Scott v Scott

[2021] NSWSC 1619

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Scott v Scott [2021] NSWSC 1619

Hearing dates:

20, 21, 22 October 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Jurisdiction:

Equity

Before:

Parker J

Decision:

See [356]-[362]

Catchwords:

SUCCESSION – family provision – application by adult child – advancement – deceased’s will left a small legacy of $40,000 to applicant – majority of the estate left to applicant’s sister, including former family home worth $780,000 – testamentary statement by deceased purported to justify will – statement procured by applicant’s sister and misrepresented merits and demerits of applicant and applicant’s sister – previous will giving applicant one-third share of estate – application successful

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 59, 60, 70

Cases Cited:

Browne v Dunne (1893) 6 R 67

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Graham v Vukic [2020] NSWSC 1801

Kelly v Deluchi [2012] NSWSC 841

Leary v NSW Trustee and Guardian [2017] NSWSC 1113

MacAlpine v MacAlpine [2020] NSWSC 824

McCosker v McCosker (1957) 97 CLR 566

Megerditchian v Khatchadourian [2019] NSWSC 1870

Megerditchian v Khatchadourian [2020] NSWCA 229

Sgro v Thompson [2017] NSWCA 326

Slack v Rogan (2013) 85 NSWLR 253

Taylor v Farrugia [2009] NSWSC 801

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

White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169

Category:

Principal judgment

Parties:

Coralynne April Scott (Plaintiff)
Charlene Arnel Scott (Defendant)

Representation:

Counsel:
AF Stevens (Plaintiff)
L Clarke (Defendant)

Solicitors:
Dignan & Hanrahan (Plaintiff)
Ray Wehbe & Co (Defendant)

File Number(s):

2020/215861

Publication restriction:

Nil

Judgment

1. This judgment arises out of an application for a family provision order under s 59 of the Succession Act 2006. Unless otherwise stated, statutory references in the judgment are to that Act.

2. The plaintiff claims provision from the estate of the late Coral Alveda Scott who died in July 2019 at the age of 89. For convenience, and without disrespect, I will refer to the members of the deceased’s family who come into this judgment by their given names.

3. The deceased was born in January 1930. In 1954 she married Clifton John Scott (“Clifton Snr”). Together they had three children: Coralynne April Scott (“Coralynne”), born in April 1956; Clifton John Scott (“Clifton Jnr”), born March 1960; and Charlene Arnel Scott (“Charlene”), born in September 1965. Clifton Snr died in 2016.

Issues for determination

4. The deceased’s last will was made in May 2019, about two months before her death. By the will the deceased appointed Charlene as her sole executor and trustee. Probate was granted to Charlene in October 2019. The will was prepared by a solicitor, Mr Ray Wehbe, whose firm, Ray Wehbe & Co, is at Parramatta. He also acted for Charlene in the administration of the estate.

5. The deceased’s main asset was a house at Fairfield which had been the family home. Of her other assets, the most important was a savings account which, at the date of her death, contained around $150,000.

6. The will left the Fairfield property and the deceased’s “household furniture and effects” to Charlene. The residue of the estate, after payment of funeral and administration expenses, was to be used to pay legacies to Coralynne and Clifton Jnr of $40,000 each. The remainder was to be divided equally among Coralynne, Clifton Jnr and Charlene.

7. The value of the Fairfield property is now agreed for the purposes of these proceedings at $780,000. There are some uncertainties about what the net value of the residue of the deceased’s estate will be, which I address in more detail below. A major factor will be the incidence of the costs of these proceedings, which of course is unknown at this stage.

8. According to the inventory of property which accompanied the application for probate, the value of the residue was $129,000. There may be some recoveries not included in this figure. On the other hand, the figure leaves out of account later administration liabilities, and especially costs. On some scenarios the costs payable out of the estate could exceed the value of the residue.

9. Coralynne is the plaintiff in the proceedings. Charlene, as both the executor and the major beneficiary, is the defendant.

10. The proceedings began with the filing of a summons in July 2020. The summons sought orders for preliminary discovery of documents surrounding the preparation and execution of the will, and an additional order requiring Mr Wehbe, as Charlene’s solicitor, to file an affidavit setting out the circumstances in which he prepared the will.

11. These orders were sought so that Coralynne could decide whether to challenge the will on the grounds of lack of testamentary capacity or undue influence. The summons also sought an order for provision, so as to preserve Coralynne’s right to pursue a family provision claim. The application for preliminary discovery and an affidavit from Mr Wehbe was not pursued and the case has proceeded as a family provision claim.

12. Coralynne seeks additional provision beyond the legacy payable to her out of the residue (which, as I have mentioned, may not be sufficient to meet the $40,000 minimum provided for in the will). She contends that the legacy was not adequate for her proper maintenance or advancement. Clifton Jnr has made no claim. Charlene contends affirmatively that the provision in her favour is justified by her circumstances.

13. Mr Wehbe has acted for Charlene in defending Coralynne’s claim. Not long before the hearing, a subpoena was served on Coralynne’s behalf requiring the production of Mr Wehbe’s file, and other documents generated in the course of preparation of the deceased’s May 2019 will. Mr Wehbe (who had, in accordance with the Practice Note, filed an affidavit estimating Charlene’s costs of the proceedings) was also required for cross-examination. In her written submissions, filed in advance of the hearing, counsel for Charlene complained about this. She suggested that it was calculated to “create a conflict” and jeopardise the presentation of Charlene’s case.

14. With respect, I find this criticism hard to understand. As will be seen, there can be no doubt that evidence as to the circumstances in which the will was prepared was relevant to the proceedings; indeed, reliance was ultimately placed on those circumstances on behalf of Charlene herself: see also Kelly v Deluchi [2012] NSWSC 841 at [221]-[222]. There could be no objection in principle to Mr Wehbe being cross-examined on an issue which was relevant. Any difficulty with him being required to give evidence about the circumstances in which the May 2019 will was prepared was a self-inflicted one. It stemmed from Mr Wehbe’s decision to represent Charlene in proceedings in which he could potentially have been a material witness of fact. But in the end the request that he be made available for cross-examination was not pressed.

Chronology of key events

15. Clifton Snr was employed by Marrickville Council as a road worker. So far as the evidence before me went, the deceased did not undertake paid employment and worked as a homemaker. The Fairfield property was bought at some point in the late 1950s or early 1960s with the help of mortgage finance. It was registered in Clifton Snr’s name alone. Presumably the loan repayments were made out of his earnings.

16. Coralynne lived at home until she was married in December 1977 at the age of twenty-one. Following her marriage, she lived with her husband but the marriage failed and after a few years she moved back home at the invitation of her father. Coralynne placed this as having happened in about December 1979. She continued to live at Fairfield with her parents, and following her father’s death, with the deceased, until the deceased’s death in 2019. Counsel calculated that Coralynne and the deceased therefore lived together for sixty-one years.

17. Clifton Jnr moved out of the family home in about 1980 when he would have been about twenty. Thereafter, he remained independent of his parents. He now lives on the Central Coast and has done so for many years.

18. Charlene lived at home until the mid to late 1980s when she would have been in her early twenties. She then lived in London for twelve months. She returned to Sydney and lived at Fairfield with her parents. A few years later she lived in London for another extended period (although less than twelve months).

19. Thereafter, Charlene returned to live at Fairfield. According to Coralynne, Charlene moved out with boyfriends for a number of periods of three to six months or so, but none of those relationships lasted. Charlene also took occasional overseas holidays, but the Fairfield property always remained her principal place of residence.

