Sellak v Sellak, estate of the late Corrado Simon Sellak; Sellak v Sellak (No. 2)

[2016] NSWSC 396

Supreme Court

New South Wales

Medium Neutral Citation:	Sellak v Sellak, estate of the late Corrado Simon Sellak; Sellak v Sellak (No. 2) [2016] NSWSC 396
Hearing dates:	18, 19 and 20 November 2015; a procedural judgment was given on 11 March 2016, and 7 June 2016.
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Orders for family provision made in Bradley and Scott’s favour. See paragraphs [161] and [162] of judgment.
Catchwords:	FAMILY PROVISION – two of three adult children of deceased seek orders for family provision – claimants are eligible persons - whether adequate provision made for plaintiffs in deceased’s will – if not, what provision should be made for the plaintiffs.
Legislation Cited:	Succession Act 2006, ss 57, 59(2), 66(2), 99
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656 Burke v Burke [2015] NSWCA 195 Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646 Cooper v Dungan (1976) 50 ALJR 539 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Friend v Brien [2014] NSWSC 613 Gersbach v Blake [2011] NSWSC 368 Gorton v Parks (1989) 17 NSWLR 1 Jones v Poletti [2014] NSWSC 715 McIntyre v O’Regan [2015] NSWSC 1985 Nudd v Mannix [2009] NSWCA 327 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801
Category:	Principal judgment
Parties:	Plaintiff (in 2014/214338): Bradley Craig Sellak Plaintiff (in 2014/245521): Scott Sellak Defendant: Tracy Sellak
Representation:	Counsel: Plaintiff (in 2014/214338): D. Roberts Plaintiff (in 2014/245521): P. Bates Defendant: G. Foster     Solicitors: Plaintiff (in 2014/214338): George West, Solicitor & Attorney Plaintiff (in 2014/245521): Vrege Kolokossian, Gerard Malouf & Partners Defendant: Angelo Valenti, Valenti & Valenti
File Number(s):	2014/214338; 2014/245521
Publication restriction:	No

Judgment

1. Corrado Simon Sellak had three children, Bradley, Scott and Tracy. When he died on 12 January 2014, his last will appointed his youngest child, Tracy as his executrix. He gave her one of the two house properties he owned, respectively in Oswald and George Streets, in the Sydney suburb of Guildford. He gave his motor vehicles, bank accounts and the Oswald Street property to Tracy. He gave the residue of his estate, which included the George Street property, to each of five residuary beneficiaries Bradley and Scott, and Scott’s children Aleishia, Jeremy and Bianca, in equal shares.

2. Bradley and Scott now bring proceedings for an order for provision out of the deceased’s estate under Succession Act 2006, Chapter 3. Tracy contests their claims.

3. As all the parties and witnesses in these proceedings have the same surname, without intending any disrespect to any party or witness the Court will use their first names.

4. In proceedings 2014/214338 Mr D. Roberts of counsel appears for the plaintiff, Bradley. In proceedings 2014/245521 Mr P. Bates of counsel appears for the plaintiff, Scott. Mr G. Foster of counsel appears for the defendant, Tracy, in both proceedings.

The Sellak Family – 1987 to 2014

5. The narrative set out in this section of these reasons records the Court’s findings on both contested and uncontested matters, unless the context indicates otherwise. Not all the evidence that the Court has rejected has been referred to in these reasons.

6. The deceased was known to his friends as “Tom”. Bradley, his eldest child was 43 years old at the time of the trial. Scott, the second eldest child was 41 years old at the time of the trial. Tracy, the defendant/executrix in both these proceedings, is the deceased’s youngest child and was 37 years old at the time of the trial.

Early life of Bradley, Scott and Tracy – 1972 to 1990

7. Bradley, Scott and Tracy lived with the deceased and their mother, Lorraine Sellak, until 1987 when she left the family home in Oswald Street, Guildford (“the Oswald Street property”). From this time on the deceased brought up his three children there as a single parent. Lorraine later remarried and was still alive at the time of the hearing but she took no part in it.

8. The deceased worked long hours as a panel beater and spray painter in the western Sydney suburb of Yennora. He left for work at around 6:30am each week day.

9. Bradley gave a positive account of the Sellak’s early family life before Lorraine left the family home. I accept his account of this period. Bradley speaks of a fairly ordered household in which he would arrive home from school about 4.00pm and socialise with friends, the deceased came home about 5.00pm and relaxed and watched television as a prelude to a quiet evening, and at about 6.00pm the family enjoyed a meal together.

10. Bradley remembers, and I accept, that the children’s paternal grandparents lived “just around the corner” from their home, so it became a second home for them. This was all the more so once Lorraine had left the household. Bradley assisted his grandparents with gardening at their home and attended their house for family dinners. He also could treat one of the bedrooms in their home as his own, where he would keep his childhood toys and other possessions. He would assist them with gardening work. He also helped his father in mowing the lawns at the Oswald Street property. I accept that Bradley gave this kind of assistance right up until he left home in 2005.

11. When the children were young the deceased would take him and his siblings Scott and Tracy on caravan holidays, usually to the South Durras Lakes. On occasions the deceased would take Bradley fishing.

12. Bradley described his relationship with the deceased up until 2007 as warm and loving but always underscored with fear and respect. The deceased was a strict disciplinarian and when they were young if any of the children failed to comply with his instructions they could expect to be punished.

13. The deceased was a person who was not inclined towards open demonstrations of affection towards his children. However, Bradley claimed that he and the deceased had a shared a passion for motor vehicles, and got on well, whilst tinkering with Bradley’s hot-rod car.

14. When Bradley was 16 years old, he commenced full time employment as a shopfitter and although he lacked formal trade qualifications, he became skilled as a carpenter and from his pay he contributed to the household. Whilst living at home he paid rent and board most of the time, and used his wages to help pay some of the household bills that he would find at home. He also says that he purchased the family groceries. Tracy disputes his account of his financial and other contributions to the household and of his relationship with his father during the earlier years. But in my view, the later contentious aspects of Bradley’s conduct have tended to obscure for the family some of the positive side of his early life in the household. I regard his account of this early time as generally reliable. And Tracy was younger than Bradley; she was not therefore well placed to observe the nuances of contributions to family budgets by older family members.

15. Scott gave similar evidence to Bradley’s about his positive relationship as a youth with his father. I also generally accept Scott’s evidence about this early period. Scott said that growing up he enjoyed a normal and supportive father‑son relationship with the deceased, who gave him moral, emotional and financial support throughout his life.

16. Like Bradley, Scott remembers that on their South Durras lakes holidays that the deceased also taught him to fish. He stated, and I accept, that when he was about 12 years old, the deceased bought him his first motorbike, taught him how to ride a motorbike and would take him out on bike trips to Menai and Dargle.

17. When Scott was 14 Lorraine left the family home and the deceased thereafter had custody of the three children. He recalls, and I accept, that the deceased was working very hard and that Scott would sometimes go to work with the deceased on weekends and would also help him out in the garage at home. Scott says, and I accept, that he enjoyed the work that he did with his father and the time that they spent together.

18. Scott attended Merrylands High School from 1986 until 1989 and left school in year 10 having attained his School Certificate. His first job after leaving school was in a scrap metal yard, a job that the deceased arranged through a friend for Scott.

19. Not long after leaving school, in about 1990 and at the age of 17 Scott left home and moved in with his then girlfriend Donna Cook, who he later married. From about the age of 20 in 1993 and until 1996 he was enrolled in the Wetherill Park TAFE, where he was undertaking various courses related to vehicle trimming. I accept that during this period, although Scott was not living at home, he did continue to spend time with the deceased, including working alongside him at a video rental store that the deceased was by then running.

20. Scott and Donna started to have a family together in 1995. That year their first child, their daughter Aleishia, was born, followed by Jeremy in 1998 and then Bianca in 2000. The deceased was very proud of his three grandchildren. Donna and Scott married in 1999. But their marriage was not a happy one. And with the controversy that is described later in these reasons, they separated in 2005.

Building and Maintenance Work at the Oswald Street Property

21. Whilst living at home with the deceased, Bradley alleges that he contributed to the improvement, maintenance and conservation of the interior, exterior and garden of the Oswald Street property, contributions with an alleged estimated value of $50,000. I accept that he did make the contributions that he claims and that they were worth what he claims.

