Sheen v Hesan

Case •

[2023] NSWSC 468

•

05 May 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Sheen v Hesan; The Estate of Zaheer [2023] NSWSC 468
Hearing dates: 21 – 23 March and 28 – 29 March 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction:Equity
Before: Hallen J
Decision:

Direct the parties, within 14 days of these reasons being delivered, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons.

Catchwords:

SUCCESSION — Contested application for administration of the intestate estate of the deceased, – Whether the Plaintiff a spouse of the deceased, being a party to a domestic partnership with him immediately before his death – Whether de facto relationship had ended prior to deceased’s death – Meaning of breakdown of de facto relationship

SUCCESSION – FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff – Claim by Plaintiff under s 57(1)(e) or s 57(1)(f) of Succession Act – Each ground of eligibility disputed – Whether factors warranting the making of the application – If not the spouse of the deceased, no provision made for Plaintiff under the operation of the rules of intestacy – Whether adequate and proper provision not made for the Plaintiff and, if not, the nature and quantum of the provision to be made for her

Order for provision made

Legislation Cited:

Civil Liability Act 2002 (NSW) s 15B

Civil Procedure Act 2005 (NSW) s 98(4)

Evidence Act 1995 (NSW) ss 30, 140(2)

Family Law Act 1976 (Cth) s 4AA(1)

Interpretation Act 1987 (NSW) s 21C

NSW Trustee and Guardian Act 2009 (NSW) s 23

Probate and Administration Act 1898 (NSW) ss 63, 86

Property (Relationships) Act 1984 (NSW) s 4(2)

Relationships Register Act 2010 (NSW)

Succession Act 2006 (NSW) ss 3, 57(1), 59, 60, 63(5), 65, 66, 72(1), 84, 101, 102, 103, 104, 105, 111, 129(1)

Succession Amendment (Intestacy) Act 2009 (NSW)

Supreme Court Rules 1970 (NSW) r 78.66

Cases Cited:

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

Amaca Pty Ltd v Novek [2009] NSWCA 50

Anderson v Teboneras [1990] VR 527

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

Ashton v Pratt (No 2) [2012] NSWSC 3

Askew v Askew [2015] NSWSC 192

Ballam v Ferro [2022] NSWSC 1200

Bar-Mordecai v Hillston [2004] NSWCA 65

Bartlett v Coomber [2008] NSWCA 100

Bkassini v Sarkis [2017] NSWSC 1487

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

Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583

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

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

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Bouttell v Rapisarda [2014] NSWSC 1192

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

Britt v Office of State Coroner [2022] WASCA 75

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

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

Chisak v Presot [2022] NSWCA 100

Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82

Clarence & Crisp (2016) FLC ¶93–728; [2016] FamCAFC 157

Crabtree v Crabtree (1963) 5 FLR 307

Dakin v Sansbury [2010] FMCAfam 628

de Angelis v de Angelis [2003] VSC 432

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

Dion v Rieser [2010] NSWSC 50

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

Dow v Hoskins [2003] VSC 206

Dridi v Fillmore [2001] NSWSC 319

Duong v Duong [2018] NSWSC 1696

Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477

Evans v Braddock [2015] NSWSC 249

Fairbairn v Radecki (2022) 96 ALJR 529; [2022] HCA 18

Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

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

Gorton v Parks (1989) 17 NSWLR 1

Grey v Harrison [1997] 2 VR 359

H v P [2011] WASCA 78

Hamod v New South Wales and Anor [2011] NSWCA 375

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Hayes v Marquis [2008] NSWCA 10

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

Hibberson v George (1989) 12 Fam LR 725; [1989] NSWCA 100

Howland v Ellis [2001] NSWCA 456

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160

Hunter v Hunter (1987) 8 NSWLR 573

In the Estate of the late Marras [2014] NSWSC 915

Indjic v Stojanovic [2020] NSWSC 470

Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)

Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460

Kendell & Vilmos [2022] FedCFamC2F 1484

Koellner v Spicer [2019] NSWSC 1571

Kogan v Martin [2019] EWCA Civ 1645

Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam)

Light v Anderson [1992] NSWCA 136

Liprini v Liprini [2008] NSWSC 423

Longman v R (1989) 168 CLR 79; [1989] HCA 60

Lynam v Director General of Social Security (1983) 52 ALR 128

Mallitt v Gow [2022] NSWSC 1012

Markulin v Drew (NSWSC, 12 August 1992, unrep)

Matthews v Wear [2011] NSWSC 1145

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

Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5

Na v Tiu (No 2) [2017] FamCAFC 269

Nominal Defendant v Smith [2015] NSWCA 339

Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Page v Hull-Moody [2020] NSWSC 411

