Sarant v Sarant

[2020] NSWSC 1686

Supreme Court

New South Wales

Medium Neutral Citation:

Sarant v Sarant [2020] NSWSC 1686

Hearing dates:

20 – 21 October 2020

Date of orders:

26 November 2020

Decision date:

26 November 2020

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

1. Stands the matter over until 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders, including the order for costs.

2. Directs, if agreement cannot be reached within 7 days of the delivery of reasons, that each party deliver to the Court, within 10 days thereafter, written submissions, in hard and soft copy, comprising no more than 5 pages in length, setting out the orders sought and the basis for the making of that order.

Catchwords:

SUCCESSION – Family provision order sought by Plaintiff widower of the deceased – Marriage of 48 years, although separation under one roof, 4 years before the deceased’s death – Estate comprising one half interest as tenants in common in matrimonial home of the deceased and Plaintiff, in which Plaintiff and deceased had lived for about 38 years – No provision for husband in the Will of the deceased – Provision only made for two adult children of the marriage – Antipathy between the children and the Plaintiff – Reasonable estate in value – Financial resources of the Plaintiff considered – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life – Obligation of the deceased towards surviving spouse – Nature of provision to be made – Whether absolute interest, life estate, Crisp order, or other form of provision should be made – Competing claim of each of the adult children of the deceased and the Plaintiff –

Provision to be made for Plaintiff by way of absolute interest subject to conditions – Alternative relief if conditions not met – Costs of proceedings significant – Unable to determine costs as offers said to have been made that may be relevant

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 66F, 66G

Evidence Act 1995 (NSW), s 140

Family Law Act 1975 (Cth)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 23, 42

Practice Note SC Eq 7, par 6(b)

Probate and Administration Act 1898 (NSW), s 86

Real Property Act 1900 (NSW), s 97

Succession Act 2006 (NSW), ss 3, 57, 58, 59, 60, 61, 63, 65, 66, 72, 84, 99

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Cases Cited:

Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176

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

Aroney v Aroney (Supreme Court (NSW), McLelland J, 26 July 1988, unrep)

Balfour v Balfour [1919] 2 KB 571; [1918-19] All ER 860

Bartlett v Coomber [2008] NSWCA 100

Bkassini v Sarkis [2017] NSWSC 1487

Bladwell v Davis [2004] NSWCA 170

Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154

Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86

Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164; [2012] NSWCA 431

Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195

Carey v Robson (No 2) [2009] NSWSC 1199

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246; [1992] FCA 503

Cohen v Cohen (1929) 42 CLR 91; [1929] HCA 15

Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep)

Cowap v Cowap [2020] NSWCA 19

Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep)

Darmanin v Cowan [2010] NSWSC 1118

Day v Couch [2000] NSWSC 230

de Angelis v de Angelis [2003] VSC 432

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54

Easterbrook v Young (1977) 136 CLR 308; [1977] HCA 16

Edgar v Public Trustee for the Northern Territory [2011] NTSC 5

Elliott v Elliott (Court of Appeal (NSW), 24 April 1986, unrep)

Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep)

Estate of Joan Esme Little and the Succession Act 2006 [2015] NSWSC 1913

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Ferella v Official Trustee in Bankruptcy (2015) 13 ABC(NS) 452; [2015] NSWCA 411

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Foundas v Arambatzis [2020] NSWCA 47

Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)

Golosky v Golosky (Court of Appeal (NSW), Kirby P, 5 October 1993, unrep)

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Goodsell v Wellington [2011] NSWSC 1232

Gorton v Parks (1989) 17 NSWLR 1

Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359

Harkness v Harkness (No 2) [2012] NSWSC 35

Harvey v Delaney [2003] NSWSC 589

Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Hoffmann v Hoffmann (1909) 29 NZLR 425

Hunter v Hunter (1987) 8 NSWLR 573

In the Marriage of Aleksovski (1996) 135 FLR 131; (1996) 20 Fam LR 894

In the Matter of the will of G.G. Sitch (deceased) [2005] VSC 308

Jones v Padavatton [1969] 1 WLR 328; [1968] EWCA Civ 4

Kalmar v Kalmar [2006] NSWSC 437

Kardos v Sarbutt (No 2) [2006] NSWCA 206

Kembrey v Cuskelly [2008] NSWSC 262

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep)

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Liprini v Liprini [2008] NSWSC 423

Marinis v Jeweller [2000] NSWCA 282

Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

McKenzie v Topp [2004] VSC 90

Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109

Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; [2006] UKHL 24

Moore v Moore (Court of Appeal (NSW), Hutley JA, 16 May 1984, unrep)

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

O’Leary v O’Leary & Eccles [2010] NSWSC 1347

Palagiano v Mankarios [2011] NSWSC 61

Palmer v Dolman [2005] NSWCA 361

Papas v Co [2018] NSWSC 1404

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52

R v Ulcay [2008] 1 WLR 1209; [2007] EWCA Crim 2379

Re Clissold (deceased) [1970] 2 NSWR 619

Re Hodgson; Beckett v Ramsdale (1886) 31 Ch D 177

Re Meier (deceased) [1976] 1 NZLR 257

Re Mercer (deceased) [1977] 1 NZLR 469

Re Schlink; Keane v Corns [2020] VSC 180

Re Stojanovska; Stojevski v Stojevski [2020] VSC 702

Richard v AXA Trustees Ltd [2000] VSC 341

Robertson v Pearce [2010] NSWSC 124

Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473

Sellers v Scrivenger [2010] VSC 320

Sgro v Thompson [2017] NSWCA 326

Shannon v Steinmetz [2019] HCASL 332

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

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

Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297

South Australia v Commonwealth (1962) 108 CLR 130; [1962] HCA 10

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

Stern v Sekers; Sekers v Sekers [2010] NSWSC 59

Stott v Cook (1960) 33 ALJR 447

Sung v Malaxos [2015] NSWSC 186

The Auckland City Mission v Brown [2002] 2 NZLR 650; [2002] NZCA 33

Thomas v SMP (International) Pty Ltd [2010] NSWSC 822

Varma v Varma (2010) 6 ASTLR 152; [2010] NSWSC 786

Verzar v Verzar [2012] NSWSC 1380

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41

Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)

Watson v Foxman (1995) 49 NSWLR 315

Webb v Ryan [2012] VSC 377

Weeks v Hrubala [2008] NSWSC 162

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45

Yee v Yee [2017] NSWCA 305

Texts Cited:

Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (2020, LexisNexis)

Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5

Category:

Principal judgment

Parties:

George Sarant (Plaintiff)

Maria-Lyn Sarant (first Defendant)
Melissa Randie Sarant (second Defendant)

Representation:

Counsel:
R D Wilson SC (Plaintiff)
J E Brown and M J Jones (Defendant)

Solicitors:
Coleman Greig Lawyers (Plaintiff)
Blanchfield Nicholls Family & Private Advisory (Defendant)

File Number(s):

2019/285479

Judgment

Introduction

1. HIS HONOUR: This is a case in which a father, the Plaintiff, is pitted against his two children, the Defendants, in respect of the estate of his wife, who was their mother. From shortly after the death of the deceased, the disputes between the parties have been extremely hard fought.

2. The case also demonstrates, once again, that contentious family provision proceedings reveal the drama of family rifts, which climax on public display, and which lay bare fault lines in the relationships. There can be little doubt that these proceedings have exacerbated, and will further exacerbate, family tensions and disharmony. Not for the first time, the Court has witnessed how a family can be irreparably divided on an issue such as inheritance or the lack thereof. Clearly, there are feelings of disappointment, antagonism, anger, and resentment, between the children on the one hand and their father on the other.

3. When one reads the facts of this unfortunate case, one also has the sense that, sometimes, parties to legal proceedings in which a claim for a family provision order is made, do not consider a practical solution to their dispute without involving the Court and without spending a large amount by way of legal costs, and that they have preferred to endure the stress and financial consequences which are often part of this type of litigation.

4. Distressingly, it is another case in which the Defendants have sought to highlight the relationship of the Plaintiff and the deceased, which relationship, as a result, has played a prominent role in their view of the way in which the proceedings should be determined. They have focused on the reasons why they believe the deceased decided to leave the estate entirely to them, rather than to make any provision at all for the Plaintiff, despite her marriage to him of 48 years (although separated under the one roof, from him, for the last 4 years of her life), the procreation of their children, and the building up of the estate assets together.

5. (There is some evidence, to which I shall refer, that establishes that whilst the deceased sought legal advice on the adjustment of property interests, neither she, nor the Plaintiff, commenced any proceedings for a divorce order, nor for orders altering their interests, as parties to the marriage, in the property owned by either, or both, of them.)

6. As was acknowledged by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; [1962] HCA 19:

“The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.”

7. Having identified the parties, I shall refer to them, as they share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.

8. At the hearing, Mr R D Wilson SC appeared for George. Mr J E Brown, with Mr M J Jones, of counsel, appeared for Maria-Lyn and Melissa. The hearing was listed for two days and was completed within that time.

The Proceedings

9. The proceedings involve a claim by George Sarant, the husband of Elizabeth Randie Sarant (the deceased), who seeks a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act) and his costs out of her estate.

10. The deceased died on 16 September 2018, leaving a Will dated 12 July 2000. This Court granted Probate of that Will, on 8 April 2019, to the two Defendants, Maria-Lyn Sarant and Melissa Randie Sarant, who are the executors appointed under that Will, and the only two children of the deceased and the Plaintiff.

11. By her Will, the deceased revoked all prior wills and testamentary dispositions (Clause 1); appointed Melissa and Maria-Lyn as the executors (Clause 2) and left the whole of her estate to them, as tenants in common in equal shares (Clause 3).

