Scott v Scott

Case •

[2022] NSWCA 182

•

20 September 2022

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Scott v Scott [2022] NSWCA 182
Hearing dates: 23 August 2022
Date of orders: 20 September 2022
Decision date: 20 September 2022
Before: Ward P at [1];
Meagher JA at [2];
Kirk JA at [91]
Decision:

Appeal dismissed with costs.

Catchwords:

SUCCESSION – family provision – claim by adult daughter for provision pursuant to Succession Act 2006 (NSW), s 59 – where deceased’s 2019 will left family home to appellant daughter and small legacy to respondent daughter – where testamentary statement purported to justify 2019 will – where primary judge found will and statement obtained by process of manipulation and sourced to appellant – where earlier will of deceased leaving one-third of estate to each child found to reflect deceased’s fair and considered testamentary judgment – whether primary judge erred in being satisfied that 2019 will did not make adequate provision for respondent’s proper advancement

Legislation Cited:

Family Provision Act 1982 (NSW), s 9(2)

Succession Act 2006 (NSW), ss 59(1)(c), 59(2), 60(2)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bassett v Bassett [2021] NSWCA 320

Browne v Dunn (1893) 6 R 67

DJ Singh v DH Singh [2018] NSWCA 30

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11

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

Sgro v Thompson [2017] NSWCA 326

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

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

Taylor v Farrugia [2009] NSWSC 801

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

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

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

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

Category:Principal judgment
Parties: Charlene Arnel Scott (Appellant)
Coralynne April Scott (Respondent)
Representation:

Counsel:
R Wilson SC with L Clarke (Appellant)
Dr C Birch SC with AF Stevens (Respondent)

Solicitors:

Ray Wehbe & Co (Appellant)
Dignan & Hanrahan (Respondent)
File Number(s): 2021/369585
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:

[2021] NSWSC 1619

Date of Decision:
13 December 2021
Before:
Parker J
File Number(s):
2020/215861

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant (Charlene) and respondent (Coralynne) are adult sisters, with one brother (Clifton Jnr). Their mother died in July 2019. By her will dated 16 May 2019, the deceased left the family home in Fairfield to Charlene and gifts of $40,000 to each of Coralynne and Clifton Jnr, with the residue to be divided equally between the three children. The deceased had taken her interest in the Fairfield property upon the death of her husband in 2016, pursuant to “mirror” wills executed by each of them in 2015. By those wills each left their estate to the other, or otherwise to the three children in equal shares. Accompanying the 2019 will was a testamentary statement said to be drafted by the deceased purporting to justify the 2019 will leaving no interest in the Fairfield property to Coralynne and Clifton Jnr.

Coralynne brought an application for a family provision order under s 59 of the Succession Act 2006 (NSW). Charlene as executrix and principal beneficiary was defendant. The primary judge (Parker J) ordered that in lieu of the provision of $40,000 made in the 2019 will, Coralynne receive a sum of $180,000 out of Charlene’s share of the deceased’s estate.

Charlene appealed on the basis that the primary judge had erred in being satisfied that adequate provision for Coralynne’s proper advancement in life had not been made by the 2019 will. The issues on appeal were:

  1. Whether the primary judge erred in failing to take into account Coralynne’s superannuation entitlements when assessing whether adequate provision had not been made;

  2. Whether it was open to the primary judge to find that in providing financial and other assistance to the deceased before her death, Coralynne was influenced by an understanding that she was to receive a share of the Fairfield property under the deceased’s 2015 will;

  3. Whether in not being satisfied that adequate provision for Coralynne’s proper advancement had been made, the primary judge did so solely on the basis that the reasons given in the deceased’s testamentary statement were false;

  4. Whether the rule in Browne v Dunn precluded the primary judge from concluding that Charlene had deprived Coralynne of a one-third share of the deceased’s estate by a process of manipulation and misinformation;

  5. Whether the primary judge relied on the statement in Taylor v Farrugia [2009] NSWSC 801 that the community does not ordinarily expect a parent to provide an adult child with an unencumbered home as an answer to any competing claim of Charlene as principal beneficiary under the 2019 will.

The Court (Meagher JA, Ward P and Kirk JA agreeing) held, dismissing the appeal with costs:

1. As to issue (i): That the primary judge had omitted Coralynne’s superannuation entitlements of $668,839 from a table of assets and liabilities set out in his reasons did not indicate that he had overlooked those entitlements when assessing Coralynne’s financial “need”. In the absence of evidence as to when Coralynne might access her superannuation or how her doing so might affect her eligibility for the age pension, there was no compelling basis for treating those entitlements as an asset rather than as a potential future income stream: at [1] (Ward P), [37]-[45] (Meagher JA), [91] (Kirk JA).

2. As to issue (ii): As a matter of ordinary human experience and psychology it was open to the primary judge to infer as he did that, in circumstances where Coralynne knew of the 2015 “mirror” wills, she continued to provide assistance to her father and mother with an understanding that she would take a one-third share in the Fairfield property under those wills: at [1] (Ward P), [46]-[51] (Meagher JA), [91] (Kirk JA).

3. As to issue (iii): The primary judge was not to be understood as saying that the falsity of the grounds relied on to justify Coralynne’s disinheritance by the 2019 will was the basis for finding that inadequate provision had been made by that will for Coralynne’s advancement. Rather, his Honour’s reasoning was that, in circumstances where the deceased’s 2015 will reflected her fair and considered judgment as to what would constitute adequate provision, the provision later made for Coralynne in the 2019 will, which deprived her of a substantial share of the estate and on grounds which were false, could not be regarded as adequate and proper: at [1] (Ward P), [52]-[59] (Meagher JA), [91] (Kirk JA).

4. As to issue (iv): The rule in Browne v Dunn did not preclude the primary judge from finding that the 2019 will and testamentary statement were the result of a “process of manipulation and misinformation” by Charlene. The allegations underlying that conclusion had been either foreshadowed or made in affidavits exchanged before the hearing, or put in cross-examination, or were a necessary consequence of established facts: at [1] (Ward P), [60]-[81] (Meagher JA), [91] (Kirk JA).

Browne v Dunn (1893) 6 R 67 at 70-71; Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, considered.

