SC challenged this evidence:

Q. You've set out in paragraph 105 there a conversation that you say took place in February or March 2018, do you see that?
A. Yes.
Q. You say that's your best attempt to recall a conversation that you had with your Uncle Raymond, do you?
A. Yes.
Q. I suggest to you that Jason has never threatened to move out in the event that Raymond didn't change his will, what do you say to that?
A. When, when this is stated threatening, I don't mean in, as, as threatening. What Jason said was Uncle Ray had said that, he said, "What's the use of me staying here if, if you're not going to give me a good reason to stay here and change the will?"
Q. Is that version of the conversation that you've just given likely to be closer to what was actually said in February or March 2018 than what you put in your affidavit?
A. No. No. He, he, he did it in a threatening manner. He did it saying, saying to Uncle Ray that he would move out if he had no incentive to stay, but he, he, you know, he wasn't going to change his will in Jason's favour.
Q. It's possible that when you came to prepare your affidavit in these proceedings, your recollection of events of February and March 2018 had faded, that's possible, isn't it?
A. Yes.
Q. It's possible that you're mistaken as to what Raymond said on that occasion, isn't it?
A. No. Maybe, perhaps the wording itself but not, not the actual content of what he said.
Q. I want to suggest to you that Raymond never said anything about Jason threatening to leave in the event that Raymond didn't change his will, that just never happened, did it?
A. Yes, it did.

Aunty Sharon had given further evidence regarding a conversation which she had with the deceased which she identified as having taken place in late May 2018. She stated that the deceased said (at CB 145 [107]; T 83-84):

Jason brought two ladies to the house a day or two before I signed the new will. I didn’t know who they were or why they had come. They came back another day with a new will for me.

When asked whether she said anything to the deceased after he made that statement, Aunty Sharon stated that she did not remember: T 84.
Aunty Sharon agreed that she knew that in May 2018 the defendant had helped to arrange for the Will to be changed and that a solicitor had come and attended at the property on two occasions, and that the deceased had been requesting to change his Will for some months before that: T 84.
In light of that, when challenged as to whether she understood that the deceased’s statement that he was making to her (as set out above) was wrong, she indicated that (at T 85):

His dementia at that stage was in and out, at some stages he would recollect things incorrectly, he may not get things completely right, but yes.

Aunty Sharon accepted that she did not say to the deceased that what he had told her was incorrect: T 85. She denied that the conversation that she set out in her affidavit did not occur: T 85.
The evidence is somewhat curious.
There is other evidence – being a form of a file note – which suggests that Bronwen Ginges (Ms Ginges) attended at the house approximately a week before the Will was signed rather than a day or two before.
To the extent that the deceased stated that he did not know who the women were or why they had come to the house, that is a strange statement. However, it is immediately followed by a statement that they came back another day with a new Will for the deceased – which is correct.
Leaving aside the deceased’s particular response, I accept that the conversation deposed to by Aunty Sharon did occur.
Aunty Sharon was not effectively challenged on any other matter as to credit.
Mr Davidson SC submitted that Glenn’s evidence was straightforward and was not challenged regarding his conversation with the defendant. He submitted that Aunty Sharon’s evidence was credible and persuasive, and that Elisha’s evidence was highly credible and that I should unreservedly accept evidence of her discussions with the defendant: T 142.
I essentially agree with Mr Davidson SC’s assessment of their evidence in this regard, and I generally accept their evidence.

Credit and reliability of the defendant

The defendant was cross-examined at T 103-130.
The defendant was reluctant to accept whether his “problems with alcohol and addictions” caused problems for the plaintiff: T 183-185.
The defendant says that from 2012 to 2017 he carried out works on the property including: painting the house both internally and externally; installing handrails; repairing the plumbing; replacing the laundry sinks; terracing the backyard; installing drainage and guttering the rear of the house; reroofing the back patio; replacing broken screen doors front and back and also replacing broken and dangerous light fixtures; treating rising damp and black mould issues throughout the house; installing a new washing machine; connecting and programming a new TV; planting the front and back gardens with plants; repairing the boundary fences and facilitating the delivery and filling of five 2-ton skip bins to remove accumulated and hoarded building material stored under the house which was termite infested: CB 194-195 [74].
The defendant denied that, from the time that he moved into live with the deceased (whether it be 2012 or 2014) whilst he was consuming drugs and alcohol, up until March 2017, he did little work to assist the deceased on the property: T 112.
It was suggested to the defendant in cross-examination that prior to April 2018, the main work that he did on the property was planting new plants in the front and back yards. He rejected the suggestion: T 112.
The defendant agreed that until March 2017 whilst he was consuming drugs and alcohol, it was primarily the deceased who was looking after him: T 112.
I accept that the defendant carried out the work that he describes as having done on the property albeit that in light of my earlier finding the work was in all likelihood carried out from 2014.
Subject to the following matters, I accept the defendant’s evidence. The defendant had in his affidavit evidence effectively identified his mother’s niece Jodie as an “acquaintance” of his mother: CB 100; T 109-110. Whilst the description is inaccurate, I do not regard the inaccuracy of the description as being of great moment.
The defendant denied that around 2017 the deceased started to suffer increased cognitive decline: T 112, 117.
My impression is that the defendant was somewhat reluctant to suggest that the deceased had any form of cognitive decline in 2018-2019 in circumstances where there was material suggestive that the defendant had been an informant to relevant health professionals of cognitive issues affecting the deceased.
There is some medical material which was included in the Court Book (Exhibit JP-1) would bore upon the deceased’s cognition, including at CB 671.
At least initially, the defendant did not recall attending RPA on about 5 January 2018 and informing staff at that stage that the deceased had had a year of cognitive decline: T 112-113. It seems to me a distinct possibility that the defendant was the informing party.
The defendant denied that in or about March 2019, he informed the deceased’s treating doctor that the deceased had been diagnosed about two years previously with dementia: CB 671.
The defendant disputed being able to recall assisting the deceased with a “myagedcare” home support assessment on 31 January 2019: CB 662, T 115. Nonetheless, it seems to me a distinct possibility that the defendant was present.
The defendant did not accept prior to the deceased being admitted to RPA in January 2019 that the deceased suffered or had been suffering increased confusion: T 116. Nonetheless, the defendant appeared to accept that towards the time of the deceased’s death he had a period of increased confusion.
The defendant accepted that at some stage he had informed the plaintiff that the deceased wanted to make a new Will and that the plaintiff had informed him that the deceased already had a Will: T 119-120.
The defendant says that he became aware, through conversations between the plaintiff and Rachel, that the plaintiff, Aunty Sharon and Glenn were included in a Will of the deceased: T 121.
However, essentially, that is where agreement on these issues ceased.
The defendant asserted that when the deceased said he wanted to change his Will that he (the defendant) had no idea what the deceased was proposing to change it from: T 121.
The defendant denied that:

he ever spoke to the deceased about changing his Will so that the defendant could inherit the deceased’s house: T 123;

he had ever told any of the “relevant people” who had given evidence in the proceedings that before the Will was executed (17 April 2018) that he had told them that he was going to get the deceased to change his Will: T 123;

he ever suggested to the deceased that it was not worth his while continuing to care for the deceased if the deceased did not give him some security that the deceased would leave the defendant the house: T 124; and

received a copy of the Will from Ms Ginges’ office in April 2018 and says he was given a copy of the Will by the deceased to show to his mother: T 125.

Aunty Sharon gave evidence of a conversation with Rachel in or about 2014 to the effect that Rachel had told her that the defendant had spoken with her and said to her that he was going to get the deceased to let him move in with him and get him to change his will so that the defendant would get the deceased’s house: CB 140 [77].
Rachel, in an affidavit which was read albeit that she was not able to be made available for cross-examination, disputed that she had a conversation with Aunty Sharon to that effect: CB 472 [5].
The defendant disputed that by early 2018 he knew the contents of the 2003 Will and knew that the deceased had left his estate by that Will entirely to the plaintiff, Aunty Sharon and Glenn: T 121.
Elisha gives evidence that in about early 2018, she and her partner were carrying out renovations to their home in Belmont and had a telephone conversation with the defendant asking whether he would assist them with her renovations. She places the conversation at being at a point of time when the defendant was unemployed but had recently become sober: CB 101.
She states that on a day that the defendant came to the house to assist them with the renovations he informed her that (at CB 102 [9b]):

when Pop dies Mum, Sharon and Glenn get everything. We get nothing at all.

She says that the conversation went on in which he indicated that there was no way they (in context the plaintiff, Aunty Sharon and Glenn) would continue to permit him to live at the property and that he was:

going to talk to Pop about it and tell him they will sell the place and kick me out and see if I can get him to change his will and leave the house to me. He listens to me now: CB 102 [9b].

The defendant denied having such a conversation with Elisha: T 122-124.
The defendant denied producing a copy of the Will to Elisha at that time: T 124.
I reject the defendant’s evidence. I prefer the evidence of Elisha and accept that there was a conversation as she states, at about the time that she states, and that he produced a copy of the Will on that occasion.
Glenn gave evidence that on one occasion, in about 2017, he went to visit the deceased and that the defendant was at the house and he had a conversation with the defendant in which the defendant said to him (at CB 113 [53]):

Your Uncle Ray is going to change his will and he is going to leave me the house.

Glenn states the defendant denied that the deceased had spoken to the defendant and the plaintiff about such a proposed change to his Will: CB 113 [53].
The defendant denies telling Glenn in 2017 that the deceased was going to change his Will and leave the defendant the deceased’s house: T 121-122.
On that issue, I reject the defendant’s evidence and prefer the evidence of Glenn.
Elisha gave evidence of a conversation she had with Rachel in early 2018 to the effect that the defendant was trying to get the deceased to change his will: CB 99 [6].
The evidence was admitted but with a limitation in relation to assertions regarding the deceased’s dementia.
Rachel, in an affidavit, denied that she had had any such conversation with Elisha: CB 472-473 [6].
Rachel was not made available for cross-examination. Elisha was cross-examined and I accept her evidence in relation to that account.
Elisha gave further evidence that in or about late 2018 (at a point of time which could have been no more than two weeks after the date of the deceased’s Will) she was at the plaintiff’s Five Dock property having a conversation with Dylan. She states that at some point the defendant, who was present, came out onto the veranda and reached into the left inside breast pocket of his black jacket and produced a copy of the deceased’s 2018 Will: CB 100 [7].
Elisha asserts that the defendant told her that he had left the solicitor’s office with the deceased’s new Will and that he had “got the house” and “got him to change his will and leave me pretty much everything”: CB 100 [7].
The conversation was admitted subject to relevance but also with a limitation under s 136 Evidence Act as to the assertion regarding the deceased’s dementia.
The defendant denies having any such conversation with Elisha: T 122.
Nonetheless, I was impressed by Elisha’s evidence, and I accept her evidence that such a conversation did occur.
The defendant denied that he had any role in the deceased changing his will to leave the house to the defendant, apart from locating a solicitor for him: T 112.