22. Tracy gives an account of family life at Oswald Street that is generally different from Bradley’s. She claims that the relationship between Bradley and the deceased was never warm and loving, but rather was tense and confrontational. She claimed that Bradley had never wanted to help out around the house or perform chores without a financial incentive for his work and that he had never bought groceries for the benefit of the home or paid any of the bills. Indeed, she further claimed that Bradley had stolen items from her father, including electrical tools and pots for potted plants. But for the reasons earlier stated, in my view, Tracy has taken an excessively negative view of her brother Bradley’s past life in the family household, which is to a degree coloured by what happened after Scott and Donna separated and Donna set up a household with Bradley. So I accept the following evidence Bradley gives about his contributions to the interior, exterior and the garden of the Oswald Street property.

23. As to the garden, Bradley claimed that he undertook landscaping works around the grounds of the deceased’s Oswald Street home over a long period, which in about 1996 or 1997 included him planting trees about the house.

24. As to the interior of the property, Bradley claimed that in 2002 or 2003 he constructed a new kitchen for the Oswald Street property; created the kitchen structure, made the doors, affixed laminated bench tops and prepared and spray painted the cupboards. He also says that he built a wall unit for the deceased to house his DVD collection.

25. As to the exterior of the Oswald Street property, Bradley claimed that he spent three weeks constructing a workshop on a concrete slab adjacent to the garage, using his own personal finances to purchase the necessary materials, including the timber frames, cladding, roofing, guttering and internal lining. Moreover, he stated that over the course of three months he constructed a carport at the front of the house large enough to accommodate six vehicles, and funded concreting of a driveway, costing $5,000.

26. Bradley also claimed that he performed routine maintenance work on the Oswald Street property, including repairing the back veranda by installing a railing, lattice work, and erecting a colour bond fence. All of this in my view can be accepted as generally accurate, as Bradley was a reliable witness as to the family’s early life and for the period that he was living at the Oswald Street property.

Scott and Bradley’s relationships with Donna and Family Events from 1990 to 2007

27. As has been earlier indicated, in 1990 when Scott was 17 years old, he left the deceased’s home to live with his then girlfriend, Donna Cook. They were later married. Although Scott had contact with his family up to about 2000, that year he and Donna moved away from the area and did not have any contact with the deceased, Tracy or Bradley for about another two to three years.

28. Donna’s evidence is that from about 2002 her marriage to Scott was marred by violence. Donna says that Scott physically abused her and their three children. There is objective evidence to verify that Donna made these allegations against Scott during this period, which would be sufficient to rebut an allegation of recent invention against her. On 21 November 2003 the Fairfield Local Court granted Donna an apprehended violence order against Scott. As a result of the grant of the AVO Scott attended an anger management course.

29. Scott and Donna finally separated in or about 2005. At the time of their separation Scott alleged that Bradley had been having an affair with Donna. After Donna and Scott had parted, Bradley and Donna openly conducted a close personal relationship. Prior to the death of the deceased’s father in June 2007, Bradley moved out of the family home to live with Donna in a de facto relationship. Bradley and Donna have denied throughout these proceedings that they were in an intimate relationship prior to Scott and Donna’s 2005 separation. But both Tracy and Scott contest Bradley and Donna’s accounts of when their relationship began.

30. Scott says that he distanced himself from his family because of the great embarrassment and shame he says that he suffered from this situation within the family. I accept as both genuine and probable this explanation for removing himself from the family during this period. I accept that even seeing Bradley within the family was too much for Scott to bear.

31. But I also accept that he could not let go of his relationship with Donna. Following their separation, Donna says she received threatening phone calls from Scott, in which he would threaten to bash her or come by the house and shoot her.

32. And on one occasion in mid-to-late 2006, Tracy was present when Scott entered Donna’s house without permission. Concerned as to what might happen next Tracy says that she intervened, yelling at Scott to keep him away from Donna. He responded by calling her a “slut”. Tracy had to take a knife from the kitchen drawer to deter him.

33. The deceased offered to help Scott through the immense emotional turmoil of this period. But I accept that at first Scott declined his help. Scott just wanted to get away from this situation. He admits he was too proud to accept his father’s help. But he did maintain contact with the deceased at a workshop of one of his father’s friend’s at Wetherill Park and also at the family home in Oswald Street, Guildford. But as will be seen he did later accept an offer of help from the deceased.

34. But whatever the truth of these allegations, by early 2007 Scott was perceived as a physical danger to both Bradley and Donna. On 13 March 2007 the Liverpool Local Court made an apprehended violence order against Scott for the protection of Donna and Bradley. It stated that for a term of two years, Scott was not to approach either Donna or Bradley or Donna’s home in Smithfield.

35. Up to the time of the trial of these proceedings, Bradley has lived with Donna and supports Donna and her three children with Scott, Aleishia, Jeremy and Bianca, the deceased’s only grandchildren.

36. Scott and Donna were divorced in May 2007. Shortly afterwards an event occurred between Bradley and the deceased that marred their relationship right up until the deceased’s death.

From Scott and Donna’s Divorce up to the Deceased’s Death – 2007 to 2014

37. On 10 March 2006 the deceased’s mother died. Shortly afterwards on 13 June 2007 the deceased’s father also died. I accept that both their deaths affected the family greatly. The children’s paternal grandmother had been like a second mother to all the children. And their grandfather too had always been there for them and had a close relationship with each of them. After their deaths the deceased inherited their house in George Street, Guildford (‘the George Street property”).

38. But an incident occurred after the grandfather’s death that led to an estrangement between Bradley and the deceased. Bradley and Tracy each accept that the estrangement had commenced by this time but they each advance quite different origins for the estrangement.

39. Bradley says that he returned to his grandparents’ home following the death of his paternal grandfather to collect his childhood belongings. He further says that on this occasion, the deceased accused him of stealing his late grandmother’s engagement ring and the deceased’s chainsaw. Bradley says he vigorously denied both accusations at the time, and he continues to deny them now.

40. Bradley stated that the deceased’s behaviour towards him on this occasion was aggressive, angry and hostile. Bradley says that he was particularly upset when the deceased called him a “grub”. He claimed that he was “gutted and devastated” by the deceased’s unsubstantiated, unjustified and wrongful accusations towards him that day and that he feared that his father was going to hit him during their argument. So Bradley immediately withdrew from his father’s presence and drove away.

41. Tracy believed that the relationship between Bradley and his father soured when Bradley commenced a romantic relationship with Donna. Tracy’s belief is that this relationship started 12 months prior to Bradley leaving the deceased’s home in 2005, and before the incident in which the deceased accused Bradley of stealing the engagement ring and the chainsaw.

42. Tracy claimed that the deceased was distressed by Bradley’s decision to move in with Donna for several reasons. First, Tracy says the deceased had never liked Donna. Secondly, Tracy says that when Bradley left the family home he took with him various articles of the deceased’s property without permission. From around June or July 2007 both the deceased and Tracy stopped speaking with Bradley.

Scott and the Deceased’s Agreement in relation to the George Street Property

43. In June 2008 Scott began a relationship with Ms Natalie Sinclair. Scott and Ms Sinclair have had a number of periods of separation during their relationship, followed by reconciliations. Scott assisted with caring for Ms Sinclair’s daughter, Abigail, by a previous relationship. Abigail was only four months old when Scott and Natalie’s relationship began.

44. Scott and Natalie now have a son, Harrison, who was born in April 2015. Scott helps look after Harrison. Scott pays child support to Donna for the care of their three children.

45. In January 2013, the deceased told Scott that he could live at the George Street property rent free if he met the ongoing costs of utilities and rates. Scott says, and I accept, that the deceased felt sorry for him following the break-up of his marriage. After his separation from Donna, Scott had been moving from place to place staying with or renting from friends as he could not afford a rental bond or the full cost of renting a house on his own. But he was able to reduce his rental outgoings to about $150 per week.

46. Tracy and Scott agree that the deceased allowed Scott to live at the George Street property. But they disagree on the terms of the agreement that was made with the deceased. Scott’s version is that the deceased said that he could live at the George Street property for “as long as you need to get some money behind you and get your life in order”. Scott moved in straight after his conversation with the deceased. He says, and I accept, that as a result of these changed living arrangements he saw the deceased on a daily basis for the two years leading up to his death. It is probable that as a result of this move, whatever their differences had been in the past this was a much happier period in the relationship between the deceased and Scott.