5. As to issue (v): The primary judge did not disregard Charlene’s competing claim as principal beneficiary under the 2019 will. The reference to the statement in Taylor v Farrugia was made in addressing the matter of Charlene’s financial circumstances, a matter on which she had separately relied as an answer to Coralynne’s claim for provision: at [1] (Ward P), [82]-[89] (Meagher JA), [91] (Kirk JA).

Taylor v Farrugia [2009] NSWSC 801, referred to.

Judgment

  1. WARD P: I have had the advantage of reading in draft Meagher JA’s reasons, with which I agree. I also agree that, for those reasons, the appeal should be dismissed with costs.

  2. MEAGHER JA: The appellant (Charlene Scott) and respondent (Coralynne Scott) are sisters. They have one brother (Clifton Scott). These reasons refer to each of them by their first name. Their father (Clifton Snr) died in 2016, leaving the whole of his estate including his interest in the family home at Fairfield to their mother (the deceased), who died some three years later on 23 July 2019. She made a will dated 16 May 2019, leaving the Fairfield property to Charlene and gifts of $40,000 to each of Coralynne and her brother, the remaining balance of any residuary estate to be shared equally between the three children. Charlene is the executrix of the deceased’s 2019 will.

  3. Under her earlier will dated 28 September 2015, which was in “mirror form” to that of her husband also made in September 2015, the deceased left the whole of her estate to her husband provided he survived her by 30 days. Otherwise her estate (which after her husband’s death included the Fairfield property) was to pass to the three children in equal shares.

  4. In July 2020 Coralynne made an application for a family provision order under s 59 of the Succession Act 2006 (NSW). Charlene as executrix and major beneficiary was named as defendant. Following a three-day hearing in October 2021 the primary judge (Parker J) made an order that in lieu of the provision made in the 2019 will, Coralynne receive a lump sum of $180,000 out of Charlene’s share of the estate (Scott v Scott [2021] NSWSC 1619).

  5. The parties were not subsequently able to reach agreement as to the cost orders which should follow, requiring the primary judge to determine those orders in circumstances where several offers of compromise had been made by Coralynne. On 8 July 2022 his Honour delivered reasons for making costs orders, the effect of which were that Coralynne’s costs should be paid out of Charlene’s share of the estate on the ordinary basis, and that Charlene’s costs as executrix should be paid out of her share of the estate on an indemnity basis (Scott v Scott (No 2) [2022] NSWSC 914).

  6. Charlene appeals from the order making a provision of $180,000 in favour of Coralynne.

Grounds of appeal

  1. There are eight grounds of appeal. Grounds 3 and 5 are not pressed, and no oral submissions were made in support of ground 7(a) or 7(b). The remaining grounds (as numbered) are:

1. The primary judge erred (J [336], [352]) in finding that Coral Alveda Scott ("the Deceased") had a moral obligation (to make provision for the Respondent) arising from:

(a) the fact the Respondent had an understanding that she would receive a share of the Fairfield West property in due course (J [335]);

(b) the reciprocal Wills made by the deceased and the late Clifton Senior in September 2015 (J [336]).

2. The primary judge erred in finding (J [349]) that the provision made for the Respondent in the Deceased's Will was not proper because the grounds relied upon to justify the Respondent's disinheritance were false.

…

4. The primary judge erred in finding (J [248]) that the testamentary statement made by the Deceased rings false.

…

6. The primary judge erred in finding at J [340] that this was not one of those cases where the circumstances gave rise to a moral obligation on the Deceased to provide the Appellant with a home in circumstances where:

(a) the Appellant received the Fairfield West home under the terms of the Deceased's Will and was under no obligation to prove anything;

(b) in the proper application of the Taylor v Farrugia principle, this was a case where the effect of the orders made by the primary judge was to give the Respondent an unencumbered home (via the potential discharge of the Respondent's mortgage) but the Deceased was under no moral obligation to put the Respondent in a position where she could own her home unencumbered.

7. The primary judge erred in the exercise of his discretion by ordering the Respondent receive a legacy of $180,000 in lieu of the terms of the Deceased's Will by having regard to certain irrelevant considerations which infected the exercise of his discretion, namely:

…

(c) that the Respondent had been deprived by the machinations of the Appellant of one-third of the share of the Deceased's estate representing the Deceased’s previous assessment of what would be a proper level of advancement (J [352]).

8. The primary judge erred in finding that the Respondent receive by way of provision in lieu of the provision of the Deceased's Will a provision of $180,000 to be funded out of the Fairfield property (J [356]).

  1. The arguments made in support of those grounds challenge the primary judge’s determination that he was satisfied (in accordance with Succession Act, s 59(1)(c)) that:

at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

  1. Charlene does not contend that, if the primary judge is not shown to have erred in being satisfied that adequate provision had not been made, his Honour nevertheless erred in making provision for Coralynne in the amount of $180,000 for the purposes of s 59(2).

  2. Whilst the making of a determination under s 59(1)(c) that adequate provision has not been made involves an evaluative as opposed to truly discretionary decision, the parties ultimately accepted, as current authority dictates, that the appellate standard of review which applies to that “jurisdictional” question (as to which description see White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; and Singer v Berghouse (1994) 181 CLR 201 at 208-210; [1994] HCA 40) is that stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

  3. At the commencement of the argument, senior counsel for the appellant raised the prospect of challenging the authorities holding that the House v The King standard of appellate review, rather than the “correctness” standard in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, continues to apply. Such a challenge was not raised by the grounds of appeal, or otherwise than obliquely in the appellant’s reply submissions. After some discussion, which included reference to the observations made by various judges of this Court in the authorities referred to in Bassett v Bassett [2021] NSWCA 320 at [72]-[75], counsel for Charlene did not press any application to amend the grounds of appeal to allow such an argument to be made. Accordingly, the appeal proceeded on the basis that the appellant must demonstrate “an error of principle, a material error of fact, a failure to take some material consideration into account, or the converse, or [that] the result is so unreasonable or plainly unjust to bespeak error of such a kind”: DJ Singh v DH Singh [2018] NSWCA 30 at [277] (Gleeson JA, Leeming and White JJA agreeing).

Some relevant principles and statutory provisions

  1. The question posed by s 59(1)(c) is whether “adequate provision for the proper maintenance, education or advancement in life” of the claimant “has not been made by the will of the deceased person”. In Singer v Berghouse at 210, the plurality (Mason CJ, Deane and McHugh JJ) described this question as being “strictly one of fact, notwithstanding that it involves the exercise of value judgments”, and continued:

The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life.

