Seymour v Seymour

[2024] NSWSC 699

Supreme Court

New South Wales

Medium Neutral Citation:

Seymour v Seymour [2024] NSWSC 699

Hearing dates:

27 May 2024

Date of orders:

31 May 2024

Decision date:

07 June 2024

Jurisdiction:

Equity

Before:

Slattery J

Decision:

An order for family provision made in favour of the plaintiff in the sum of $385,000 out of designated notional estate.

Catchwords:

SUCCESSION — Family provision — Claim by adult child – notional estate – plaintiff brings a claim for family provision against the estate of his deceased father – deceased divorced the plaintiff’s mother when he was a young child and had little contact with the plaintiff during his life – deceased remarried the defendant and they both built up and inherited property – plaintiff does not own real estate and is bringing up a family of three children – whether a family provision order should be made against the estate of the deceased in favour of the plaintiff – estate inadequate to meet any family provision claim of substance – not in contest that certain property the defendant could be designated as notional estate – whether an order for provision should be made against property that could be designated as notional estate.

Legislation Cited:

Succession Act 2006, s 59, s 87

Cases Cited:

Drury v Smith [2012] NSWSC 1067

Evans v Levy [2011] NSWCA 125

Kitteridge v Kitteridge [2022] NSWSC 193

Luciano v Rosenblum (1985) 2 NSWLR 65

Singer v Berghouse (No. 2) (1994) 181 CLR 201

Category:

Principal judgment

Parties:

Mark Robert James Seymour (Plaintiff)
Helen Mary Seymour (Defendant)

Representation:

Counsel:
Dr S Chapple SC with Mr D Yazdani (Plaintiff)
Mr A Katsoulas (Defendant)

Solicitors:
Legacy Law (Plaintiff)
Anderson Lawyers (Defendant)

File Number(s):

2023/152673

Publication restriction:

None

Judgment

Introduction

1. The plaintiff, Mark Seymour is the son of the late Terrence Seymour (the deceased) who died on 15 July 2022. The plaintiff was born in 1971. But in about 1974, the deceased left the household in which the plaintiff was raised. The deceased divorced the plaintiff’s mother, Jennifer, and was re-married in 1991 to the defendant, Helen Seymour.

2. In these proceedings, the plaintiff seeks an order for provision out of the deceased’s estate under the Succession Act 2006 s 59. The defendant resists that claim.

3. The proceedings were set down for hearing for two days on 27 and 28 May 2024. But legal costs were contained and the proceedings were concluded efficiently in one day by all the lawyers involved. Dr S Chapple SC and Mr D Yazdani appeared for the plaintiff instructed by Mr Donal Griffin of Legacy Law Pty Ltd. Mr A Katsoulas of counsel appeared for the defendant, instructed by Mr Dante Aspite of Anderson Lawyers.

4. Throughout these proceedings the parties referred to one another by their first names. The Court proposes for convenience, to adopt the same practice in these reasons, without intending any disrespect to any of the parties. The deceased will be referred to as “Terry” or the “the deceased”.

5. The limited contact between Mark and the deceased during the deceased’s lifetime was barely in dispute. The main issues contested between the parties were the nature of the deceased’s relationship with Mark, Helen’s financial circumstances and the sources of the Helen’s present wealth.

6. There were no substantial credit issues in the proceedings. The Court accepts both Mark and Helen as generally reliable witnesses who were doing their best to recall historical facts, many of them from the distant past.

7. The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected.

The Seymour Family - The Early Years

8. Terrence Seymour (Terry) was born on 16 October 1948 and was aged 74 when he died on 15 July 2022. He made a will only 3 weeks before his death, on 26 June 2022 giving the whole of his estate to Helen and appointing her as his executrix.

9. Terry was the registered proprietor of the residential property in which he lived with Helen at Baulkham Hills until the day before his death. On that day, he transferred a half interest as joint tenant to Helen. Consequently, she acquired his share of the Baulkham Hills property at his death by operation of law. The only other assets of value in his estate were certain term deposits and credit balances with banks which were mostly in joint names between the deceased and Helen. Like the real estate, they passed by operation of law to Helen. She has not taken out probate of his will as his estate only contain chattels and money worth less than $10,000.