12. There was nothing in the deceased’s Will to explain why the deceased made no provision at all for George.

Some formal matters not in dispute

13. The proceedings were commenced by Summons filed on 12 September 2019, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

14. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a person who was the spouse of the deceased at the time of her death, George is an eligible person within s 57(1)(a) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased.

15. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

16. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

17. There was no property that was sought to be designated as notional estate of the deceased. This is unsurprising, as the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances. None of these criteria were said to be applicable in the present case. (Senior counsel did raise the possibility of costs being borne out of the property that could be designated as notional estate, but that was only in the event that the Plaintiff received the whole of the actual estate of the deceased: Tcpt, 20 October 2020, p 1(46) – p 2(05).)

18. Whilst there was no notice of eligible persons, including the name and, if known, the address of any person who is, or who may be, an eligible person, as is required by par 6(b) of Practice Note SC Eq 7, other than, by way of inclusion, at par 92 of George’s primary affidavit, sworn on 13 September 2019, the parties agreed, at the commencement of the hearing, that they are the only eligible persons: Tcpt, 20 October 2020, p 2(07–19).

19. Only George has made a claim for a family provision order. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, his, or its, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. Each of Maria-Lyn and Melissa has given evidence of her financial resources, needs, and her claim, respectively, on the bounty of the deceased.

20. As was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] (Kelly J):

“There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to ‘what the testator regarded as superior claims or preferable dispositions’ as demonstrated by his will.” (Citations omitted)

21. Maria-Lyn and Melissa, as the executors, filed a Cross-Claim, on
    18 December 2019, in which they sought an order for the appointment of trustees for sale of the property located at Read Street, Bronte (the Bronte property) which the deceased and George owned as tenants in common, in equal shares, at the date of the deceased’s death. The order for sale of the Bronte property was to be with vacant possession, which, naturally, would require George to leave the home in which he has lived for about 38 years (at the date of hearing).

22. David Scott McGill, described as “an accountant and tax adviser”, and Gregory Ernest Mark Falk, a solicitor, each consented to being appointed as trustee for sale of the Bronte property. Neither estimated the time that was likely to be spent in performing his duty as trustee for sale, or any expenses likely to be incurred, but Mr McGill stated that the “hourly rate I charge for work I undertake as a trustee for the sale of land is $575 plus GST”, whilst Mr Falk’s statement of his hourly rate was “$400 plus GST”.

23. (Without objection, during the course of the hearing, from the Bar table, counsel for Maria-Lyn and Melissa, supplied the information as to the proposed trustees’ likely costs. I shall refer to the estimate of the costs of acting as trustees for sale later in these reasons.)

24. Section 66F(1) of the Conveyancing Act1919 (NSW) provides:

Co-ownership means ownership whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common; and co-owner has a corresponding meaning and includes an incumbrancer of the interest of a joint tenant or tenant in common.

25. Section 66G(1) of the Conveyancing Act provides:

Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.

26. George, as part of his Defence to the Cross-Claim, opposed the order sought under s 66G of the Conveyancing Act on discretionary grounds, which grounds were:

“16. …

To the extent that the Cross Claimants invoke the jurisdiction of the Court under S.66G of the Conveyancing Act 1919, the Court has a discretion whether or not to order a sale of the Bronte property;

The Bronte property was acquired by the Cross Defendant and the deceased Elizabeth Randie Sarant as joint tenants in 1982;

At that time the Bronte property had one residence constructed upon it namely the rear residence;

The Cross Defendant expended his time and labour in constructing the second residence on the Bronte property namely the front residence;

The Cross Defendant resides in the front residence constructed on the Bronte property as his home;

In the year 2000 the deceased and the Cross Defendant agreed to make new wills;

In the year 2000 the Cross Defendant and the deceased agreed that they would remain as residents of the Bronte property for the duration of their respective lives.

The Cross Defendant made a new will in 2000 in pursuance of the agreements.

In the year 2000, without the agreement or prior knowledge of the Cross-Defendant the deceased purported to determine the joint tenancy of the Bronte Property;

The deceased instructed a dealing to be registered upon the title of the Bronte property purportedly pursuant to S.97 of the Real Property Act 1900;

The Cross Defendant had no notice of the actions taken by the deceased in 2000 prior to registration of the dealing and did not consent to its registration or to the severance of the joint tenancy;

A unilateral severance of the joint tenancy between the deceased and the Cross Defendant by the deceased was unconscionable in light of the agreements reached between the Cross Defendant and the deceased during her lifetime.

The actions of the deceased in sub-paragraphs 16(g) and 15(h) above constituted a breach by the deceased of the agreement pleaded in paragraph 15(f) above.

As a consequence, the Cross Defendant remained until the date of death of the deceased a joint tenant in equity of the Bronte property with the deceased.

Upon the date of death of the deceased on 18 September 2018 her equitable interest in the Bronte property passed to the Cross Defendant;

The Cross Defendant is now the owner in equity of the Bronte property; and

It is unconscionable for the Cross Claimants to exercise and statutory claim for the Court to order sale of the Bronte property during the lifetime of the Cross Defendant or to claim possession of the Bronte property.”

27. George asserted that the Court should deny the relief sought in the Cross-Claim and that any entitlement to an order was displaced by legal or equitable obligations, imposed upon the deceased.

28. Neither counsel referred to the proposition that such relief is available “almost as of right”: see Ferella v Official Trustee in Bankruptcy (2015) 13 ABC(NS) 452 at 460–461 [36]–[42]; [2015] NSWCA 411 at [36]–[42] (Tobias AJA, with whom Bergin CJ in Eq and Emmett AJA agreed), in which the authorities are collected and the bases of the Court’s discretion are discussed. See also, more recently, Foundas v Arambatzis [2020] NSWCA 47, at [62]–[63] (White JA, with whom Bell P and Basten JA agreed).

29. Neither counsel dealt with the contributions for expenses that George had paid since the death of the deceased, such as for rates that have been levied on the Bronte property or for insurance premiums.

The Position of the Parties at the hearing

30. Senior counsel for George submitted, in writing, that this was a case in which George should receive, by way of provision, a devise of the whole of the deceased’s interest in the Bronte property absolutely, or, in the alternative, at least, what has been described as a “Crisp order” (referring to Harvey v Delaney [2003] NSWSC 589 at [44] (Macready M)) in that part of the Bronte property in which the deceased had an interest.

31. Senior counsel submitted that such an order would have the added advantage that it would do a minimum of violence to the deceased’s Will, as the balance of the interest would be distributed back to Maria-Lyn and Melissa on George’s death. In either result, it was submitted that the Cross-Claim should be dismissed.

32. A “Crisp order” is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep), excerpt in part, in Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (2020, LexisNexis) at [9433]. Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant’s benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from his, or her, own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”: Court v Hunt (Supreme Court (NSW), Young J (as his Honour then was), 14 September 1987, unrep) at 3, cited with approval by Ipp JA (Macfarlan JA and Sackville AJA agreeing) in Milillo v Konnecke (2009) 2 ASTLR 235 at 243–244 [47]–[48]; [2009] NSWCA 109 at [47]–[48].

33. In Re Schlink; Keane v Corns [2020] VSC 180 at [79], McMillan J described it as:

“… a practical way of crafting relief which provides for the proper maintenance and support of an applicant in a flexible manner, while also preserving the estate for the remaining beneficiaries. The usual circumstance in which a Crisp order may be appropriate in family provision claims is where an applicant for further provision is a surviving spouse or partner of a deceased and the deceased failed to provide adequately for them.”

34. At the commencement of the hearing, senior counsel for George suggested that there was another alternative, which was to dismiss George’s claim and also to dismiss the Cross-Claim, with the consequence that the parties’ interests would remain the same, but the Defendants would not be able to sell the Bronte property (Tcpt, 20 October 2020, p 3(45) – p 4(01)):

“WILSON: It’s not the alternative I advance, but it would be on the table. If your Honour takes a view that no provision ought be made for the plaintiff, but if your Honour takes the view that the plaintiff relied upon a representation by the deceased in May or June 2000 that I make a will leaving me accommodation, then that’s a complete defence to a s 66G, so the result of that would be both applications would be dismissed, the plaintiff would continue to live in the house. That’s the third alternative.”

35. Leading counsel for Maria-Lyn and Melissa submitted that the Plaintiff’s case should simply be dismissed, with an order that George pay the costs of the proceedings. He submitted that when one considered George’s financial resources and needs, the lack of provision made for him in the Will, could not result in a finding that he had been left without adequate provision for his proper maintenance and advancement in life. He also submitted that “orders for the sale of the Bronte property and ancillary orders” should be made.

36. Even at the conclusion of the oral submissions, leading counsel maintained that despite no provision having been made for him, George had received adequate and proper provision under the deceased’s Will and that his claim should be dismissed with costs: Tcpt, 21 October 2020, p 154(33–50). He submitted that the primacy of a spouse is “not what it once was” citing Cowap v Cowap [2020] NSWCA 19 for that principle: Tcpt, 21 October 2020, p 155(02–46).