Credit and reliability of defendant’s other witnesses

Ms Febers had a number of addiction and alcohol issues. Those persisted until at least September 2018: T 106. She had a brief relapse for about 24 hours nine months prior to the hearing. However, apart from that occasion, the defendant indicated that she had been clear from both drugs and alcohol: CB 196, T 106-107.
Ms Febers was briefly cross-examined: T 131.

The passages referred to above from Sgro v Thompson and Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 relate to the provision a deceased makes in a Will.
Parker J’s comments at [344]-[348] relate not per se to the provision in a will but rather to what is described as a testamentary statement (see s100 Succession Act).
Quite often Wills either embody reasons for why a deceased is making the provision (whether fulsome, minimal or non-existent) the deceased makes for a beneficiary, or the Will is accompanied by a statement, sometimes in the form of a statutory declaration, which expresses such reasons.
The comments of Parker J are conventional in the above respect.
However, they are somewhat different from what I understood Mr Davidson SC sought to submit in this case.
What he sought to do was to point to pieces of evidence suggesting that the deceased had dementia and cognitive impairment to provide the springboard for a submission that the deceased’s assessment of provision for the plaintiff as minimal was not something that should stand as a strong barrier to the Court making its own assessment of adequacy of provision and order provision (if any) for the plaintiff.
There was at least some flavour in what Mr Davidson SC was suggesting that the Court should have regard to the evidence regarding dementia and cognitive impairment and for that reason not place considerable weight on the judgement of the deceased in altering the provision for the plaintiff from that set out in the 2003 Will and/or making the provision of only a one third share of the ultimate balance of his bank accounts in the 2018 Will for the plaintiff.
To the extent that the submission was to that effect, I reject this submission.
The Court should be wary to guard against a collateral attack on a Will that has been granted probate, where the plaintiff does not seek to set aside the Will despite having had an opportunity to do so and having made a forensic decision not to do so.
As a basic starting point, the Court should proceed on the basis that the deceased understood at least as of the date of the Will the provision given to the beneficiary under it.
Without attempting to be specific, it is self-evident that the deceased, at the time that he made the 2018 Will, in giving the defendant the property and its contents on one hand and giving to the plaintiff a one-third share of the monies in his bank accounts on the other hand, understood, at that point, that he was providing in favour of the defendant the vast majority of his then estate.
The corollary of that is that he was not providing the vast majority of his estate to the plaintiff.
Further, as I have noted above, the total of the proceeds of his bank accounts at that stage were not significantly more than about $7,000.
There is no evidence that the deceased was expecting his bank accounts to be enlarged in any significant way by monies other than through the payment of a weekly pension amount and some income from an AMP investment.
It is not in my estimation profitable to dwell too much upon the practical effect that had upon provision for the plaintiff. There are a number of reasons for that.
Those reasons include the fact that assessing the value of the deceased’s gift to the plaintiff was inherently difficult to quantify until such time as the deceased had died. I have already noted the obvious that the bank account balances in the general scheme of life’s affairs vary over time.
There are possibilities by which the plaintiff might ultimately have received a more significant benefit under the Will without the deceased changing the Will. For example, if the deceased had later sold his house in order to go into nursing home accommodation and directed some portion of the proceeds to be paid into his bank accounts, more significant provision might have flowed to the plaintiff.
Further, the assessment of the family provision claim is made at the time the Court makes the order, not at an earlier time.

Plaintiff’s identified needs

Dental work

There was not the sort of clear evidence from the plaintiff regarding dental expenses that one might expect.
It appears that she had not sought any information in relation to the cost of dental work or obtained any quote in respect of it.
As noted, the plaintiff sought to supplement her evidence regarding dental work during the hearing.
She stated that she had no idea how much it would cost although indicated that roughly 15 years ago when she had her front crowns done it cost in the vicinity of $20,000 and so simply indicated that she was anticipating that it was going to be quite costly now: T 33.
A further question as to whether her decision about having implants would be influenced by the result of a bone density test was objected to and rejected: T 33.
Because the costing appears to be dependent upon whether the plaintiff is able to have implants and that in turn is dependent upon results of a bone density test, it is difficult to know what figure can be estimated for such work and if indeed whether any such work is able to be carried out in full.
Without knowing outcomes of bone density tests, I do not have any clear evidence of what, if any, dental treatment might be ultimately necessary for the plaintiff and if so, what that treatment might cost.

Health insurance

Mr Davidson SC accepted that there was no evidence of costing of private health insurance as a claimed need for the plaintiff: T 149.

Credit card debt

The plaintiff’s (4 December 2022) figure of $11,300 for credit card debt was not updated.

Landscaping and pool

The plaintiff considered in cross-examination that landscaping has already been completed. Mr Davidson SC accepted that that claim had gone by the wayside: T 163.
I have already indicated that I consider there to be some doubt regarding how realistic it is for a pool to be installed or constructed in the plaintiff’s backyard. In any event, I simply do not have any clear figures as to the costing of that because of the way that the plaintiff in her estimate for works suggested a global figure of not less than $108,000 to carry out works to the Berkeley Vale property: T 147-148, 163.

Plaintiff’s resources and claim for provision

I set out above details of the plaintiff’s financial circumstances.