10. The plaintiff, Mark, was born in 1971. At the time of Mark’s birth, Terry was married to Mark’s mother, Jennifer. But their marriage was an unhappy one. Mark says that both he and Jennifer were victims of domestic violence at Terry’s hands. Mark says that Terry verbally and physically abused his mother. He recalls Terry would swear and scream at her and beat her in his presence. Mark says and the Court accepts, that he has memories of hiding from his father when this domestic violence escalated and that he felt the need to protect his mother but was acutely aware of his inability to do so.

11. Helen’s case indirectly challenged Mark’s account of Terry perpetrating domestic violence within the household of his first marriage especially when he was intoxicated with alcohol. Her evidence was that having met Terry in the late-1980’s and married him in 1991, she did not experience similar domestic violence.

12. But overall, the Court accepts Mark’s account of domestic violence for three reasons. First, the plaintiff was a generally credible witness and a reliable historian of the matters in which he was involved. Secondly, a history of domestic violence well explains the plaintiff’s reluctance to develop a relationship with his father in his adult years. Thirdly, Helen’s evidence was not inconsistent with the deceased drinking excessively at times; she just was not prepared to concede that he was violent in the way that Mark deposed.

13. But there are some difficulties with the plaintiff’s account. He was born in 1971 and his mother, Jennifer, and Terry probably separated when he was about 3 or 4. This is quite early for the formation of coherent memories. But perhaps the fear associated with violent behaviour and the need to protect his mother are likely to have been remembered even at a young age.

14. The Court accepts Helen as a generally good historian. Her account and Mark’s account can both be reconciled to some extent. Terry was born in 1948. In the early 1970’s he was only in his mid-twenties, a time of life when he was likely still to have been impetuous, engaging in risky behaviour and resisting the responsibilities of family life. By the time he met Helen in the late-1980’s he was much closer to 40 and probably less rebellious about life.

15. Jennifer and Terry divorced after their separation in 1974. There is no evidence that Jennifer or Mark benefited from any marital property settlement upon Terry’s divorce from Jennifer.

16. The separation and the divorce were bitter. Consequently, Mark grew up in a household which was hostile to Terry for reasons that are understandable. This background meant there was little chance of Mark seeing Terry in any kind of sympathetic light until he was through his teenage years and no longer dependent upon his mother. But, by then he had passed through the important milestones of his adolescence and development into adulthood and would have formed fixed negative views about his father.

17. The Court accepts Mark’s uncontested evidence that Terry did not maintain him during his childhood, gave him no financial support, gifts, cards or presents or any other spontaneous gestures of paternal care.

18. Terry married Helen in 1991, she brought her two sons by her first marriage, Bjorn and Adam, into this new relationship. Helen knew little of Terry’s relationship with Mark when she married Terry. And Terry did little to promote the relationship, so Helen can hardly be blamed for being indifferent to Mark. Helen did not encourage Terry having contact with him. Mark had minimal contact with Helen.

Contact between Mark and Terry during Terry’s Lifetime

19. Mark recalls, and the Court accepts, that Terry made sporadic phone calls to the family late at night during Mark’s childhood and early adulthood. But unfortunately, Terry was in a drunken state when he made these calls. Perhaps alcohol reduced his inhibitions about dealing with the negative reaction he might encounter by contacting his former wife and his son. Most of Mark’s contact with Helen occurred when she removed the phone from Terry when he made telephone calls to Mark whilst intoxicated.

20. Terry appears to have had slightly better relationships with Jennifer’s sister, Robyn, known to Mark as “Aunty Robyn” and her family, than he had with Jennifer. Mark recalls staying with Robyn often because his mother, Jennifer, was frequently ill and in hospital. Mark recalls Terry ringing Robyn when he was staying with her. He was also aggressive and drunk on these occasions, just as he was when he had telephoned Jennifer.

21. Terry had another means of contacting Mark other than through Robyn. Terry’s own aunt, Betty Woods, had kept in touch with Mark after Jennifer’s separation from her nephew. Betty Woods, “Betty” in these reasons, kept an eye out for Mark’s welfare, kept his contact details in her address book and remembered Mark with a gift of $500,000 in her will. Betty remained a willing go-between between Terry and Mark, who the evidence demonstrates was plainly interested in the welfare of both. Helen says that Betty would not give Mark’s telephone number to Terry. But Terry seems to have obtained Mark’s phone number anyway because he made the phone calls from time to time when he was intoxicated. Also, he was always able to get messages to Mark through Betty.