43. Tracy strongly contests Scott’s evidence as to his relationship with the deceased and as to the agreement in relation to the George Street property. She claimed that as a youth Scott was constantly in trouble and had come to the attention of police on a number of occasions. She stated that his behaviour brought significant anxiety and grief to the deceased. And she was clear that neither Scott nor Bradley visited the deceased in the time leading up to his death.

44. Tracy stated that the deceased did not agree to let Scott live at the George Street property indefinitely. She claimed that Scott had promised the deceased that he would only reside at the property for six months. Her account is that in 2013 the deceased told her that he was no longer physically able to tend to the property and wanted to put it “in the hands of a real estate agent”.

45. On this issue there is probably a degree of truth in both Tracy and Scott’s versions. I suspect that the arrangement for Scott to move into the George Street property started with an understanding that Scott would stay there about six months but that Scott stayed on more or less with the deceased’s acquiescence because of continuing uncertainty in Scott’s personal situation.

Tracy’s Relationship with the Deceased and the Will

50. Tracy stated that her relationship with the deceased was affectionate and loving, and they grew even closer after Scott and then Bradley moved out of the family home. She stated that she and her father would go to the movies together, and he would often take her into his confidence about family and other matters. I accept that she provided much companionship for her father in his later years and that her evidence is generally accurate as to her relationship with her father.

51. In or around 2008 or 2009 Tracy claimed that the deceased revealed his testamentary intentions to her, stating that he wanted to ensure that she was looked after, first and foremost.

52. The deceased made his last will on 16 January 2009 appointing Tracy as his executrix (clause 3). Probate was granted to Tracy on 19 May 2014. The will specifically gifted the Oswald Street property to Tracy and gave her the deceased’s collection of motor vehicles and the funds from the deceased’s St George bank account (clause 4). The residue of the estate was to be divided equally between his two sons, Bradley and Scott, and his three grandchildren, Aleishia, Jeremy and Bianca (clause 5).

53. Bradley and Scott both submitted that the deceased had a testamentary obligation to provide a greater distribution to his adult sons. And they submitted that they had not engaged in any conduct that would disentitle them from attaining further provision from the estate.

Credibility of Witnesses

54. Bradley was a blunt man of few words. But he made some honest concessions in evidence. He did not seek to embellish the fracture in his relationship with his father. He said he did not much care about his father and therefore did not visit him in hospital. He readily conceded that there were slight misdescriptions of fact in places in his affidavit. He seemed keen to move on from the disputes about the past that were in play in these proceedings. He did not engage in any vituperation despite what must have been quite high levels of bitterness towards his siblings.

55. Bradley became obstructive and uncommunicative when asked questions about when his relationship with Donna commenced. He gave the answer “I don’t remember” on a number of occasions on this topic. The Court had the impression that he regarded this subject as none of anyone’s business but also that he remembered more than he was divulging.

56. Donna Sellak was a mostly frank witness who answered questions directly with a “yes” and “no” as appropriate. But she exaggerated her expenses to a degree. Her and Bradley’s mortgage expenses of $2,400 were knowingly overstated. She readily conceded the overstatement.

57. Donna was not forthcoming about when her relationship with Bradley began. She did not admit to conceding to Tracy that she had been in an intimate relationship with Bradley before she separated from Scott. On this issue I prefer Tracy’s evidence to Scott’s and on the basis of Donna’s admission to Tracy I find that Bradley and Donna’s intimate relationship commenced as early as Tracy says, than Donna says that it did.

58. Natalie Sinclair was an excellent witness. She had a realistic outlook on life’s challenges and gave her evidence without obvious exaggeration. She seemed to have a reliable memory for relevant facts. The Court accepted all she said.

59. Scott readily admitted he was a “wild child”. He accepted that his behaviour as a youngster may have worried his father. He agreed he had to be collected from Merrylands Police station a few times. He made frank admissions of being a difficult teenager, who borrowed money from his father and took his car on joy rides without his father’s authority. He said “I had trouble with discipline when I was growing up. I wanted to do my own thing”.

60. Scott’s evidence became wholly unreliable when he was asked about whether he had ever ill-treated Donna. I do not accept his denials of violent behaviour towards Donna. His misconduct towards her is the most probable explanation for the transfer of her affections to his brother.

61. But Scott was able to paint a fairly accurate picture of the deceased’s personality to the Court. Scott said of the deceased that, “He wasn’t the sort of person who would go to a kid’s birthday party and hang around and speak to people. It just wasn’t him”.

62. Tracy was a generally reliable witness who could add genuinely spontaneous additional details to her account of events. But she had firm and somewhat inflexible views about the youthful conduct of her two brothers and their relationship with the deceased. What they saw as their carefree exuberance, she saw as more creating stress for their father. Neither perspective was wrong.

63. I accept Tracy’s evidence about Donna having confessed to her of having had an affair with Bradley for “a couple of years before the separation”. She was challenged on this but firmly adhered to her evidence. Tracy’s evidence on this subject was all the more convincing because she also conceded that Donna had also said to her that Scott was violent towards Donna in the years before her separation, something, in my view, which is also likely to have been said at the time, if it were correct. Donna would need to justify her conduct to Tracy, and a statement about Scott’s conduct is the best argument she had. She used it, and in my view truthfully.

The Estate

64. The parties were able to agree upon the assets of the estate as at the date of the trial. The agreement was reflected in Exhibit E which was modified by agreement shortly after the trial. The exhibit, as modified, is reproduced below:

Property/Asset	Agreed Value of Assets of estate
The Oswald Street property	$825,000.00
The George Street property	$845,000.00
Subtotal:	$1,670,000.00
Plus:
St George Bank:	$124,328.00
Superannuation:	$47,641.00
Contents	$1,000.00
Motor vehicles:	$9,000.00
Pre-war Ford car	$5,500.00
Subtotal:	$187,469.00
TOTAL:	$1,857,469.00
Whereas assets in April 2014 as per the Inventory of Property were said to be:	($1,131,970.00)
Increase in assets to date:	$725,499.00

65. The parties also calculated what the effect of the various testamentary distributions in the will would be to Tracy, and to the five beneficiaries of the residuary estate. These were placed in another table (Part of Exhibit E).

66. Pursuant to the testamentary dispositions Tracy’s position would be as follows:

Pursuant to the testamentary dispositions Tracy would receive:
The Oswald Street Property	$825,000.00
St George Bank Account	$124,328.00
Contents	$1,000.00
Motor vehicles	$14,500.00
TOTAL	$964,828.00

67. Tracy has met various ongoing liabilities in relation to the estate’s real property. She paid for the deceased’s funeral of $7,938.20 and the wake of $305.70. At the time of his death the deceased had $700 owing to doctors for knee surgery. Some $4,500 has been paid for legal and filing fees for the grant of probate. A number of other minor liabilities still need to be deducted which can be treated as inconsequential for present purposes.

68. Other information was provided to the Court after the hearing that allows the amount distributable to the five beneficiaries to be calculated but for the financial effect of these proceedings. This supplementary information included the fact that 2 per cent of agent’s commission of $16,900 and conveyancing costs of $1,650 would need to be deducted from the proceeds of sale of the George Street property. The deceased’s superannuation of $47,641.00 falls in to residue. The position of the five beneficiaries can now be summarised.

69. After allowing for the testamentary dispositions to Tracy of $964,828.00, the balance of the estate for the 5 residuary beneficiaries is represented by the following agreed calculation:

The George Street property	$845,000
Allow deduction of CGT	$75,000
Net proceeds of sale	$770,000
Add Superannuation	$47,641
$817,641
Allow Conveyancing costs	$1,650
Allow Agent’s commission on sale at 2%	16,900
Balance available for distribution	$799,091

70. For convenience this figure of $799,091 can be rounded up to $800,000. But for the effect of these proceedings this would leave each of the five residuary beneficiaries with $160,000.

71. The costs of these proceedings set out in the parties’ costs affidavits is as follows:

(a)   Bradley’s party/party costs $77,000.00

(b)   Scott’s party/party costs $107,092.33

(c)   Tracy’s costs in both proceedings $80,000.00, plus G.S.T.

Applicable Legal Principles

“Eligible Person” Succession Act, s 57

72. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an “eligible person” within Succession Act, s 57. Each plaintiff is an “eligible person”. Each is a child of the deceased: Succession Act, s 57(1)(c). They both made their applications within time.