20. In March 1992, the mortgage over the Fairfield property was discharged. According to Coralynne, whose evidence on this point was not contested, this happened at about the time of Clifton Snr’s retirement. Not wishing to be burdened with mortgage payments in his retirement, he asked her to help him pay off the mortgage. She took out a personal loan for $5,000 in order to do so.

21. In evidence are wills made by Clifton Snr and the deceased in September 2015 (there is no evidence of any earlier will by the deceased). The deceased’s will made Clifton Snr her executor and gave him the whole of her estate, provided that he survived her by thirty days. Otherwise the estate was to pass to their children in equal shares. Clifton Snr’s will was in mirror form. The deceased also executed an enduring guardianship appointment in favour of Coralynne and Charlene jointly.

22. The documents were prepared by Mr David James Duncombe, a solicitor of the firm of Dignan & Hanrahan at Campbelltown. He is the solicitor for Coralynne in these proceedings.

23. Clifton Snr died about eight months later, in May 2016. The deceased obtained probate of his will and the Fairfield property was transmitted into her name. Mr Duncombe acted for her. It seems that Clifton Snr had few if any assets apart from the Fairfield property. Each of the children contributed equally to the costs of the funeral.

24. I will discuss the contributions made by Coralynne and Charlene in more detail below, but for present purposes it is enough to say that both contributed to looking after their parents, and following their father’s death, their mother. Charlene drew a carer’s pension from Centrelink from 2011 onwards.

25. In September 2017, Charlene met, and formed a relationship with, David John O’Hagan. Mr O’Hagan lives at Green Point on the Central Coast. Charlene would visit him there, but the Fairfield property remained her principal place of residence.

26. It seems that the deceased was in reasonable health up until her late eighties. Her general practitioner was Dr Joseph Nicholas.

27. By October 2018, a difficulty had been identified with a possibly cancerous growth on the deceased’s leg, which required surgery. Before the scheduled date for the surgery arrived, the deceased suffered a serious fall at the Fairfield house. Her arm and hip were badly broken.

28. The fall happened on the night of 17-18 November. The deceased was taken to Liverpool hospital where she remained until 4 December. Then she was transferred to Fairfield hospital. On 12 December she was transferred from Fairfield hospital to a rehabilitation facility known as Braeside. She was not discharged from Braeside until 31 January.

29. The house at Fairfield is seemingly somewhat run down. In order for the deceased to be able to return home, it was necessary to carry out some renovations, in particular on the bathroom. These renovations were undertaken between November and January. They involved some underpinning works and the construction of an access ramp which were paid for by Coralynne. The remaining works were undertaken by Mr O’Hagan. He performed some of the work himself and also organised other tradespeople and purchased supplies. Sometimes he would come from the Central Coast for a day, but on other occasions he would stay for several days at Fairfield, spending the night with Charlene in her room.

30. At about the same time as the deceased suffered her fall, the relationship between Coralynne and Charlene unravelled. I will say more about this in due course. For present purposes, it is sufficient to say that they swiftly ceased to be on speaking terms. The final rupture came on 9 January when there was a physical altercation which resulted in bruising and scratches and ended in Charlene placing Coralynne in a headlock. Although Coralynne continued to live at the property, the relationship between the sisters was poisonous.

31. The bathroom renovation was completed at the same time as the deceased was discharged from Braeside at the end of January 2019. In February, Charlene and Mr O’Hagan embarked on a further round of renovations, this time to the living room. At least ostensibly this was at the deceased’s request. These renovations were not completed until shortly after the deceased died in July.

32. In the conflict between Coralynne and Charlene, the deceased seemingly took Charlene’s side, or at least abdicated control of the situation to her. Also, in January, the deceased cut off communication with Clifton Jnr as a result of an incident at the hospital between him and Charlene.

33. The process which resulted in the deceased making a new will began early in April 2019. It was at that point that Mr Wehbe was first consulted. Although he had two face-to-face meetings with the deceased, most of the other communications took place by way of email via Charlene. I will describe the course of events in more detail in a later section of the judgment.

34. The will in favour of Charlene which is in issue in these proceedings was executed by the deceased on 16 May. At the same time the deceased signed a testamentary statement explaining the dispositions in the will. She also executed a new enduring guardianship appointment in favour of Charlene only.

35. Meanwhile, the surgery for the growth on the deceased’s leg had been put off on a number of occasions. It was rescheduled for 22 July. The deceased was duly admitted for surgery on that date but while in hospital she suffered a heart attack which proved fatal. She died at around 9:00 am on 23 July.

36. Following the deceased’s death, Coralynne became aware of the new will. She bought a house for herself at Narellan Vale in south-western Sydney and moved out of the Fairfield house in about September. Charlene continues to occupy the Fairfield property, but over the period since her mother’s death she has spent much time at Mr O’Hagan’s house on the Central Coast.

Summary and analysis of evidence

Witnesses

37. The main witnesses were Coralynne and Charlene. Both of them were extensively cross-examined. Clifton Jnr gave evidence in support of Coralynne’s case, and Mr O’Hagan gave evidence in support of Charlene’s. They too were cross-examined, although not as extensively.

38. Both Coralynne and Charlene called evidence from neighbours and friends. There were five such witnesses, two of whom were not cross-examined. I will refer to their evidence when addressing the evidence about the family relationships in a separate section below.

39. Dr Nicholas gave evidence in the course of Coralynne’s case. Affidavits were also read from the two solicitors, Mr Duncombe (for Coralynne) and Mr Wehbe (for Charlene). Mr Duncombe’s evidence dealt with formal matters and costs estimates. He was not required for cross-examination. As already noted, Mr Wehbe’s evidence consisted only of costs estimates and in the end he was not required for cross-examination either.

40. General attacks were made on the credibility of both Coralynne and Charlene by opposing counsel. I will consider the credit issues which arise in a moment. No equivalent attack was made on the credit of any of the other witnesses. To the extent that issues arise about the reliability of individual pieces of evidence from those witnesses, I will deal with them when addressing the issue in question below.

41. I found Coralynne’s demeanour generally quite defensive. I got the impression that she was holding herself very much in check. Her resentment towards Charlene was obvious.

42. The challenge to factual details of Coralynne’s evidence was fairly limited, and her account of events was generally plausible and internally consistent. Nevertheless, as I describe below, I think that she glossed over some difficulties in her relationship with the deceased over the last year or so of the deceased’s life. Also, although Coralynne disclosed all of her assets as she was required to do, she was not keen to provide the most up to date values for those assets when that might assist Charlene’s case.

43. Overall, I had some reservations about the reliability of her evidence, especially over the period from November 2018 onwards when her relationship with Charlene had broken down. I do not think that she was dispassionate about that period. Perhaps it would be unrealistic to expect her to have been.

44. Charlene was a noticeably poorer witness. There were repeated difficulties in getting direct answers from her. Some answers took the form of speeches in support of her position which were unrelated to the question asked and introduced new and sometimes contradictory ideas. It is difficult to say whether this was conscious and deliberate; the manner in which she gave evidence was consistent with the self-dramatising and narcissistic character deposed to by Clifton Jnr.

45. These deficiencies created difficulties with the conduct of the hearing. It was necessary to sit extended hours so as to complete the hearing within the allotted time, and even so it was necessary for counsel for Coralynne to cut short his cross-examination of Charlene on the second day of that cross-examination (the third day of the hearing). In the time available it would not have been possible for counsel to have run down all of the points which Charlene raised in her evidence. I have taken this into account in the application of the rule in Browne v Dunne (see [204] below).