37. Of course, in that case, the widow of the deceased was not the applicant seeking a family provision order. In any event, the Court of Appeal (Macfarlan JA, with whom Bell P and White JA agreed), referred, at [59], to the “strong claims on the bounty of the deceased”, of the elderly widow, to whom the whole estate had been left, stating that the trial Judge had:

“carefully weighed the competing claims of the appellant and respondent. He properly recognised the appellant’s strong claims on the testator’s bounty arising out of her long marriage and occupation of the former matrimonial home, to which the appellant had significant emotional attachment. On the other hand, his Honour also recognised the very significant needs of the respondent, which came into existence after the testator’s death. As his counsel described it, the respondent has a ‘severe and permanent disability, including cognitive impairment’. His Honour’s resolution of these competing considerations has not been shown to be unreasonable and therefore outside the range of outcomes at which his Honour could properly have arrived.”

38. Frankly, it was difficult to not reject, immediately, the principal submission made by counsel. As a surviving spouse of some 44 years, even before separation, where he had remained the deceased’s husband even after their separation under the one roof only a few years before the death of the deceased; where the Bronte property had been the home in which he and the deceased had shared their lives for over 35 years and where he had lived since her death; where he had made significant financial, and non-financial, contributions to its acquisition, conservation and improvement; where, at the date of the hearing, he wished to continue to live there; and where there had not been a formal, or an informal, division of matrimonial assets, that George should not be entitled to any provision out of the deceased’s estate, with his claim to be dismissed with costs, and that trustees for sale should be appointed to sell the Bronte property immediately, the submission smacked of little more than pandering to the instructions that counsel had been given by one, or both, of Maria-Lyn and Melissa. (This is not to say that George should receive, by way of provision, the whole of the deceased’s interest in the Bronte property absolutely.)

39. If the submission was based only on the specific instructions of one, or both, of the Defendants, it is necessary to remind the legal profession that lawyers must be mindful not to act solely as a “hired gun” for a client, but rather must exercise independent judgment. In this regard, what was stated by Sir Igor Judge P, in R v Ulcay [2008] 1 WLR 1209 at 1217 [27]; [2007] EWCA Crim 2379 at [27] is useful to remember:

“The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say.”

40. Furthermore, rule 23 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) provides that:

A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.

41. Independence, relevantly, under rule 42, means:

A barrister must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s … wishes where practicable.

42. The Court expects more from legal representatives, particularly from counsel who appear regularly in these types of matters, including giving real consideration to the merits of the other party’s case and providing reasoned submissions on what is, or what is not, “adequate and proper provision in all the circumstances of the case” when asked. The duty to the Court of a legal representative requires him, or her, where necessary, to restrain the unreasonable enthusiasms of the party represented, which, ultimately, is in the party’s best interest and is more likely to ensure that a just result is reached sooner and with less expense: Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 at [19], [22] (Pembroke J).

43. Perhaps, the submissions made explain why so much, by way of costs, had been incurred, on the part of Maria-Lyn and Melissa, in a case which, but for determining the nature of the provision that ought to be made, appeared to be relatively straightforward.

The estate of the deceased

44. On 22 September 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

1. the assets and liabilities of the estate at the date of death;

2. the assets and liabilities of the estate at the date of the schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and

5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.

45. A document containing the information was provided prior to the hearing and was marked, without objection, as Ex JS1.

46. The deceased’s estate, as at the date of death, was estimated to have an estimated, or known, value of $1,425,522. The estate was described as consisting of the deceased’s one-half interest as tenant in common in the Bronte property ($1,400,000) and cash in bank ($25,552). (I have omitted, and shall continue to omit, any reference to cents in relation to all amounts. This will explain any apparent arithmetical miscalculation.)

47. The liabilities of the deceased, at the date of her death, were estimated to be $3,192. These liabilities have not been paid.

48. At the commencement of the hearing, the parties agreed that the deceased’s estate consisted only of the deceased’s one-half interest as tenant in common in the Bronte property ($1,850,000). They also agreed that the estimated costs and expenses of sale of the Bronte property were likely to be $83,940, comprising auctioneer’s fees and marketing ($7,500), real estate agent’s commission on sale ($75,240) and conveyancer’s fees ($1,200): Tcpt, 20 October 2020, p 6(02–39).

49. Counsel for Maria-Lyn and Melissa submitted that only one half of this amount ($41,970) would be payable out of the deceased’s estate, as the deceased was the holder of a one-half interest as tenant in common in the Bronte property. There is some support for this submission in Kardos v Sarbutt(No 2) [2006] NSWCA 206 at [28] (Brereton J (as his Honour then was) (with whom Basten JA and Hunt AJA agreed)), in which it was held that “… in proceedings under Conveyancing Act, s 66G, for the appointment of trustees of sale of jointly held land, the costs are usually paid out of the proceeds, the rationale being that the costs of such an application are an incident of joint ownership”.

50. There are a number of liabilities payable out of the estate, other than costs of the proceedings, that remain unpaid, or that have been paid, personally, by one, or both, of the Defendants, which should be reimbursed to them. These include the liabilities referred to above ($3,192), costs of obtaining Probate ($6,486), costs of administration ($6,710), a bank facility fee ($250) and the balance of the costs of obtaining an interim grant ($16,697), making the total amount $33,335: Tcpt, 20 October 2020, p 61(27–49).

51. There will also be some additional expenses, for Mr McGill and Mr Falk, if they are appointed as trustees for sale of the Bronte property. The parties agreed that if they were appointed, their costs and expenses would be $12,100: Tcpt, 21 October 2020, p 107(04–38).

52. Thus, the gross value of the estate ($1,850,000), less one half of the costs of sale ($41,970), the additional liabilities ($33,335), and the costs and expenses of trustees for sale ($12,100), but without taking into account the costs of the proceedings, was said to be $1,762,595.

53. The deceased, at the date of her death, was a member of the Health Employees Superannuation Trust Australia (HESTA) Industry Super Plan, which appears to have included a life assurance policy on her life under which money became payable on her death to a person other than the legal representative of her estate. In July 2019, Maria-Lyn and Melissa, each received two amounts ($94,149 and $34,712) totalling $128,861, by way of death benefits.

54. George did not challenge the determination by the Trustee of the superannuation fund and he did not seek an order designating as notional estate of the deceased any part of the amounts each received. His counsel, however, submitted that each of Maria-Lyn and Melissa had received that amount as a result of the death of the deceased, which amount should be taken into account. (However, as stated earlier, these amounts were referred to by senior counsel as the source for a costs order in the event that it was necessary to make an order that George’s costs be paid out of the notional estate of the deceased.)

55. Maria-Lyn and Melissa, as executors and the sole beneficiaries named in the Will of the deceased, are unlikely to seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased, pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

The Costs of the Proceedings

56. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

57. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

58. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

59. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

“To exclude from consideration the diminution in the estate and hence [the applicant’s] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant’s position at the time the Court ‘is determining whether or not to make such an order’.”

60. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

61. In an affidavit sworn on 1 October 2020, Mr J Ferguson, a solicitor in the employ of the Plaintiff’s solicitors, estimated that George’s costs and disbursements of the proceedings, calculated on the ordinary basis, up to and including a two day hearing, and including GST, were $107,000. Those costs and disbursements, calculated on the indemnity basis, were estimated to be $137,500.

62. Mr Ferguson stated that his firm had only been instructed on 16 September 2020 and that George had paid $81,944 to the solicitors who had previously acted for him. It may be that if an order for his costs to be paid out of the estate, he will recover some, or all, of the amount that he has paid. (Alternatively, if no order were made, he would have only the balance of $55,556 to pay.)

63. In an affidavit sworn on 11 September 2020, Mr J R Baxter, the solicitor for Melissa and Maria-Lyn, estimated that their costs and disbursements of the proceedings, calculated on the indemnity basis, up to and including a two day hearing, and including GST, were $171,500. He also gave evidence that they had personally paid $89,459 of those costs and disbursements. That leaves an amount of $82,041 to be paid: Affidavit, John Raymond Baxter, 11 September 2020 at par 4. However, the amount that they have paid is said to be a loan to the estate which should be repaid: Tcpt, 21 October 2020, p 137(46) – p 139(07).

60. (The amount for costs was said to not include other legal costs incurred in proceedings brought for urgent relief seeking a grant of letters of administration ad colligenda bona defuncti, which had been brought by them prior to the commencement of these proceedings.)

61. Of course, in incurring the costs of upholding the terms of the deceased’s Will, they were defending their own interests, as the sole beneficiaries named in the deceased’s Will.

62. It was necessary to suppress a sharp intake of breath when the Court was informed that the total estimated costs of the proceedings, excluding the legal costs of the application referred to above, were estimated to be $278,500: Tcpt, 20 October 2020, p 8(39–50).

63. Counsel requested me to defer making any determination as to the burden of costs, as there are some matters that may be relevant to that determination that could not be disclosed at the hearing: Tcpt, 20 October 2020, p 9(07–13).

64. Despite that request, the Court suggested that, perhaps, the parties could agree on at least the lump sum costs for each party if an order for costs were made, in order to avoid further delay in the administration of the deceased’s estate: Tcpt, 20 October 2020, p 9(15–21). Unfortunately, any suggestion of compromise, even on this issue, fell on deaf ears, and it will be necessary to consider how to deal with the costs of the proceedings following the publication of these reasons: Tcpt, 21 October 2020, p 107(49) – p 108(06). That is likely to result in further costs being incurred.

65. Using the above estimates as a guide, then, if the costs of the estate were ordered to be paid out of the estate, the distributable estate out of which an order for provision could be made is $1,484,095. It is a modestly large estate, although it consists of the proceeds of sale of only one asset. Without an order for provision in favour of George, each of Maria-Lyn and Melissa would receive about $742,000 pursuant to the terms of the deceased’s Will.

Some background facts

70. It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.

71. The deceased was born in June 1948. At the date of her death, in September 2018, she was almost 70 years old.

72. George was born, in Greece, in June 1945 and is now 75 years of age.

73. George came to Australia in about 1954. Apart from several periods when the family returned to Greece, he has lived here since then.