Retirement

The plaintiff at the time of the deceased’s death was in employment but on 20 August 2021 resigned from her then employment with MB Insurance Group Pty Ltd: CB 59.
As at 17 August 2021, immediately prior to her resignation, the plaintiff had been in receipt of a fortnightly salary of $2967.57: CB 805, 806.
I assume that figure, which is the amount deposited to the plaintiff’s CBA bank account, was net of tax. I raised this with counsel on the hearing. Neither counsel confirmed their position to me although neither counsel disputed that nor suggested that I could not safely proceed on that assumption.
Additionally, on 17 August 2021, the plaintiff received a payment from her employer of $28,165.43: CB 806
I asked the plaintiff as to whether there was any particular reason for the timing of her resignation which was about three months before her 65th birthday.
She indicated that she had had a very stressful 2020 when she lost her grandson, her uncle and mother-in-law. She was working from home during the COVID-19 pandemic under much stress and anxiety. She could not cope and had asked for more staff (I take it to assist her with her job).
She was informed that she could not be given any additional staff.
She indicated that she had been in that employment for 20 years and they had asked her to stay on for another 12 months (the evidence was unclear, but I infer that it was to take her employment into her 65th year).
She indicated that she felt she could not continue to do her job properly and correctly in a manner that it should be done and made a spur of the moment decision to resign on the basis that “my health was more important to me”: T 64.

Access to superannuation

The plaintiff’s evidence left unexplained precise details about her access to superannuation.
She indicated that she was able to access superannuation and had indeed accessed it twice. First, when her long service leave money “ran out”, she indicated that she withdrew another $20,000 to keep paying the mortgage. Secondly, there was another withdrawal of $10,000 that she used until her house sold: T 64-65.
When I sought to clarify whether the access she had enabled her to simply draw down on the entirety of the amount of the superannuation and whether it was accessible to her as a lump sum or whether it gave her a pension, she did not know: T 64-65. She assumed (presumably on the basis that she had been able to access lump sum amounts) that she was able to draw down on the entirety of the superannuation but, honestly, did not know: T 65.

Expenditure to date

On 30 November 2022, the defendant’s solicitors corresponded with the plaintiff’s solicitors complaining that documents produced by the plaintiff pursuant to a notice to produce were scant and piecemeal and identified a number of documents which they pressed for production of: CB 782.
The plaintiff produced various CBA bank statements for:

a Complete Access Account for the period 1 February 2021 to 31 July 2022; and

a Pensioner Security Account for the period from 1 January 2022 to 30 September 2022.

The Complete Access Account appears from the materials to be essentially a general account with balances, for the most part, under $10,000.
Matters of note include that:

up until August 2021, the plaintiff’s fortnightly salary (as I have noted above) was paid into the account;

from time to time the plaintiff topped up the account with various transfers from what appears to be the Pensioner Security Account;

on some occasions, salary amounts were received in excess of the sum of $2967.57: e.g. 30 March 2021 ($3013.08) and 13 April 2021 ($5389.08);

the plaintiff on occasion transferred monies to Elisha in relation to kitchen expenses (four amounts of $2500 between 3-6 October 2021);

the plaintiff received a cheque for $6863.15 on 31 January 2022 which amount is unexplained;

on 2 March 2022, the plaintiff withdrew the first sum of $20,000 from Australian Super;

on 21 March 2022, the plaintiff withdrew a sum of $10,000 from Australian Super which was deposited into the account;

on 17 and 18 June 2022, the plaintiff paid legal fees to her lawyers in connection with an invoice in 2 amounts totalling $39,783.53;

on 28 and 29 June 2022, the plaintiff topped up the account in order to pay amounts to Gilles Motors Pty Ltd totalling $27,990.

The plaintiff was cross-examined regarding some five withdrawals she had made on 11 March 2021 from an ATM at the Canada Bay Club at Five Dock totalling $900 (four withdrawals of $200 and one withdrawal of $100): CB 789.
The plaintiff accepted that she had spent at least some of that money on poker machines, drinks and dining with friends: T 49. The plaintiff further accepted that she was in a position as at that date (21 March 2021) to enjoy a fairly “luxurious lifestyle” of being able to withdraw up to $900 on such an occasion: T 49.
Although it was not expressly the subject of submissions, the evidence reveals that, as at 1 April 2022, the plaintiff had an opening balance of $2,884,598.73 in her Pensioner Security Account.
The pages of the account statement for the period 1 April 2022 to 30 September 2022 disclose quite a few deductions in varying amounts but often in the sums of $2000 and, occasionally, greater, to top up the Complete Access Account: CB 851-855.
As at 1 January 2022, the plaintiff had a nominal balance of $17.49 in her Pensioner Security Account: CB 849.

Expenditure going forward

Mr Davidson SC noted that the plaintiff’s estimate of the monthly expenditure ($4724) was a conservative estimate and may increase over time as the plaintiff’s home or other needs grow as she progresses in age: POS [D3.5].
Mr Davidson SC referred to the circumstances in which the plaintiff sold the five Dock property and purchase the Berkeley Vale property. He says that she did that as she was required to make mortgage repayments in circumstances where she had no income and that situation was unsustainable: POS [D3.2].
Mr Davidson SC’s POS noted that in the immediate future the plaintiff intends to carry out works to the Berkeley Vale property which she estimates to be at a cost of not less than $108,000: POS [D3.3].
Mr Davidson SC submitted that the plaintiff, who is now 66 and has not been employed since August 2021, will naturally increasingly incur medical expenses as she continues to advance in age.
He made reference to the fact that the plaintiff would require substantial dental work. He noted that the plaintiff was not covered by private health insurance, has to pay for all out-of-pocket medical expenses, and submitted that her health and medical expenses may cause a significant depletion of her available cash: POS [D3.4].

Strength of financial resources

I engaged Mr Davidson SC in submissions regarding the strength of the plaintiff’s financial resources: T 146 ff.
The plaintiff has as resources an unencumbered house and funds totalling in the order of about $1.6 million to $1.7 million ($1.16 million plus $320,000 plus $240,000): T 148.
The plaintiff has available to her cash or what will be cash-like resources of $1.6 million to $1.7 million. I noted that if one were to add to such resources the range of provision suggested by Mr Davidson SC then, potentially, the plaintiff would have resources in the range of $1.85 million to $2 million: T 149-150.