22. Contact between father and son was sporadic throughout their joint lives. The contact was so limited it never resulted in what might be described as father-son relationship developing between them. As the history of that contact, which is set out below shows, it could better be described as a series of faltering and inadequate encounters, initiated by Terry in inauspicious circumstances and not followed through with any realistic plan for forming a relationship with his son.

23. Apart from a few clear attempts Terry made to make face-to-face contact with his son, which are discussed below, most of the contact between them was through occasional phone calls which Mark describes as “random”. They eventually stopped when Terry became ill in the years leading up to his death. But the Court accepts they took place from time to time throughout Mark’s life, until Terry’s final years.

24. Mark recalls and the Court accepts that the first spontaneous contact that his father directed to him was when he was about 21 in 1992. Mark was working on an evening TV news program, Nightline. Terry called him at work when the program was on air. Mark’s recollection was that Terry was drunk. Mark was shocked and nonplussed that the call was being made because there had been no contact between them before this. This call did not result in any follow-up contact on either side.

25. This was just after Terry married Helen in 1991. Mark’s case suggests Terry could have sought to bridge the relationship gap with his son Mark at the time he married Helen. The Court does not accept that this was a particularly good occasion to reestablish a father-son relationship, when the father was marrying a woman other than Mark’s mother. But Mark’s case is correct that Mark turning 18 in 1989 and 21 in 1992 presented two opportunities that Terry could have taken to make face-to-face contact with his son. Perhaps the phone call to Mark at Nightline was an attempt to do this – but it was hardly the right way to go about it.

26. But the next occasion suggested for Terry to bridge the father-son relationship was when Terry’s father, Mark’s grandfather, Steven died, in March 1996. Steven had asked for Mark to be given $1,000 after his death. A few weeks after Steven had passed away Betty arranged for Mark to visit Terry and Helen’s home at Baulkham Hills to pick up the money. The Court accepts Helen’s evidence, which must have been sourced from Terry, that this was the first time Terry had seen Mark since he was a child. Mark stayed for about an hour, collected the $1,000 cheque and had a short talk with Terry. Mark’s case is that this was an opportunity for Terry to obtain Mark’s phone number to stay permanently in touch with him. He did not obtain the number. Whether he asked and was refused or did not ask is unclear. But a long period of no contact followed.

27. Helen’s case was that a principal reason Terry did not contact Mark over the subsequent years is that he did not have his contact details. But the Court accepts Mark’s case that a father keen to pursue a relationship with his son could have secured his contact details somehow at that point or made better use of his means of contact through Betty or Robyn, but Terry did not. Circumstances had made relations between them poor. Terry did not pursue the relationship except by odd inappropriate phone calls that were unlikely to endear him to his son.

28. Neither Terry nor Helen promoted a relationship between Betty and Mark, although Betty was plainly interested in Mark’s welfare. When Betty was ill and in hospital in 2007 neither Helen nor Terry informed Mark of her illness. Mark’s case suggests, and the Court accepts, this was another missed opportunity in 2007 to bridge the father-son relationship. Helen’s answer was that she and Terry did not have Mark’s contact details. But the avenue of contacting Mark through Robyn was always available. The Court has a general impression that Terry was not strongly motivated to involve Mark in his family.

29. From about 2010, Terry and Helen were aware that Mark was employed in the real estate industry. From then he was readily findable by them on the Internet through the website of his employer. The fact they did not contact him through his workplace after 2010 is strong evidence that they were not motivated to initiate such contact. He always had some means of contacting Mark and easy avenues after 2010.

30. The next contact Mark recalls was in July 2010. Mark’s son Noah had just been born. Mark’s wife Priscilla was in hospital. Terry rang the hospital and asked to speak to Priscilla, not to Mark. After a difficult birth, Priscilla did not want to have this contact and the call was terminated.

31. Betty became sick in about 2010. Discovering that she was sick, the Court accepts that Mark had to ring around various hospitals to try and find out where she was an inpatient, ultimately discovering that she was at the Sydney Adventist Hospital, her hospital of choice. Mark went to visit her there. Mark’s account of using indirect means to find Betty is compelling and shows that he was avoiding contacting Terry or Helen, probably because he was unsure what kind of reception he would receive from them.

32. Betty was discharged from hospital. After Mark had visited Betty in hospital, Terry made one of his phone calls to Mark. During the phone call Helen spoke to Mark and asked for his help to take care of Betty because she needed rehabilitation. Mark declined because he and Priscilla had a new baby, but he also indicated that he did not want to see Helen or Terry. Mark and Priscilla did have a young baby at the time. Seeing Helen and Terry was then being associated with pitching in to help Betty. It is understandable that a couple with young baby would prefer to leave looking after Betty to her executors, Helen and Terry.