  1. Earlier at 209-210, in a passage cited with approval by Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [75], the plurality said of the equivalent jurisdictional question in s 9(2) of the Family Provision Act 1982 (NSW):

The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. [1938] AC 463 at 476.). The determination of the first stage … calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

  1. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, Dixon CJ said of the words “adequate” and “proper” which he noted “must always be relative”:

The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.

  1. In the present context, two further matters should be emphasised. First, as White JA said in Sgro v Thompson [2017] NSWCA 326 at [71], in addressing the jurisdictional question:

An applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: ‘…[I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.’

  1. Secondly, also in Sgro v Thompson at [6], Payne JA agreed with White JA that while the Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application, “that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate”. The authorities cited in support of that principle include Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], in which White J (as his Honour then was) said:

The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed. (emphasis added)

  1. Section 60(2) of the Act sets out matters to which the Court may have regard for the purpose of determining whether it is satisfied in terms of s 59(1)(c), as well as in deciding the nature of any order for provision to be made in accordance with s 59(2). Those matters include, relevantly for the disposition of this appeal:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

…

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

(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,

…

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

…

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

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

…

(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.

  1. At this point it is necessary to summarise the primary judge’s principal findings which, as set out below, are with one exception not challenged. I propose then to record briefly the primary judge’s reasons for determining that s 59(1)(c) was satisfied. The grounds of appeal are then addressed in the order in which they were argued by senior counsel.

Findings of the primary judge

  1. In July 2019, at the time of the deceased’s death, Coralynne was aged 63, Clifton was 59 and Charlene was 53. The family had lived in the Fairfield property from the late 1950s or early 1960s. Clifton Snr was the registered owner of that property (J[15]). Coralynne lived at home until she married in December 1977. In about December 1979, and after that marriage had failed, she moved back to the Fairfield home where she continued to live until the deceased’s death in 2019 (J[16]). Clifton Jnr moved out of the home in about 1980 and thereafter remained independent of his parents (J[17]). The home remained Charlene’s principal place of residence except for two periods in the 1980s when she lived in London for 12 months or so (J[18]).

  2. Coralynne was in continuous full-time employment from about 1973. In the period from 1988 she worked with the NSW Police (J[49]). In 1992 she assisted her father to pay off the mortgage over the property, taking out a personal loan of $5,000 in order to do so (J[20]). In the period before the deceased’s death, she was involved in at least two significant car accidents, one in 2012 and another in June 2017. She made a successful compensation claim for the injuries suffered in the first, and her claim in relation to the second was eventually settled in 2020 (J[52]).

  3. Charlene worked for a period and then was unable to do so, at least between 1994 and 2003 (J[57]). Thereafter she unsuccessfully applied for a disability pension. She subsequently secured a carer’s pension, having been nominated as the carer for Clifton Snr and her mother. She remained in receipt of that pension from 2011 until the deceased’s death in 2019 (J[58]-[59]). At some stage before 2011 she worked in the District Court or Local Court as a court attendant or monitor for a period of about two years (J[60]).

  4. In September 2015 Clifton Snr and the deceased executed wills under which the estate of each was to pass to the children in equal shares, if the first to die was not survived by the other. That will was prepared by Mr Duncombe, solicitor (J[22]). At the same time the deceased executed an enduring guardianship appointment in favour of Coralynne and Charlene jointly (J[21]).

  5. Following the death of her husband in May 2016, the deceased obtained probate of his will and the Fairfield property was transmitted into her name. Mr Duncombe also acted with respect to these matters. Each of the children contributed equally to the costs of their father’s funeral (J[23]).

  6. In the period after Clifton Snr’s death, the deceased lived in the Fairfield property with Coralynne and Charlene. In September 2017 Charlene formed a relationship with a Mr O’Hagan, who lived on the Central Coast and as a builder undertook some improvements to the Fairfield property (J[25], [54]). In November 2018 the deceased had a serious fall in the Fairfield house which resulted in her arm and hip being badly broken (J[27], [28]). She remained either in hospital care or at a rehabilitation facility until her discharge from the latter at the end of January 2019 (J[28]). Whilst the deceased was in hospital, renovations were undertaken to the Fairfield house, principally to the bathroom, to enable her to return and live there (J[29]). Those renovations were completed in late January 2019, and before the deceased’s return to the house (J[31]).

  7. By that point in time the relationship between Coralynne and Charlene had (in the primary judge’s language) “unravelled” and become “poisonous” (J[30]). In January 2019 the deceased also cut off communications with Clifton Jnr as a result of an incident between him and Charlene at the hospital (J[32]).

  8. In late March or early April 2019 Charlene made contact with a solicitor, Mr Wehbe, for the purpose of having him prepare a new will for her mother (J[33]). Arrangements were made for Mr Wehbe and the deceased to meet at a coffee shop rather than at her home for the purpose of taking instructions and later executing the will (J[213], [224]). Those meetings happened on 9 and 16 May 2019. On the latter date the will and a testamentary statement were executed (J[224]). That statement (excerpted at J[227]-[230]) purported to set out the deceased’s reasons for leaving the whole of her interest in the Fairfield property to Charlene and to record the financial and other circumstances of each of Coralynne and Clifton Jnr. It also contained separate messages addressed to Coralynne and Clifton Jnr purporting to explain why the will only provided for a payment of $40,000 to each of them, plus a share in her residuary estate, “but no part share of my house”.

  9. The primary judge made findings about the terms of that testamentary statement and held that it contained significant “distortions and falsehoods”. Those findings are not challenged. As to the responsibility for those falsehoods, his Honour found at J[258]:

Charlene claimed that the statement represented the deceased’s thoughts and words. Even if it is true that the deceased approved the wording of the statement (which I doubt) the ultimate source was Charlene. On the evidence before me the statement is riddled with distortions and falsehoods. I am satisfied that those distortions and falsehoods were the responsibility of Charlene.

  1. The “distortions and falsehoods” are described at J[253]-[257]:

First, the statement asserts that adequate provision had been made in the deceased’s lifetime for Coralynne and Clifton Jnr. But in fact no such provision appears to have been made for either of them by the deceased or by Clifton Snr. To the extent that the evidence identifies any capital gifts having been made inter vivos, they flowed the other way, from Coralynne to her parents.