Consideration of s 60(2) factors and various remaining submissions

The deceased estate is overwhelmingly constituted by the value of the property ($1,387,500). There are minimal cash assets and potentially large liabilities. If the property were to be sold and the defendant’s estimated costs paid, the estate would be in the order of $1.13M ($1,131,904.59): s 60(2)(b).

Plaintiff

In respect of the plaintiff, the following may be noted in relation to s 60(2) factors.
I have referred above to the nature and duration of the relationship between the deceased and the plaintiff. I accept there was a closeness of relationship particularly in the plaintiff’s formative childhood years and well into adult life: s 60(2)(a).
Whilst the deceased is said by the Mr Davidson SC to have been a father to the plaintiff, he did not take on the responsibilities of being a de jure parent and did not adopt the plaintiff: s 60(2)(b).
I have referred to the plaintiff’s financial resources above. She is not cohabiting with another person, and no other person is liable to support her: s 60(2)(d),(e),(l).
The plaintiff is aged 66, does not have any disclosed physical intellectual or mental disability, and is retired from employment (having retired a number of months prior to her 65^th birthday). There is no particular evidence suggestive that the plaintiff will live longer or shorter than the average lifespan of an adult female: s 60(2)(d),(g).
The plaintiff contributed by some degree of modest means to maintenance of the deceased’s home: s 60(2)(h).
I accept that during the plaintiff’s lifetime she contributed at times (in particular during the first study, second stay and third stay) to the deceased’s welfare by caring for him. I further accepted that the plaintiff for much of her life had regular and convivial contact with the deceased and provided companionship akin to that of a daughter: s 60(2)(h).
The deceased provided for the plaintiff during her childhood and teenage years: s 60(2)(i)
It is clear that under the 1997 Will and 2003 Will the deceased intended significant provision for the plaintiff at those times. The deceased must have been taken to have still intended the significant provision provided under the 2003 Will at least up until April 2018. At that point of time the deceased made a conscious decision to reassess his testamentary intentions and priorities: s 60(2)(j).
Whilst the plaintiff depended upon the deceased as a child and into her teenage years, she was not being maintained by the deceased prior to his death and any such particular financial dependence ceased decades prior to his death: s 60(2)(k).
Much has been made by Mr Wood SC of the conduct of the plaintiff in respect of the convictions of perjury. As I have indicated, I accept that the deceased was somewhat cautious of statements made by the plaintiff to him after that time: s 60(2)(m).

Defendant

In respect of the defendant the following may be noted in relation to s 60(2) factors.
The defendant, other than for a period of about 15 months in 1982-1983 did not live with the deceased or have any apparent relationship of significance until about 2014, when the defendant commenced to live with the deceased. The principal means by which the defendant describes his relationship with the deceased is by reference to the description “Uncle Ray”. In some of the medical records, the defendant is referred to as the deceased’s nephew: s 60(2)(a).
At least formally, the deceased should not owe any de jure obligations to the defendant: s 60(2)(b).
The defendant cohabits with his wife Ms Febers and I have referred to their financial resources above. They are liable to support one another: s 60(2)(d),(e),(l).
The defendant is aged 49. He will be shortly 50 and has potentially another decade or more of opportunity to engage in remunerative employment prior to a natural retirement age: s 60(2)(d),(g).
The defendant had until March 2017 addiction issues with drugs and alcohol. He has some health issues which I have referred to. Other than that, he does not have any disclosed intellectual or mental disability: s 60(2)(f).
Prior to 2014, there is no suggestion that the defendant contributed in any particular financial sense to the conservation and improvement of the deceased’s welfare or his property or estate. The defendant asserts that he contributed in a material way thereafter and I accept this: s 60(2)(h).
There is no suggestion that the deceased made any particular financial provision for the defendant prior to 2014: s 60(2)(i).
The deceased, prior to the 2018 Will, made no testamentary provision for the defendant: s 60(2)(j).
From about 2014, the defendant was maintained at least in part by the deceased in the form of provision of accommodation and care. Beyond March 2017, the accommodation and maintenance continued. However, there was a form of role reversal from about March 2017 in terms of the defendant caring for the deceased: s 60(2)(k).

Various remaining submissions

Whilst I accept that the conduct of the defendant is a matter the Court may have regard to, I am not persuaded that it should weigh heavily in assessing whether the plaintiff was left with inadequate provision.
The defendant’s drug and alcohol use was clearly known to the deceased. It ceased in or about March 2017. Approximately 13 months later the deceased made a Will which made substantial provision for the defendant in light of that history: s 60(2)(n)
The plaintiff’s claim for financial provision does not to my mind strongly benefit by the plaintiff pointing to what is said to be inappropriate conduct of the defendant self-evidently known to the deceased prior to the making of his last Will.

Determination

Mr Davidson SC accepted that Aunty Sharon and Glenn were not competing financial claimants: T 139.
Mr Davidson SC accepted that there was no claim for education provision for the plaintiff and the claim was effectively for maintenance and advancement: T 149.
Mr Davidson SC opened the case on the basis that there ought to be provision for the plaintiff in the order of $250,000-$300,000: T 149.
At the end of submissions, Mr Davidson SC entertained the possibility that the Court in considering the plaintiff’s claim for provision might entertain some “slight adjustments” to those figures, such that a smaller amount might be awarded by way of provision to the plaintiff: T 150, 151.