Page v Page [2017] NSWCA 141

Papas v Co [2018] NSWSC 1404

Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8

Piras v Egan [2008] NSWCA 59

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

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107

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

Prior v Brown [2011] NSWSC 1006

Prior v Brown [2013] NSWCA 4

Purnell v Tindale [2020] NSWSC 746

Quijarro v Robson [2008] NSWSC 818

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

R v Jawid [2022] NSWSC 788

Rakovich v Marszalek [2020] NSWSC 589

Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781

Richardson v Armistead [2000] VSC 551

Robson v Quijarro [2009] NSWCA 365

Russell v NSW Trustee and Guardian [2013] NSWSC 370

S v B [2005] 1 Qd R 537; [2004] QCA 449

S v B (No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449

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

Sammut v Kleemann [2012] NSWSC 1030

Saravinovska v Saravinovski (No 6) [2016] NSWSC 964

Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076

Sergent v Glass (No 2) (2018) 18 ASTLR 29; [2018] NSWSC 1100

Sgro v Thompson [2017] NSWCA 326

Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414

Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677

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

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

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

Smoje v Forrester [2017] NSWCA 308

Smyth & Pappas [2011] FamCA 434

Spata v Tumino [2017] NSWSC 111

Spata v Tumino [2018] NSWCA 17

State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3

Steinmetz v Shannon [2019] NSWCA 114

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

Stott v Cook (1960) 33 ALJR 447

Sun v Chapman [2022] NSWCA 132

Sun v Chapman (No 2) [2021] NSWSC 1231

Sung v Malaxos [2015] NSWSC 186

SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69

Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Vaughan v Hoskovich [2010] NSWSC 706

Verzar v Verzar [2012] NSWSC 1380

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

Walker v Walker [1996] NSWSC 188

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Webb v Ryan [2012] VSC 377

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

Wilkie v Brown [2016] NSWCA 128

Wolff v Deavin [2012] NSWSC 1315

Ye v Fung [2006] NSWSC 243

Yee v Yee [2017] NSWCA 305

Zahra v Francica [2009] NSWSC 1206

Texts Cited:

New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy [2007] NSWLRC 116

Oxford English Dictionary, online ed, April 2023

P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, 665

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5, 10

Shorter Oxford Dictionary, 6th ed (2007)

Category:Principal judgment
Parties: Doe Hwa Sheen (Plaintiff/Cross-Defendant)
Najia Hesan (Defendant/Cross-Claimant)
Representation:

Counsel:
D Barlin (Plaintiff/Cross-Defendant)
L J Ellison SC and C Alexander (Defendant/Cross-Claimant)

Solicitors:
Joun Lawyers (Plaintiff/Cross-Defendant)
Bay Legal (Defendant/Cross-Claimant)
File Number(s): 2020/361430
Publication restriction: Nil

Judgment

Introduction

  1. HIS HONOUR: At the heart of this case is a dispute about the characterisation, for legal purposes, of the relationship between Mohammad Bashir Zaheer (the deceased), and the Plaintiff, Doe Hwa Sheen, (also known as “Winnie”) immediately before the deceased’s death in July 2020. At least in part, this question gives rise to an ancillary question, whether any such relationship had broken down, and, if so, when.

  2. On 16 July 2020, the deceased was killed having been stabbed by Jawid Jawid, who had been employed by the deceased (or one of his companies). Mr Jawid had, initially, worked as a security guard but, at the time he committed the stabbing, he was employed as an Assistant Building Manager at the apartment complex to which reference will be made. The reasons for judgment surrounding his trial for murder bears the medium neutral citation R v Jawid [2022] NSWSC 788.

  3. In the Statement of Claim filed on 27 July 2021, the Plaintiff sought, by way of principal relief, a declaration that she was the deceased’s “spouse” at the date of his death. She also sought an order that Letters of Administration of the intestate estate of the deceased be granted to her, with consequential relief. Alternatively, she sought a family provision order out of the estate and notional estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”).

  4. The only Defendant named in the Statement of Claim is Najia Hesan, the sister of the deceased. In her Defence, she denied the existence of the de facto relationship between the Plaintiff and the deceased and also the Plaintiff’s entitlement to a family provision order. However, the flavour of some of the cross-examination by senior counsel for the Plaintiff, suggested that the Defendant could also be asserting that if the relationship had existed, it had broken down before the deceased’s death.

  5. In her Statement of Cross Claim, filed on 16 August 2021, the Defendant sought an order that Letters of Administration be granted to her, and consequential relief.

  6. In an amended Statement of Claim filed on 18 February 2022, the Plaintiff no longer sought the declaratory relief. She sought an order that the Court appoint Michael O’Neill, solicitor, as an independent administrator of the estate of the deceased, and consequential relief, as well as a family provision order. The Plaintiff, however, did allege, that “at the time of his death, she was living in a de facto relationship with the deceased”.

  7. At the commencement of the hearing, counsel for the Plaintiff sought leave to file and serve a further amended Statement of Claim, a form of which had been provided to counsel for the Defendant. Effectively, the Plaintiff wished to reintroduce the factual allegations, and claims for relief that she had omitted from the amended Statement of Claim.