Second, the statement portrayed Charlene as the only person who helped the deceased around the home, and stated that Charlene gave up work to care for the deceased. It completely failed to acknowledge the assistance provided by Coralynne, and I have rejected the assertion that Charlene gave up work to care for the deceased.

Third, the statement referred to Coralynne having caused “physical damage” to the house, to Charlene and to the deceased herself. For the first two of these, I have only Charlene’s word, which I am not inclined to accept. But not even Charlene suggested that Coralynne actually caused physical harm to the deceased.

Fourth, the statement asserts that Coralynne had more than enough money to buy her own house outright. There is no evidence that the deceased knew what Coralynne’s financial position was and how much she had saved. And while Charlene apparently believed that Coralynne was a millionaire, in fact her cash savings at the time of the deceased’s death appears to have been less than $500,000. This was a substantial sum, but it was not enough to enable Coralynne to buy her house at Narellan Vale outright, and she did not do so.

Fifth, the statement singles out Charlene for praise for supposedly “going halves” in the cost of the 2019 renovations. But although Charlene may have funded the initial cost of the renovations, she later reimbursed herself from the deceased’s savings account, claiming that this is what the deceased had wanted (see [304]-[306] below). Nor was there any mention of the fact that Coralynne had actually contributed herself, without any reimbursement, the cost of the underpinning and ramp works (see [29] above). The deceased may not have been aware of this because it happened while she was at hospital, but Charlene would have been.

  1. None of those findings is challenged. The primary judge also made the following unchallenged finding as to the cause of the breakdown in the relationship between the sisters (at J[207]):

While I accept Coralynne may have displayed anger and taken out her frustrations on the deceased, the fundamental cause of the breakdown in the relationship between the sisters was jealousy and spite on the part of Charlene. Charlene convinced herself that the Fairfield property should be hers. The deceased appears to have been closer to Charlene and to have confided in her. Charlene used this dependence to manipulate the deceased and turn her against Coralynne (and Clifton Jnr).

  1. Finally, his Honour’s conclusion (at J[260]) was that the 2019 will was produced by a process of “manipulation and misinformation” on the part of Charlene. It is said that this finding, which is set out below, was not open to the primary judge because Charlene had not been given a fair opportunity to deal with it:

It is true that Mr Wehbe interviewed the deceased on her own and was satisfied of her capacity. But even if it were possible to conclude that the deceased did have full capacity when she gave instructions for, and executed, the will (and that question has not been fully explored before me), that did not immunise the will against Charlene’s baleful influence behind the scenes. I do not believe that the will represents a fair and considered testamentary judgment. Rather, I am satisfied that it was the result of a process of manipulation and misinformation on the part of Charlene designed to advance her own interests.

Primary judge’s reasons as to inadequacy of provision for Coralynne

  1. Treating Coralynne’s claim as one by an able-bodied adult seeking adequate provision for her proper “advancement” in life, the primary judge rejected the suggestion that the question of what was adequate for her proper advancement could be addressed by reference only to her financial “needs”, and specifically the extent to which she was already in a position to meet those perceived needs going forward (J[329]-[331]). His Honour did so having assessed Coralynne’s financial position as being that she had achieved a degree of financial independence and security; that her income was not particularly high; and that she did not have a capital position which would “unquestionably secure her a comfortable (and somewhat less hard-working) retirement” (J[332]).

  2. In the primary judge’s assessment there were other and more significant factors to support her claim that adequate provision had not been made for her proper advancement in life. First, she had provided considerable assistance, financial and otherwise, to her parents during their lifetimes (J[334]). Secondly, she had provided direct financial assistance to her father in paying off the mortgage over the Fairfield property (J[335]). Thirdly, the deceased having inherited that property from her husband, the circumstances were capable of giving rise to a moral obligation on the part of the deceased to pass it on in equal shares to her children. That would have been the outcome of the 2015 wills had the deceased not made the 2019 will. Coralynne was aware of the terms of those earlier wills and the children contributed equally to their father’s funeral and testamentary expenses, allowing their mother to take the property free of those charges (J[336]-[338]).

  3. Fourthly, whilst Charlene undoubtedly had a moral claim to provision from the deceased’s estate, the nature of that claim was “not appreciably different from that of Coralynne”, who had made more significant capital contributions to the Fairfield household (J[339]). Fifthly, and notwithstanding that Charlene had no home of her own, the primary judge considered that to “recognise a moral obligation [of the deceased] to provide Charlene with her own unencumbered property would be quite disproportionate to the financial contribution she [had] in fact made to the deceased’s estate, especially when it would come at the expense of a sibling who has received nothing by way of advancement herself” (J[340]).

  4. Finally, in light of the findings noted at [27] and [28] above, the deceased’s 2019 will and testamentary statement could not be treated as being evidence of the judgment of a capable and responsible testator in the position of the deceased, that being a matter to which the Court could have regard under s 60(2)(j). The relevance of such evidence is explained by White J in Slack v Rogan; Palffy v Rogan at [127] (and partly extracted at [16] above). Once the 2019 will and testamentary statement were “swept away”, in the primary judge’s view it remained to consider whether the September 2015 will qualified as being such a judgment on the part of the deceased in the circumstances as existed at that time (J[341]-[346]).

  5. As to that matter, the primary judge found as follows. In September 2015, Clifton Snr and his wife had “many years of experience of living with Coralynne and Charlene. The judgment of each … was that the merits of their children were sufficiently close to make it proper to make an equal distribution between them”; and nothing relevantly happened between 2015 and the deceased’s death which was sufficient to alter that judgment as between Coralynne and Charlene (J[346]-[347]).

  6. In being satisfied that adequate provision for Coralynne’s proper advancement had not been made, the primary judge considered “the focus should be on discharging the deceased’s moral obligation to Coralynne to provide her with a capital amount to help her make her way through the rest of her life” (J[351]). His Honour’s view was that adequate provision would have been between $260,000 to $300,000, representing one-third of the value of the deceased’s estate. Such a provision was above the high end of the range submitted as such by Coralynne’s counsel ($130,000 to $180,000) (J[350], [352]).

Whether the primary judge erred in failing to take into account Coralynne’s superannuation entitlements (ground 8)

  1. Although this ground in terms asserts error in the primary judge’s determination of the amount for which provision out of the deceased’s estate should be ordered in favour of Coralynne, it was treated in argument as directed to his Honour’s evaluative determination of the question under s 59(1)(c). Charlene’s argument is that in doing so the primary judge failed to take a material consideration into account, being that at the time of the hearing Coralynne had superannuation benefits totalling $668,839 which she could “access” at the age of 65.