74. The deceased and the Plaintiff met in about 1966. They were married in June 1970 and remained married at the date of the deceased’s death in September 2018. There were two children of the marriage, being Melissa, who was born in June 1969 and who is now 51 years old, and Maria-Lyn, who was born in June 1971 and who is now 49 years old.

75. During their married life, the deceased was a nurse and George was a taxi driver/bus driver.

76. There is evidence that in about 1999, the relationship gained a quality of financial independence with the deceased and George maintaining separate bank accounts: Tcpt, 20 October 2020, p 36(10–16).

77. George’s father, Theo Sarantopoulos, died in June 2011. He left a Will dated 24 November 2000, Probate of which was granted on 23 November 2011 by this Court to George.

78. By Theo’s Will, his wife, Maria, was left a life interest in a property at Kingston Road, Camperdown (the Camperdown property), with the remainder left to George for his sole use and benefit absolutely. The rest and residue of Theo’s estate, was left to George absolutely.

79. The Camperdown property, as disclosed in the Inventory of Property attached to the Probate of Theo’s Will, had an estimated or known, value of $1,000,000. There was money in the bank ($5,526) and a watch ($2,000).

80. The Camperdown property was sold, in September 2016, for $2,100,000 less an amount for capital gains tax and sale expenses ($600,000): Tcpt, 21 October 2020, p 106(11–40); Affidavit, George Sarant, 13 September 2019 at par 77; Affidavit, George Sarant, 2 October 2020 at pars 10(c), (d); Ex D5.

81. George deposed (at par 78 of his affidavit, sworn on 13 September 2019) that the balance of the proceeds of sale were invested in a term deposit, so as to provide an income for his mother, and that “with her permission [he has] some access to the income as well”. In cross-examination, George resiled from this assertion, accepting that once the Camperdown property was sold, the proceeds of sale passed to his control, that his mother, thereafter, exercised no control over the funds, and that she had asked him to do anything he liked with it.: Tcpt, 20 October 2020, p 29(47) – p 30(06); p 30(20–44). He also accepted that “whatever arrangement is between your mother and you, your mother now accepts that the money in the bank account is yours”: Tcpt, 20 October 2020, p 31(19–22).

82. Until the term deposit matured, George lived on the interest received thereon. He has paid the income tax on the interest received. Following the term deposit reaching maturity, in November 2019, George transferred the balance, first, to his Pensioner Security Account and then, in the following distributions: $1,350,000 to a Netbank Saver account with CBA and $50,000 to an account with the National Australia Bank (NAB). The balance ($100,000) remained in his Pensioner Security Account.

83. It appears that on 15 November 2019, George transferred $50,000 to his mother’s account, purportedly on account of the COVID-19 pandemic. George’s basis for the transfer, having regard to the fact that it occurred well before the outbreak of the pandemic, cannot be accepted. However, I am not inclined to conclude that there was a deliberate attempt by him to hide his assets from the Court, as was put to him in cross-examination: Tcpt, 20 October 2020, p 48(10) – p 49(45).

84. In terms of how the funds have been spent, other than on daily living expenses, George states that a considerable amount has gone toward the costs of these proceedings. His evidence is supported by what has been written above as to the amount that has been paid on account of his costs.

85. In addition, Melissa asked George for money following the sale of the Camperdown property. George states that he gave her some thousands of dollars “to pay things, cars, rent, anything she wanted, holidays she went … but … I couldn’t give her the money that she wanted, $300,000 each”: Tcpt, 20 October 2020, p 47(30–35). Melissa accepted that she had received some monetary assistance from George, but plainly, neither as much, nor as quickly, as she would have wanted: Tcpt, 20 October 2020, p 68(20) –
    p 69(38); see Affidavit, George Sarant, 13 September 2019 at Annexure G.

86. At par 12 of his affidavit, sworn on 2 October 2020, George set out the present balances of each of the accounts into which the funds inherited from Theo were deposited. There are three accounts, one in which there is
    $1.3 million, and two in which there is $50,000.

The testamentary intentions of the deceased

87. The only documentary evidence of the testamentary intentions of the deceased was her last Will, to the contents of which reference has already been made.

88. At the outset of the hearing, I asked whether any enquiries had been made going to whether the deceased had made any prior wills, and whether, for example, the files of Mr Murphy, the solicitor who had prepared the deceased’s, and George’s, last Will, respectively, had been the subject of any subpoena to produce documents. Counsel for Maria-Lyn and Melissa indicated that he was not aware of any subpoena having been issued: Tcpt, 20 October 2020, p 10(34–44).

89. In any event, there was no documentary, or other, evidence, from Mr Murphy relied upon, by either party, in the proceedings: Tcpt, 20 October 2020, p 14(07–46). (This could be seen as somewhat surprising bearing in mind his involvement in the preparation of each Will and in the preparation of documents on behalf of the deceased unilaterally severing the joint tenancy of the Bronte property.)

90. Thus, there was no evidence that careful thought, or detailed consideration, had been given by the deceased to what was appropriate provision for George if he survived her. That is manifest from the terms of the Will which demonstrate that the deceased’s overriding consideration was to leave the entirety of her estate to their children, rather than considering what was proper provision for her husband of so many years.

91. (The Will was made at a time when both of George’s parents were alive. There is no evidence of the deceased’s knowledge of what he might inherit on their death.)

92. There was evidence recounted by one, or other, of the parties, of conversations said to have been had with the deceased. Before turning to the details of those conversations, it is important to note that the Court exercises caution in weighing any evidence of any alleged conversation with a deceased person: Plunkett v Bull (1915) 19 CLR 544 at 548–549 (Isaacs J); [1915] HCA 14.

93. As Wilcox J observed in Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 at 253; [1992] FCA 503 at [29]:

“[I]t is trite to say that evidence of conversations between a living witness and a dead person should be scrutinised with particular care, especially where there was no occasion for the dead person to record his version of them before his death. Of course, that is not to say that such evidence cannot be true; it obviously may. But it does mean that any matter adversely affecting the credit of the witness has special importance; the witness cannot be refuted in the usual way.”

94. In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, McLelland CJ in Eq, referred to the proposition that:

“in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution …”

95. In Varma v Varma (2010) 6 ASTLR 152 at 244 [419]; [2010] NSWSC 786 at [419], Ward J (as her Honour then was) emphasised the need for “[c]areful scrutiny” in such cases. Her Honour, at [424], considered that the need for scrutiny was increased by a recognition of the underlying fallibility of human memory, citing the explanation given by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319:

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

96. Whilst there is no absolute legal requirement for it, I should also look for some corroboration: Re Hodgson; Beckett v Ramsdale (1886) 31 Ch D 177 at 183 (Sir J Hannen P); Day v Couch [2000] NSWSC 230 at [9] (Bryson J); Weeks v Hrubala [2008] NSWSC 162 at [20] (Young CJ in Eq).

97. Whelan J (as his Honour then was) in Webb v Ryan [2012] VSC 377 referred to the difficulties in assessing this type of evidence, writing, at [22]:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.” (citations omitted)

98. I also remember s 140 of the Evidence Act 1995 (NSW), in respect of which Campbell JA (with whom Bergin CJ in Eq and Sackville AJA agreed) wrote in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 176 [51]; [2012] NSWCA 431 at [52]:

“To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence. As well, both under the common law and also under s 140 Evidence Act 1995, the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so … I respectfully agree with the observation in Cross on Evidence, 8th Australian edition (2010) LexisNexis [9130] and footnote 184 that ‘according to ALRC 26 [998], the provision does not require actual belief; but that is not what the language says’. What s 140(1) says is:

‘In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.’

It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.” (citations omitted)

99. Bearing those cautions in mind, I turn to set out the evidence of conversations with deceased, both affidavit and oral. I shall come to issues raised as to credibility later in these reasons.

100. In his affidavit sworn on 13 September 2019, at pars 53–56, George wrote:

“Discussions in 2000 and the wills made in that year

In or about May or June 2000 I was working night shifts as a government bus driver. My wife said to me words to the effect: ‘We should make wills. I’ll go separately and you can go when you are able.’ … We agreed that in view of our children’s mental instability, we should provide that the property could not be sold until we both had died. We agreed to see Mr Murphy the same to [sic] solicitor to arrange the preparation of our wills.

In about mid July 2000 my wife said to me ‘I have made my will as we have discussed’. She did not show me a copy of her will at that time. I did not see it until after my wife’s death in 2018.

I assumed that as we had agreed my wife’s will provided that I could stay in the house in circumstances where she predeceased me.

Based on our agreement and that understanding, I signed my will about two weeks after this at the offices [of] Mr Murphy, the solicitor who prepared it …”

101. In a later affidavit, sworn on 6 March 2020, at par 3, George wrote:

“[George]: ‘We don’t want the house sold before we both die but we want the girls to have the right to live there.

[The deceased]: ‘I agree’.

[George]: ‘Also, I am worried about the girls’ mental state. We don’t want them to be able to sell even after the last one of us dies. They can’t handle money but we want them to have a house for them both to live in. It can’t be sold until they both die.’

[The deceased]: ‘Agree. I will contact Mr Murphy to prepare our wills’.

[George]: ‘Okay’.”

102. In his Will dated 3 August 2000 (a copy of which was annexed to his affidavit, sworn 13 September 2019), Clauses 3 and 4 provided:

“I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever kind and wheresoever situated to the said MELISSA RANDIE SARANT and MARIA-LYN SARANT as tenants in common in equal shares.