46. Also, as I describe below there are some specific passages of Charlene’s evidence which I do not accept. I think that she down-played the problems with the deceased’s cognitive functions (see [75] below); her antipathy to Coralynne (see [203] below); her knowledge of the deceased’s existing will from 2015 (see [209] below); and her involvement in the preparation of the deceased’s May 2019 will in her favour (see [232]-[238] below). Furthermore, I am satisfied the testamentary statement contains false or exaggerated complaints against Coralynne (and probably Clifton Jnr) which came directly, or indirectly, from Charlene (see [248]-[260] below).

47. Overall I was left with the impression that Charlene was more interested in justifying herself to the Court than in giving candid and truthful evidence. I think it would generally be unsafe to rely on her testimony except where it is corroborated by, or consistent with the probabilities flowing from, other evidence.

Background: Coralynne

48. As already stated, Coralynne returned to live with her parents at the Fairfield property following the break-up of her marriage in the late 1970s. She seems not to have become involved in any romantic relationship after that.

49. Coralynne was in continuous full-time employment from about 1973. She was employed with the NSW Police in a variety of administrative support roles from about 1988 onwards. This involved shift work. Coralynne also worked a second job in a supermarket.

50. Coralynne appears to have lived fairly frugally. She stated that she has not taken an overseas holiday for more than 30 years. Apart from a cruise with her parents and sister, and short breaks with her father or mother, there was no mention in the evidence of any local holidays either.

48. Over the period up to the deceased’s death, Coralynne was involved in three significant car accidents. In an accident in 2012 she suffered two fractured vertebrae in her back and also experienced severe whiplash. This resulted in ongoing physical and psychological difficulties. She was involved in another accident in June 2017.

49. Coralynne made a successful compensation claim for the injuries she suffered in the 2012 accident. She also made a compensation claim as a result of the 2017 accident. As at late 2018, that claim was still pending. It was eventually settled in 2020.

50. Over the years, Coralynne built up significant cash savings. By the time she bought the Narellan Vale property in 2019, she had several hundred thousand dollars. Some of this money may have derived from the settlement of her compensation claim from the 2012 accident.

Background: Charlene

54. As already stated, the Fairfield property has been Charlene’s principal place of residence since she returned from her second stay in London in the late 1980s or early 1990s. In accordance with the previous pattern, after the relationship between Charlene and Mr O’Hagan began in September 2017, she would occasionally go and stay with him at his home on the Central Coast. She stated that it was not until late 2018 that Mr O’Hagan first visited her in Sydney and met the other members of her family.

55. Clifton Jnr gave evidence of Charlene’s character going back to her childhood. He stated that she liked to play the victim and when not the centre of attention, became angry and occasionally even violent. She was jealous of him for supposedly being their father’s favourite.

56. Clifton Jnr also stated that while Charlene held a number of jobs earlier in her life, she was unable to sustain regular employment. She would complain of victimisation and leave.

57. Charlene stated that between 1994 and 2003 she suffered post-traumatic stress disorder (“PTSD”), major depression, anxiety and suicidal tendencies due to an unspecified “traumatic event”. It seems that she may have made a personal injury claim arising out of the “traumatic event”, but the evidence took this no further.

58. According to Coralynne, Charlene was, at least after she recovered from the “traumatic event”, able to work, but she chose not to do so. Coralynne stated that Charlene applied for a disability pension on account of an alleged back condition; this was refused. Thereafter, at the deceased’s request, Coralynne asked her father to agree to Charlene being nominated as his and the deceased’s carer so she could receive a carer’s pension. He was reluctant, as he said that Charlene did little, if anything, to help him, but agreed.

59. Charlene did not contradict what Coralynne said about the unsuccessful application for a disability pension and the subsequent application for a carer’s pension. Charlene remained on the carer’s pension from 2011 until the deceased’s death in 2019.

60. In cross-examination, Charlene said that her last paid employment was as a court attendant or monitor in the District Court or Local Court in western Sydney. This was contract work. The period of employment appears to have been about two years.

61. It was put to Charlene that when her contract came to an end, she was not offered a new one. She denied this but said she refused a further contract so that she could look after her mother.

62. Charlene said that this employment ended in 2014. This is difficult to reconcile with her having been on a carer’s pension since 2011. The May 2019 testamentary statement put the end of her employment as having occurred in 2011. The question was not further explored in the evidence.

63. In cross-examination, Coralynne’s allegation that she was able to work but chose not to was again raised with Charlene. She started by saying that she had been unable to work for ten years because of PTSD, apparently a reference to the period beginning in 1993. She said she was still unable to work because she was still suffering from anxiety. She could not drive a car outside the local area. She also had a fear of being around too many people.

64. When asked about how this fitted with her undertaking the court attendant work, Charlene said:

That was - no, because I was better to do that, I got better on the - I even went off my medication, but then over the time of being at home I did try to even study to try and get into counselling, because I thought I'd be perfect at it. I was doing that online. I did get to finish it, sadly a year after my father passed, I did that online, I did very well with that because there was no pressure doing it from home. Then tiny things such as this, for instance, can send me down the rabbit hole again. When Mum passed away, it hit me extreme and I'm not far from the rabbit hole.

65. This testimony illustrates the difficulties which were encountered with some of Charlene’s oral evidence. She appeared to acknowledge that by the time she undertook the court attendant work, at the latest, she had recovered from the “traumatic event” sufficiently to be able to hold down a job. The rest of her response hinted that for some reason that had changed, but this was not explained by her reference to undertaking a study course from home after her father’s death (2017) or being sent down the “rabbit hole” by her mother’s death (2019) or the stress associated with this litigation (since last year). All I was left with was a further set of questions.

66. Overall, I am satisfied that Charlene did indeed choose not to work and to live on the carer’s pension instead. The evidence to that effect was not really challenged, and Charlene’s evidence on the subject was confused and unpersuasive. The evidence about her possibly being “forced” to go back to work in 2019 (see [199] below) reinforces the conclusion.

Deceased’s lifestyle and health

67. During her retirement, the deceased seems to have led a quiet and sedentary life, increasingly so after Clifton Snr died in 2016. At home, the deceased remained independent and self-sufficient. She seemingly spent much of her time watching the television.

68. According to Charlene, the family did not dine together as a family after she turned eleven or so. Clifton Snr would sit at the table as he enjoyed his food. The deceased would be in the kitchen preparing meals for him or in her bedroom. The deceased did not eat much and Charlene likewise often skipped meals. As already mentioned, Coralynne was doing shift work and had a second job.

69. Following Clifton Snr’s death, the deceased, Coralynne and Charlene apparently used the kitchen as a shared facility to prepare their own meals. The deceased did this for herself right up until her death. She did not need any assistance with using the bathroom and there is no mention in the evidence of anyone doing her laundry for her. Coralynne or Charlene took the deceased to do her shopping or did it themselves, buying what she asked for.

70. It seems that during Clifton Snr’s lifetime, the deceased had been responsible for the payment of household expenses. She and Clifton Snr had a joint bank account. According to Charlene, following her father’s death, she helped the deceased open a bank account of her own, into which her pension was paid.

71. According to Charlene, the new account came with an EFTPOS card which the deceased could use for shopping or withdrawing cash at an ATM. But the deceased was not computer literate, and Charlene undertook internet banking on the account for her. For this purpose, Charlene had the internet banking login code and password. When bills needed to be paid, Charlene would sit down next to her mother and pay the bills in accordance with her mother’s direction.