  8. There being no opposition to the application, the Court granted leave for a further amended Statement of Claim to be filed and served by 10:00 a.m. on Wednesday 23 March 2023. It was necessary to extend the time for filing, and on the third day of the hearing, the Court was provided with a copy of the filed further amended Statement of Claim.

  9. The parties agreed that the Defence filed on 3 March 2022, to the amended Statement of Claim should be treated as the Defence to the further amended Statement of Claim.

  10. In the preparation for the hearing, a vast array of documents (many of which were not referred to at the hearing), formed part of the evidence, as annexures, or as exhibits, to an affidavit. It has been necessary to peruse these documents, as well as the documents tendered at the hearing, although comparatively few of them will be referred to in these reasons.

  11. There were also two short videos which the Court was requested to, and did, view, in Chambers. One was tendered by the Plaintiff and marked Ex. P1, which had been taken by her, on 8 March 2007, inside Unit 126, in which the deceased appears without a shirt on, and the Plaintiff’s voice can be heard in the background. The other was tendered by the Defendant and marked Ex. D2, which had been taken after the death of the deceased, in which the contents of the deceased’s bedroom and wardrobe, in Unit 215, are depicted.

  12. To quell the controversy between them, the matter was listed for hearing, commencing on 21 March 2023 with an estimated duration of five days. It was completed within that time. Mr D Barlin of counsel, instructed by Mr Jong-Suk Lee, appeared for the Plaintiff and Mr L J Ellison SC, with Mr C Alexander of counsel, instructed by Mr Timothy John Mitchell, appeared for the Defendant.

  13. It will aid a navigation of the facts in the proceeding if the Court provides a brief outline of the nature of the bases of the claims made. Whilst it will be necessary to return, in more detail, to the statutory provisions that apply, by way of introduction, I set out some of the provisions of different legislation that are relevant to the determination of the case.

The basis of the Probate claims

  1. There was no dispute, and I am satisfied bearing in mind the evidence of searches made by the parties, for a Will, that the deceased died intestate.

  2. Section 63 of the Probate and Administration Act 1898 (NSW) relevantly provides that the Court may grant administration of the estate of an intestate person to the spouse of the deceased, or one, or more, of the next of kin. Generally, it is the person with the largest interest in the estate who obtains administration. (It is unnecessary to refer to s 23 of the NSW Trustee and Guardian Act 2009 (NSW) which provides that the NSW Trustee is, on application, entitled as of right, to a grant of administration of the estate of a person who died intestate leaving property in New South Wales, as no such application was made.)

  3. The deceased, at the date of his death, was resident, and died leaving property, in New South Wales. Succession to the deceased's intestate estate is governed by the law of NSW at the date of death.

  4. Chapter 4 of the Act was inserted by the Succession Amendment (Intestacy) Act 2009 (NSW). The long title to that Act stated that it was “to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes”. That Act was assented to on 9 June 2009 and came into operation on 1 March 2010, applying to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act. (The amending Act repealed Part 2 Division 2A of the Probate and Administration Act (1898) (NSW), including s 61B relating to de facto spouses.)

  5. Chapter 4 “must be read in the context of the Act as a whole, with an appreciation that the Act governs the making, alteration, revocation, revival and construction of wills (Chapter 2), applications for family provision relief (Chapter 3)”, and to make provision for the distribution of intestate estates: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106 at 1113; [2018] NSWSC 781 at [33] (Lindsay J).

  6. Section 101 of the Act defines “intestate estate”, where the deceased does not leave a Will, as meaning “all property left by the intestate”. In addition, the section states that a person is a brother or sister of the intestate if they have one, or both, parents in common. (There is no longer any distinction between brothers and sisters of the full blood and those of the half blood.)

  7. Section 102 of the Act defines an intestate as “a person who dies and either does not leave a will, or who leaves a will but does not dispose effectively of all, or part of, his, or her, property”.

  8. Section 103 of the Act provides that a reference in Chapter 4 to an entitlement to the whole of the intestate estate is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts, and other liabilities, as are properly payable out of the estate.

  9. Section 104 of the Act, relevantly, provides that a spouse of an intestate is a person “(b) who was a party to a domestic partnership with the intestate immediately before the intestate's death”.

  10. Section 105 of the Act provides that a domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010 (NSW), or a de facto relationship that (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child.

  11. Section 111 of the Act provides that if an intestate leaves a spouse, but no issue, the spouse is entitled to the whole of the intestate estate.

  12. At the commencement of the hearing, the Court confirmed with counsel for both parties that, if the Plaintiff established that she was a party to a domestic partnership with the deceased immediately before his death, she was entitled to the whole of the intestate estate. Relevantly, to succeed to the whole of the intestate estate, she was required to establish that, immediately before the deceased’s death, she was in a de facto relationship that had been in existence for a continuous period of 2 years. (There was no suggestion that the Plaintiff and the deceased had elected to formally register the status of their relationship, or that the alleged de facto relationship had resulted in the birth of a child.)