As I have noted above, logically, in approaching the question of inadequacy of provision one needs to have some reference point for assessing inadequacy.
The approach of the Court in having a reference point for assessing inadequacy is, as I have noted, addressed by White JA in Sgro v Thompson. His Honour stated there at [86]:

… What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances.

To my mind, one of the most critical issues in the case was the relative strength of the plaintiff's financial position by reference to her claim for provision on the one hand and the competing claim of the defendant to retain the provision given to him. Mr Davidson SC accepted that: T 138.
Relatively speaking, it seems to me that that issue is a much larger consideration in the assessment of whether the plaintiff has been left with inadequate provision rather than the submissions as to unauthorised withdrawals, testamentary deference and testamentary involvement.
Ordinarily, applicants for provision will be able to quantify (to some degree) specific items within a claim for provision that are present and future “financial needs” within the meaning of s 60(2)(d) Succession Act.
Apart from such specific quantifiable financial needs, often applicants for provision will propound, as part of the claim for provision, a claim for advancement in life.
Whilst the Court does not necessarily expect that an applicant will be able to quantify a figure for “advancement in life” in the same way as a figure might be quantifiable for specific financial needs or for maintenance, ordinarily an applicant might be expected to identify as a matter, item or thing for which provision for advancement in life might be given.
In this case, once one puts aside the items of dental work (the availability and costing for which is uncertain) and the claims related to the swimming pool in the Berkeley Vale property (as to which it is unclear as to whether a pool can be installed in the space available and the separate costing for it is unquantified), the only matters which have in some sense been identified are the:

the prospect that she may incur medical expenses as she ages which may deplete her savings; and

the fact that as matters currently stand she has retired and is simply drawing on savings to pay her monthly expenses.

I can accept for the moment that those matters may be considered in assessing what the plaintiff’s “proper” maintenance (or advancement) requires.
However, it is far from clear to me that the plaintiff is not able to address those matters from her existing resources and what, if anything, the plaintiff would be able to do differently by reason of having such additional resources ($1.85 million to $2 million) as distinct from having her existing resources of $1.6 million to $1.7 million: T 149-150.
Mr Davidson SC was not really able to point to anything that the plaintiff could purchase with increased resources as distinct from being able to be purchased out of her existing resources.
He directed my attention to the fact that the plaintiff had to sell the Five Dock property and draw on some superannuation and pay out a mortgage.
I indicated that effectively what has happened is that she has demonstrated that she is able, on one view, to make sensible financial choices and put herself in a position to be mortgage free.
Mr Davidson SC suggested that she was, however, forced to move to a cheaper area and be away from the home where she wanted to be and had lived for 37 years (or strictly speaking 32 years): T 150.
It is not the law that a plaintiff must present to the Court detailed calculations to demonstrate that they are using their existing resources in an economically optimal way to budget for their maintenance and to achieve their goals to advance their lives.
However, it is significant in this case that no attempt was made to set out in any form the way in which the plaintiff proposed to marshal her existing resources to provide her with any form of investment or other income to cover her expenses other than simply drawing down on funds principally in the Pensioner Security Account.
Ordinarily, there is wisdom in putting financial resources which one has (or has been entrusted with) to some appropriate use to generate more resources rather than not do so: ‘Parable of the Talents’, Matthew 25:14-30, Bible - New Revised Standard Version, Anglicised (see also Luke 19:12-27).
I attempted to engage Mr Davidson SC in respect of this. The discussion was at least in part as follows:

HIS HONOUR: Sure, sure. But there's been no attempt to set out before me in any way, or how she proposes to marshal her resources other than just simply drawing on funds. And if that's what she wants to do, then she can presumably continue to do it.
DAVIDSON: For some period.
HIS HONOUR: For some period of time. But I'm being asked to consider making an order for provision in the order of about 250 to 300, or I think you've acknowledged perhaps on some conceptually lesser amount.
DAVIDSON: Yes.
HIS HONOUR: But to do what? To give some extra buffer to a plaintiff who has about 1.6 million to work with.
DAVIDSON: Yes. Yes, your Honour, that is what it is.

The plaintiff expenses are $4,724 per month or $56,688 per annum.
I posed some very rough calculations in submissions to Mr Wood SC, but also for the benefit of Mr Davidson SC, to try to get at least some sense of how long the plaintiff might be able to draw on her resources if she was still being paid income of approximately $3,000 net per fortnight. That equates to $78,000 per annum: T 160.
Accepting for the moment that none of these figures are precise, the point is that even if the plaintiff’s expenses went up to $60,000 per annum, on one view, the plaintiff should still be able to save $15,000 or more a year, or, more particularly, have available to her $15,000 or a bit more to cover contingencies each year.
Accordingly, I noted that if the plaintiff were to live with availability of $78,000 per annum (to cover not merely expenses but also some degree of contingencies) resources of approximately $1.6M might be extinguished within 20 years: T 160.
It is not unknown in family provision cases for an applicant to provide the Court with little detail regarding her (or his) financial requirements.
In Robinson v Tame [1994] NSWCA 266, Kirby P (with whom Handley and Sheller JJA agreed) stated at 8:

But the fact remains that to the end of the case the appellant could not point to any specific objective which she had in mind and which was needed to provide adequately for her welfare and advancement. A hint of the need of a motor vehicle was made from the bar table. But if this had been the true desire of the appellant, one would have thought that such evidence would have been given at some stage during this long litigation. Alternatively, one might have expected more substantial evidence concerning her real needs. It is a constant source of surprise to me in this, as in other cases under the Act, that so much attention is spent upon personal recrimination and insufficient attention is paid to the proof of precise financial means of the parties and the precise needs of the claimant. The Act is not about the righting of moral wrongs, as such, but about the making of adequate provision In short, the focus of the Act is upon property - dollars and cents; not emotion and ethical desserts.
What the appellant was asking, for unspecified needs, was that the Court should, by its order, in effect put the respondent widow out of her home. That would have a very significant, if not devastating, effect at this stage of the widow’s life. It would be arguably unjust The respondent meanwhile has her own home arrangements. She can look to even better arrangements at some time in the future, according to the communication from the Housing Department.
Even a comparatively small legacy (say $40,000.00) would have carried significant costs of the proceedings, and possibly necessitated substantial costs of the sale of the present home of the respondent and the purchase of a new and more modest home for the respondent.