72. Over the last few years of her life, the deceased was on warfarin (a blood thinning medication). According to Charlene’s evidence, she had begun to take warfarin by the time Clifton Snr died in 2016. Taking it required the deceased to manage the dosage in accordance with a program prescribed by her doctor and to cut up the warfarin pills which she was prescribed in accordance with that program. Apart from a period of time in 2016 when, following a fall, the deceased was physically unable to operate the pill cutter, she did this herself.

73. In her affidavit, Coralynne stated that as the deceased aged she started to exhibit memory problems. She would mix her daughters up, referring to one when she meant the other. She would forget conversations and misplace things. If interrupted, she would lose her train of thought; she would have to go back to the beginning of what she had been saying and start again.

74. In support of this, Coralynne produced a copy of an application form for a Commonwealth medical benefit for the deceased. The form contained a section setting out the deceased’s medical details. One question asked about neurological conditions; the answer stated that the deceased had dementia. The relevant section of the form was purportedly signed by Dr Nicholas and was dated 29 November 2018.

75. Charlene did not in her affidavit expressly address Coralynne’s observations about the deceased’s loss of memory. But she disputed the validity of the diagnosis apparently recorded in the benefit form. She claimed to recognise the handwriting on the medical section of the form as that of Coralynne. She pointed out that the deceased was in hospital on 29 November 2018, the implication being that Dr Nicholas could not have signed the form on that date. She stated that Coralynne “does not and cannot produce medical evidence to support a diagnosis of dementia”.

76. In this regard, Charlene also relied in her affidavit on a certificate given by Dr Nicholas for the purpose of preparing the deceased’s new will in 2019. The certificate was dated 4 April. It stated:

This is to certify that I have examined [the deceased] on 04 Apr 2019. In my opinion [sic] she has been assessed with Mental State examination [sic].

Her result of 28/30 indicates no significant cognitive impairment.

I believe Mrs Coral Scott is able to manage her affairs and make decisions for herself.

77. Affidavit evidence was also led in Charlene’s case from Patricia Betteridge, a longstanding neighbour of the family who lived in the same street in Fairfield. Mrs Betteridge stated in her affidavit that her own mother had experienced dementia. By contrast, the deceased was “as sharp as a pin”.

78. When Dr Nicholas gave evidence, he said that the medical section of the Commonwealth benefit form had been completed and signed by him, and its date was correct. Counsel did not challenge him on this. Counsel did however put to him that the April 2019 certificate demonstrated that the deceased had no significant cognitive impairment. Dr Nicholas repeatedly responded that she had no significant cognitive impairment “on that day”.

79. In answer to questions from me, Dr Nicholas then gave the following evidence:

Q.   How do you reconcile the opinion that you’ve expressed in that certificate with the opinion that you’d expressed the previous November that the deceased had dementia?

A.   This lady had fluctuating levels of cognitive function. She was … subject to recurrent infections, had admissions to hospital with confusion and delirium, and there at times at which she had no – she rationally couldn’t attend and couldn’t remember the doses of Warfarin she was on, for example, and we had a lot of trouble managing her INR [international normalized ratio, a measure of the time it takes for blood to clot] when she was unwell. So this lady’s cognitive function when she was unwell was very supple [as transcribed], it was very fragile and it didn’t take much of an infection or an illness to move her into a position where she wasn’t able to make such decisions. On the day I saw her, on 4 April, we had an opportunity when she was well to actually assess her, and that’s where that certificate came from on that day.

Q.   Is dementia a progressive condition?

A.   It is progressive, yes.

Q.   So can it get better?

A.   Only if it’s a reversible cause, which there are some. Not many.

Q.   Did this particular patient have a reversible type of dementia?

A.   She had reversible cognitive function, I will probably clarify it that way. Did she have reversible dementia? Probably not. But unfortunately the underlying state of her mind was that as soon as she was unwell she was not able to make decisions. She was not able to manage her own affairs when she was unwell.

Q.   So this certificate should say, “I believe Mrs Coral Scott is able to manage her affairs and make decisions for herself when she is not unwell”?

A.   That’s very accurate.

80. It was clear that the difficulties the deceased was experiencing were not confined to the times she was admitted to hospital. Dr Nicholas gave the following evidence:

Q.    How would a lay person be able to tell whether she was unwell or not?

A.    She was a very talkative lady, and sometimes when she was unwell, what she was talking about wouldn’t make sense, it would be more of a confusion, not answering questions correctly. An ambulance officer, for instance, would have a series of questions, she would have difficulty in answering. That’s apart from temperature, pulse rate, all the clinical signs we look for.

Q.    … obviously if she said something that didn’t make sense, you would conclude there might be something wrong with her.

A.    Yes.

Q.    But does the converse follow?

A.    It’s a good question. To answer that, I would have to say that the ten years or so that I looked after her – and I can really only go by my own experience, and I’ve been a GP for 40 years now – but there were times definitely where I’d have to refer to either Charlene or Coralynne to actually finish the answer, to get an answer that I could rely on being accurate. So there were times - even though she scored 28 out of 30 on that day, there were times where I really had doubts about her capacity to manage her medication, and I suppose to that end, the number of different times we had to check her Warfarin, recheck it, adjust it, was really not indicative of somebody who was totally in control or understanding of their medication.

81. Given the evidence of Dr Nicholas, I cannot find that the deceased’s cognitive function was unimpaired (when she was not unwell) as Charlene would have me do. I can only assume that Mrs Betteridge’s contact with the deceased was not frequent or lengthy enough for her to have noticed the disabilities described by Coralynne and Dr Nicholas. But Charlene cannot rely on that excuse. And Charlene’s challenge to the dementia diagnosis recorded on the benefit form by Dr Nicholas was baseless, as was shown when her counsel failed to pursue it. Charlene’s evidence on this issue does not assist her credit.

Deceased’s family relationships

82. This is the major area of factual debate in the evidence. Although the relevant relationships are between the deceased and her children, the evidence must be evaluated through the prism of the breakdown in the relationship between Coralynne and Charlene. I therefore first set out a chronology of the events in that breakdown. I will then summarise the evidence of the witnesses on the contributions issue before expressing my conclusions at the end of this section of the judgment.

83. Chronology of breakdown: As mentioned, the breakdown in the relationship began, at least openly, at or around the time of the deceased’s fall which led to her hospitalisation on 18 November 2018. By December it had become apparent that renovations would be required to the bathroom. Underpinning works and, apparently, some preparatory works were undertaken in the first half of December.

84. On Friday 20 December Mr O’Hagan went on leave from his regular work and started work on the renovation. He first organised the purchase and delivery of materials to the site and then spent the week from 2 to 6 January on initial work. He returned to his regular employment on 7 January and thereafter worked on the project on his days off. The works covered not only the bathroom itself but the hallway between the bathroom and the bedrooms.

85. The physical altercation between Coralynne and Charlene which marked the final rupture between them took place on 9 January. The renovation work was completed on the morning of 31 January, which is the day the deceased was released from hospital.

86. I have mentioned that Coralynne made a compensation claim arising out of her 2017 car accident which was still pending in 2019. On 13 February, Charlene made a statutory declaration for the defendant insurer. The statutory declaration took the form of a response to a written statement by Coralynne (which is not in evidence). In the declaration, Charlene averred that Coralynne had exaggerated the extent and effect of her disabilities.

87. The statutory declaration was witnessed by Mr Adam Mason Abboud. He was the solicitor acting for the insurer. Coralynne became aware of the statutory declaration when her solicitors forwarded it to her for comment. This was on 5 March.

88. In the meantime, Mr O’Hagan was undertaking the further renovations to the loungeroom area. He appears to have been living at the house, on and off, from February onwards.