  2. Charlene’s written submissions in support of ground 8 as formulated accept that the primary judge’s assessment of what was proper maintenance etc. “was not based on need but [on] other factors including the moral obligation arising from the 2015 will”. Those submissions also accept that in considering Coralynne’s financial circumstances, the primary judge found at J[265]:

Coralynne has substantial superannuation entitlements (more than $500,000) from her employment with the NSW Police. She also has a superannuation entitlement from her second job. She has substantial accrued leave from her employment with the police. According to the figures quoted at the hearing, this is 771 hours. Under the terms of the relevant award, she would be entitled to cash that leave in on retirement.

  1. There was some cross-examination as to whether the superannuation figures were the latest figures available to Coralynne. In the course of that cross-examination, as the primary judge recorded at J[274], it “emerged that Coralynne can access her police superannuation at the age of 65 and not 67 as she had claimed in her affidavit”.

  2. His Honour then set out at J[279] a summary of Coralynne’s “asset and liability figures” which did not include as an asset any present value of her superannuation entitlements.

  3. The oral submission in support of this ground as reformulated was that the House v The King error of the primary judge was not having regard to relevant evidence, namely the value of Coralynne’s superannuation entitlements, when considering whether adequate provision had been made for her advancement, to enable her “to make her way through life”.

  4. That submission is not made out.

  5. In reciting Coralynne’s financial circumstances the primary judge referred to her superannuation entitlements on two occasions. The absence of the value of those entitlements in the table of assets and liabilities does not provide a sound basis for concluding that his Honour had at that point, and subsequently, overlooked the existence of her pension entitlements and their value. That is because the evidence did not show that Coralynne was required or proposed to “cash in” any ongoing pension entitlement at age 65. Nor did the evidence explore what the consequences of her doing so might be for her ongoing eligibility to receive an age pension. That being the position, there was no compelling basis for treating the superannuation entitlement as an asset with a present value rather than as an entitlement to a stream of income to be considered with the age pension and any other potential sources of income after she had retired from the police force.

  6. Having approached Coralynne’s claim as being that there had not been adequate provision for her proper advancement in life, his Honour did not undertake a detailed comparison of the financial “needs” and relative financial positions of Coralynne and Charlene going forward. The analysis his Honour did undertake permitted the finding at J[332] that “while Coralynne clearly has achieved a degree of financial independence and security, her income is not particularly high”; and that she does not “have the sort of capital position which will unquestionably secure her a comfortable (and somewhat less hard-working) retirement”. Neither of these conclusions is necessarily inconsistent with his Honour having taken account of the ongoing superannuation entitlements, and no submission was made to suggest otherwise.

  7. For these reasons, this ground as reformulated and argued should be rejected.

Whether the primary judge erred in making findings of fact which supported his assessment that the deceased had a moral obligation to make provision arising from the “mirror” wills and the fact that Coralynne understood that she would receive a share in the Fairfield property (ground 1)

  1. The challenged findings are at J[335] and [336]:

[335]    Secondly, Coralynne provided direct financial assistance in the form of paying off the rest of the mortgage, purchasing capital items and funding the replacement and improvements to the fabric of the property. … it is reasonable to suppose that in providing assistance Coralynne was influenced by the understanding that she would be receiving a share of the property in due course. That is a recognised basis for the recognition of a moral obligation to make provision: see Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38].

[336]    In my view, another relevant factor is that the deceased herself inherited the property from the estate of Clifton Snr. This was pursuant to the mirror wills that Clifton Snr and the deceased executed in September 2015. While I am not saying that this went so far as to amount to a mutual will arrangement giving rise to an enforceable equitable obligation on the deceased, in my view, it is capable of giving rise to a moral obligation for the purposes of the Act. This was the view that I took in Graham v Vukic [2020] NSWSC 1801 (see at [113]).

  1. There are two findings of fact in J[335]. The first is as to financial assistance which Coralynne provided to her father and then to her mother, in each case in relation to the Fairfield property. That finding is not challenged. The second is that in providing that assistance, at least at times after her father’s death, Coralynne was influenced by an understanding that she would be receiving a share of the property in due course. This second finding is challenged, initially on the basis that there was “no evidence at all to support it”, Coralynne not having given evidence to that effect. This last observation is correct, but not determinative of the challenge to the correctness of the finding.

  2. His Honour’s use of the expression “reasonable to suppose” in this context conveys that notwithstanding the absence of evidence directly supporting the matter, he would infer and accordingly proceed on the basis that in providing such assistance Coralynne was influenced by such an understanding. His Honour’s citation to Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38] is for the proposition that expectations raised by testators may be relevant to the ascertainment of what is an adequate provision for a claimant. In this context, the primary judge’s reference to there being a moral duty or obligation on the testatrix to make provision is another way of saying that the matter giving rise to the so-called moral duty or obligation is one to be weighed in the balance in favour of the applicant for provision. However, as Gleeson CJ stressed in Vigolo v Bostin at [25], use of the concepts of moral obligation and moral duty cannot be “a substitute for the text”.

  3. So understood, the second finding in J[335] was available on the evidence. The deceased and Clifton Snr executed the “mirror” wills in September 2015. Coralynne was aware of their terms and effect, which was that unless they were changed, the survivor of her parents would inherit the Fairfield property and pass it on in equal shares to the adult children. That the other children also understood this to be the position by the time of their father’s death is an available inference in the face of the fact that each contributed a one-third share of his funeral and testamentary expenses (J[338]). It might also be noted at this point that the primary judge rejected Charlene’s evidence that she did not know of the terms of the deceased’s 2015 will at any relevant time (J[209]). As senior counsel for Coralynne submitted, human experience and psychology would support an inference in these circumstances that Coralynne’s conduct in providing ongoing financial assistance was likely to have been influenced by a continuing expectation of equal treatment with her adult siblings.

  4. There is one finding of primary fact in J[336]. It is that the deceased inherited the Fairfield property from the estate of Clifton Snr pursuant to his will executed in September 2015, which was relevantly in the same terms as the will she also executed at that time. That finding is not challenged. The remaining observation in J[336] is his Honour’s description of that fact as “capable of giving rise to a moral obligation”. His Honour then makes further findings at J[337] and [338] which are not challenged and are taken into account in determining whether adequate provision had been made for Coralynne’s proper advancement. It is not contended that those other matters were not relevantly taken into account (cf Succession Act, s 60(2)(p)).