Adequate Provision

73. The final questions now relate to whether an order for provision should be made in the plaintiff’s favour. The test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c):-

“(1)   The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

…

(c)   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.”

74. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201, at 209, the High Court of Australia said of the test under the previous legislation:-

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? 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. The determination of the first stage in the twostage process 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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

75. Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a clear one on the question of whether or not adequate provision has been made for Bradley and Scott, once they have been shown to be eligible persons.

76. Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:-

“[153]   Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

[154]   In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:

"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

[155]   In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

…

[158]   Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

…

[160]   In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:

"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."”

77. The Court must now decide in this case what, if any, is appropriate provision for Bradley and Scott.

Bradley and Donna’s Financial Circumstances

78. Bradley and Donna’s current financial circumstances are as follows:

Assets	Amount
2 Jacques Place, Minchinbury	$500,000.00
2010 Mazda Ute BT50	$12,000.00
ANZ Bank Ltd, Wetherill Park	$300.00
Superannuation CBUS (Preserved)	$98,000.00
Old Ford motor vehicle under restoration	$25,000.00
Ford Territory motor vehicle	$32,000.00
Donna’s bank account with Commonwealth Bank of Australia	Nominal
Donna’s superannuation (preserved)	$20,000.00
Total assets:	$687,300.00
Liabilities
St George Bank Housing Loan	$327,000.00
ANZ and Commonwealth Bank credit cards	$6,000.00
St George credit card – motor vehicle	$5,702.00
Donna’s Ford credit liability on Ford Territory motor vehicle	$35,860.00
Donna’s credit card	$8,000.00
Total liabilities	$382,562.00
NET ASSETS	$304,738.00

79. Bradley and Donna gave evidence that their net monthly income was $3,200 for Bradley and Donna received $3,326.63. Their estimated monthly expenses were as follows:

Item	Amount
Food	$800.00
Household supplies	$520.00
Gas	$80.00
Electricity	$280.00
Mortgage repayments	$2,400.00
Council rates	$113.00
Water rates	$133.00
House insurance	$101.00
Car insurance	$201.00
Credit card minimum repayment	$100.00
Telephone/internet	$400.00
Motor vehicle repayments	$1,000.00
Petrol	$600.00
Motor vehicle maintenance	$80.00
Clothing/shoes	$80.00
Entertainment/hobbies	$80.00
Education expenses	$80.00
Chemist/pharmaceutical	$120.00
Gardening/lawn mowing	$40.00
Cleaning (house/pool)	$120.00
Books and magazines	$40.00
Hairdressing, toiletries	$120.00
TOTAL	$7,488.00

80. There was no contest as to the correctness of these figures, except as will be indicated below..

Scott and Natalie’s Financial Circumstances

81. The following table of Scott and Natalie’s assets and liabilities has been constructed from evidence adduced to the Court. Natalie’s house at Garfield Road East, Riverstone is not included as an asset. Any interest of Scott’s in the house is uncertain. He only commenced contributing to the mortgage repayments of $1,300 per month in January this year. Since then he would have paid only $7,800 in mortgage repayments. Nor does this table bring to account as a liability of Scott the mortgage liability over the Garfield Road East property. He appears only to be making voluntary contributions to Natalie’s mortgage liability over that property at this stage. But it should be accepted that as his relationship with Natalie stabilises that he may at a practical level become more responsible for this mortgage liability. The table is as follows:

Assets	Amount
Select Mutual Banking Select Transaction Account	$620.56
Select Mutual Banking Cash Management Account	$4.51
St George Bank Complete Freedom Account	$1,454.50
St George Incentive Saver Account	$281.82
MTAA Superannuation Account	$78,345.48
1998 Yamaha Motorcycle	$3,000
1980 Harley Motorcycle	$8,000
Torana Motor Vehicle	$2,500
Total assets:	$94,206.87
Liabilities
Select Credit Union Personal Loan	$1,692.92
Total liabilities:	$1,692.92
NET ASSETS	$92,513.95

82. Scott’s net monthly income is $3,200. Natalie is not working outside the home at present. She formerly worked in the accounts department of a major retailer, earning approximately $800.00 week net; so she has significant earning capacity if and when she is able to utilise it outside the home. But for the present she is devoting herself full time to Harrison’s care.

83. Scott has just moved back with Natalie. She is no longer in paid employment. Scott will soon have met their monthly mortgage payments of approximately $1,300 per month. On top of that Natalie is in receipt of child support payments of $910 per month, together with the following monthly expenses totaling $3,170 (from Exhibit B):

Expense	Cost
Rent	$650.00
Electricity	$200.00	$100.00
Phone	$80.00	$80.00
Groceries	$600.00	$1,400.00
Petrol	$480.00	$780.00
Clothing	$200.00	$200.00
Personal loan repayments	$360.00	$360.00
Motorbike registration	$250.00	$250.00
Internet access	$60.00	Nil
Total: $3,170.00

84. Unless Natalie were to return to full time paid employment, which is unlikely in the short term because of Harrison’s medical condition, there will be a continuing shortfall in their monthly budget of in excess of $1,000.

The Position of the Grandchildren

85. The opening and closing submissions on behalf of the plaintiffs, Bradley and Scott each put contentions to the effect that Tracy’s share under the will could be reduced but that if the Court did not exercise its Succession Act discretion in that manner then an available course would be to reduce the share of the residuary estate given to the grandchildren.

86. The Court raised with the parties during the hearing the issue of whether or not the grandchildren had received independent advice as to their position in these proceedings. The grandchildren were not represented in the proceedings. The Court has the power under the Succession Act to adjust the amount given to the grandchildren as the result of granting principal relief in the proceedings: Succession Act, s 66(2).

87. This issue came up in the course of the proceedings a number of times. The Court raised with counsel whether there was any evidence of the grandchildren’s financial position and the answer was there was not. The case put by the plaintiff was that the Court did not need to look very closely at the position of the grandchildren because Scott and Bradley were really saying much the same thing: that if they were to receive an increased provision from the Court it was their intention ultimately for the three children to benefit from their estates anyway. The submission was that all the immediate educational and financial needs of the grandchildren were best met through improving Bradley and Donna’s financial position.

88. But the Court became concerned whether the grandchildren had received independent advice. Aleishia is of age and living away from home. Jeremy will turn 18 in only a few months. Bianca is 15. The Court asked Donna what her attitude was to the possibility that the Court might reduce the amount in the will provided for the three children. She indicated that she did not want to say anything about it. She said that she had not discussed the issue with the children but she said that she believed that Tracy and Scott had spoken to the children about it. At the time of the hearing no one had suggested that the children should seek independent legal advice so far as Donna was aware. Similar questions were asked of Scott and he said that he would not like to see the grandchildren’s share reduced and would prefer that only additional provision for him come out of Tracy’s share under the will. But he said that he intended to leave all his assets to his children.

89. In the course of preparing these reasons for decision the Court gave notice to the parties that the Court thought that it was desirable, in light of the submissions which had been advanced on behalf of the plaintiff and the estate, that the grandchildren should be independently legally advised. As a result of those communications the grandchildren did engage a solicitor, Mr Wayne Gregory Keen, who provided to the Court an affidavit sworn on19 April 2016, which indicated that he had given the grandchildren independent legal advice. He also lodged a submission on behalf of the grandchildren of the same date. The Court has allowed Mr Keen’s affidavit to be read in the proceedings, as no party objects to that course. The Court has also taken into account Mr Keen’s submission on behalf of the grandchildren.

90. Mr Keen’s affidavit presented a somewhat concerning picture. It became apparent to him that when he attended upon the grandchildren in the absence of Bradley that the grandchildren had no idea of the contents of the will. And he thought that the possibility was open that they had been inaccurately informed as to their interest under the will. He said at the outset of the conference with the grandchildren that he showed them a copy of the will and they told him that they were not aware at all that they had been left a benefit under the will. Mr Keen gave a thorough account of the advice that he gave to the grandchildren who, he said to the Court, appeared to him to be intelligent and to understand the effect of the will and of the Court proceedings when explained to them. He was satisfied they understood his advice.

91. As a result of that advice Aleishia, Jeremy and Bianca asked him to put their position before the Court which were advanced in the form of a written submission.