89. In late March or early April, Charlene made the approach to Mr Wehbe which resulted in the new will signed by the deceased in May 2019. I will set out the chronology of these events in more detail in a later section of this judgment. The will was executed on 16 May.

90. As part of the renovations, Mr O’Hagan installed an electronic (computer controlled) door lock on the house. According to Mr O’Hagan, this was done in June. It became one of the bones of contention between Coralynne and Charlene, as Coralynne claimed that the access card she was given would not work and she was unable to get access to the house.

91. The renovation appears to have continued more or less continuously from February until July. It was completed a few days after the deceased died.

92. Coralynne’s testimony: I will deal first with Coralynne’s financial contributions. In her affidavit, Coralynne stated that she was always required to make a payment by way of rent or board towards the cost of the household. This gradually increased over time until ultimately it reached $150 per week. The contribution was made in cash and the money was kept by the deceased in a biscuit tin.

93. Although the evidence was somewhat confused, it seems that by late 2019 the board payment had been reduced. By that point both Coralynne and Charlene were paying $50 per fortnight in board. When her mother returned from hospital, Coralynne’s payment was increased to $75 per fortnight.

94. In cross-examination, counsel for Charlene pressed Coralynne on her evidence about making rent payments. Coralynne said that payments were made in cash. They reached $150 per week before her father’s death, but she was not able to say when. Counsel asked her for supporting evidence, but Coralynne said that there were no separate withdrawals and the cash just came out of larger cash withdrawals she made from time to time. Counsel suggested she could still have presented bank statements to verify the cash withdrawals. Coralynne said this did not occur to her.

95. For reasons given at [271] below, I do not consider that Coralynne’s disclosure obligations extended to producing supporting evidence of her rent payments, and, based on her evidence, there were no supporting documents anyway. It seems to me unlikely that Coralynne’s bank statements would have taken matters any further, but had Charlene’s legal advisors wished to pursue this, it was up to them to require production of the statements. In the end there seems to be no real dispute that Coralynne did indeed make rent/board payments as she claimed.

96. I have already referred to Coralynne’s evidence that she borrowed the money necessary to make the final payment of the home loan when her father retired. In her affidavit, Coralynne stated that she made other payments for the benefit of her parents (and Charlene). These consisted of: improvements and repairs to the house; purchase and replacement of home appliances; a car for her father; payment of outgoings (cable TV and lawnmowing); and a cruise for her parents, Charlene and herself in 2015.

82. Coralynne stated that the deceased could be demanding and critical of the state of the house. Some of her expenditure the deceased offered to pay for, but she found it easier not to take these offers up and “appease” the deceased by avoiding further debate.

83. Coralynne also gave evidence of non-financial contributions. This took the form of undertaking domestic duties around the house, such as vacuuming, cleaning and gardening. She also took her parents shopping and took them to medical appointments. As well as the cruise, she took her parents on day trips and occasionally away on weekends. She also took them on outings to the shops. This continued with the deceased after Clifton Snr’s death.

84. Coralynne stated that she had a very close relationship with the deceased. The deceased was particularly supportive when her marriage failed. The deceased was not usually demonstratively affectionate but would on occasion hug and kiss her.

85. Coralynne acknowledged that Charlene was home for a lot of the time. But she spent her time in her room on the computer. At times Coralynne would come home from work to find her mother bored from having been ignored all day. Coralynne would also find herself left by Charlene to take their parents to medical appointments.

86. Coralynne also commented on Clifton Jnr’s involvement with his parents. Clifton Jnr was very ill in the last year of the deceased’s life, something which he was keen to conceal from the deceased to avoid worrying her. But before that he would visit regularly, every month or so.

87. In her evidence, Charlene said that by 2018 Coralynne had become sick of looking after the deceased and wanted to put her in a nursing home. According to Charlene, the deceased hated the idea but Coralynne threatened her with it.

88. In cross-examination, Coralynne was asked whether she had made any such threats and answered “not that I can recall”. Counsel then attempted to tender what purported to be a text message from Coralynne to Charlene which suggested to the contrary. Coralynne, however, did not admit that the text message was hers. Again, the text message had not been attached to any of Charlene’s affidavits and was not included in the court book.

89. Counsel strenuously and repeatedly submitted that I should permit the tender. If genuine, the text message’s relevance was not in doubt. But its genuineness was not accepted, and therefore needed to be proved. When Charlene gave evidence counsel therefore sought leave to lead evidence from her in chief that the original message was on her mobile phone.

90. The modern requirement that litigation be conducted with the parties’ cards on the table applies in litigation of the present type just as much as it applies elsewhere. In the rare cases where such disclosure may prejudice the cross-examination of a witness, special directions can be obtained. In these circumstances, where a party wishes to spring a document on a witness in the course of cross-examination, if that is to be permitted at all, that party needs to be in a position to prove the genuineness of the document if that is disputed.

91. In the present case, unlikely as it may seem that the text is not genuine, permitting Charlene to give evidence about it on the run would not have allowed any technical or expert evaluation of its genuineness. Perhaps more importantly, it would not have allowed Coralynne a full opportunity to put the text (if genuine) into context. An adjournment to permit this would have been unthinkable and I therefore considered that I had no alternative but to reject the tender.

92. I come now to the breakdown in the relationship between Coralynne and Charlene. According to Coralynne, when she visited her mother in hospital after the fall, her mother said “I did not fall” but refused to say anything more. Coralynne stated that the deceased appeared afraid of Charlene and on later occasions said that she had gone “insane” and “gone off her brain”.

93. The deceased had a brother, Brian, who lived in Melbourne. In the course of the eulogy which he gave for the deceased at her funeral, Brian mentioned that in the last few months of her life he had been unable to speak to her as often as he wanted. The phone at the house had been disconnected and she could only call him from the neighbour’s.

94. Coralynne said that some time after the deceased had gone into hospital, when she and Charlene were together, Charlene rounded on her and said “you’re not kicking me out of the house” and “you’re not getting the house”. Coralynne placed this as occurring on 28 November 2018, ten days after the hospital admission. It seems, although this was not completely clear from Coralynne’s evidence, that the conversation happened in the car when the sisters were driving to the hospital.

95. Coralynne put this down to jealousy on Charlene’s part. She said that she had been told by Clifton Jnr of a conversation which he had with Charlene a few months beforehand in which, so he told her, Charlene said that Coralynne was a millionaire and did not need the house.

96. According to Coralynne, Charlene’s behaviour became worse when Mr O’Hagan effectively moved in and started undertaking the renovations in late December 2018. Her suggestions were ignored by Mr O’Hagan and Charlene, who treated the renovation projects, and the house, as their own.

97. Coralynne came into conflict with Mr O’Hagan. He would operate power equipment at all hours of the night. She denied his evidence that she interfered with the works by walking through the worksite while they were being carried out.

98. Coralynne stated that Charlene did her best to make life at the house unpleasant. Charlene blocked the driveway with her car to prevent Coralynne from using it with hers. A lounge belonging to her was also placed out on the lawn.

99. According to Coralynne, Charlene also interfered with her mail. The deceased, Coralynne and Charlene all had the initials “C A Scott”. The system was that whoever brought the mail in would open it and leave any mail intended for any of the others out for them. At least in later years, the deceased did not collect the mail, and the task of bringing it in largely fell to Charlene because of Coralynne’s shift work. Coralynne stated that after the dispute with Charlene arose she would come home to find her mail had been opened and scattered around the lawn. This got so bad that she got her own post office box.