  13. If the Plaintiff establishes what is required, subject to satisfying the Probate rules of Court, she was also entitled to administration of the deceased’s intestate estate.

  14. The deceased died without issue. In addition, both of his parents predeceased him. Section 129(1) of the Act provides that the brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse, no issue, and no parent surviving him or her. Having established the relevant matters, the eight brothers and sisters, including the Defendant, of the deceased are entitled to share, equally, the whole of the deceased’s estate (subject to a family provision order being made in favour of the Plaintiff). (No brother or sister of the deceased predeceased him.)

  15. Thus, if the Plaintiff did not establish that she was the deceased’s spouse, the Defendant, who has received the consent of all her brothers and sisters (Ex. D1) to obtaining a grant, subject to satisfying the Probate rules of Court, is entitled to administration of the deceased’s intestate estate. They had also consented to the requirement for an administration bond to be dispensed with. In addition, whilst not admitted, I am satisfied that the Defendant is not an undischarged bankrupt and has not assigned, or encumbered, her interest in the deceased’s estate.

  16. During the hearing, there was discussion about the appointment of an independent administrator if the Plaintiff was unsuccessful in the Probate claim, but was successful in the family provision claim, and if she received a lump sum calculated as a percentage of the net distributable estate.

  17. Counsel for the Plaintiff submitted that the appointment of an independent administrator was the Plaintiff’s preferred position if her primary claim was unsuccessful: Tcpt, 27 March 2023, p 313(36-38). Senior counsel for the Defendant submitted that “… the preferred course of the defendant is that she receive (sic) the grant, but if the Court thinks it is appropriate in the circumstances, we have the consent to the appointment of Richard Neal (solicitor) as an independent administrator”: Tcpt, 28 March 2023, p 318(13-16).

  1. I shall allow the parties to discuss this matter, and if possible, agree, before final orders are made.

The basis of the family provision claim

  1. It is only if the Plaintiff fails to establish that she was a party to a domestic partnership with the deceased immediately before his death that she will proceed with her claim for a family provision order. It was necessary, for the purposes of that claim, for an order to be made for the Defendant to represent the estate of the deceased. This was done, at the commencement of the hearing, without objection by the Plaintiff.

  2. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, in this case, it is not suggested that the Plaintiff seeks provision for education.

  3. As the Plaintiff’s claim for the family provision order was not made within the time prescribed by the Act, that is within 12 months after the date of the death of the deceased, the Plaintiff also seeks an order that the time for the application being made be extended to the date of the filing of the amended Statement of Claim. At the commencement of the hearing, senior counsel stated that if a family provision order were to be made, the Defendant would consent to an order extending the time for the making of the application: s 58(2) of the Act: Tcpt, 21 March 2023, pp 3(37)-4(34).

  4. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility. There are six categories of persons by, or on whose behalf, an application may be made. The language of the relevant sub-sections is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

  5. In this case, the question whether the Plaintiff is an eligible person was contestable. As has been said, “all the criteria for eligibility are binary, in the sense that they admit of only one correct answer” and it “is a conclusion, to which a deal of evidence is apt to contribute, some pointing in different directions, all of which needs to be assessed and evaluated”: Sun v Chapman [2022] NSWCA 132 at [3], [7] and [9] (Leeming JA).

  6. The Plaintiff relies upon s 57(1)(b) of the Act (she is a person with whom the deceased was living in a de facto relationship at the time of his death); upon s 57(1)(e) of the Act (she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member); and upon s 57(1)(f) of the Act (she is a person with whom the deceased was living in a close personal relationship at the time of the deceased's death), which has now been included in the further amended Statement of Claim to which reference has been made.

  7. In relation to s 57(1)(b) of the Act, the terms “de facto partner” and “de facto relationship” are defined in s 21C of the Interpretation Act 1987 (NSW). That section relevantly provides:

(1) Meaning of "de facto partner"

For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b) the person is in a de facto relationship with the other person.

(2)   Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a de facto relationship with another person if—

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3)   Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case—

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

  1. (There is no longer any reference to “husband and wife”, which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.)

  2. The requirement for the de facto relationship to have been in existence for a period of 2 years does not find expression in s 21C.

  3. The Act contains no reference to the term "breakdown of a de facto relationship". As will be read, that term refers to the "end" of the relationship but does not include an ending by reason of the death of one of the parties.

  4. The relevant head of eligibility provided by s 57(1)(e) of the Act, imposes two requirements. The first is that the Plaintiff was, at any particular time, wholly or partly dependent on the deceased; the second is that she was, at the time when she was dependent upon him, or at any other time, a member of the household of which the deceased was a member.

  5. It will be necessary to return to this head of eligibility later in these reasons.

  6. Section 57(1)(f) of the Act, as earlier stated, includes as a category of eligibility, a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

  7. Section 3 of the Act defines a “close personal relationship”:

(3) For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care—

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

  1. This definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one, or each, of whom provides the other with domestic support and personal care". The existence of a romantic, or sexual, relationship, a practical union of lives and property, and the public aspects, are not necessary in order to establish this head of eligibility.