92. In order to give his advice Mr Keen was briefed with the affidavits used in the proceedings, together with the other Court documents. He reviewed those materials, attended upon the grandchildren for 30 minutes, researched caselaw and undertook telephone communications with the parties. His total fees for this work were $2,750. The Court will include this figure in later costs calculations.

93. The grandchildren’s submission of 19 April 2016 contended that it was important for the Court to bear in mind that the exercise of jurisdiction under Succession Act, s 59 does not involve an exercise in endeavouring to achieve a fair disposition of the deceased’s estate and the Court’s job was not to remodel the will because the judge thought that some additional provision would be fairer: Gorton v Parks (1989) 17 NSWLR 1, Cooper v Dungan (1976) 50 ALJR 539 at 542, Friend v Brien [2014] NSWSC 613, at [62] and [63], McIntyre v O’Regan [2015] NSWSC 1985 and Gersbach v Blake [2011] NSWSC 368 at [94] – [96].

94. Mr Keen then submitted on behalf of the grandchildren that the Court should not take into account Bradley’s submission that the children living in Bradley and Donna’s household would benefit through any increase in the provision for Bradley. Mr Keen submitted there could be no guarantee that any benefit received by Bradley would have a flow on effect to those two children. Moreover, the submission reminded the Court that the eldest of the three grandchildren, Aleishia was aged 20 and has since left the home. It was further submitted, rightly in my view, that it can reasonably be expected that the other two children may very well leave the home within the next 3 to 5 years.

95. In substance the submission expresses concern that any benefit to Bradley (and presumably Scott) could potentially be consumed entirely by him and the Court could not ensure, or be satisfied, that the benefit received by him under the deceased’s will would be passed on to any of the grandchildren.

96. The Court has taken this submission into account. The Court also heard from Bradley and Scott in reply on 7 June 2016. As will be seen below, the Court has made adjustments to the position of the grandchildren under the will using the Court’s power under Succession Act, s 66(2). But the Court has made a lesser adjustment against them than it would otherwise have made but for their submission.

97. The result of the Court’s present orders is to leave in place benefits to the grandchildren of a not insignificant quantum. There is some risk that, because of financial reverses or other vicissitudes, monies going under the deceased’s will to Bradley or Scott will despite their best intentions never be available to the grandchildren through Bradley or Scott. That is why continuing to make some significant provision for the grandchildren is important, and bearing in mind that the Court’s jurisdiction is not to remodel the will according to its own general notions of fairness. But having seen Bradley and Scott give evidence, whatever criticisms the Court has made of them, the Court does not include any criticism that either Bradley or Scott would deliberately do anything to financially disadvantage any of the three children. Nor would Donna, in my opinion.

Application of Legal Principle to the Facts

Assessing Bradley’s Case

98. Bradley makes a claim for further provision. Some provision under the will has already been made for him. Mr Roberts’ submitted that further provision was necessary to allow him to clear his and Donna’s liabilities and perhaps provide a financial cushion to help the start of the small business they were planning. Bradley’s current liabilities total $382,562, most of which comprise the St George housing loan. His net asset position at present is $304,738, including his preserved superannuation. Bradley has few liquid assets. He would have significant difficulty in raising finance for a small business based on his net asset position. He has a greater earning capacity compared with his partner Donna, but even that is not high.

99. The ultimate source of any order for provision for Bradley was contentious. Mr Roberts submits that if the Court determines that provision should be made for him that as far as Tracy’s financial position would allow, that provision should come from her share of the estate under the will. That submission was put with a stated candid appreciation that Tracy only has modest earning capacity and no surplus assets. The testator’s perspective is shown by his making more provision for Tracy than for either Scott or Bradley.

100. Mr Roberts submits that if Tracy’s share of the estate is not to be the source of any further provision for Bradley, then his additional share could be provided by reduction of the children’s share. His submission justifies this course in part on the basis that the two younger grandchildren are still living in Bradley and Donna’s home, so that their share would in effect be used indirectly for their benefit anyway. Although that would not be true for Aleishia who has now moved out of home. Bradley appeared to the Court to be very committed to bringing up his nephew, Jeremy, and Bianca his niece. At a practical level the children’s educational and other needs in their remaining teenage years could be met with the funds taken from the grandchildren’s share and given to Bradley, which would also assist to make the family’s life more comfortable. I accept that both brothers are now supporting the grandchildren of the deceased: one (Scott) financially through child support, and the other (Bradley) financially and on a day-to-day caring basis living in his and Donna’s care, except for Aleishia.

101. As has been indicated earlier in these reasons, there is no evidence about the separate financial position of the grandchildren. Bradley submits that if the grandchildren’s share is reduced now, both Bradley and Scott will have an interest later in their lives in providing for the three grandchildren. They each have a continuing bond with the three grandchildren, which it can be expected would be reflected in their own testamentary intentions later in life. But Bradley and Scott’s future financial position at the time of their deaths must be regarded as highly speculative. The Court was not prepared to see the grandchildren’s position as able to be sacrificed in Bradley and Scott’s favour without them getting independent legal advice. As was explained earlier in these reasons this has now happened.

102. Bradley accepts that the relationship between deceased and Tracy was a strong one. Of the three siblings she certainly had the fewest troubles in their relationships with their father. The will was logical in giving her more than her brothers.

103. Bradley lived with his father for 34 years. I accept that their relationship was troublesome at times, as the Court’s findings above indicate. Bradley made significant concessions about those troubles. He did not seek to overstate the quality of his relationship with his father.

104. Bradley was born in 1972 and at the time of trial in November 2015 was aged 43 years. That Bradley had lived in the same household with his father for 34 years attests to a relationship of real quality that suited them both. Bradley and Scott had common interests with the deceased. One common interest they all had was in motor vehicles, a passion I accept they all held. Tracy concedes it was a strong interest for all the men in the family. This common interest led to Bradley spending much joint time with his father and contributing to the family, for example in the building of a carport jointly with the deceased.

105. Tracy complains that this building work was really just for Bradley’s own benefit, so that he could park his cars under the carport. But I find it difficult to accept that the deceased, who does not seem to have been a weak man, would put up with the construction of a home carport that he neither wanted or needed. The carport was, as Tracy says, and I accept, very commonly used for the parking of Bradley’s cars after it was built. But I infer that the deceased regarded its construction as being for wide family benefit, including his own.

106. Bradley was estranged from his father for the last 7 years of the deceased’s life. After the incident in 2007 they rarely spoke. Mr Roberts for Bradley submitted the deceased was “not blameless for the estrangement”. He submitted that the deceased bore responsibility in a number of ways. Firstly, he did not take steps to reach out and contact his son, to overcome the estrangement. Secondly, the deceased took a “set” against the plaintiff on unsubstantiated material. Mr Roberts’ submission was that the estrangement was generated by the deceased holding groundless views about his son’s conduct, which then created an insuperable obstacle to the son ever initiating a reconciliation, because the deceased’s prejudice about Bradley’s conduct, once implanted, could probably never be cleared. As a result Mr Roberts submits the estrangement should be ignored as a factor, either answering or reducing Bradley’s claim for provision.

107. Bradley’s personality contributed to the estrangement. I accept Mr Roberts’ submission that Bradley was the kind of person who when faced with confrontations, in general would prefer to leave them behind him and walk away, rather than to engage in them. In my view that was the attitude that he brought to the estrangement from his father. He preferred to walk away rather than to engage with his father about their mutual issues.

108. But the Court has found that the deceased’s views were not baseless. This is so at several levels. In my view the deceased suspected Bradley was having an intimate relationship with Donna before she had left Scott. Bradley says his father’s suspicious views on this issue were wrong. For the reasons earlier indicated I do not agree with that submission. The deceased’s views were well founded. But it should be recognized that even if the deceased’s views were not well founded, Bradley would probably still have been estranged from his father. The relationship which he had formed with Donna, before Donna left Scott and moved in with him, was sufficiently close that it had caused Tracy to assume that it was an intimate relationship and to inform her father of it. It was not unreasonable conduct on the part of the deceased to take into account and act upon information from his daughter about these things. This he appears to have done. Tracy struck the Court as a straight-forward person who did not have any particular animus towards either Bradley or Scott. But she nevertheless thought her duty as a daughter was to keep her father abreast of these family events, so that at the very least he could better understand the true family environment around him. Not surprisingly the deceased was influenced by this information. That such information was distressing to the deceased is understandable.