There is a tension in the proceedings regarding whether the property would have to be sold or not.
The defendant’s case is presented on the basis that the property should not be sold as it provides the defendant with accommodation and the defendant could not easily obtain alternative accommodation, and if the property were to be sold the defendant and Ms Febers would at least to some degree be set back in having any capacity to move forward in their lives: DCS [56].
Mr Davidson SC, whilst pressing for provision for the plaintiff, did not submit that the outcome of the case meant that sale of the property was inevitable.
My sense of the matter is that the defendant, in order to retain the property, may be able to bear the expenses that I have noted above. However, if an order for provision were made to the plaintiff and any costs order made for the plaintiff that would in a sense be the straw that breaks the camel’s back which would compel a sale of the property.
I am mindful that the strength of the plaintiff’s financial position and resources is not the only consideration in assessing adequacy.
I am, in particular, mindful of the importance not to elide the distinction between needs and adequate provision and that adequacy of provision is not to be determined by a calculation of financial needs.
In considering adequacy of provision, whilst I have accepted that the plaintiff’s relationship with the deceased was akin to that of child and parent, I am nonetheless mindful that the deceased did not have the de jure obligations of a parent.
I am mindful that the plaintiff provided daughter-like companionship to the deceased on a regular basis throughout his life – at least up until 2014 – and contributed to his welfare in that respect and, in particular, cared for the deceased on three occasions (3 months plus 2 months plus 6-7 months) which I have described is days totalling a period of about a year.
However, as against those matters there are strong factors favouring a determination that the plaintiff has not been left without proper and adequate provision.
These include:

The plaintiff did not, other than by some degree of maintenance (painting and other unspecified renovations) and some homemaking assistance (making new curtains, help with choosing appliances and choices with replacing carpet and other furniture), contribute in any significant material way to the maintenance or improvement of the deceased’s estate.

The plaintiff has not been able to quantify other than by reference to credit card debts of $11,300 any specific debt or expense as a current or anticipated future need.

The plaintiff, whilst referring to some requirement for dental work, has not sought any information in relation to the cost of dental work or obtained any quote in respect of it. If the plaintiff is unable to have implants because of bone density issues, I do not have any clear evidence of what, if any, dental treatment might be ultimately necessary for the plaintiff and if so, what that treatment might cost.

The plaintiff has not provided any other details regarding her current health or any medical condition such as might require an outlay for her to incur private health insurance.

In any event, the plaintiff has not provided any costing in relation to the expense of private health insurance.

The plaintiff has already undertaken landscaping work. She has not provided any sufficient evidence to identify what part of a figure of $108,000 (which was not, in any event, supported by any quote or basis for calculation) might be referable to non-landscaping work being installation of a swimming pool, pool fencing, landscaping and sliding doors.

In terms of advancement in life, as I have discussed above, the plaintiff is unable to point to any specific matters requiring provision to advance her position in life beyond the fact that she may in the future incur medical expenses (notwithstanding there is no evidence of any current medical condition apart from requiring some dental work) that might give rise to significant expense and she is simply drawing upon accumulated funds to pay expenses.

Whilst I accept that potentially funding future medical expenses would generally inform proper provision there is no evidence of any current medical condition (other than the dental work which I have separately addressed) that might give rise to significant expense.

Whilst I accept that drawing on accumulated funds or savings to pay expenses would generally inform proper provision, the plaintiff has not provided the Court with any even rudimentary plan regarding how she proposes to marshal her resources to generate income to pay for her expenses.

The deceased whilst caring for the plaintiff in her childhood did not assume de jure legal obligations to maintain the plaintiff.

The defendant contributed in the last years of the deceased’s life to his welfare.

The defendant carried out works on the deceased’s property, albeit that some undefined part of the works were paid from the deceased’s S1 Account.

The defendant is in need of a residence and if the property were to be sold, he (and Ms Febers) will be setback indefinitely and lose any meaningful capacity to move forward in their lives.

The defendant was not challenged in cross-examination in relation to his evidence regarding his attachment to the property and his limited capacity to purchase alternative accommodation.

I have accepted that the defendant:

does not have the financial capacity or means to purchase alternative accommodation in the Annandale area nor the financial capacity or means to cover stamp duty, removalist costs and other costs and expenses associated with the purchase of a home; and

given the state of his savings and superannuation he does not have any buffer for unseen contingencies and, accordingly, if any major expenses did arise, he would not have the ability to meet these.

The deceased, in discussions with Ms Ginges prior to preparation of his 2018 Will, wished the defendant to receive the property in a context where the deceased regarded that the defendant had “done such a good job of looking after him”.

The deceased’s desire to make sure that the plaintiff was also taken care of does not appear to have been intended by him to impinge in any significant way his intention for the defendant to “have the house”.