33. Betty died in 2011. Her will appointed Terry and Helen as her executors and trustees. After the gift of $500,000 to Mark in her will, Betty gave the balance of her estate to Terry and Helen. Although she was clearly close to Terry and Helen, she regarded Mark as having the next claim upon her testamentary bounty. Her will of May 2002 also provided that should Terry and Helen predecease her that the balance of her estate would pass to Mark.

34. After Betty’s death Mark met his father in March 2011 to discuss Mark’s inheritance from Betty. The meeting was tense. Mark wanted more than the $500,000 Betty had given him because of the needs of his young family and a mortgage that had to be paid down to become more manageable. Terry was unwilling to give any more. Mark may have communicated a refusal to allow Terry to see his grandchildren at this meeting, but the evidence is not clear enough either way to resolve that question. By then, when Mark was 40, even if Terry had been motivated to bridge the gap with his son, it was probably too late for him to appear sincere in that endeavour after decades of inaction.

35. Whatever happened at this face-to-face meeting, Mark signed a March 2011 deed of release of any claims that he might have against Betty’s estate. This seems to have been arranged through Terry’s solicitor. Mark did not have any obvious claims for a family provision order for anything else against Betty’s estate. The reasoning for executing this deed is therefore obscure.

36. Betty’s death gave Terry and Helen another means of contacting Mark. Betty had kept Mark’s telephone number among her personal contacts in an address book. It can be accepted that Betty withheld this information during her lifetime. But after her death in 2011 the address book came into the hands of her executors, Terry and Helen. From then on Terry had an additional means to contact Mark. But after Mark and Terry’s face-to-face meeting, according to Helen, Terry seemed to have been so incensed by whatever Mark had said to him that he tore up the contact details Betty had for him in her address book. Here, Terry was deliberately trying to make further communication with his son more difficult in a fit of pique. But, Helen’s account of this is to be doubted because the occasional phone call did come from Terry in the last 10 years of his life. But, by then Mark was not in a mood to engage, the damage having been done to the relationship in Mark’s early years. Mark understandably wanted some kind of explanation from his father as to why he had been so neglectful of Jennifer and had failed to send Christmas or birthday cards or financial support to his son, even before Terry had met Helen. Terry seemed unwilling to give an explanation – there may not have been one that was likely to be acceptable to Mark.

37. Helen did not tell Mark that Terry was ill or that his health was declining. The Court accepts that he did not know that his father was approaching death and Helen herself advances no evidence that she tried to promote such contact. Helen says it “did not occur to her” to promote Terry having a relationship with his son. That is probably right because she did not witness the relationship being very actively pursued from Terry’s side.

38. Both Helen’s and Terry’s failure to initiate contact was starkly evident at the time of Terry’s death. Mark did not know that Terry was ill or ultimately even that he had died. But on 25 July 2022, an anonymous caller telephoned Mark’s workplace and told him that the caller was “Terry’s neighbour” and asked Mark’s co-workers to tell Mark that “Terry’s funeral will be today at 2:00pm and I thought he should know”. This is how Mark found out his father had died.

39. Mark says and the Court accepts that he attended Terry’s funeral and sat at the back as a reflective observer. Nothing said about Terry, as Mark recalls it, mentioned Mark or any part of Terry’s life before Helen.

19. Given Terry’s behaviour when Mark was a young child, Terry bore greater responsibility for bridging the relationship. As he matured and reflected upon his conduct as a younger man, the responsibility to reach out to his son should have been more obvious. Of course, Mark could have initiated contact, but it was always going to be more difficult for him to overcome the disadvantages of his age. Mark had little understanding of the full reasons for the breakup of his parents’ marriage and little conception of the man who was his father other than that he was violent, had ill-treated his mother, and only contacted him on occasions where he appeared to be intoxicated. It is difficult to attribute much responsibility to Mark for attempting to bridge a gap which was created by Terry’s behaviour.

20. The Court accepts that that the plaintiff suffers bouts of depression. The cause and origins of that are obscure but the fact of that depression can be accepted. His GP reports that he suffers from “increased anxiety, sleep disturbance and periods of depressed mood”.