I GIVE the following directions to my Executrices concerning the property known as xxx Read Street Bronte which I refer to hereafter as ‘the house’:-

My wife ELIZABETH RANDIE SARANT may live in the house as long as she wishes provided that she pays the rates and taxes on the house the premiums on insurance taken out on the house.

Until my wife has ceased to live in the house then the house shall not be sold

Should my wife the said ELIZABETH RANDIE SARANT survive me my daughters shall be entitled during the lifetime of my wife to live in the house.”

103. The terms of George’s Will are consistent with his evidence of what he said was discussed.

104. Despite having taken the deceased to the appointment with Mr Murphy, at which instructions were given for the Will and the severance of the joint tenancy of the Bronte property in July 2000, Maria-Lyn denied having had any knowledge of, or conversation with the deceased about, her testamentary intentions at about the time. She stated that she thought she had found out about the Will in about 2003: Tcpt, 20 October 2020, p 96(24) – p 97(07). At par 99 of her affidavit, sworn on 10 January 2020, Maria-Lyn gave evidence of first having become aware of the deceased’s Will in a conversation with the deceased in the mid-2000s, when the deceased said to her “I’m leaving everything to you and Missy”. (“Missy” being a family nickname for Melissa.)

105. Upon clarification, in cross-examination, she could recall, at least, two occasions in which there were discussions about the deceased’s intentions as to, and the contents of, her Will, the first of which she placed as having occurred in or around 2006 and the second, in June 2011, following Theo’s death. It is in the latter conversation that Maria-Lyn stated she first became aware of her mother having effected the severance of the joint tenancy: Tcpt, 20 October 2020, p 97(09–16).

106. She denied, also, making any suggestions to the deceased as to how she should distribute her assets on death: Tcpt, 20 October 2020, p 97(18–21).

107. In her reply affidavit, sworn on 8 April 2020, Maria-Lyn stated at pars 58–61:

“… I say that my parents’ wills and their ownership of the Bronte property were the subject of many discussions to which I was a party from as long ago as the late 2000s. During a number of these discussions, [George] said words to the effect:

‘I don’t want the girls to inherit my estate. I’m going to leave my share of the property to Riki.’

The deceased invariably responded with words to the effect:

‘The house should go to the girls only. I don’t want Andre … to benefit from my life’s work, considering the abuse we all suffered from him, including Riki.’

I also recall [George] saying to the deceased words to the effect:

‘We need to change our wills so that we are the only beneficiaries, and not the girls.’

The deceased responded in words to the effect:

‘I have worked all my life for my daughters to have a better life, not you and Andre. I don’t trust you to leave the house to the girls.’”

108. Melissa gave no evidence about having any conversations as to the testamentary intentions of the deceased.

109. I am satisfied that there were discussions about the topic which led to George being disappointed with the terms of the deceased’s Will so far as it related to his continued occupation of the Bronte property.

110. Based upon the evidence, it seems that George has a disappointed expectation in respect of his ability to remain in occupation of the Bronte property after the deceased’s death. Yet, overall, George has not shown that, based on what the deceased and he discussed, that any expectation made any difference to the manner in which he conducted himself. Put differently, George has not shown that he would have adopted a different course in making the Will that he did, had such an expectation not been induced in him. More likely than not, I am of the view that he would have made such a Will permitting the deceased to remain living in the Bronte property after his death in any event.

111. As was recently written in Re Stojanovska; Stojevski v Stojevski [2020] VSC 702 at [57] (Englefield JR):

“The impact of unfulfilled promises or disappointed expectations may sometimes be relevant when a family provision claim reaches the stage that the moral duty of the deceased is under consideration …” (citations omitted)

112. What was written by Englefield JR echoed the view expressed by Brereton J in Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38]:

“Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148]. This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation.”

113. See also Steinmetz v Shannon (2019) 99 NSWLR 687 at 712 [112]; [2019] NSWCA 114 at [112], in which Brereton JA wrote:

“… arrangements and understandings made between a testator and potential beneficiary are not irrelevant in determining what may be proper for the beneficiary’s maintenance and advancement. Representations made by testators have always been regarded as relevant to the ascertainment of what is proper provision. Thus it seems to me that a well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary.” (citations omitted)

The Bronte property

114. George and the deceased purchased the Bronte property, as joint tenants, in June 1982 for $80,000. There was a mortgage registered on title, securing a debt of $68,000, which amount was used as part of the purchase price. George stated that he had received $8,000 from his father, Theo, which amount was used for the deposit, and that he and the deceased had paid the stamp duty, legal costs, and the balance of the purchase price “from our joint savings”.

115. In about 1986, the deceased and George rebuilt the residence at the rear of the Bronte property with the costs of rebuilding the two storey residence coming from their joint savings.

116. Between 1997 and 1999, the deceased and George built a second residence on the Bronte property, which came to be known as “the Front House”. The costs of building and the furnishing of the property, which was said to be about $230,000, were borrowed, and the debt was secured on the title. This home was built by professional builders. According to George, this was done as it was the deceased’s, and his, intention that each of Maria-Lyn and Melissa would both, eventually, have a place to live when he and the deceased died.

117. The evidence relied upon by George, going to the nature and value of the Bronte property, included a “Property Valuation Certificate” dated 30 September 2020 (being annexure “F” to his affidavit, sworn 2 October 2020), which provides some information about the Bronte property. It is located within eight kilometres of the Sydney central business district and within an established residential neighbourhood. The land area is 444m². It is described in the following way:

“7. MAIN BUILDING:

Description:

Freestanding multi-level dwelling which has been split into a front and rear section

Street appeal:

Conventional style with average appeal

Main walls:

Brick

Roof:

Tile

Flooring:

Timber

Interior linings:

Rendered and painted brick

Accommodation:

Front Section:

• 2 bedrooms

• 2 bathrooms (1 ensuite)

• Family combined kitchen

• Upper level lounge area with low clearance storage

• 2 balconies

Rear Section:

• 1 study room/ 1 bedroom

• Large lounge/ open space room on the upper level which could be partitioned into 2 - 3 bedrooms

• Lounge and dining room

• Kitchen

8. OBSERVATIONS:

Features:

Front section has split system air conditioning unit, skylight, built in robes (older style), storage areas, upper level lounge area, balcony x2, courtyard patio, lower level rumpus room.

Internal Layout:

Unconventional

Internal Condition:

Average

External Condition: 

Average

Defects Observed:

See comments

9. CAR:

Attached double lock up garage.

10. ANCILLARY:

Concrete driveway, turf and landscaping and fencing.

11. AREAS:

The following areas are approximations only and if more accurate figures are required, an architect should be engaged.

Internal Area:

105 m2 front section including rumpus + 90 m2 rear section approximately

Vehicle Area:

72 m2 front section + 43 m2 rear section approximately

COMMENTS ON THE PROPERTY:

The subject property is well serviced by local schools, shops, sporting and recreational facilities. I have not been able to internally inspect the rear residence and have been advised of the accommodation and condition by the occupant of the front residence. The property has a lot of potential due to its size, construction and rear lane access.

The property is on 2 lots and duplex development is more desirable considering its 2-lot nature, current condition, finishes and its separate nature. In its current state it would be a niche type of purchase considering its current age and layout. Highly comparable properties are not going to be common.

Current Market Value based on assumptions and disclaimers is considered to range between $3,500,000 - $3,800,000. I consider a Current Market Value of say $3,650,000 on a balanced approach.

Say $3,650,000

I do note that in this location water views appear to alter the value of a property upwards of $1,000,000. Without water views dwellings appear to struggle to achieve more than $4,000,000. With water views it appears that minimum it is $4,000,000+.

The property has been valued in the spirit of the Family Law Rules where my duty is to the court.”

118. George’s evidence was that there were two separate residences at the Bronte property and that, from 1999, he and the deceased lived separately in one residence; the deceased occupying the downstairs and him occupying the upstairs portion thereof.

119. I should mention that Maria-Lyn did give evidence that she had made some contributions to the maintenance and improvement of the Bronte property. She wrote, at par 12 of her affidavit, sworn on 10 January 2020, that in 1981 she, and Melissa, helped their parents by working on, and cleaning up, the Bronte property to make it habitable. She stated that she assisted in pulling up layers of flooring so as to expose the floorboards underneath and removed ivy covering the exterior of the Bronte property.

120. She went on to give evidence, at Tcpt, 20 October 2020, p 101(01–06):

“... I furnished the place. I did a lot of the painting of the cedar wood for the outside or the cedar wood for the, for the property, I put blinds in, I re–sanded the floor after probably about ten years of living there. There were enormous sort of costs. My parents took the brunt, having the mortgage, but I definitely made a financial contribution to the house and I lived there - no, I lived there for in excess of a dozen years.”

121. At par 59 of her affidavit, sworn on 10 February 2020, she stated that she paid $3,500 to have the upstairs floorboards sanded and polished.

122. At the time she made her Will, the Bronte property was owned by the deceased and George as joint tenants. However, on the same date as she made her Will, Mr Murphy lodged with the Registrar General, a Unilateral Severance of Joint Tenancy, pursuant to s 97 of the Real Property Act 1900 (NSW). The deceased made a Statutory Declaration, in the presence of Mr Mr Murphy, in support of a dealing to unilaterally sever the joint tenancy. (As stated, he had also prepared the deceased’s Will and was one of the attesting witnesses to the deceased’s signature on that Will.) This is evidenced by the copy of the Statutory Declaration in evidence which bears his name: Affidavit, George Sarant, 13 September 2019 at Annexure D.