100. According to Coralynne, there were also problems with her access to the house and some of the facilities in it. In the course of the renovations, locks were installed on the doors to some of the rooms. Then there was an electronic door locking system which was installed to the front door. Coralynne stated that she was given an access card, but it could not be made to work reliably, so she had constant problems with access. Mr O’Hagan and Charlene controlled the programming and Coralynne believed they were creating the problems deliberately. She also stated that she had been forced to shower outside.

101. Coralynne unburdened herself about this to a neighbour, Gary John O’Sullivan. She told Mr O’Sullivan the deceased was frightened of Charlene, that Charlene was not taking care of the deceased properly, and that she (Coralynne) was having trouble getting into the house.

102. Meanwhile, on 9 January, the fracas between Coralynne and Charlene took place. According to Coralynne, she told Charlene before she left for work to put out the garbage. When she returned from work, she found a garbage bin had been placed at her seat at the dining table. She remonstrated with Charlene who grabbed her and placed her in a headlock. She suffered bruising to her ribs.

103. Coralynne acknowledged in cross-examination that her relationship with Charlene had become “toxic” after the January 2019 fracas. But she denied that this had anything to do with her own conduct. She denied suggestions that she had an explosive temper; that she threw things; that she damaged the house; or that she had injured anyone. She also denied that she was jealous of Charlene, or of Charlene’s relationship with the deceased.

104. Counsel put to Coralynne that her relationship with her mother declined after the rupture with Charlene. Coralynne denied the suggestion that during a visit on 16 January her mother told her to leave the hospital. She also denied Mr O’Hagan’s evidence that after the deceased returned from hospital she (Coralynne) would ignore her and refuse to speak to her.

105. Coralynne did however describe in her affidavit an incident in May 2012 when she went to visit Clifton Jnr on the Central Coast. As mentioned, Clifton Jnr was gravely ill but asked her not to tell the deceased. When Coralynne returned to Sydney the deceased was furious that she had been away for mother’s day and said things to her such as “you’ve been ripping me off and not paying board for sixty years”, “you’ve destroyed things that belonged to your sister” and “you’re insane, you’re an idiot and a thief”.

106. Coralynne attributed these statements to her mother being poisoned against her by Charlene. Afterwards, when they were out of eyeshot of the deceased, Charlene laughed at her. A few weeks later Charlene said to her: “You’ve got something coming. Don’t think you’ll get the house”.

107. Dr Nicholas’ testimony: Dr Nicholas stated in his affidavit that he had been the GP for both the deceased and Coralynne for about ten years. When the deceased attended his surgery, she would sometimes come with Coralynne and Charlene together, or one or the other. From his perspective, the two sisters were sharing the responsibility of looking after their mother.

108. Dr Nicholas stated that there were many occasions on which the deceased told him how grateful she was to Coralynne for her help at home. He specifically mentioned the deceased saying that Coralynne helped pay the household bills and she did not know where they would be without her help. The deceased also told him that she was worried for Coralynne after her 2012 car accident. The deceased thought Coralynne returned to work too quickly, before she had fully recovered. None of this evidence was questioned.

109. In cross-examination Dr Nicholas said that in April 2019, when he was asked to give the certificate (see [76] above), both the deceased’s daughters were “unpopular” with her. He explained this by saying that the deceased was unhappy about the breakdown of the relationship between Coralynne and Charlene, which had disrupted the previous teamwork. He read out a note he made based on what he was told by the deceased on 4 April:

Concerned re daughter. Coralynne with rages and threatening her sister. Breaking tools and hiding things. Claiming it's her house, screaming and violent, breaking things and tearing curtains. Coralynne was shouting in the backyard. She was accusing her sister, she was invoking support from the neighbours and she was angry at Charlene's partner.

125. Dr Nicholas went on to say that he later spoke to Coralynne (presumably during consultations with her) who had an explanation for all the deceased’s complaints. In particular, Coralynne explained that she was being locked out of her room and Charlene’s partner, Mr O’Hagan, was freeloading.

126. Clifton Jnr’s testimony: I have already referred to Clifton Jnr’s evidence about Charlene’s character. In contrast, he described Coralynne as the glue which held the family together. Her nickname was “General”, reflecting the fact that she took charge of family matters to ensure that they got done. This nickname came from Clifton Jnr himself.

127. Clifton Jnr stated that Coralynne provided financial assistance to her parents and other family members, including her siblings. She took her parents, and after her father’s death, the deceased, shopping. By contrast, Charlene spent most of her time in the bedroom on her computer. Clifton Jnr stated that the relationship between Coralynne and the deceased was one of mutual love and support. The deceased was not afraid of Coralynne.

128. The cross-examination challenged Clifton Jnr’s ability to make reliable observations of the relationship between Coralynne and the deceased, especially after Clifton Snr’s death. In cross-examination, Clifton Jnr accepted that after his father’s death he only visited the Fairfield household a few times a year; perhaps three times in 2018. He also accepted that he became more distant from Charlene. This was not the result of any estrangement but simply a lack of regular communication. He also became more distant from Coralynne at the same time.

129. It seems that towards the end of 2018, both Coralynne and Charlene began talking more often with Clifton Jnr, each complaining about the other. Clifton Jnr seems generally to have been more sympathetic to Coralynne. He stated that Coralynne complained to him about the noise of the renovations created by Mr O’Hagan and being locked out of the property. In cross-examination, he agreed that she had also raised concerns about the possibility of the deceased changing her will. No concern was raised with him about any physical threat to the deceased. Nor did Coralynne ever say that the deceased needed to go into an aged care facility.

130. In his affidavit, Clifton Jnr referred to the conversation with Charlene which Coralynne reported in her affidavit (see [109] above) and which apparently took place when he and Charlene were in a car together. He stated:

During the course of this trip I had a conversation with the Defendant to the following effect:

Charlene:   You know Coralynne is a millionaire.

Me:   So what. She works hard. She works two jobs. And what about your money from your claim.

Charlene:   Oh, I did a course.

The Defendant then discontinued the conversation

He was not asked about this in cross-examination.

131. Clifton Jnr said that following the deceased’s admission to hospital in November 2018 he visited her twice at Liverpool and once at Fairfield and then two more times at Braeside. The final visit resulted in a rupture between Clifton Jnr and the deceased which was referred to in the deceased’s testamentary statement and was the subject of evidence from Charlene. The allegation was that Clifton Jnr threatened Charlene (who was also present) and the deceased told him to get out and not to return.

132. Clifton Jnr stated that on the day in question he came to Sydney at Coralynne’s request to remove a tree in the garden of the Fairfield property to allow the construction of the access ramp for the deceased (see [29] above). After removing the tree, he visited the deceased in hospital.

133. According to Clifton Jnr’s account, an innocent remark from him about Charlene having to pay for parking at the hospital unleashed a storm of abuse from her. The deceased heard this abuse but did nothing. When he responded to Charlene she accused him, falsely, of threatening her. Again the deceased did nothing. He said he had had enough and left. He specifically denied that he was asked to leave by the deceased or by the hospital staff.

134. As he was travelling back to his home on the Central Coast, he received a call from the deceased who berated him about supposedly threatening his sister. He said that he did not recall the deceased telling him not to visit her again, but in fact this was the last time that he saw her. He tried to call her but was unable to get through and referred to what Brian had said in the eulogy about the deceased not having access to a telephone.

135. Mr O’Sullivan’s testimony: Mr O’Sullivan lived in a house on the other side of the road from that of the Scotts, one door down. He bought the land, which was then undeveloped, in 1962 or 1963 and built a house on it in December 1970. This was when he met the family. He and his wife lived at the house until 1975. Thereafter they lived in the country for his work and rented the house out. They returned in 1998.