  2. In the case of a person who is, relevantly, an eligible person by reason only of sub-paragraph (e) or (f) of the definition of "eligible person" in s 57 of the Act, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act. The Act does not specify the “factors which warrant the making of the application”.

  3. In requiring a person who falls within, relevantly, s 57(1)(e) and (f) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible persons. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

“…Within the first category (s 57(1)(a) – (c)) are persons generally ‘regarded as natural objects of testamentary recognition’, such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.

Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are ‘potentially appropriate objects of testamentary recognition, depending upon their circumstances’. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.” (Footnotes omitted)

  1. Senior counsel for the Defendant accepted that, in the event that the Plaintiff was an eligible person under ss 57(1)(e) or (f), there were factors warranting the making of the Plaintiff’s application: Tcpt, 29 March 2023, p 441(2-3).

  2. Assuming that the Court is satisfied that the Plaintiff is an eligible person and, if it is necessary, that there are factors warranting the making of the application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life, of the applicant, has not been made by the Will of the deceased: s 59(1)(c) of the Act. It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order: s 59(2) of the Act.  Only then may “the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

  3. Returning to the fact that, in this case the deceased died intestate, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute.

  4. I refer to the New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy [2007] NSWLRC 116, at pars 1.23 and 1.25:

“The rules of distribution on intestacy are, at the most general level, the community’s view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time. One of the purposes of this Report is to determine the extent to which any proposed scheme of distribution meets the collective requirements of the Australian community.

…

One of the more widely acknowledged aims of intestacy rules is to produce the same result as would have been achieved had the intestate had the foresight, the opportunity, the inclination or the ability to produce a will.” (Footnotes omitted)

  1. In In the Estate of the late Marras [2014] NSWSC 915, at [124]-[125], Bergin CJ wrote:

“The intestacy provisions of the Act may be viewed as though the deceased had made a will whereby he directed that his estate should be distributed as on intestacy. The fact that such distribution is statutory does not assume any particular importance: Re Russell [1970] QRWN 55 at 56. Just as there is no basis for cocooning any aspect of a testator's proposed distribution of the estate under a will as an irreducible minimum, if the Court reaches the view that it is necessary to interfere with the distribution to ensure adequate provision is made, there is no basis for cocooning any particular part of the distribution under the statutory provisions on intestacy.

… The Court is able to interfere with the statutory regime, including the statutory legacy, in so far as it is "necessary to make adequate provision" to any applicant under s 59 of the Act: In the Estate of Bridges (deceased) at 5-6. Whether such interference is justified will depend upon the circumstances of the particular case.”

  1. I dealt with the authorities, and, respectfully, agreed with her Honour’s view, in Sergent v Glass (No 2) (2018) 18 ASTLR 29; [2018] NSWSC 1100, at [80] – [83].

  2. During the hearing, and particularly after the evidence of Mr Swayn, to whom reference will be made, the Court raised with counsel the tentative view that if the Plaintiff’s family provision claim proceeded, and was successful, the Court could make an order that she receive, absolutely, a lump sum, calculated as a percentage of the net proceeds of sale of the estate: Tcpt, 27 March 2023, p 313(4-10); Tcpt, 28 March 2023, p 318(50)-319(7).

  3. In this way, the parties would benefit if the properties were sold for more, and each would be detrimentally affected if the properties were sold for less, than what had been estimated (as set out in Ex. JS1 to which reference will be made). Then, there would also be certainty of price, costs, and expenses, and liabilities such as capital gains tax, upon which calculations could be made.

  4. McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate’s assets, runs the very real risk of under-providing (or over-providing) for [the applicant’s] needs”.

  5. Whilst this, undoubtedly is true, it seems to me that, in some cases, and at certain times, including when the real estate market is volatile, to make a specific lump sum order, will not be the most appropriate way of determining what is “proper” in all the circumstances of the case. The value of the properties is only estimated, and, ultimately, may prove wildly inaccurate. There is also uncertainty in the liabilities of the estate, including the liability for capital gains tax on the sale of the various properties. (Indeed, the very concern raised by McDougall J might very well be avoided.)

  6. I have made orders for provision based on percentages in several cases, including Koellner v Spicer [2019] NSWSC 1571, Rakovich v Marszalek [2020] NSWSC 589, and Mallitt v Gow [2022] NSWSC 1012. Rein J has also made a similar order in Askew v Askew [2015] NSWSC 192.

  7. Section 65(1) of the Act requires a family provision order to specify:

  1. the person or persons for whom provision is to be made;

  2. the amount and nature of the provision;

  3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and

  4. any conditions, restrictions or limitations imposed by the Court.

  1. The Court’s order may require the provision to be made in a variety of ways, including a lump sum, periodic payment, or “in any other manner the Court thinks fit”: s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.