The Assets of the Estate and Identifying Notional Estate

42. Terry and Helen pooled and built-up assets together after their marriage in 1991. They worked sufficiently hard that they were able to plough savings into an investment property in Queensland which they held as joint tenants. Although this property was initially subject to a mortgage, they managed to pay it off and it now provides income of about $470 a week to Helen.

43. But Mark makes a compelling case that Terry and Helen’s own hard work was not the only reason for their financial success. They inherited the Baulkham Hills property from Terry’s father in 1996. They paid off a mortgage over that property. But its current value, derived from Terry’s father, nevertheless comprises a substantial part of the estate.

44. The other substantial component of Terry’s estate comes from Betty’s estate. When she died in 2011 her estate of approximately $1.5 million was divided to give $500,000 to Mark and the other approximately $1 million to Terry and Helen. They invested that money and on a term deposit which remained largely intact until Terry’s death 11 years later and are now identifiable within his estate. Some $300,000 those funds have been transferred into another account and have since accumulated interest. But the full $1.1 million is still readily identifiable.

45. Finally, it was not difficult to identify the property in Terry’s estate which could readily be designated as notional estate. In this case, it was property that Terry held in joint tenancy with Helen at the time of his death and which passed to her for no consideration upon his death. The Baulkham Hills property is such an asset. But Mark’s case disclaimed any desire to designate that asset as notional estate.

46. At his death, Terry and Helen held cash in joint bank accounts to the value of $1,247,787. Half of this ($623,893) which belong to Terry and passed Helen upon his death is available in cash and qualifies to be designated as notional estate.

Helen’s Financial Position and Contribution to Estate Assets

47. During their joint lives Terry and Helen intermingled their financial affairs, putting all their income into a single joint bank account, including the sizable inheritance that they received from Betty. When Helen moved into the Baulkham Hills property with Terry they both took over mortgage repayments, an obligation which had come with the inheritance of the property from Terry’s father. They both that actively renovated and repaired the Baulkham Hills property. It was originally quite spartan and they added rooms to it.

48. Helen’s financial position may be shortly stated. She has the property Baulkham Hills which was transferred to her as joint tenant by operation of law on Terry’s death. This has a market value of $1,750,000. The Queensland property is a market value of $500,000. She has cash in joint accounts to the value of $1,271,522.30. She has other shares in securities to the value of $8101.52. She has total assets of $3,529,628.82.

49. Helen’s current monthly expenses of $3501 exceed her monthly income from the Queensland property of $1880 per month by $1621 per month. She is currently drawing upon savings to meet expenses. But she has substantial savings which will need to last her throughout the rest of her life. She is presently aged 80.

50. Helen estimates that $117,500 needs to be spent on the Baulkham Hills property to replace fencing, repair wooden floors modernise her kitchen and utilities, repaired a dilapidated bathroom and repaint the premises. The sums to undertake this work seem reasonable estimates, although this work does not all have to be done at once. Some of it has been outstanding and unrepaired for a long time despite Helen’s ample financial resources. But it probably will have to be completed progressively from now in the longer term.

51. Helen’s case is that any order for provision will have a significant impact on her ability to meet future needs as a self-funded retiree.

Mark’s Financial Position

52. Mark is married to Priscilla. They have three school-aged children presently aged 13, 11 and 8.

53. Mark has superannuation to the value of $230,469.10 and a motor vehicle worth $15,500. He holds a joint bank account with Priscilla with a balance of $171,818.32.

54. Priscilla has a motor vehicle worth $7000, another with a market value of $44,000 and superannuation of $222,461.84. The combined family assets of Mark and Priscilla $691,249.26. After deducting liabilities of $26,885.15 their net household position is $664,364.11.

55. Until late last year Mark was earning $4021 per month after tax from a salaried real estate position. He clearly has that of earning capacity. But he is currently engaged in a somewhat risky unsalaried commission only real estate position. The advantage of his current position is that he obtains a larger share of the commissions that he earns, but he takes the whole risk of not earning commission. In the first six months of this new job, he is well behind his previous earnings. But his earning capacity is $4021 per month after tax because if the current job does not produce more than that he will have to return to his old employment for the family to survive financially.

56. Priscilla’s net monthly income of $7224.33. Therefore, the couple’s combined realistic potential monthly income is $11,245.33.