123. The solicitor who prepared George’s Will was also Mr Murphy.

124. It appears that, in accordance with s 97(5) of the Real Property Act, the Registrar-General sent notice of the lodgement of the dealing for registration that may sever a joint tenancy to George, as the joint tenant who had not executed the dealing, at the mailing address of the Bronte property. The Notice was addressed to George and appears to have been dated 21 July 2000: Affidavit, George Sarant, 13 September 2019 at Annexure D.

125. Thus, at the time of making her Will, the deceased would have known that the joint tenancy in the Bronte property was likely to be severed in the not too distant future and that not to confer a right of residency in her interest as tenant in common upon George, by her Will, if he survived, would be in breach of any agreement, or understanding, that they may have had in May or June 2000.

126. George says it was only in about August 2017, that he learned, “for the first time”, of the documents whereby the deceased severed the joint tenancy. He says that it came to his attention “when my solicitor carried out a title search”: Affidavit, George Sarant, 13 September 2019 at par 64.

127. Unless the deceased had instructed Mr Murphy to not tell George that the severance of the joint tenancy was to be effected, it is highly unlikely a solicitor would permit a testator to make a Will, at least so far as the real estate was concerned, that would be of no effect, and which contained directions which were completely unnecessary, in circumstances where that real estate would pass, by survivorship, to that testator, if he, or she, survived the co-owner.

128. George was briefly cross-examined on his evidence: Tcpt, 20 October 2020, p 51(10) – p 52(02). I am not satisfied, that I should accept George’s evidence on the topic as I consider it to be mistaken (though I found him to be a witness who was endeavouring to tell the truth and to assist the Court). In this regard, I do not think that he was intentionally being untruthful.

129. There is a part of Maria-Lyn’s cross-examination that is relevant on the topic of George’s Will and the Bronte property. It commences at Tcpt, 20 October 2020, p 97(26) – p 98(12).

“… I’m taking you to your affidavit of 8 April 2020, paragraph 58.

…

Q. 58 you say:

‘I say that my parents’ wills and their ownership of the Bronte property were the subject of many discussions, to which I was a party from as long ago as the late 2000s. During a number of these discussions the plaintiff said words to the effect “I don’t want the girls to inherit my estate. I’m going to leave my share of the property to Ricky”.’

A. Yes.

Q. It must have been a surprise to you when you saw your father’s will.

A. I haven’t seen my father’s will.

Q. You haven’t read your father’s affidavits in these proceedings?

A. No, not that, sorry, I’m talking about in the past, sorry.

Q. No, you’ve read your father’s affidavit?

A. Yes.

Q. You saw that he made a will in August 2000 in which he left his estate to you and your sister subject to certain directions in relation to occupation. That must have been a surprise to you when you read that was it?

A. No. That wasn’t a surprise. That was in 2000”

130. The cross-examination proceeded and it became necessary for me to remind the witness of the question that she had been asked, which senior counsel then continued, at Tcpt, 20 October 2020, p 99(05–31):

“HIS HONOUR

Q. I think the question was put that in relation to the Bronte property your father for most of his life has been toiling in relation to the property. Do you agree or disagree?

A. Yes.

WILSON

Q. Been his life’s work?

A. Yes.

Q. He’s made it quite clear to you that he’s doing it not for himself but for the benefit of his daughters.

A. I disagree.

Q. He’s made it quite clear that you can live there for as long as you like.

A. Under his rules.

Q. Is that comment ‘under his rules’ applicable at the present time?

A. To a certain extent.

Q. To what extent does ‘under his rules’ applies today, in the last year or so?

A. Well, it’s subject to emotional pressure. It’s a matter that I have to live there when I don’t want to live there. So I suppose the outcome of all this means that we’ve been subjected two years after mum passed away, what I believe, because of what he’s brought forward. So it’s still under his rules.”

131. At Tcpt, 20 October 2020, p 102(25–41), she added:

“Q. You agreed that for most of your father’s life … that looking after the house and being in the house was his life, is that what you said? You agreed with Mr Wilson saying that.

A. I do agree that my father perceives it in that way.

Q. That isn’t what you said earlier is it?

A. No, no, I do, I do agree that it’s important to my father.

Q. You made a point of saying that you were subject to emotional pressure, you don’t want to live there, is that right?

A. That is correct.

Q. You appreciate that your father to the contrary does want to continue to live there.

A. Yes he does but he can’t make a comment--

Q. Just answer my question if you’d be so good.

A. Well that’s a yes.”

Family Law Discussions

132. George accepted that at different times during their marriage he and the deceased were sleeping in different parts of one of the residences. There is also evidence that there were discussions between the Plaintiff and the deceased regarding “family law issues”.

133. The only contemporaneous written evidence on this topic is a letter dated 15 February 2017 from Abrams Turner Whelan, Solicitors, (a copy of which was annexure “C” to the affidavit of George Sarant, sworn 13 September 2019) which firm represented the deceased, addressed to George. Relevantly, this letter provided:

“We have been instructed to act on behalf of your wife, Elizabeth, who has sought our advice in relation to family law issues arising as a result of your separation.

At the outset, Elizabeth has instructed us to advise that she wishes to reach an amicable settlement with you without the cost, both financial and emotional, of Court litigation. It is in this spirit that this letter is being written.

By way of background, we understand that you and Elizabeth were married on 24 June 1970 and separated under the one roof in or about October 2014. Since October 2014, you and Elizabeth have continued living at Bronte, but in separate parts of the home.

In order for us to advise Elizabeth as to her entitlements under the Family Law Act, we require you to provide us with full disclosure as to your current income, assets, liabilities and financial resources. We enclose, for your information, brochures prepared by the Family Court in relation to disclosure requirements under the Family Law Rules.

…”

134. The letter then identified various categories of documents and information going to his financial resources and that once disclosure of documents had been given and the solicitors had an understanding of “the property pool”, the deceased “would very much like to then proceed with negotiations towards a final property settlement”. The letter ended with the recommendation that George should seek the advice of an Accredited Family Law Specialist and arrange for them to contact the solicitors in response to this letter.

135. It is important to note that there is no suggestion, in the letter, of any adverse conduct by George towards the deceased. The tone of the letter is to the contrary and the deceased’s instructions included the solicitors advising George “that [the deceased] wishes to reach an amicable settlement with you without the cost, both financial and emotional, of Court litigation. It is in this spirit that this letter is being written”.

136. There is no evidence of any response to this letter, or of what occurred, on George’s part, after the letter was sent. There is no evidence that any property settlement was ever reached, although there was evidence that mediation occurred in March 2018. Naturally, the details of the discussions at the mediation were not addressed in the evidence other than George stating that the deceased expressed an intention, during the mediation, for the Bronte property not to be sold: Tcpt, 20 October 2020, p 33(38–45).

137. In any event, there is no suggestion that the deceased and George reached any agreement at the mediation.

Contract between family members

138. As stated above, one of the bases of George’s claims in the proceedings is that there was an agreement or understanding between him and the deceased in relation to the Bronte property.

139. There is a rebuttable presumption that agreements made in a domestic, or family, context are not intended to be legally binding contracts: Balfour v Balfour [1919] 2 KB 571 at 578–580; [1918-19] All ER 860 at 864–865 (Atkin LJ); Cohen v Cohen (1929) 42 CLR 91 at 96 (Dixon J); [1929] HCA 15; Jones v Padavatton [1969] 1 WLR 328 at 332–333 (Salmon LJ); [1968] EWCA Civ 4.

140. In Jones v Padavatton, Salmon LJ (as his Lordship then was) wrote at 332–333:

“[A]s a rule when arrangements are made between close relations, for example, between husband and wife, parent and child or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from experience of life and human nature which shows that in such circumstances men and woman usually do not intend to create legal rights and obligations, but intend to rely solely on family ties of mutual trust and affection. This has all been explained by Atkin LJ in his celebrated judgment in Balfour v Balfour [1919] 2 KB 571, 578–580. There may, however, be circumstances in which this presumption, like all other presumptions of fact, can be rebutted. Mr Dillon has drawn our attention to two cases in which it was, Shadwell v Shadwell (1860) 9 CBNS 159) and Parker v Clark [1960] WLR 286. The former was a curious case. It was decided by Erle CJ and Keating J (Byles J dissenting) on a pleading point, and depended largely upon the true construction of a letter written by an uncle to his nephew. I confess that I should have decided it without hesitation in accordance with the views of Byles J; but this is of no consequence. Shadwell v Shadwell laid down no principle of law relevant to what we have to decide; it merely illustrated what could never, I think, be seriously doubted, namely, that there may be circumstances in which arrangements between close relatives are intended to have the force of law.”

141. In Darmanin v Cowan [2010] NSWSC 1118, Ward J (as her Honour then was), at [206]–[214], [221]–[222], dealt with the topic. It is not necessary to repeat what her Honour wrote.

142. The Court must consider “the status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law”: South Australia v Commonwealth (1962) 108 CLR 130 at 154 (Windeyer J); [1962] HCA 10.

143. As stated, George contended that there existed an agreement or understanding between the deceased and him, and, although it was expressed in relatively simple terms, the subject matter, being in relation to how the estate of each was to devolve, it was a serious matter to both of them. He submitted that a binding legal contract may be entered into notwithstanding informality and close familial relationships.

144. In the present case there is an absence of any express statement that the agreement made by the deceased and George was, or was not, intended to be legally binding. However, the parties to the asserted agreement are identifiable, its terms are certain, and there was some consideration for the agreement, being the mutual promises to leave the Bronte property in a particular way. However, it was not suggested that either had agreed not to alter her, or his, Will.