  2. Counsel for the Plaintiff submitted that an order for provision by way of percentage of the net value of the estate was the Plaintiff’s preference: Tcpt, 27 March 2023, p 313(36-37); Tcpt, 28 March 2023, p 318(4-5); Tcpt, 29 March 2023, p 445(26-28).

  3. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

  4. Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As Brereton J wrote in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:

“… a unique form of order which in effect is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such.”

  1. Any family provision order under the Act will take effect, unless the court otherwise orders, in the case of intestacy, as if the provision was made as in a will of the deceased (s 72(1) of the Act). There is no need to “otherwise order” in this case.

Uncontroversial formal matters

  1. Searches carried out by, or on behalf of, the parties, reveal no Will, or informal document explaining his testamentary intentions. On the third day of the hearing, each of the parties sought to file in Court, and read, an affidavit, one from the Plaintiff’s solicitor, affirmed 23 March 2023, and one from the Defendant, sworn 22 March 2023, each setting out more details of searches for a Will that had been carried out.

  2. In addition, the Defendant tendered a copy of email correspondence between her solicitors and the NSW Trustee and Guardian, which revealed that a search of the Index of Wills “resulted in no record of any Will made by [the deceased] or any other documents being found”: Ex. D11.

  3. It follows that the entitlement to the intestate estate of the deceased is determined under the operation of the rules of intestacy set out in Chapter 4 of the Act.

  4. On 21 March 2023, that is on the first day of the hearing, the Plaintiff, by her solicitor, published an online notice of her intention to apply for Letters of Administration on the NSW Online Registry: Ex. P8.

  5. On 21 December 2020, the Defendant had filed her intention to apply for Letters of Administration. It appears that, subsequently, she published an online notice of her intention to apply for Letters of Administration on the NSW Online Registry.

  6. On 26 January 2021, the Plaintiff filed a general caveat. The Supreme Court Rules 1970 (NSW), rule 78.66, relevantly provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. This type of caveat is described as a general caveat. The caveat lapsed but the matter proceeded on pleadings.

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

  8. There is no property that may be designated as notional estate of the deceased.

  9. The only person who may be an eligible person is the Plaintiff. (Although each of the brothers and sisters of the deceased was identified in the Plaintiff’s notice of eligible persons dated 18 February 2022, none of them asserted that she, or he, was one. In any event, as a beneficiary entitled under the operation of the rules of intestacy, none are required to prove an entitlement to provision, or justify, otherwise, such provision.)

  10. Only some of the brothers or sisters (the Defendant, Naser Zaheer, Mohammad Nazir Zaheer, Fauzia Zaheer Sher and Nasira Zaheer) of the deceased filed any evidence of his, or her, financial and material circumstances. In relation to those who did not, the Court may assume that each of them does not wish his, or her, financial resources, and financial needs, respectively, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ).

  1. The Court is also entitled to infer that, as a beneficiary, each, respectively, has adequate resources upon which to live and that he, and she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

  2. Yet, none of the siblings, as a beneficiary under the operation of the rules of intestacy, must prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor, in relation to the Will, does each have to explain the decision by the deceased to make the provision that she did for her, or him, respectively, in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). In this regard, his Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

  3. The Defendant, if she obtains a grant of administration, does not intend to seek any commission, or percentage, for her pains and trouble as is just and reasonable: s 86 of the Probate and Administration Act 1898 (NSW).

  4. Prior to the hearing, the Defendant had threatened to amend the Cross Claim to seek vacant possession of the unit, registered in the name of the deceased, in which the Plaintiff currently resides. Although it was said that the “outcome must logically follow in the event [the Plaintiff’s] case is dismissed”, no application to amend the Cross Claim was made. She had, however, sought “mesne profits” in respect of, or in the alternative, an occupation fee for, her occupation of the unit from November 2020 onwards. The claim was based upon her occupation, from the date of the deceased’s death, of one of the properties (“Unit 215”) that he owned, which form parts of his estate. There was no evidence given regarding how it would be calculated.

  5. It seemed to be accepted that, in the circumstances, any claim would be difficult to quantify. Very sensibly, the Defendant agreed that the Court, in determining the family provision claim, should consider the benefits that the Plaintiff had received, including her occupation of Unit 215, and any income provided to her from other occupiers, since about November 2020.

  6. The Plaintiff admitted that she had received correspondence from the Defendant objecting to her having moved into Unit 215. To avoid further costs, the Court requested counsel for the Plaintiff to ascertain whether the Plaintiff would vacate possession of that Unit if she did not receive a devise of that Unit by way of family provision order. She agreed to do so, with the result that it will be unnecessary for the Defendant to amend the Cross Claim. The parties then agreed that she should do so within 28 days of the date of the making of orders and notations: Tcpt, 22 March 2023, p 99(11-13). However, in view of the result of the proceedings, I shall allow them the opportunity to reconsider this as there may be a delay in satisfying an order for provision.