57. The couple currently pays rent of $3800 per month, a figure which is likely to increase. The family’s present demanding expenses are currently eating into their savings. Recent increase in rent, the rising cost of living, school fees, orthodontic treatment for the children and Mark’s recent change of job have depleted their savings by several hundred thousand dollars in recent months at what appears to be at a rate of between $15,000 and $20,000 per month. Although the couple are going backwards financially now, Mark’s case is that that will not always be the case. They cannot sustain these outgoings in the long term and he will have to go back to a better more regular paying job if his current employment does not work out to be as remunerative as he had hoped.

58. But the couple did not always rent. They have a history of homeownership. In 2006 they acquired a residential property in Hornsby in which they lived until 2017 when they sold it for $1,426,000. They then purchased another property in Hornsby for $1,065,000. They sold this property in 2021 for $1,646,000. They released some tax-free capital gains from the sale of these properties in the form of cash in both in 2017 and 2022 and have been renting ever since. This history objectively indicates that they are likely to be motivated to buy another residential property if they can afford it, and that that ambition is probably not unrealistic.

Legal Fees of the Parties

59. Upon the Court’s direction, the parties gave a list of their actual legal fees and their estimated legal fees. These were reasonable given the nature of this litigation. Mark’s legal expenses were $65,316. And Helen’s additional legal expenses to complete the hearing are $43,000. She has met her legal expenses as the proceedings progressed and her current cash balances are net of past legal costs, except $43,000. Thus, the combined additional anticipated legal costs of the parties are just over $108,000 and can be rounded for convenience to that sum.

Adequate Provision

60. The question is whether an order for provision should be made in Mark’s favour out of property designated as notional estate of the deceased.

61. Whether an order provision should be made in any case is provided for 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.”

62. 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 Co8. 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 Leeder9, 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.”

63. 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 very clear one on the question of whether or not adequate provision has been made for Christine once she has been shown to be an eligible person.

64. Some other authorities have explained in more 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."”

65. Whether an order for provision should be made from notional estate raises additional considerations which are dealt with briefly in the analysis below.

Analysis

66. Counsel conducted Mark’s case with moderate caution, accepting that established authority such as Luciano v Rosenblum (1985) 2 NSWLR 65 indicated that a court would be unlikely to interfere with Helen’s occupation of the family home at Baulkham Hills and the financial security which she derived from the income of the Queensland property. Although both these assets were capable of being designated as notional estate, Mark’s case concentrated upon the cash assets within the estate and specifically the cash capable of being designated notional estate which has been identified above in the sum of $623,893.

67. The parties were commendably frank about the range of possible awards that the Court might make in the circumstances of this case. Helen, submitted to the court should be cautious in making any award the plaintiff and should be mindful of the need to satisfy Succession Act s 87 before designating any part of the cash of the estate as notional estate. But Helen’s counsel submitted that if an award was to be made that it should be in the order of $100,000 and no more. In contrast Mark’s counsel submitted that the available range was in the order of $250,000-$400,000.

68. For the reasons set out below, the Court has reached the view that something close to the upper end of the range offered by counsel for Mark is appropriate in the circumstances of this case. But the first question is whether an order designating any part of the cash in the estate as notional estate should be made.

66. Helen submits that the provisions of Succession Act s 87(a)–(c) weigh against making an award on grounds of “not interfering with reasonable expectations in relation to property”, “the substantial justice and merits” of making refusing to make an order and other relevant circumstances.

67. This submission is not persuasive. Helen submits that even if she and Terry did not own their assets jointly Terry’s intentions and legitimate expectations were for Helen to have the benefit of his estate. But it may be inferred that neither Helen nor Terry had a reasonable expectation that they would be free of legitimate claims over Terry’s estate from Mark. It may be inferred that Terry’s transfer of the Baulkham Hills property into a joint tenancy with Helen the day before his death shows a consciousness of the possibility of a claim by Mark against his estate.

68. When Succession Act s 87(a) speaks of “not interfering with reasonable expectations in relation to property”, it is referring to specific property. It can be conceded, and Mark’s case does concede, that Helen had reasonable expectations that her ownership of the Baulkham Hills property and the Queensland property would not be interfered with because she lived in the former and derived income from the latter. And both properties were to a considerable extent, acquired by Terry and Helen building up assets during their marriage: paying off the mortgage on the Baulkham Hills property after it Terry inherited it from his father, renovating, and extending that property and paying down the mortgage on the Queensland property out of joint income.

69. But the same cannot be said about the share of the cash inheritance from Betty which went to Terry, which is still largely intact and is the only sum which Mark seeks to designate as notional estate here – one half of the funds on interest-bearing cash on deposit.