145. I am not satisfied that there was any legally binding agreement between them. However, I am satisfied that the deceased and George had discussed the issue of the survivor being permitted to continue to reside in the Bronte property, and that those discussions have relevance on George’s claim for a family provision order and also his defence of the claim for relief under s 66G of the Conveyancing Act. As I have written, George’s Will is consistent with there having been discussions about the topic of what was to occur on the death of the first of them. That the two children were to inherit the deceased’s interest in the Bronte property was not, necessarily inconsistent with the discussions that the deceased was said to have had with Maria-Lyn.

315. As to her health concerns, in her primary affidavit, sworn on 10 January 2020, Maria-Lyn gave evidence that in December 2014, she injured her back, the result of which led her to develop persistent, and chronic, back pain. Having sought treatment with the pain management team at the Prince of Wales Hospital, in the period following the injury and until mid-2019, it appears those issues have stabilised without the need for medication, other than pain relief in the event of a flare up.

316. As at the date of swearing her primary affidavit, Maria-Lyn stated that she had been experiencing acute anxiety responsive to a spate of difficulties with the neighbours adjacent to the rear residence of the Bronte property, such that she was unable to work for a period of time, during which she received an unspecified social security payment. Following the relocation of those neighbours in April 2020, Maria-Lyn’s anxiety has dissipated, such that she has been able to return to work, albeit, on a part-time basis.

317. Melissa, as indicated earlier, has been receiving the disability pension for about the last 28 years. She has been diagnosed with anxiety, depression and schizophrenia: Tcpt, 20 October 2020, p 65(08–24), for which she receives monthly injections of Abilify (Aripiprazole). She suffers from glaucoma of both eyes, treated nightly, with Xalatan (Latanoprost) drops and vertigo, treated with Serc (Betahistine), as needed. In the period between 1998 and 2016, she underwent five root canal treatments and anticipates requiring more, in the future.

318. In December 2003, Melissa was hit by a bus at a pedestrian crossing in Double Bay from which she sustained a fractured skull and was unconscious for a number of days following. She cannot recall the details of the incident and has since experienced irreparable impairment to her short, and long, term memory. She states that she has been told by a neurosurgeon at Prince of Wales Hospital, whose name she cannot recall, that her memory will not return.

319. In the few after school care, and other volunteer, positions she has held since she has been unable to work for more than two hours at a time due to lethargy and an inability to concentrate.

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

323. As at the date of the hearing, George was 75 years old.

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

324. The contribution made by an applicant to the estate of the deceased is a factor of significance. In Goodman v Windeyer, Gibbs J wrote, at 497–498:

“One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator’s estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator’s estate, or has helped him in other ways, that may give the claimant a special claim on the testator’s bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co Ltd when he said that the natural claims of a son upon his mother’s testamentary bounty were ‘much strengthened by his cooperation and support in the conduct of her business and of her affairs’. Perhaps the most recent example in this Court of a case in which a son’s claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind—whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant’s conduct does not cease to be relevant if it has not been of financial benefit to the testator—if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator’s behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided.”

325. I have referred to the circumstances in which the Bronte property was purchased and the contributions made by George to the building up of the estate through the rebuilding of the back house in 1986 and the construction of the front house between 1997 and 1999, including the replacement of lighting fixtures in the front and rear house; the repair of a leaking roof ($5,000); the installation of new hot water system; the construction of a billiards room as well as a deck ($22,000). (This is not to say that the deceased did not herself make a significant contribution.)

326. (I note the inordinate number of paragraphs of Maria-Lyn’s and Melissa’s affidavits in reply which took issue with the proposition that George had engaged tradesmen to attend to the plumbing, carpentry and electrical work and had consulted an architect to draw the plans for the construction. Whether George simply “ma[d]e tea or coffee for the builders” is beside the point, as it was George who co-ordinated, and, with the deceased, who paid, for the work to be carried out. )

327. There is little doubt that, for at least some time, during their married relationship, George would have contributed to the deceased’s welfare.
     I have referred to the deceased’s comment in the correspondence addressed to Maria-Lyn referring to George’s attempts to bring the families together.

328. Whilst it may be that the contributions of the deceased and George to each other’s welfare were reduced in later years, the fact remains that, not only in the eye of the law, but so it would seem, also in the eyes of each other, they remained married. In addition, they continued to reside in the same home, albeit in separate parts of the Bronte property.

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

329. George was left with no provision under the terms of the deceased’s Will. I do not regard the unilateral severance of the joint tenancy, in 2000, by the deceased as an amicable, and reasonable, settlement of obligations to George so many years later.

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

330. I have dealt with the deceased’s testamentary intentions, and statements made by the deceased, earlier in these reasons.

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

331. As earlier stated, George had been separated from the deceased under the one roof since 2014. There was evidence that they had kept their finances separated for many years before that. I am satisfied that he was not being maintained by the deceased for many years prior to her death.

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

332. No other person is liable to support George.

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

333. An evaluation of “character and conduct” may be necessary to enable consideration of what is “adequate and proper” in all the circumstances. Whilst the Act places no limit on the matters of “conduct” to which consideration may be given, it seems that the conduct matters raised by Maria-Lyn and Melissa going to George’s relationship with the deceased prior to her death and thereafter, in respect of the release of the deceased’s body from the Coroner, are nonetheless, of little significance. I note that a series of letters exchanged between 20 September 2018 and 11 February 2019 between Blanchfield Nicholls Partners (the solicitors for Maria-Lyn and Melissa) and McGirr Lawyers were annexed to the affidavit of Maria-Lyn, sworn on 10 February 2020.

334. Whilst I have had occasion to read, and refer to, those letters, I am not satisfied that any of the conduct issues raised therein, are determinative, other than possibly being demonstrative of the extent of the disharmony between George, Maria-Lyn and Melissa.

335. As has recently been written in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [34], by Meagher JA (with whom Gleeson and Leeming JJA agreed):

“… the matters contained in s 60(2) may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. In that context the reference in para (m) to ‘the character and conduct of the applicant’ echoes the language of s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), which permitted the Court to refuse to make an order in favour of any person whose ‘character or conduct’ was such as to disentitle him or her to the benefits of such an order. In Re the Will of FB Gilbert, Jordan CJ (at 321) and Maxwell J (at 326) rejected a submission that perjury committed by the applicant in giving evidence in support of her application amounted to such disentitling conduct. The Chief Justice proffered that the character or conduct with which the Act was concerned was ‘for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default’. However, as his Honour then emphasised, that did not mean that the applicant’s conduct as a witness may not be taken into account in assessing her evidence and whether her case has been established on the facts.”

336. I am satisfied that there is nothing in George’s conduct not already referred to, before, or after, the death of the deceased, which is relevant.

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

337. George states that after the death of the deceased, his daughters took control of the deceased’s funeral arrangements such that he was neither informed of, nor allowed to attend, her funeral. George states that he has been abused by Maria-Lyn; that she has made false allegations to the police; and has restricted his access to the rear lane of the Bronte property, along Belgrave Lane, to effect that is unable to place his garbage out for collection.

338. At Tcpt, 20 October 2020, p 103(10–12), Maria-Lyn made the following abundantly, yet unnecessarily, clear:

“A. I would rather do a clear cut.

Q. Do you understand that the effect of the clear cut means that the home in which your father has lived for over 30 years will mean that it will no longer be his home?

A. That’s correct.”

339. This demonstrates no concern for George by Maria-Lyn in particular, or an understanding of the obligation that may have been owed to him by the deceased.

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

340. This is not a relevant consideration in this case.

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

341. There are no other matters that I consider relevant to address.

Determination

342. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.

343. As stated earlier, being an “eligible person” is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the applicant. In this case, there is no dispute that George is an eligible person within the meaning of s 57(1)(a) of the Act.

344. There is also no dispute that George commenced the proceedings within the time prescribed by the Act.

345. Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for George’s proper maintenance or advancement in life has not been made by the Will of the deceased.

346. I have referred to the length of the marriage of the deceased and George.
     A marriage that spans 48 years, on any view, is an extremely long marriage, a matter which must be regarded as being of much significance in the proceedings. Furthermore, this is not a case of a long-standing severance of the marital relationship. On the evidence, they separated under the one roof in 2014, just four years prior to the death of the deceased.

347. It is not suggested that the deceased and George had much by way of assets at the commencement of their marriage and the evidence, overall, suggests that they contributed equally, albeit in different ways, throughout the marriage.

348. There was no explanation given by the deceased for the complete omission of George as a beneficiary (other than she did not trust that he would leave the Bronte property to their children, a reason unjustified until after her death when he left his interest therein to his only grandson). In any event, any explanation by the deceased would not relieve the Court from conducting the enquiry required by the Act.

349. Earlier, I have referred to the Bronte property, which was their only matrimonial asset of any real value, being “[George’s] life’s work”, a matter that Maria-Lyn accepted: Tcpt, 20 October 2020, p 99(05–14). I treat this statement as reflecting that since its purchase, he has wished the Bronte property to serve as the place in which to share his life with the deceased; then the home in which the survivor would reside for as long as he, or she, wished; and that then, after the death of the survivor, because of the way in which it had been built, it could provide a home for each of Maria-Lyn and Melissa. The view is, at least in part, based upon my acceptance of the discussions that George and the deceased had about how the Bronte property would be held reflected in the terms of the Will that he made in 2000 and which he did not change until after the death of the deceased.