  5. For these reasons, ground 1 should be rejected.

Whether the primary judge erred in finding that the 2019 will did not make adequate provision for Coralynne’s proper advancement because the grounds relied upon to ‘disinherit’ Coralynne were false (ground 2)

  1. Charlene’s written submissions in support of this ground emphasise that whilst the question arising under s 59(1)(c) involves the making of value judgments, it is ultimately a “question of objective fact to be determined by the judge at the date of the hearing” (Singer v Berghouse at 211). In answering that question, the Court must address the relevant circumstances including, to the extent that they are relevant, those set forth in s 60(2).

  2. The primary judge’s consideration of the adequacy of the provision made for Coralynne is specifically addressed between J[324] and J[349], where his Honour concludes:

On my findings, the grounds relied upon to justify Coralynne’s disinheritance by the deceased were false. The provision was not “proper” for that reason alone. And while the reference to respect for Clifton Snr acknowledged his contribution to the main asset in the deceased’s estate, and to the family life the deceased enjoyed with him, the amount of the legacy was a cynical mockery of his wishes, as reflected in his 2015 will.

  1. It is contended, by reference to what is said at J[349], that his Honour’s finding that inadequate provision was made for Coralynne’s proper advancement was founded on the fact that the deceased had given “false” reasons or explanations for making her 2019 will. It is said to follow that the primary judge “mistakenly limited his examination of ‘proper’ [provision] to the disposition of the estate by the testator, and how that came to be”.

  2. The House v The King error to which this ground as formulated in oral argument is directed might be described as an error of principle or perhaps a failure to take some or many material considerations into account. The error of principle is in determining the jurisdictional question only by reference to whether the grounds relied on by the deceased to justify Coralynne’s disinheritance were false. Alternatively, the error is a failure to take any other material matters into account when assessing whether inadequate provision was made.

  3. The respondent contends that a sufficient answer to this ground is that the matter referred to was not the only matter which the primary judge took into account in assessing whether the provision made by the 2019 will was inadequate for Coralynne’s proper advancement. Those other matters included the evidence of the testamentary intention of the deceased in her “mirror” will of September 2015, which his Honour held was not made in circumstances where the deceased or her husband suffered from any relevant disability or where any undue influence was brought to bear; and that there were no relevant changes in the circumstances of the children to suggest that any different judgment was called for as at May 2019. It was not contended that these matters were not properly taken into account (see s 60(2)(j)).

  4. However, more fundamentally in response to this ground, his Honour’s observation at J[349] is not to be understood as suggesting that the falsity of the grounds relied on to justify Coralynne’s disinheritance constituted a sufficient reason for finding that inadequate provision had been made. Rather, in a shorthand manner his Honour was saying the following. First, the grounds relied on as justifying the May 2019 will, which made no significant provision for Coralynne, were false. On his Honour’s findings, the true position was that from the deceased’s perspective, nothing had materially changed in relation to Coralynne and Charlene’s circumstances since September 2015 when the mirror wills were executed. Accordingly, her testamentary intention expressed in that will was to be given significant weight as evidence of her sound testamentary judgment as to what as at May 2019 was adequate and proper provision for her adult children. Stating the matter shortly, the fact that the grounds for the second will were false allowed the conclusion that the provision made by it was not proper.

  5. This is also made plain by the primary judge’s further observation at J[352]:

On my findings, Coralynne has been deprived, by the machinations of Charlene, of a one-third share of the deceased’s estate, representing the deceased’s previous assessment of what would be a proper level of advancement.

  1. Accordingly, ground 2 should be rejected as it proceeds on a wrong understanding of the primary judge’s reasoning. Properly understood, that reasoning did not involve either of the House v The King errors formulated in oral argument.

Whether it was open to the primary judge to make findings that Charlene by a process of manipulation and misinformation deprived Coralynne of a one-third share of the deceased’s estate (ground 7(c))

  1. This ground as argued was that it was not open to the primary judge to make the findings at J[207], [260] and [352] because Charlene had no opportunity to deal with and respond to them (Browne v Dunn (1893) 6 R 67 at 70-71; Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 at [69]-[75]).

  2. The relevant findings were as follows:

[207]   … The deceased appears to have been closer to Charlene and to have confided in her. Charlene used this dependence to manipulate the deceased and turn her against Coralynne (and Clifton Jnr).

[260]   … I do not believe that the will represents a fair and considered testamentary judgment. Rather, I am satisfied that it was the result of a process of manipulation and misinformation on the part of Charlene designed to advance her own interests.

[352]   … Coralynne has been deprived, by the machinations of Charlene, of a one-third share of the deceased’s estate, representing the deceased’s previous assessment of what would be a proper level of advancement.

  1. The argument outlined above is not squarely made by ground 7(c), which contends that these findings had regard to “irrelevant considerations”. However the latter contention is not pressed and instead it is said that the findings were not open.

  2. At this point it is informative to say something more about the rule in Browne v Dunn, which applies to the making by one party of serious allegations with respect to the credibility or conduct of the other party or a witness of that party.

  3. First, it is a rule directed to ensuring procedural fairness in the conduct of litigation. In Browne v Dunn it was described by Lord Herschell LC as “not only a rule of professional practice in the conduct of a case, but [also as] essential to fair play and fair dealing with witnesses” (at 71). The rule applies as between the parties and irrespective of whether the witness is a party. If the rule has not been complied with, as Kuhl v Zurich Financial Services makes clear (at [71]-[74]), it is not open to the party making the allegation to rely on it. Nor is it open to the trial judge to make a finding based on the allegation if the other party has not had adequate notice of and an opportunity to address it.

  4. To take a well-known example, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, there was a factual issue as to the dominant purpose for the acquisition by Allied Pastoral of properties and whether that purpose was to resell them at a profit. The Commissioner had a so-called “staged development” theory which was relied on to contradict Allied Pastoral’s evidence denying that the dominant purpose of holding the land was for profit. That theory was not put to any of Allied Pastoral’s witnesses in cross-examination. Accordingly, it was submitted that the argument could not be made.