70. In relation to Succession Act s 87(b) and (c), as to the “substantial justice and merits” and other relevant matters, Helen’s submissions also emphasise the significant financial contribution to the joint assets of the couple that she made working actively in partnership with Terry for some 12 years to generate income, and that the inheritance from Aunt Betty was partly Helen’s as well as Terry’s. But once again Mark really anticipates this submission by focusing on Terry’s part of the cash on deposit.

71. In the Court’s view therefore the warning in Succession Act s 87 is not an obstacle to the Court making an order for provision from the notional estate of the deceased. It is accepted on all sides that if any order is to be made, it does need to be made from designated notional estate, because of the minimal assets left in the deceased’s estate.

72. The quantum of any such award was then debated between the parties. Mark submitted that although he is now an adult, he has pressing financial and personal needs and an order for provision would significantly contribute to his advancement in life at this stage in life.

73. Mark explains that has most pressing need is for him and his family to try and purchase a home to give them security of accommodation and to allow him to use his income to pay expenses while paying off the home and building an asset for his retirement.

74. Mark’s case concedes that any order for provision out of the deceased’s estate may not be sufficient to allow him and his family to purchase a property immediately with a mortgage. The properties that he has been looking at are in the range of $1.6 to $1.8 million. These would appear to be unaffordable for him. But his case is put on the basis that a substantial capital sum will help Mark and his family along the journey to get ahead and position himself favourably to purchase a property later, or to give his family the chance to take opportunities that present themselves now.

75. Helen’s case challenged Mark’s need for capital. She pointed to Mark’s and Priscilla’s past financial decision-making to buy and sell their own residential properties over several years. Her case is that their history of owning a residential property in Hornsby between 2006 and 2017 and another between 2017 and 2021 indicate a capability to purchase a home from his own resources. But as can be seen from the Court’s earlier findings about these purchases, Mark and Priscilla were not upgrading to larger and more valuable houses but realising a capital gain and then acquiring less valuable properties. This is not necessarily a sign of property investment success. It more likely indicates that domestic financial demands required the capital gain to be realised at the cost of requiring the family to downsize for the family to downsize. This would be consistent with the recent depletion of Mark’s and Priscilla’s cash assets.

76. Mark needs increased capital to counteract and possibly stem the depletion of his financial reserves and bring within his grasp the opportunity of purchasing another home.

77. Mark’s distant relationship with the deceased does not neutralise his claim. The circumstances of this case bring to mind the intuitive observations of Robb J in Kitteridge v Kitteridge [2022] NSWSC 193 at [116] – [117] there Robb J stated that in applying the Succession Act to make family provision orders that reflect contemporary community standards, parents engaged in bitter marriage breakdowns should be expected to (a) spare their children from the need to choose between their parents, (b) understand the likelihood that children are likely innocently to suffer emotional injury from the breakdown, and (c) recognise that when a child is forced to make an unsatisfactory choice between parents the parents should take responsibility to break down emotional barriers created by the parents conduct and not rely upon child to do so.

78. Here, Mark was placed in just such a position. Whether or not Terry was as violent towards Jennifer or as frequently intoxicated as Mark says, the incontestable fact is that Jennifer took custody of Mark, and his loyalties are much more likely to have been with her. Some obligation fell upon Terry to try and overcome the emotional damage to Mark for which the marital breakup was most likely to be responsible before he could establish a reasonable relationship with Mark. Terry never discharged that task adequately and the resultant distance between the pair was predictable as a result and was not Mark’s fault. Mark remained Terry’s son and Mark held a legitimate claim upon Terry’s testamentary bounty.

79. There is no compelling evidence that Mark initiated anything malevolent to harm his father. His reluctance to allow Terry back into his life to see Terry’s grandchildren was largely reactive to the regrettable relationship history created by Terry when Terry had dominant agency in Mark’s life.

80. The question now is what quantum of provision should be made for Mark. That brings Helen’s needs into focus. Helen claims that $100,000 is the only amount that should be designated for an award to Mark as it would provide him with a buffer to get through an interim period of reduced income and is not excessive.

81. In the Court’s view, a larger award than $100,000 is appropriate. This can be seen by an analysis of Helen’s financial position, her age, and her likely financial needs as she ages. Although only $623,893 of the available term deposit and cash facilities are capable of being designated as notional estate, when considering Helen’s financial position, the whole of the real estate and cash assets available to her should be considered.