98. But in the complex and beguiling interplay of these human relationships this is not a situation for which either Donna or Bradley should be seen as irredeemably blameworthy. Scott was at times violent towards his wife. The Court’s earlier findings make this clear. This caused great stress to and distress for Donna. The violence ultimately disconnected her entirely from the loyalties of her marriage to Scott, so she turned elsewhere for comfort. Given what was happening to her this is understandable.

99. But from the family’s point of view she turned for comfort to someone far too close. For this Bradley could never really escape condemnation within the family. Loyalty to kin is hardwired into the human psyche. Even if there had not been an intimate relationship between Bradley and Donna, before Donna left Scott and if Bradley had been entirely blameless in encouraging Donna, Bradley would probably have found himself in much the same position anyway: condemned for disloyalty to his brother for taking in and comforting his brother’s ex-wife.

100. And Scott was not without blame for bringing this situation about. His violent behavour toward Donna brought upon him a predictable result: the loss of the company and the comfort of both his wife and his children.

101. But even if the deceased’s views were not baseless, how is Bradley’s estrangement from his father, the deceased, to be judged? Mr Roberts says, with some justification, that it was a short estrangement compared with the proven estrangements in other recent cases such as Andrew vAndrew (2012) 81 NSWLR 656, Burke v Burke [2015] NSWCA 195, and Jones v Poletti [2014] NSWSC 715. Bradley’s attitude was neither callous nor unfeeling. The deceased initiated the estrangement. Bradley showed no ill-temper or violence to his father. Bradley’s own perception was that baseless accusations were being made against him, which Bradley says had the effect, and I accept, of having “gutted” him. But only the allegation about the ring and the chainsaw were entirely baseless.

102. Bradley did not reach out to his father. He assessed that there was not “much point” in doing so. Bradley was probably right. Bradley’s own failure to bridge the gap supports the inference that he saw little point in doing so. Bradley had a sufficiently lengthy relationship with his father before this rupture to know him well. It seems likely that if Bradley thought there was a point in trying to bridge the relationship gap, that he would have tried to do so. The relationship between the deceased and Tracy was a good one. Tracy had provided and was providing the deceased with, and without malice on her part, objective information which continued to lead the deceased to hold the views that he did about Bradley. I accept Bradley’s evidence about the deceased, confirmed as it was by a number of other witnesses, that he was a “hard man”. It would probably have been very difficult for the deceased to have changed his mind. And one can accept Tracy’s evidence that the deceased was very disappointed with Bradley and probably unlikely to have been very flexible in response, even if Bradley had reached out on this issue. But that is not an excuse for not trying at all.

103. For these reasons a slight discount to what would otherwise be the order for provision for Bradley should be considered on account of the estrangement. Mr Roberts submits that if the Court were to find that Bradley could have done something more, then authority accepts there should be some reduction. The estrangement of itself does not compel the conclusion that a discount is required. The question driving whether a discount is appropriate is whether Bradley may have been able to overcome the estrangement and he did not take any steps to do so. Bradley could have taken some steps but did not.

104. But at least counterbalancing this contemplated slight discount to an order for provision for Bradley is that he and Donna still have the day-to-day care and financial responsibility for Jeremy and Bianca. Although Scott pays maintenance for the children, it is Bradley and Donna who will have to meet in the medium term all the immediate uncertainties of the children’s financial and personal needs. This is a weighty obligation.

105. Bradley’s financial case is that his personal balance sheet was so strained at the time of the deceased’s death by a large mortgage that it would have been reasonable for Bradley to weigh more heavily in the deceased’s testamentary intentions, to provide in the most immediate way a stable home for the deceased’s only grandchildren by giving more financial security to him (Bradley).

106. Both Bradley and Donna were closely cross-examined about their financial circumstances, as disclosed in their affidavits. That Donna was receiving child support from Scott was undoubtedly well known to all parties to the proceedings and was acknowledged in Bradley’s earlier affidavits. But the quantum of that child support was not included in their family financial calculations as first presented at the trial.

107. Under cross-examination it became clear that Bradley and Donna’s mortgage repayments had been overstated by $300 per month, nor had Donna’s child support been included. When adjustments were made for both these matters a deficit of about $1,000 per month in Bradley and Donna’s family budget came far closer to financial break even. These two matters were readily admitted and did little damage to their overall credibility. But even with those adjustments, they have little joint savings capacity and their substantial mortgage debt inhibits their capacity to start a new business and make their way in life financially, deploying the capital they hold in their own home to their own future financial advantage. Ultimately the adjustments improved their stated financial position. But it really only reduced the urgency of their cashflow problems from what could be described as “acute” to something perhaps closer to “pressing”. But even at that level Bradley’s financial needs are genuine and troublesome.

108. There were other challenge to the figures in Bradley and Donna’s budget, both on the income and the expenditure side: challenges to Donna’s employment bonuses and to the couple’s lease payments for motor vehicles. But I am satisfied what was allowed in their budget on these items was reasonably accurate. Donna received bonuses at her work, which assisted in bringing the family budget to the break-even point. But these were discretionary bonuses and were not a reliable part of her income. And Donna’s evidence, which I accept, was that her lease payments on her motor vehicle were $697.00 per month. I accept Bradley’s evidence that his monthly lease costs were between $400 and $500, so the combined family motor vehicle leasing expenses are in the order of $1,100 - $1,200 per month. This exceeds the estimate of $1,000 per month for these expenses in the budget that they presented to the Court. Although the evidence ultimately indicated that Bradley and Donna would break even on their budget, the numbers are likely to fluctuate, so the couple are probably still facing more than occasional deficits in their domestic accounting.

Assessing Scott’s Case

120. Mr Bates submits that Scott has demonstrably greater financial needs than Bradley. Tracy has received a substantial bequest under the will and does not have to justify her claim on the deceased’s bounty. But Tracy’s need to retain the fund given to her under the will is still a relevant consideration. Her evidence of her financial circumstances, addresses that issue. Mr Bates submits that giving proper weight to Tracy’s financial needs is solved to a degree, because the whole estate has now become more valuable as a result of the increase in Sydney property prices since the estate was first valued for probate purposes. The Court considers this application having regard to the facts known to the Court at the time the order is made: Succession Act, s 59(2). The parties have now agreed upon the value of all the major assets in the estate.

121. Mr Bates submits that the testator’s real testamentary duty to Scott was not discharged by ranking Scott, as the testator did in the will, as being no different from a grandchild. There is no testamentary duty to a grandchild, where the grandchild has neither been a member of the household of, nor dependent upon, the deceased: Chapple v Wilcox [2014] NSWCA 392. Mr Bates also put the same submission as was advanced on behalf of Bradley: that the burden of the additional provision should first come from Tracy’s share of the estate. But he submitted that if Tracy’s share is not to be reduced, then Scott should have an increase in his share by an equal reduction in the provision for the grandchildren. But Scott submits: there should be no increase in the provision for Bradley; and, there is no reason to reduce the present provision for Scott on account of making any provision for Bradley.

122. Scott further submits that Bradley has already received provision under the will which was appropriate according to, what the deceased knew at the time, and appropriate given what has emerged since. The provision for Bradley under the will should not be increased, so as to put Bradley in competition with Scott for further funds from the estate.

123. This argument depends upon the deceased owing a higher moral duty to Scott than to Bradley. This submission opens up an important contest in Scott’s case.

124. The testator treated Bradley and Scott equally in the will. He thereby expressed his own judgment about their relative claims upon his testamentary bounty and the relationship of those claims, to those of Tracy. But on behalf of Scott Mr Bates says this was an error, because of Bradley’s demonstrably poor conduct within the family and because of his estrangement from his father.

125. Mr Bates submitted that the Court had to decide whether there was a basis for the deceased to form the view that Bradley had acted in a way which had contributed to the breakup of his brother’s marriage. But he also put that this task did not require a finding as to whether there was in fact a sexual relationship between Bradley and Donna prior to the separation of Donna and Scott. Mr Bates submitted that it does not really appear to be disputed, even on Bradley’s own evidence that he and Donna had been conducting themselves with a sufficient level of close familiarity that not only Scott, but Tracy, and in turn the deceased, formed the view that Bradley had acted in a way that was far too confidential with Donna and so the deceased formed an adverse opinion about Bradley. In other words Mr Bates says that it is sufficient the Court to find an inappropriate relationship contributing to the breakdown of the marriage, whether it was sexual or not. But both Bradley’s and the estate’s cases contend that the Court should make findings on this subject. So despite what Mr Bates has put, the Court has made findings, as can be seen above.