350. The evidence, on the whole, points to the meaningful connection George has to the Bronte property. Currently, he is able to continue to live there independently and he wishes to continue doing so. It also clear that each of Maria-Lyn and Melissa have no attachment, at all, to the Bronte property, other than as a means of providing a source of funds which would enable her to alter her current accommodation.

351. Having considered the matters I am required to consider, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance or advancement in life has not been made for George.
     No provision was made for him in the deceased's Will with the consequence that, if things are left as they are, he will be forced out of the home in which he has lived for over 38 years and he will be left with half of the net proceeds of sale and his other resources to find alternative accommodation. In reaching this conclusion, I have not disregarded the legitimate claims upon the bounty of the deceased of each of Maria-Lyn and Melissa and the obligation and responsibility owed by the deceased to provide for each of them.

352. It is also clear that George has some “needs”. As stated above, “need” in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

353. Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word “proper” in the collocation of words in the section of the Act to which I have referred is of considerable importance.

354. As stated earlier, I find myself quite unable to accept the submission, made on behalf of Maria-Lyn and Melissa, that George has not satisfied the jurisdictional threshold and that there should be no provision made, that his Summons should be dismissed, that orders for the sale of the Bronte property should be made and that he should pay their, and the balance of his, costs. The submission is wholly unrealistic, and does not focus upon the terms of the Act.

355. I am satisfied that, as a spouse of such a long marriage, provision ought to be made for his benefit out of the estate of the deceased. Whatever the resentments, or complaints, the deceased raised with either Maria-Lyn, or with Melissa, about the marriage, they were not significant enough for either to formally end the marriage or formally seek an alteration of the matrimonial property interests. The circumstance that each retained a degree of financial independence, and that the deceased and George, for some years, did not comingle assets is of slight significance and is not forgotten.

356. In determining whether adequate provision has been made by the deceased, I accept that she was not required to ensure that George must be provided for to such a level as would ensure that his available assets are not reduced in consequence of the death and that he should not be obliged to re-arrange, or re-organise, his available assets: Marinis v Jeweller [2000] NSWCA 282 at [26] (The Court). In this regard, I do not forget George’s financial resources, including the value of his one half interest as tenant in common in the Bronte property and the amount of his father’s estate, to which estate he has access. Yet, the Act is concerned with provision not only for maintenance, but also for “advancement in life”, which envisages not merely maintaining a standard or status of an eligible person but, in an appropriate case, improving and enhancing it.

357. It is then necessary to consider whether to make a family provision order and the nature of any such order. Again, I am satisfied that the Court’s discretion has been enlivened and that it should be exercised to make provision for George.

358. It seems to me that for a spouse of such a long marriage, who has lived in the home for many years, to which home he has made significant contribution, which, at least in part, comprises the only substantial asset of the deceased, and who continues to wish to, and is able to, live there, the expectation in the community would be that a wise and just testator would ensure that he is able to do so, particularly if remaining living there is not a fanciful desire.
     The general community expectation, by which I mean the Court’s perception of what fair and reasonable members of the community would expect of a wise and just testator, would be that she, or he, should make provision to ensure that her, or his, spouse can lead an independent and dignified life.
     That prospect might be diminished when the spouse does not have the benefit of the fee simple, but only, a right of occupation of his home.

359. I accept, however, that a slightly different expectation might apply where there are competing claims upon the bounty of the deceased: Robertson v Pearce [2010] NSWSC 124 at [44]–[45] (Macready AsJ), as there are in the present case.

342. Having considered all of the facts, I find myself unable to accept the principal submission made on his behalf that George should receive the whole of the deceased’s interest in the Bronte property absolutely. To provide him with such provision is equally unrealistic and ignores the deceased’s freedom of testation and also the competing claims of Maria-Lyn and Melissa. Nor do I think that a Crisp order, or other form of right of occupation in the whole property is satisfactory, not only because of the acrimonious relationship between a father and his daughters, but also because it means that Maria-Lyn and Melissa will not receive any part of the provision made for her under the Will of the deceased until George dies, or until he otherwise vacates the Bronte property. Furthermore, it would deprive George of the degree of financial autonomy and independence which he should have.

343. Maria-Lyn has made it clear that she no longer wishes to remain living in any part of the Bronte property. Melissa has fears about neighbours where she lives. If that can be avoided, it would not be in the interests of either to require her to remain where she is, and in the case of Maria-Lyn, when the lines of communication have so fundamentally broken down.

344. In considering what provision ought to be made, I have concluded that George should be given, by way of an order for provision, an absolute devise of the whole of the deceased’s interest in the Bronte property, and such of the personal effects, furniture and contents, therein as he wishes to retain, that form part of the deceased’s estate (if any), upon certain conditions. (Clearly, the Court has power to impose conditions, restrictions or limitations, in a family provision order: s 65(1)(d) of the Act. The Court also has power to require the provision to be made in one or several ways, including by payment of a lump sum of money, and by way of an absolute, or a limited, interest only, in property: s 65(2) of the Act. If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.)

345. The first condition imposed should be that George should pay to the estate, within three months of the date of the making of orders, or within such other time as the parties agree, or the Court, on further application, allows, a lump sum of $600,000. This amount equates to about one-third of the gross value of the current estimated net distributable estate of the deceased. No interest should be paid on the lump sum if it is paid within three months of the date of the making of orders, or within such other time as the parties agree or the Court, on further application, allows.

346. Although there was no evidence on the topic, it does not seem to be beyond the realms of possibility that George may be able to borrow, or otherwise obtain, a lump sum from the estate of his father. If he is able to do so, in order to pay the lump sum and satisfy the condition, a registered mortgage, or some other form of appropriate security, registered on title to the whole of the Bronte property, could be given, in order to secure the amount borrowed, unless agreement is reached with George’s mother (assuming she is capable of making such an agreement). Alternatively, he may be able to obtain finance by way of a senior loan or reverse mortgage.

347. If each of Maria-Lyn and Melissa receives about half of the lump sum of $600,000 that is paid, that should provide a reasonable deposit for her accommodation, or alternatively a fund for exigencies of life, out of which rent for alternative accommodation could be paid.

348. The next condition to be imposed, if the lump sum of $600,000 is paid, is that George should provide a charge to the estate, secured on the whole of the Bronte property, for a lump sum calculated as 30 per cent of the net proceeds of sale. No interest should be paid on that lump sum as Maria-Lyn and Melissa will receive the benefit of any capital appreciation of the Bronte property.

349. On the above basis, the Bronte property should be sold if George permanently ceases to live there, or within three months of his death, whichever is sooner.

350. Maria-Lyn and Melissa, as executors of the deceased’s estate, may lodge a caveat on the title to the Bronte property to protect the interest created by the charge, or otherwise secure the lump sum, in a manner upon which the parties are able to agree, or the Court, on further application, allows.

351. Depending upon any agreement on the order for costs, George may have to pay an additional amount to the estate on account of Maria-Lyn’s, and Melissa’s, costs of the proceedings now, but I am unable to determine whether he will have to do so at this time and upon what basis.

352. In this way, George will be given the opportunity of remaining in occupation of the Bronte property for so long as he is able, and so long as he wishes, to do so. I consider that if, and when, the time comes for him to move from there, and when the Bronte property is sold, he will be left with sufficient proceeds of the sale, even after the repayment of $600,000 to his father’s estate, and the repayment of the lump sum calculated as 30 per cent of the net proceeds of sale, to allow him to purchase alternative accommodation, and have sufficient funds left over to enable him to live without financial anxiety.

353. At the time the Bronte property is sold, each of Maria-Lyn and Melissa should receive a reasonably substantial lump sum. This will enable her to reduce any mortgage secured on property that has been purchased by her. It will also mean that each will have received, as a result of the death of the deceased, the death benefits that were paid ($128,861) and almost the whole of the value of the deceased’s interest in the Bronte property. The amount received out of the deceased’s estate would not be significantly less, and probably more, than each would receive if the Bronte property were sold immediately and the expenses of sale and the costs of the proceedings, as estimated, were paid out of the proceeds of sale.

354. If the conditions are not complied with, then an order should be made permitting George to remain in occupation of the Bronte property, rent and occupation fee free, for a period of three years from the date of the making of the orders, or until he is unable to continue to do so, whichever is earlier. By that date, having continued to live in the Bronte property in the meantime, he will be 78 years of age.

355. After three years, the Bronte property should be sold by the parties, or if they are unable to co-operate, by trustees for sale, and each of the deceased’s estate, and George, should receive 50 per cent of the net proceeds of sale. George’s share of the proceeds of sale would then leave him with sufficient funds to purchase, or to otherwise provide him with, alternative accommodation, particularly taken with his other financial resources.

356. Taking this course will provide George with the opportunity to remain in occupation of the Bronte property for about five years after the death of the deceased, by which time it may be necessary for him to move to some form of assisted living accommodation or otherwise.

357. Whether the Cross-Claim is dismissed will depend on the approach taken by the parties and whether there is likely to be a degree of co-operation between them. This matter should also be considered in the short minutes of order provided to the Court.

358. I shall stand the matter over to 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders. If agreement can be reached on costs, then orders reflecting the agreement reached should be included. Otherwise, I shall hear any argument on the form of orders and on the costs of the proceedings, on the papers. The orders should include an order that there be liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

359. The Court:

1. Stands the matter over until 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders, including the order for costs.

2. Directs, if agreement cannot be reached within 7 days of the delivery of reasons, that each party deliver to the Court, within 10 days thereafter, written submissions, in hard and soft copy, comprising no more than 5 pages in length, setting out the orders sought and the basis for the making of that order.

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Decision last updated: 27 November 2020