If more ready funds had been accumulated by the deceased in his bank account the plaintiff would, subject to the effect of estate expenses, have received a greater provision.
If any provision were given at all to the plaintiff, it would ordinarily carry with it an order for costs.
However, as matters presently stand the defendant does not have additional ready funds that might be able to permit him to cover any order for provision and an associated costs order for the plaintiff without jeopardising his ability to retain the property.
Overall, whilst I accept that proper provision can encompasses improvement and enhancement of the plaintiff’s position, making an order for provision to give the plaintiff what she claims by way of provision ($250,000 to $300,000) or even some lesser amount, would in my assessment only marginally potentially enhance the plaintiff’s position, whilst significantly impacting upon the defendant’s position.
Ultimately, taking all these considerations into account, I am not persuaded that the plaintiff has been left without proper and adequate provision.

What if any provision ought to be made for the plaintiff?

In light of my determination regarding adequacy of provision there is no occasion for me to determine what, if any, provision ought to be made for the plaintiff.

Conclusion

In the above circumstances, I dismiss the plaintiff’s claim and will give the parties an opportunity to address on the question of costs.
The orders of the Court are:

Dismiss the proceedings.

As to the costs of these proceedings:

The matter is stood over to 9:30 AM on 8 March 2023 to enable the parties to address on the question of costs.

In the event that the parties are able to agree on the question of costs they have liberty to provide my Associate with proposed orders in that respect.

In the event the parties are unable to agree on the question of costs they should provide a short outline of submissions and any affidavits by 4:00 PM on 7 March 2023.

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Decision last updated: 01 March 2023

Medium Neutral Citation:	Robertson v McCann [2023] NSWSC 159
Hearing dates:	13 – 14 February 2023
Date of orders:	28 February 2023
Decision date:	28 February 2023
Jurisdiction:	Equity
Before:	Meek J
Decision:	Plaintiff’s claim dismissed
Catchwords:	SUCCESSION — Family provision — Claim by niece of deceased who with her sister went to live with the deceased and initially his mother in mid-1960s when niece was 7 years old following death of plaintiff’s father — Niece remained living with the deceased for 10 years to age approximately 17 — Niece returned to live with the deceased approximately 8 years later for a period of 15 months — Subsequent ongoing close relationship with the deceased EVIDENCE — Assessment of evidence of party previously convicted of perjury SUCCESSION — Family provision — Eligibility — Eligibility not disputed nonetheless there must be some material to enliven jurisdiction — Jurisdiction cannot be conferred by consent on the Court — Requirements of membership of household and dependency SUCCESSION — Family provision — Factors warranting — Consideration of factors warranting – Plaintiff’s position or status de facto akin to that of a child of the deceased SUCCESSION — Family provision — Adequacy of provision — Describing a proposed expenditure as a hoped for or preferred course of action rather than as a need does not per se deprive the proposed expenditure of being eligible to be considered in the assessment of what is proper provision for advancement in life — Expressing a preference for a proposed expenditure, if the preference is soundly based, may inform what is proper maintenance or advancement for an applicant SUCCESSION — Family provision — Adequacy of provision — Reference point for assessing inadequacy of provision — Whilst plaintiff de facto akin in some respects to a child of the deceased, the deceased did not assume de jure obligations of a parent — Plaintiff in strong financial position with unencumbered house and other financial resources totalling approximately $1.6M — Plaintiff has minimal quantifiable financial needs — Plaintiff unable to point to any particular item whether by form of maintenance or advancement in life unable to be met out of existing resources — Such fact not conclusive or decisive of dismissal of claim nor is lack of financial need to be elided with adequacy of provision but nonetheless a significant fact in assessing adequacy of provision SUCCESSION – Strong competing claim of defendant (plaintiff’s son and deceased’s grandnephew) who lived with deceased in remaining years of his life to retain provision to him of residential property gifted under Will — Defendant provided care for deceased particularly in later years — Defendant reliant on deceased for accommodation
Legislation Cited:	Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Cases Cited:	Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) Bladwell v Davis [2004] NSWCA 170 Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290 Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Chisak v Presot [2022] NSWCA 100 Churton v Christian (1988) 13 NSWLR 241 Dulhunty v Dewhirst [2005] NSWSC 350 Georgopoulos vTsiokanis [2022] NSWSC 563 Gorton v Parkes (1989) 17 NSWLR 1 Kingsland v McIndoe [1989] VR 273 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Mallitt v Gow [2022] NSWSC 1012 Markulin v Drew (Supreme Court (NSW), Young J, 12 August 1993, unrep) Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Munro v Lake (Supreme Court (NSW), McLelland J, 8 February 1991, unrep) Petrohilos v Hunter (1991) 25 NSWLR 343 Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 Porthouse v Bridge [2007] NSWSC 686 R v Moore; ex parte Australian Workers’ Union (1976) 11 ALR 449 Re Fulop(deceased) (1987) 8 NSWLR 679 Robinson v Tame [1994] NSWCA 266 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Scott v Scott [2021] NSWSC 1619 Scott v Scott [2022] NSWCA 182 Sgro v Thompson [2017] NSWCA 326 Shymko v Lach [2022] NSWSC 1096 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 Strang v Steiner [2019] NSWCA 143 Yee v Yee [2017] NSWCA 305
Texts Cited:	Bible - New Revised Standard Version, Anglicised Heydon JD and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)
Category:	Principal judgment
Parties:	Julie Linda Robertson (Plaintiff) Jason McCann as Executor of the Estate of Raymond Leslie Smith (Defendant)
Representation:	Counsel: I Davidson SC (Plaintiff) C Wood SC (Defendant) Solicitors: Vobis Equity Attorneys (Plaintiff) AJB Stevens Lawyers (Defendant)
File Number(s):	2021/296002