126. But why did the deceased treat Scott and Bradley equally in the will? The Court has found that the deceased was aware of Bradley’s relationship with Donna from Tracy and found this knowledge contributed to Bradley’s estrangement from his father. Treating both sons the same way and favouring Tracy was probably the result of one or two situations. First, the deceased could have been aware of adverse information about Scott that caused him to downgrade Scott and treat him in the will equally with Bradley of whom he had a poor opinion. An alternative hypothesis is that the deceased simply made a mistake and erroneously treated Scott equally with Bradley, when there was no justification available to do so. Although it is not ultimately necessary to resolve the issue of what the deceased thought, because the Court can now assess the situation for itself on the evidence, the probabilities are in my view that some of Scott’s behavior towards his first wife Donna had come to the testator’s attention, and probably through Tracy, whose evidence on this subject I accept. Donna not only told Tracy of her full relationship with Bradley but also told Tracy that Scott had been violent towards her. I infer Tracy passed all this on to the deceased. This is probably the explanation for Scott’s treatment in the will.

127. But the estate did not make a case that the reason that the deceased treated Scott the same as Bradley in the will, rather than the same as Tracy was because the deceased was aware of Scott’s ill treatment of his wife. Mr Bates submitted on Scott’s behalf that there was no information available to the deceased, not even a suspicion, that could have influenced the deceased to take Scott’s possibly violent behavior towards Donna into account when crafting his will. But I do not accept that.

128. The estate pursued an estrangement case against Scott. The estate’s case against Scott was that he had left home at the age of 16 or 17 and had hardly maintained any contact with the deceased up until the time of his death. The estate confined its case entirely to this longstanding estrangement initiated by Scott’s departure from the household as a teenager.

129. Scott submits that there was no disentitling conduct on his part. He admits being a “wild child”. He left home in his late teens. He had children at a young age. But he submits that after the early separation from the deceased over the years the two gradually reconciled, and their relationship was improving right up until the time of the deceased’s death. This improvement did not occur he submits, through the deceased’s contact with the grandchildren who were at that stage with Bradley and Donna, but through the deceased and Scott’s regular talks about cars at the workshop of a common friend.

130. In my view, the deceased had concern for Scott’s overall domestic situation. He made the George Street property available to Scott on an open ended basis after he and Natalie separated, because he thought that Scott would soon be back with Natalie. But Scott and the deceased seemed to have spoken at George Street quite often.

131. In summary, Scott submits that after he and Donna separated in January 2006 there was a gradually improving relationship between Scott and his father and no basis to find an estrangement after that time. I accept there was an improvement in the deceased’s relationship with Scott at about the same time that his relationship with Bradley was deteriorating.

132. But does Scott have to compare himself to Bradley at all? Scott compares himself with Bradley mainly to ensure that no additional provision is made for Bradley out of the estate. But settling upon an award of family provision for Scott, does not just depend on factors associated with Bradley’s conduct but also upon Scott’s financial needs.

133. Scott’s financial needs are substantial. Mr Bates says that the total provision in Scott’s favour should be of the order of $350,000, inclusive of the $160,000 that he already receives, plus costs. But Scott’s submits he is entitled to greater provision than Bradley. Scott would prefer that more funds would be available to his own children than go to Bradley.

134. Scott’s claim for $350,000 is largely to provide him with a capacity put down a deposit on a home, which he could then commence to pay off. He recognizes that he now has, with Natalie, the additional responsibility of a young child with heart problems, who he must support. The core of the funds he seeks are to enable him with the opportunity to put down this deposit and have a reserve fund to provide for the health care needs of his and Natalie’s child.

Consideration

135. Both Bradley and Scott have been left by the deceased’s will without provision for their proper maintenance, education or advancement in life. The estate’s cases against them both of estrangement from their father are not made out to the extent of disentitling them from an order for provision.

136. In Bradley’s case the estrangement from his father was real after 2007. But this estrangement was largely the result of his father’s reaction to his forming a relationship with Donna, his brother’s wife. Whilst it is theoretically possible to hold Bradley responsible for this situation coming about, that is too simplistic a view of the real family dynamic, which requires Scott and Bradley to be viewed as both responsible for what has occurred. Scott had been violent towards Donna. She turned to Bradley. He gave her comfort. She went to him with her children. But Bradley did not seek to bridge the gap with his father, hard though it would have been.

137. Is the wise and just testator of the cases to overlook Scott’s violence and to yet disapprove Bradley’s conduct with Donna? Scott in substance propounds such a case, by contending the Court should find and take into account: that he was not violent towards Donna, a conclusion that the Court has rejected; and that Bradley was excessively familiar with Donna before she left Scott, a conclusion the Court accepts. Is the wise and just testator to condemn Scott’s violence and overlook Bradley’s conduct with Donna? Bradley in substance propounds such a case, by contending that Donna and he were not in an intimate relationship before Donna left Scott, a conclusion that the Court has rejected.

138. I see little to distinguish Scott and Bradley as the authors of a situation that in my view on the probabilities combined to lead to the deceased’s disappointment with both of them relative to Tracy. But it is perhaps difficult to see how the conduct of one or other of them would have produced what happened without the conduct of the other. The conduct of each was necessary to create the sad situation that I infer caused the deceased so much disappointment and contributed to his estrangement from them, although this estrangement was expressed in different ways for each. Except in one respect, they must be assessed in my view as equally responsible for the deceased’s poor judgment of each of them. The Court has found that Bradley was more estranged from the deceased than Scott, in the last few years of the deceased’s life and to a limited degree Bradley was responsible for not trying to repair this breach. But Scott was estranged for longer.

139. The Court has found each of their financial needs to be pressing. But in my view their needs are not dissimilar in quantum. Bradley needs funds to clear a mortgage to give financial stability to his life with Donna. Scott needs funds to start to fund the purchase of a home, so that he and Natalie will have financial stability and an opportunity to grasp the best health outcome for their child. Neither present provision under the will is adequate.

140. But what is appropriate provision? They each seek an award in the order of $350,000 plus costs. And Scott argues that this sum should be more readily awarded to him but not to Bradley. But that result would not be consistent with the general balance of equality of their positions: of their needs, of the deceased’s testamentary obligation to them (which he himself recognized as equal), and of their responsibility for their estrangement from the deceased. They each merit an order for provision and should be treated equally.

141. But their order for provision should not put Tracy in the position that she has, no matter what, to sell the Oswald Street property. Both her immediate expected and long term needs and her strong relationship with the deceased disincline the Court to interfere to any great degree to the benefits that she receives under the will in order to make further provision for Bradley and Scott. As Mr Foster rightly pointed out on behalf of the estate, she has approximately one third of the monthly income of each of her two brothers and she does not have any obvious opportunities to improve her earning capacity in the near term. The proper exercise of the Court’s discretion in Bradley and Scott’s favour should not lead to unnecessary financial uncertainty for her.

135. But the costs of these proceedings must be taken into account. The quantum of those costs must be revised slightly. The pre-trial estimates indicated that Bradley’s party/party costs are $77,000, Scott’s $107,092.23 and the estate’s costs were $80,000 plus G.S.T. for both proceedings. None of these legal costs is excessive, given the work that the Court has seen has been done in the proceedings. But this is an unusual case: a very certain financial outcome for each of the parties is a prime consideration in this estate. This in my view is best achieved by making costs inclusive orders in relation to the three parties to the proceedings, and shifting the risk of any financial uncertainty from Tracy to Bradley and Scott.

136. The Court’s request that the parties have the grandchildren to be independently legally advised, ultimately through Mr Keen, has added somewhat to the general burden of costs in the proceedings since the pre-hearing cost estimates were made. It is fair that there be an adjustment on this account to the total costs of the proceedings to be taken into account. These adjustments were raised with the parties when the matter was re-listed on 7 June 2016. The matter was re-listed on that day so that the plaintiffs could respond to the submissions that Mr Keen put on behalf of the grandchildren. On that day the parties accepted costs inclusive orders were appropriate in this case, so that financial uncertainty could be given.