82. Helen’s expenses currently exceed her income by $1621 per month. She has wisely invested in a Queensland property where rental increases should keep up with the inflation that may affect her expenditure. So, the monthly deficit in her expenditure is unlikely to increase appreciably and it is a safe figure to project into the future. She has cash in joint accounts to the value of $1,271,522.30. But from that she wants to expend $117,500. To undertake the expenditure that she needs to make the Baulkham Hills property more liveable and comfortable for her.

83. To simplify calculations these numbers can be rounded slightly to outgoings of $1620 per month and cash of $1,270,000 and a deduction from a cash balance for improvements to the Baulkham Hills property to $118,000. A figure must be reached by the Court which is fair to Mark but which does not unreasonably entrench upon Helen’s capacity to care for herself as a self-funded retiree over her expected lifespan. Whilst many contingencies in life are unpredictable, in the Court’s view selecting an order for provision of $385,000 for Mark plus his costs still gives a measure of financial security to Helen.

84. The calculation is as follows. If from existing cash of $1,270,000 there is deducted (a) the cost of the improvements to the Baulkham Hills property, (b) the combined costs of these proceedings and (c) an award of $385,000 by way of further provision to Mark, a cash balance of $659,000 dollars remains (being $1,270,000 less $118,000 less $108,000 less $385,000).

85. That residual sum will last Helen for a long time. If Helen continues running her household at the present monthly deficit of $1620 per month, which in the Court’s view is a reasonable assumption, her remaining $659,000 could theoretically last her for another 33 years, comfortably beyond her life expectancy. Upon the continuation of these assumptions and without considering the interest she could earn on her capital, if she were for example to live until the age of 100, she would still have a substantial capital reserve available to her after incurring a further 20 years of monthly deficits of $1620 per month (totalling $389,000 she would still have a residual sum of $270,000 from the original $659,000. This should be ample to provide a cash cushion for Helen against unforeseeable financial contingencies.

86. Helen’s case is that there may be other contingencies for her as she gets to her late 90s. Her evidence points to several of these, the need for additional medical care, assisting one of her sons with the cost of his own medical care, a need for assistance with her daily care needs at home and then going into assisted-living or a nursing home care facility which will require a Refundable Accommodation Deposit.

87. Such contingencies should all be recognised. But they do not mean that the award to Mark should be any less than the figure of $385,000 indicated here by the Court. Helen’s evidence is that she may go into residential aged care facilities in the next four years. She may indeed stay at Baulkham Hills much longer than that. But, if she were to stay Baulkham Hills for up to another 20 years at that stage of life if she remains at Baulkham Hills and needs more than $270,000 the reasons for retaining the Queensland property will be lessened and she could sell it and still have an interest earning cash fund which would last her well past her life expectancy. Similarly, if she went into residential aged care accommodation, probable the Baulkham Hills property would probably be sold in any event. It would be logical to do so before it attracted capital gains tax.

88. This indicates that $385,000 is a balanced figure. It is not so great that it will impact significantly upon Helen’s financial well-being, as a larger sum may do. But it will give a significant boost to Mark’s advancement in life at this critical stage of his family’s development where he is facing the financial demands of three school-aged children and seeks to make more realistic again the option of buying his own home with Priscilla.

Conclusions and Orders

92. For these reasons Court makes the following orders and these proceedings:

1. ORDER that an order for provision in the sum of $385,000 be made out of property designated as notional estate of the estate of the late Terry Seymour (the deceased) in accordance with order (2);

2. DESIGNATE the property in the schedule of property in order (6) of these orders as notional estate of the deceased;

3. ORDER that the plaintiff’s costs be paid out of the notional estate on the ordinary basis; and

4. ORDER that the defendant’s costs be paid out of that notional estate on the indemnity basis; and

5. GRANT liberty to apply within 21 days if any party wishes to seek a special costs order.

6. The Schedule of Property:

1. One half of the joint Commonwealth Bank Pension Security Account No. 06 2471 9614.

2. One half of the joint Commonwealth Bank Term Deposit Account No. 06 2471 5006 9614.

3. One half of the joint Commonwealth Bank Term Deposit Account No. 06 2471 5006 9796.

7. GRANT administration of the estate of the deceased to the defendant pursuant to Succession Act s 91 for the purposes of the defendant implementing these orders and remit the matter to the Probate Registrar to take such steps as may be necessary to complete the grant.

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Decision last updated: 07 June 2024