  7. Regarding financial benefits, Exhibits P7, D8, and JS2, revealed that following the death of the deceased, the Plaintiff, in 2021, had received $15,000, being compensation payments from Victims Services NSW, and $13,548, being rent from tenants in Unit 215 between February 2021 and December 2022. She also received a Centrelink Jobseeker allowance, being part of the Government’s support services, between December 2020 and May 2022 ($27,668): Tcpt, 29 March 2023, p 425(17-35).

  8. As will be read, the Plaintiff deliberately failed to disclose the rent received from occupiers of the units that she rented. That failure is a relevant matter to be considered in weighing the Plaintiff’s evidence and considering her credit otherwise.

  9. I am satisfied, considering all the evidence, that the Court is able to determine the Plaintiff’s claims, and in particular, whether she has been left without adequate and proper provision. At least in broad outline, the whole picture concerning her financial situation has been disclosed.

Some background facts

  1. In claims such as those made in the proceedings, factual context is necessary. It is convenient, next, to provide some background facts since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

  2. The deceased’s mother, Najiba Sheerzay, died, in Afghanistan, on a date not disclosed in the evidence. The Defendant gave evidence that a Death Certificate has not been able to be obtained as “the Afghan government did not issue a death certificate for my mother”. She also said that her mother had died when she was an infant and that she had no recollection of her.

  3. The deceased’s father, Mohammad Hussain Zaheer, was born in Afghanistan in January 1928. The Defendant gave oral evidence that her father had remarried, in Afghanistan, that he had left that country in about 1991, travelling to India, had spent some time in Australia, and then went to the United States of America, where he died on 12 May 2020.

  4. There were nine children, including the deceased, being Naser Zaheer, aged 63 years, a brother of the deceased (“Naser”); Shyma Amirzada, aged 63 years, a sister of the deceased (“Shyma”); Mohammad Nassir Zaheer, aged 56 years, another brother of the deceased (“Nassir”); Nahid Zaheer Pardis, aged 56 years, another sister of the deceased (“Nahid”); Mohammad Nazir Zaheer, aged 54 years, brother of the deceased (“Nazir”); Fauzia Sher, aged 50 years, sister of the deceased (“Fauzia”); Nasira Zaheer, aged 38 years, half-sister of the deceased (“Nasira”); the Defendant, aged 47 years, sister of the deceased; and the deceased. All the brothers and sisters survived the deceased.

  5. Only the Defendant and Nasira live in Australia. (Nasira is a child of the deceased’s father and his second wife.)

  6. The deceased was born in Kabul, Afghanistan, in June 1976. He was killed on 16 July 2020, aged 44 years.

  7. The deceased left Afghanistan, and moved to India, with his family as a teenager. Whilst he mentioned his life in Afghanistan to the Plaintiff, occasionally, he did not speak to her very much about his life in India.

  8. The deceased arrived in Australia, from India, in 1999. From about 2001, he worked at an apartment complex in Pyrmont, initially as a security guard and later as the Building Manager. He lived on site, and over the years occupied different units within the apartment complex. At the time of his death, he was occupying Unit 215.

  9. The deceased was also the business partner of the Defendant. He carried on business through his company Complete Property Management Services Pty Limited (CPMS). Relevantly, he was the shareholder, and the Defendant was the director. There were also two other companies through which their business activities were operated, being Complete Building Services Pty Limited (CBS) and Four Star Security Services Pty Limited (FSSS). The Defendant was a property manager and real estate agent who assisted with tenancies and who maintained the trust account.

  10. The Defendant gave evidence that from about 2009 to 2014, the deceased’s father lived with the deceased in a unit: Affidavit, Najia Hesan, 1 October 2021 at par 25. However, in her oral evidence, she said that the period of him living with the deceased was between 2012 and 2014: Tcpt, 23 March 2023, p 207(46). Whichever period is accurate, neither is during the period during which the Plaintiff asserts she was in a de facto relationship with the deceased.

  11. The Plaintiff was born in Gwacheon-Si, South Korea, in July 1980 and will be 43 years old on her next birthday. She arrived in Australia in December 2005 on a working holiday. She decided to remain after she met the deceased. She is now a permanent resident, having been granted permanent residency in 2015.

  12. The Plaintiff gave evidence about having been brought up in a Christian “cult” called the “Temple of the Tabernacle”: Tcpt, 22 March 2023, p 111(13-15). She wrote that members were expected to marry within the church, and that marrying outside was considered “a shameful act”. Though she had left the “cult”, she did not wish to reveal her relationship with the deceased to members of her family who remained within it. Furthermore, her experiences in the Temple of the Tabernacle had caused her to become disillusioned with religion and made her more reluctant to convert to Islam.

  13. She also gave evidence of her father having worked in the Middle East and his attitude towards Muslim people. She said that, as he did not have a “good image [or] good impression” of the Middle East, she did not tell him about her relationship with the deceased: Tcpt, 22 March 2023, p 113(41-45).