137. Both the estate and the solicitor for Bradley were significantly involved in arranging the advising of the grandchildren. For that reason the costs for Bradley and the estate need to be slightly adjusted. After discussion with the parties on 7 June, the adjustments agreed were that the estate solicitors would be permitted to claim an extra $5000 against the estate, so their costs now total of $85,000. And Bradley’s solicitors would be entitled to claim a further $2000 making their total claim for costs $79,000. In addition of course the sum of $2,750 will need to be paid to Mr Keen for his work for the grandchildren. That can be done in the course of the estate’s administration.

138. Thus the final position on costs is as follows. After these adjustments the total costs therefore that would be paid in the event that Bradley and Scott were successful in these proceeding is $273,842.33 (made up of $85,000 [the Estate], $79,000 [Bradley], $107,092.33 [Scott] and $2,750 [the grandchildren.

139. If Bradley and Scott were each to receive an order for provision of $350,000 plus their costs of $186,092.23 ($79,000 plus $107,092.23 respectively), the total of $886,092.23 awarded to them would well exceed the net value of the George Street property after capital gains tax was paid and the superannuation is taken into account, namely $800,000 (being its expected net proceeds of $799,091 rounded up).

140. If the grandchildren’s benefit under the will were to remain untouched, providing over $880,000 for the benefit of Scott and Bradley would lead to the inevitable sale of the Oswald Street property where Tracy now lives.

141. But the Court is reluctant to make the sale of the Oswald Street property inevitable. This would unduly disadvantage Tracy. It would not do justice to her relationship with the deceased and I would give insufficient recognition to the vulnerability of her financial position. She did say she was contemplating selling the Oswald Street property and moving up the coast to start a business. But I accept that she was talking about this with her father when he was alive and I accept that it is not her current intention.

142. If anything like the kind of order for provision claimed were to be made for both Bradley and Scott then the substantial part of any increased provision for them can only be achieved by either reducing the benefits available to Tracy or to the three grandchildren.

143. On the other hand, if the grandchildren’s share is to be the source of funds for Bradley and Scott, the argument that the grandchildren can benefit from increased provision being made for Bradley and Scott, only goes so far. Much of the evidence suggested that the deceased’s relationship with his grandchildren was not particularly close. But provision should still be left for them after increased provision is made for Bradley and Scott, so there are some funds under their own control (in the case of the younger two, when they come of age) as the deceased intended. But it can be expected, as the evidence suggests, despite some uncertainty that they will also benefit in the longer term from some assistance from Bradley and Scott.

144. To make substantial provision for Bradley and Scott, without causing the sale of the Oswald Street property implies a substantial reduction in the existing provision for the grandchildren. Having considered their submissions the Court decided that this is the proper course.

145. The Court has a very broad costs discretion associated with making orders for provision under Succession Act, Chapter 3. Under Succession Act, s 99(1) the Court may order that “the costs of proceedings under this Chapter [Chapter 3] in relation to the estate…of a deceased person…be paid out of the estate…in such manner as the Court thinks fit”. An order that a party’s legal costs be paid from the estate, in conjunction with the order for provision and as part of that order, is in my view within the broad power to make orders in relation to costs “in such manner as the Court thinks fit”. This conclusion is supported by the broad power to make ancillary orders that the Parliament has conferred on the Court under Succession Act, s 66 to give effect to family provision orders:

“66 Consequential and ancillary orders

(1)   The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:

…

(l) any other matter the Court thinks necessary.

..”

153. Costs inclusive family provision orders have been made in cases which require them: see Taylor v Farrugia [2009] NSWSC 801 at [70] – [71]. As Brereton J explained in Taylor v Farrugia (at [70]) such orders may be very useful where the alternative may leave the parties vulnerable to movements in the value of properties, which may be productive of injustice. And orders capping costs have been sanctioned by the Court of Appeal in Nudd v Mannix [2009] NSWCA 327 based on the express power conferred under UCPR, Pt 42.4(1).

154. The parties were given notice that the Court may take this course and no party had objection to it.

155. This approach leads to the following conclusions. Bradley should have an order for provision for $340,000 inclusive of costs. Scott should also have an order for provision for $340,000 inclusive of costs. Thus $680,000 will be needed from the estate to satisfy total orders for provision to Bradley and Scott.

156. Although Scott’s legal costs are somewhat higher, it would not be fair in my view for Tracy, Bradley or the grandchildren to have to receive less out of the estate because Scott’s costs are higher than the other parties. This is not to offer any criticism of Scott’s lawyers in respect of this differential. This case has been well conducted on all sides. And costs structures will vary between lawyers. But if Tracy is going to be required to bear some of her own costs, as she will, as a result of these reasons, that outcome should not be exacerbated by her, for example, having to receive less on account of Scott’s higher costs.

157. After payment of their legal costs, Scott and Bradley will receive a greater sum than that they had received under the will despite Bradley and Scott’s financial needs.

158. But $800,000 is presently available in the residuary estate. That leaves $120,000 ($800,000 - $680,000) for the grandchildren. In my view their legacies should be adjusted so that they now receive $40,000 each.

159. In my view Tracy should be able if possible to keep the Oswald Street property. But the liquid part of the estate of $124,328 that she otherwise receives will have to bear the costs (of $85,000 plus G.S.T of $8,500) of the estate defending the proceedings. This can be paid out of the funds held in the St George Bank. This will still leave a fund of cash for her of $30,828 (being $124,328 - $93,500). From this Mr Keen will need to be paid and any other incidental estate liabilities met.

160. But the presently agreed likely proceeds of sale of George Street after tax are $800,000. It seems to me that Bradley and Scott, and not Tracy or the grandchildren, should if necessary, bear both the risk, and the benefit, of any fluctuations in the sale price of George Street from the agreed valuation of $845,000. Tracy should not now be left in the position of bearing any possible shortfall on the sale of George Street from the liquid assets that remain to her. But this will also provide an incentive to Bradley and Scott to ensure that George Street is marketed to its best advantage. The parties should be able to co-operate to achieve this and the Court expects them to do so. But the Court may be prepared to make ancillary orders for Bradley and Scott to take greater control of this sale, as they are bearing the risk associated with it. Liberty to apply for that purpose is granted.

Orders

161. In the result therefore, for the reasons stated, in variation of clause 4 of the will and in lieu of the provisions of clause 5 of the will the Court makes the following orders for provision:

(1)(a)   Order that subject to Orders 2 and 3 Bradley Sellak (the plaintiff in proceedings numbered 2014/214338) receive a legacy of $340,000 from the estate of the deceased.

(1)(b)   Order that subject to Orders 2 and 3 Scott Sellak (the plaintiff in proceedings numbered 2014/245521) receive a legacy of $340,000 from the estate of the deceased.

(1)(c)   Order that the deceased’s three grandchildren, Aleishia, Jeremy and Bianca Sellak, each receive a legacy of $40,000 from the estate of the deceased.

2.   Order that each of Bradley and Scott will bear his own costs of these proceedings from the legacy provided for in orders 1(a) and 1(b) hereof, which costs are noted as agreed maxima in these reasons.

3(a)   Note that it has been agreed that: the market value of the George Street property is $845,000; its likely costs sale are $18,550; and that the capital gains tax payable on the sale of the George Street property is $75,000; leaving net after tax sale proceeds – together with superannuation funds - of $800,000 (rounded) (the George Street Property Sale Assumptions).

3(b)   But the Court further notes that as a result the variations in: (1) the market price of the George Street property; (2) the sale costs of the George Street property; and (3) the incidence of capital gains tax on the George Street property, that the actual amount realized from the sale of that property may vary from the George Street Property Sale Assumptions.

3(c)   Therefore, to ensure that Tracy does not suffer diminution in her share of the estate by reason of the economic fluctuations from the George Street Property Sale Assumptions, ORDER that the legacies provided for in Orders 1(a) and 1(b) for Scott and Bradley shall bear the risk of and take the benefit of any movement from the said assumptions, when the George Street property is sold and tax paid.

4.   Grant liberty to apply.

5.   Exhibits may be returned.

162. Ordinarily the Court would provide the parties with an opportunity to raise any costs issues, or to seek any special orders as to costs. Such an application is not necessarily precluded by the form of these orders but the question of costs has been dealt with in substance subject to such an application. The grant of liberty to apply is also intended to encompass the possibility of such an application if it is required. But as the financial outcome of this proceeding is finely balanced the parties are not encouraged to make other than the most essential applications and any further applications will be at the risk as to costs of the unsuccessful party.

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Decision last updated: 10 June 2016