136. Mr O’Sullivan appears to have been particularly friendly with Clifton Snr. He stated that he was told by Clifton Snr that Coralynne helped out with the house payments, and also bought him presents such as “Phantom” comics (see [296] below). He saw her taking her parents shopping or to medical appointments.

137. As already mentioned, Coralynne confided in Mr O’Sullivan following the breakdown of her relationship with Charlene in late 2018 or early 2019. She complained to him about the lack of access to the property and being made to shower outside. In his affidavit, Mr O’Sullivan stated that on two occasions he himself heard Charlene yelling at the deceased that if she did not change her will she would be out on the street.

138. Mr O’Sullivan’s evidence was the subject of cross-examination by counsel. The cross-examination circumstances were adverse. Mr O’Sullivan’s evidence had to be taken when he was in a car queuing for a COVID-19 vaccination. At one point it seemed his wife was talking to him and perhaps prompting him in what he was saying, and I asked him to step out of the car to complete his testimony.

139. Counsel for Charlene raised the question of how Mr O’Sullivan could have heard the alleged threats by Charlene about changing the will. He stated that the houses were fifty to a hundred feet apart and that he heard the yelling at his front door. He said that he recognised Charlene’s voice. He said that he tried to contact the deceased to find out what was happening. First, he tried to telephone, but he could not get through. He then went over and knocked on the door, but no one would answer it.

140. Mr O’Sullivan accepted that Coralynne told him that Charlene was threatening the deceased to make her change the will. But she had not told him this before he heard the threats for himself. He adhered to his evidence about them.

141. Ms Flarrety’s evidence: Cherie Flarrety is a friend of Coralynne who she met through her second (supermarket) job in 2010. Ms Flarrety was not required for cross-examination.

142. In her affidavit Ms Flarrety stated that she visited Coralynne at her home and met the deceased twice after the deceased had returned from hospital following her fall in November 2018. The deceased was natural and happy with Coralynne.

143. Ms Flarrety also reported what she had been told by Coralynne about the way the household operated. In particular, Coralynne told her that she was looking after the deceased.

144. At some point in 2019 Ms Flarrety visited the house again to help Coralynne to move some of her goods out of the property. She saw the bathroom door locked; the handle had been removed from the hot water tap in the laundry; and the bedroom door was also locked. She also saw Coralynne’s lounge on the front lawn.

145. Charlene’s testimony: Charlene stated that once Clifton Jnr left home, he hardly visited, to the annoyance of both his parents and Coralynne. Coralynne was close to Clifton Snr but not the deceased. According to Charlene she did not get on particularly well with her sister. She said that she was called the “General” for a reason. Charlene found her bossy and demanding.

146. Charlene stated that she was close to her mother. They had common interests. In particular, in later years, they would often spend the weekend together watching movies.

147. Charlene stated that Coralynne was wrong in saying that the deceased would kiss and hug her. Neither of the parents was given to overt displays of affection. This was not the way the deceased was.

148. Charlene stated in her affidavit that she paid for the telephone and the internet, and this is not in dispute. She also stated in her affidavit that she paid for the services (water, gas and electricity) and outgoings (council rates) on the property. She stated that the deceased offered to pay, but most of the time she refused. In support of this, Charlene tendered the statements for one of her bank accounts for the period from October 2012 to October 2019, marked up to show the payments of services and outgoings.

149. A review of part of the tender confirms Charlene’s evidence that she paid some, but not all, of the council rates, water bills, gas bills and electricity bills. All of these expenses were paid quarterly and on average Charlene appears to have paid for two or three quarters per year. In cross-examination, Charlene stated that the deceased paid what she could not pay for.

324. Thus, the observations of Brereton J (as his Honour then was) in Taylor v Farrugia [2009] NSWSC 801 at [57] apply (citation omitted):

… It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

327. The proposition that generally a child has no entitlement from a deceased parent to be set up in an unencumbered home was recently confirmed by the Court of Appeal: Megerditchian v Khatchadourian [2020] NSWCA 229 at [59].

328. Section 59(1)(c) of the Act refers to the adequacy of provision for the “maintenance, education or advancement” of the claimant. Although the borderline between them may be in some cases difficult to draw, maintenance and advancement are not the same. The term “maintenance” is generally used to refer to sums paid periodically to meet a beneficiary’s regular living expenses. The term “advancement”, on the other hand, usually describes a capital sum provided to the beneficiary so as to achieve a permanent improvement in the beneficiary’s circumstances. The distinction is seen in Brereton J’s references to raising offspring while they are children on the one hand and providing them with a start in life on the other.

329. It follows that Coralynne’s claim in the present case, as an able-bodied adult, should be seen as a claim for advancement. Of course, the obligation to provide for advancement is not necessarily limited to young adult beneficiaries: McCosker v McCosker (1957) 97 CLR 566 at 575. If parents are unable to provide their children with some capital when they are making a start in their lives, there may well be a moral obligation to do so by will when they are older, if assets are available.

330. But in such a case, it is important to remember that the purpose of the fund is for the child to build on and it will ultimately be up to the child as to how to do so. A provision for advancement should not just be calculated by reference to a list of future expenditure as if the beneficiary were making a claim for damages for personal injury. To do so runs the risk of treating a parent’s moral obligation to provide a sum by way of advancement as an obligation to maintain the child into the future, which is not the same thing. It also runs the risk of conflating “needs” with “wishes”. This of course is not to deny that the provision of a lump sum to pay off a home loan, or to fund the purchase of a capital asset which could not otherwise be financed out of earnings, may well be an appropriate form of advancement.

331. Counsel for Charlene pointed out that Coralynne only had to borrow $220,000 or so to buy her house at Narellan Vale. On the face of it she appears to be paying the loan off rapidly, having reduced the amount owing by $48,500 between September 2020 and September 2021. Counsel submitted that Coralynne, to her credit, is a strong saver who would likely be able to fund the alleged “needs” for herself.

332. I do not think that this submission is a complete answer to Coralynne’s claim, for two reasons. First, while Coralynne clearly has achieved a degree of financial independence and security, her income is not particularly high. Nor does she have the sort of capital position which will unquestionably secure her a comfortable (and somewhat less hard-working) retirement: compare MacAlpine v MacAlpine [2020] NSWSC 824 at [334].

333. The second reason is more important. As I said in MacAlpine, if a claim is put on the basis of “need”, then the need must be objectively assessed and if the claimant has sufficient assets to meet the need, the claim must fail. But claims under the Act for provision are not limited to claims based on “need”.

334. In Coralynne’s case, there are other factors to support her claim. In the first place, it is clear on my findings (and it is not really in dispute) that Coralynne did provide considerable assistance to her parents in their lifetimes. Sometimes this can have a direct financial impact on the claimant’s circumstances, as where the claimant gives up some form of financial opportunity in order to care for the testator. That is not the case here. Coralynne’s non-financial assistance may have allowed the deceased to save money on services for which she would otherwise have had to pay for. But Coralynne herself received a benefit from living with the deceased, in the form of not having to pay rent (or at least, not having to pay rent at market rates). Nevertheless the provision of assistance is something to be taken into account as relevant to the deceased’s moral obligations.

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 may be that without this assistance, the property would have had to have been sold earlier, and the deceased’s estate would not ultimately have received the benefit of its increasing value. But even if this is speculation, 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]).

337. In the present case, there is every reason to think that the understanding between Clifton Snr and the deceased up until the date of his death was that the survivor of the two of them would inherit the property and then pass it on in equal shares to the children. It is also relevant that Coralynne was aware of the terms of the mirror wills.