  5. As to the application of the rule in Browne v Dunn in these circumstances, Hunt J said at 16:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. (emphasis added)

  1. In circumstances where Charlene was a party to the proceedings, this ground directs attention not only to the matters put to her in cross-examination but also to the issues as they were raised by pleadings and in the parties’ submissions. It is also relevant to consider the respects in which Charlene’s credibility and reliability as a witness was called into question and how those matters were dealt with by findings of the primary judge which are not challenged as not open to be made.

  2. As the primary judge recorded at J[40], there was a general attack on the credibility of both Coralynne and Charlene. His Honour also recorded that it was necessary for Coralynne’s counsel to cut short his cross-examination of Charlene in part because of difficulties in the way she gave her evidence (J[44], [45]).

  3. Turning first to the evidence, and the order in which it was exchanged, in her first affidavit of 16 September 2020 Charlene said:

16    I am advised by my solicitor, and duly believe, that the plaintiff has expressed concerns over the level of influence I allegedly exerted over the deceased in her final months and questions whether the deceased knew and approved of the contents of the last will.

17    On 16 May 2019 the deceased wrote a Testamentary Statement. …

18    On 4 April 2019 I transported the deceased to the offices of Dr Joseph P Nicholas Pty Ltd. I was not present in the room with the doctor and the deceased during the medical appointment. …

19    On Thursday 9 May 2019 I transported the deceased to the Six Points Cafe at 224 Hamilton Road, Fairfield Heights to meet Mr Ray Wehbe of Ray Wehbe & Co Solicitors so that the deceased could provide instructions for her will. I did not attend the meeting between the deceased and Mr Wehbe.

20   On Thursday 16 May 2019 I transported the deceased to the Six Points Cafe at 224 Hamilton Road, Fairfield Heights to meet Mr Ray Wehbe of Ray Wehbe & Co Solicitors so that the deceased could execute her will and testamentary statement. I did not attend the meeting between the deceased and Mr Wehbe.

(emphasis added)

  1. In her first affidavit of 17 September 2020 Coralynne relevantly said:

104.    On 16 May 2019 the deceased made a Will which is the subject of the current grant of probate. I believe such Will was made at the instigation of Charlene although I have made requests for details of how this will was made, I have not received an explanation.

105.    Prior to the making of such Will the deceased had been diagnosed with dementia by Dr Joseph Nicholas. …

…

112.    This statement immediately caused me to think that Charlene had caused the deceased to make a new Will.

…

115.    As previously deposed to, I believe the deceased became afraid of Charlene following the injury in November 2018 and continued to be afraid of her up until the time she died. …

116.    Similarly, I believe that a testamentary statement executed by the deceased dated 16 May 2019 was similarly prepared at the instigation of Charlene or my mother did not have capacity because the statements made by the deceased in respect to myself, Clifton and Charlene are incorrect.

(emphasis added)

  1. Returning to the primary judge’s findings, his Honour found that in her evidence Charlene down-played various matters, including: the problems with the deceased’s cognitive functions; her own antipathy to Coralynne; and her involvement in the preparation of the 2019 will. His Honour also found that the testamentary statement contained false or exaggerated complaints against Coralynne (and probably Clifton Jnr) which came directly, or indirectly, from Charlene (J[46]).

  2. To assist an understanding of what follows, it is instructive to extract at this point some of the paragraphs from that testamentary statement:

[Addressed to Coralynne]

12. I cannot accept your behaviour towards me after all I have been through these past few months since being in hospital and since. I know that this is the right decision for me regarding my Will. I have not forgotten or forgiven you for all the things that you have done and therefore seeing that you have more than enough money in the bank to buy your own home outright I also, out of respect to your father, leave you $40,000.00 plus a share in the residue of my estate but no part share of my house.

[Addressed to Clifton Jnr]

8. I thought long about my decisions before changing my Will. You have your own home and therefore it is out of respect to your father that I leave you $40,000.00 plus a share in the residue of my estate but no part share of my house".

[Addressed to Charlene]

1.   I have made provision for my real estate at [XX] Fairfield West to be left to my daughter, CHARLENE ARNEL SCOTT in recognition of her care, love and devotion that she has provided to me over her adult years and especially over the last nine years when my care needs have increased and she has always been there to look after my needs and to assist with my health care needs plus travel and shopping and all domestic tasks. I would not be able to enjoy my life without her care and all the work she does for me so that I may live my independent life as best as I can at [XX] Fairfield West. On my behalf, she physically pays all the property rates and living expenses and she cares for me by openly showing her love and devotion towards me.

  1. Before the hearing commenced on 20 October 2021, Coralynne served an outline of her case dated 13 October 2021 which included the following:

73.   The Plaintiff disputes the contents of the testamentary statement. In short, the Plaintiff disputes that she acted in the manner alleged in the statement, she disputes the Defendant made the level of contributions to the property as alleged, the Plaintiff alleges she did not act against the Defendant in the manners alleged and the Plaintiff disputes she damaged property of the mother.

75.   [In that respect the evidence of Clifton (Jnr) supports Coralynne’s position.] Clifton (Jnr) states that the Plaintiff was not controlling and demanding, he denies that the deceased was frightened of the Plaintiff, he denies that the Plaintiff threatened to put the deceased in a home, he denies that the Plaintiff did not provide financial and non-financial assistance to their parents and that the Defendant was frightened or intimidated of the Plaintiff.

78.   The accuracy of the allegations made by the deceased against the Plaintiff in [the] testamentary statement must be question[ed] in circumstances where the facts alleged by the deceased are contradicted by the evidence the Plaintiff and Clifton (Jnr), and in circumstances where a level of influence is alleged to have been exerted by the Defendant over the deceased in the final months of the deceased's life, when the deceased was elderly and suffering from dementia.

90.   … The Defendant's complaints against the Plaintiff's conduct appear to primarily relate to the period in 2019, being the last months of the deceased's life, when it is alleged the Defendant assert[ed] influence over the deceased.

97.   From about May 2019, the deceased started to become more aggressive towards the Plaintiff, making allegations she was ripping her off not paying board for 60 years, that she destroyed things belonging to the Defendant and that she was insane, an idiot and a thief... The Plaintiff denies this conduct. It appears the real cause of any disharmony comes from the breakdown in the relationship between the Defendant and Plaintiff.