338. In the present case the moral force of the deceased’s inheritance from Clifton Snr is reinforced by the fact that each of the children contributed a one-third share of his funeral and testamentary expenses when there was insufficient cash in his estate to do so. If this had not happened and the deceased had been unable to meet the expenses out of her own funds, she would presumably have had to sell the property so as to meet the expenses. As it happened, her children’s contribution allowed her to take the property free of the expenses with which it was associated.

339. Counsel for Charlene relied upon her financial circumstances as an answer to the claim. There is no doubt that Charlene also had a moral claim on her mother. But in my view, the nature of that moral claim was not appreciably different from that of Coralynne. Indeed, on one aspect of the claim it was clearly weaker. Charlene does not appear to have made capital contributions to the household or the property which are in any way comparable to those made by Coralynne.

340. 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.

341. This brings me to the circumstances surrounding the making of the 2019 will. Counsel for Charlene pointed out that the claim foreshadowed in Coralynne’s summons to have the grant of probate revoked on the grounds of lack of capacity was not pursued. Counsel submitted that it was not possible in this case to make any finding of lack of capacity. Counsel likewise submitted that these proceedings were not the proper venue for determining whether the will was procured by undue influence on the part of Charlene.

342. I accept that in these proceedings the Court cannot and should not determine whether the probate of the will which has been granted (in common form only) should be revoked. But s 60(2)(j) of the Act expressly allows the Court to take into account the deceased’s testamentary intentions. Indeed, as will be seen in a moment, counsel for Charlene herself relied upon the May 2019 will as a testamentary judgment adverse to Coralynne’s claim in these proceedings. Plainly, in assessing the weight to be given to the 2019 will and the testamentary statement, it is relevant to consider the circumstances in which they were prepared, and the degree to which they can be said to represent an independent and considered judgment by the deceased.

343. As I have just mentioned, counsel for Charlene relied on what I will term the “testamentary judgment principle”. The principle is stated by White JA in Sgro v Thompson [2017] NSWCA 326 at [48], reasserting his Honour’s earlier statements in Slack v Rogan (2013) 85 NSWLR 253 at [127]. It may be stated as being that in determining a proper level of provision the Court should place considerable weight on the judgment of a capable and responsible testator who will have known the circumstances far better than the Court can. See also the discussion in MacAlpine at [340]-[342].

344. But this principle only applies if the testator’s judgment is a responsible one. Counsel for Charlene submitted that the testamentary statement was taken by an experienced legal representative who had ensured his instructions were independent. But on my findings that was not so at all; the testamentary statement was the work, directly or indirectly, of Charlene. Mr Wehbe had no realistic way of identifying the distortions and falsehoods that it contained.

345. For these reasons the testamentary statement, and the May 2019 will, do not attract the testamentary judgment principle. But it is not merely a case of that principle being negatived in its application to the 2019 will and the testamentary statement.

346. Once the 2019 will and 2019 testamentary statement are swept away, the testamentary judgment principle focusses the Court’s attention on the deceased’s previous will in 2015. It is not suggested that the deceased or Clifton Snr was suffering from any relevant disability, or that any undue influence was brought to bear on the preparation of their 2015 wills. At that time, both of them had had many years of experience of living with Coralynne and Charlene. The judgment made by each of them was that the merits of their children were sufficiently close to make it proper to make an equal distribution between them.

347. I do not see, given my findings, that anything happened between 2015 and the deceased’s death in July 2019 sufficient to alter that judgment as between Coralynne and Charlene. And, to the extent that Charlene’s circumstances are relevant, there was no real change, or at least no change that would not have been contemplated and taken into account when the deceased made her will in 2015.

348. The testamentary statement tried to make the case that Coralynne had, as against the deceased, forfeited any testamentary recognition at all. The legacy of $40,000 (plus one-third of the remainder of the residue) was presented as being justified, not by Coralynne’s own merits, but “out of respect” for Clifton Snr.

349. 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.

What provision ought to be made for Coralynne

350. In his written submissions, lodged before the beginning of the hearing, counsel for Coralynne contended that she had demonstrated “needs”: to pay off her mortgage debt ($176,000); to undertake various items of repairs and maintenance specified in her affidavit ($43,000); to buy a new car ($26,000 to $35,000); and to buy some specified furniture for her home ($5,000); together with unspecified amounts for living and medical expenses. But counsel went on to say Coralynne did not seek the provision of a fund to cover all of this expenditure in full. An amount of $130,00 to $180,000, counsel submitted, would be “in the range”.

351. I have already identified the risks in basing the quantum of a provision for advancement on a list of future expenditure. Instead, 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.

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. That would suggest a provision of around one-third of the value of the estate, which would be $260,000 to $300,000. This of course is considerably above the end of the “range” specified by counsel.

353. In the course of final submissions, counsel submitted that ultimately the proper amount of provision was a matter for me, and I could, if I thought it warranted, award a provision of a figure exceeding $180,000. I accept that the Court’s jurisdiction is not limited by the figures suggested by the parties. Nevertheless, I do not propose to award provision in a sum calculated by reference to a one-third value of the estate. Counsel did not ask for this and may have had good tactical reasons for not doing so.

354. Accordingly, I propose to make an order for provision in the sum of $180,000. The provision will be payable out of the Fairfield property and will replace the existing legacy of $40,000 plus one-third of what is left over of the residue.

355. It was common ground that Clifton Jnr’s position should be protected. As his legacy is paid out of the residue it will be necessary to consider the impact of costs before the necessary orders can be formulated.

Conclusions and orders

356. I have concluded that Coralynne’s claim succeeds, and she should receive, in lieu of the existing provision in her favour in the May 2019 will, a provision of $180,000, to be funded out of the Fairfield property. It will be necessary to formulate the precise terms of the order for provision, including whether it is to carry interest and if so from what date.

357. Presumably a provision in this form will result in the sale of the Fairfield property. Consideration should be given to whether any directions are required as to the method and timing of the sale.

358. As I have already noted, the admission to probate of the 2019 will is not affected by my decision in these proceedings. But the evidence discloses an arguable basis for challenging the grant. That is a matter of public concern which extends beyond the parties to these proceedings, and there would be no limitation bar (Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [140]-[142]).

359. In these circumstances, Clifton Jnr (or perhaps Coralynne herself) might wish to institute a claim for revocation. Should probate be revoked, that would automatically discharge the order for further provision in Coralynne’s favour: s 70(4). That is not a reason not to finalise the form of the order, but it could be relevant to the order’s enforcement. It might also be convenient, if there is to be a revocation application, for that application to be made in these proceedings. These questions should also be considered, and if possible, information obtained from Clifton Jnr as to his intentions.

360. A further matter which has been revealed in these proceedings is that Charlene has been applying funds from the deceased’s bank account which prima facie appear (and this to some extent has been conceded) to require repayment. As at present advised, it seems to me that if, as I have assumed, Clifton Jnr’s legacy, including a one-third share of whatever is left in the residue, is to be preserved, it will be necessary for that account to be taken. Presumably orders will also be sought by the parties concerning the costs of the proceedings inter partes and questions of indemnity out of the estate will arise.

361. I will adjourn the proceedings for a short time to allow the parties to consider the form of orders to be made and also the other issues which I have mentioned. If there is any disagreement I will hear further argument.

362. The orders of the Court are:

1. Adjourn the proceedings to 9:30 am on 17 December 2021 or such other time as may be arranged with my Associate.

2. Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.

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Amendments

04 March 2022 - minor typographical amendments

Decision last updated: 04 March 2022