  1. As appears in J[258] (extracted at [27] above), the primary judge held that the testamentary statement was “riddled with distortions and falsehoods” and that Charlene was the “ultimate source” of the statement, and accordingly of the distortions and falsehoods.

  2. With respect to her oral evidence, in answer to questions from the primary judge, Charlene denied having any knowledge in 2019 as to the terms of the will which her mother had executed in 2015. His Honour rejected that evidence as false (J[209]). In relation to the making of the will and testamentary statement, she accepted that she had made the initial approach to Mr Wehbe and in that context that her mother had said she “wanted to change her will”. The primary judge found that she was active in recruiting Mr Wehbe as solicitor (J[210]-[211]), arranged for him to meet the deceased at a café rather than at her home (J[224], [243]), and instructed him not to send anything by post to her mother at home (J[242]).

  3. Whereas in her written evidence Charlene did not say that she had been involved in the preparation of the testamentary statement, in cross-examination she first conceded it was possible that she had drafted the testamentary statement and sent it to Mr Wehbe. Later she agreed that she had drafted that statement on her computer.

  4. Returning to the findings which it is said were not open to be made by the primary judge, senior counsel for Charlene submitted in this Court that in substance what should have been put to his client in cross-examination was the effect of the primary judge’s ultimate conclusion, namely that Coralynne had been deprived of one-third of the estate which she would otherwise have received but for Charlene’s machinations.

  5. The question raised by this ground is whether by the commencement of the hearing, or at least by the time that she was to give evidence, Charlene and her lawyers were on notice of the thrust of the allegations being made against her with respect to the 2019 will and testamentary statement, including those implicit in the findings at J[207], [260] and [352].

  6. In essence those allegations were: (1) that Charlene was aware by late 2018 that in 2015 the deceased had made a will leaving the Fairfield property to her three adult children; (2) that the deceased was old and frail and afraid of Charlene who was able to exercise a degree of influence over her decision-making; (3) that Charlene influenced the deceased to make a new will leaving the whole of the Fairfield property to her; (4) that Charlene took steps to ensure that the fact that she was doing so did not come to the attention of Coralynne or her brother; (5) that in order to persuade her mother to make the new will, in the period from December 2018 Charlene spread distorted and false stories about Coralynne and Clifton Jnr to her mother; (6) that the substance and effect of that distorted and false information is in the testamentary statement, the terms of which were ultimately sourced to Charlene; and (7) that the new will meant that Coralynne and Clifton Jnr would receive no interest in the Fairfield property.

  7. With respect to these allegations, they were either foreshadowed or made in the affidavits exchanged before the hearing (allegations (2), (3) and (5)), put to Charlene in cross-examination (allegations (1), (4) and (6)), or a necessary consequence of the making of the will (allegation (7)). As such, Charlene was given the opportunity to deal with those allegations, separately and collectively, by her evidence and by any other evidence available to be adduced. For that reason, the rule in Browne v Dunn was not engaged. That conclusion is not altered by the terms in which the primary judge expressed his overall conclusions concerning Charlene’s conduct. Specifically, his Honour’s descriptions of her actions as involving a “process of manipulation and misinformation” and her engaging in “machinations” do no more than describe in pithy but not overly colourful language her conduct which was the subject of the allegations and established.

  8. For these reasons ground 7(c) is rejected.

Whether there is any error of principle revealed in the primary judge’s reasoning at J[340], and in particular by reason of the reference to “those cases mentioned in Taylor v Farrugia” (ground 6)

  1. At J[340] the primary judge observed:

It is true that Charlene has no home of her own. But in my view this is not one of those cases mentioned in Taylor v Farrugia where the circumstances gave rise to a moral obligation on the deceased to provide Charlene with one. I have rejected the claim that Charlene gave up work so as to care for the deceased (or her parents). To recognise a moral obligation to provide Charlene with her own unencumbered property would be quite disproportionate to the financial contribution she in fact made to the deceased’s estate, especially when it would come at the expense of a sibling who has received nothing by way of advancement herself.

  1. In Taylor v Farrugia [2009] NSWSC 801, claims for provision were made by five of six surviving adult children, principally for provision out of the estate of their deceased mother. In introducing his evaluation of those claims, Brereton J (as his Honour then was) said at [57]:

These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. … The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

  1. On behalf of the appellant it is submitted that the primary judge is to be understood by the reasoning at J[340] to have put aside and thereafter disregarded Charlene’s competing interest as principal beneficiary and the chosen object of the deceased’s bounty, whereas the Court was required to have due regard to “what the testator regarded as superior claims or preferable dispositions”, as demonstrated by her will (see Pontifical Society for the Propagation of the Faith v Scales at 19 per Dixon CJ, McTiernan J agreeing).

  2. Thus it is said that his Honour treated Charlene’s “competing moral claim by virtue of the fact that she is in the will [and] receives the home under the will” as unimportant or worthless because in the ordinary case the community does not expect a parent to provide an unencumbered home, which was for Charlene the outcome of the 2019 will.

  3. This argument does not take account of the context in which the findings and observations at J[340] are made. As a result it does not correctly capture his Honour’s analysis and reasoning.

  4. The broader context in which that paragraph appears is a consideration of the adequacy or otherwise of the provision made for Coralynne by the 2019 will (J[324]ff). Having made findings as to Coralynne’s financial position and “other factors” which supported her claim, including the circumstances in which the deceased had inherited the property from her husband’s estate, the primary judge turned to Charlene’s reliance “upon her financial circumstances as an answer” to Coralynne’s claim (J[339]). The finding at J[340] addresses that matter, taking into account the size of the deceased’s estate, Charlene’s financial and other contributions to her parents and their welfare, and Coralynne’s claim to a provision by way of advancement. None of that involved disregarding Charlene’s competing claim as principal beneficiary.

  5. That competing claim and Charlene’s reliance “on the May 2019 will as a testamentary judgment adverse to Coralynne’s claim” is dealt with at J[342]ff, his Honour concluding that the “testamentary judgment principle” was not attracted (J[345]).

  6. As none of this discloses any error of principle on the part of the primary judge, ground 6 should be rejected.

Conclusion

  1. Each of the grounds of appeal as pressed and formulated in oral argument is rejected. It follows that the appeal should be dismissed with costs.

  2. KIRK JA: I concur with Meagher JA.

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Amendments

20 September 2022 - Citation to primary judgment on coversheet amended.

Decision last updated: 20 September 2022

Most Recent Citation
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