  14. The Plaintiff met the deceased in 2006. They met again, and a relationship commenced, in 2007, and continued for over 13.5 years, until July 2020. She said, in cross-examination, that the de facto relationship with the deceased commenced in about 2015, and that prior to that time, they had been “boyfriend and girlfriend”: Tcpt, 21 March 2023, p 89(50)-90(14).

  15. (There is uncontested documentary evidence that reveals that in July 2015, the Plaintiff moved from a property in Maroubra to the apartment complex in Pyrmont: Ex. P1/102-109. She asserted that from July 2015 until December 2015, she lived, with the deceased, in that unit: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 86.) Prior to that time, she lived in Unit 113.

  16. (I remember that, in the context of this case, how the Plaintiff characterised her relationship, and how she perceived that relationship with the deceased, from her own subjective position, whilst a relevant matter, cannot be the determinative factor.)

  17. I shall return, in more detail, to the nature of the relationship between them.

The estate of the deceased

  1. It is next convenient to refer to the property of the deceased, at the time of his death, and at the date of hearing.

  2. On 31 January 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

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

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

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

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

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

  1. The parties attempted to comply with the direction made, but it was not until almost the last day of the hearing, that a composite schedule was provided to the Court, which document was tendered and marked Ex. JS1.

  2. The Court might be forgiven for thinking that careful, and considered, advice could not be provided to each of the parties, respectively, or the beneficiaries, if, prior to the commencement of the hearing, if not well before, the legal representatives are not able to agree upon the nature and value of the deceased’s estate, or, at least, identify the value of the assets in dispute between them.

  3. In summary, at the date of his death, the deceased owned eight properties, registered in his own name, which are situated in Sydney. Six of those properties are home units in the complex situated at Bunn Street, Pyrmont, which is a building known as “The Mirage”. The deceased had been the building manager through CBS. Each of those properties is mortgaged to Suncorp Metway. There is also a ninth property registered in the name of CPMS, which is also mortgaged to Suncorp Metway. In addition, there was a car, monies in bank, one share in CPMS, and 2 shares in CBS.

  4. I have taken what follows from the Agreed Schedule, dated 29 March 2023, which was marked, without objection, Ex. JS1. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

  5. There was a dispute about the value of the estate at the date of death. The Plaintiff asserted that its gross value was $11,810,830, whilst the Defendant asserted that it was $10,610,830. (The difference between the values was because the Plaintiff estimated that the shares the deceased owned in CPMS was $1,836,000, whilst the Defendant estimated the value to be $636,000.) Regarding the liabilities at the date of the deceased’s death, excluding costs, the Plaintiff estimated that amounted to $7,539,830, whilst the Defendant estimated it to be $6,339,830.

  6. The liabilities, other than the costs of the proceedings, if an order is made, at the date of hearing, were agreed to total $4,201,597 (comprising the amount of $4,151,870 owed to Suncorp Metway); an amount said to have been paid by the Defendant as the shortfall to Suncorp Metway, and to be reimbursed to her of $30,000 (which the Plaintiff accepted should be repaid: Tcpt, 21 March 2023, p 11(44)-12(5)); and funeral expenses ($11,000).

  7. Mr Swayn, the deceased’s accountant, to whom reference will be made, provided an estimate of the capital gains tax payable by the estate on the sale of property ($335,983) in a letter dated 28 March 2023 addressed to the Defendant’s solicitors.

The costs of the proceedings

  1. The Plaintiff’s solicitor and the Defendant’s solicitor each gave evidence of the costs incurred by the party represented in the proceedings. Neither solicitor differentiated between the costs of the party represented. This was understandable bearing in mind the nature of the proceedings and the relevance of the evidence to both claims.

  2. Only Mr Lee was, briefly, cross-examined.

  3. In relation to the proceeding, the Plaintiff’s costs, calculated on the ordinary basis, were estimated to be $132,000 (inclusive of GST) based on a hearing of 5 days duration. Her costs, calculated on the indemnity basis, were estimated to be $165,000 (inclusive of GST). (The Plaintiff had entered a costs agreement with her solicitor, but it was not a conditional costs agreement.)

  4. The Plaintiff has required the financial assistance of her brother, in Korea, who has paid all her costs and disbursements of the proceedings over a period of 8 or 9 different days, by bank transfer. Although she did not disclose the amount advanced as a loan in any of her affidavits, there was no suggestion that she would not have to repay her brother if she succeeded in the proceedings.

  5. When this was raised, as an issue, by senior counsel, during submissions, I required the Plaintiff to be recalled, and she said (Tcpt, 29 March 2023, p 429(25-50)- 430(1-48)):

“Q. Your brother has paid your legal bill?

A. Yes, but my brother is a married man, has a wife and children, so he, he can, I can borrow money but you know, they’re separate, separate family, so I have to return if I can do, yeah, whenever, yeah, because it is big money, it’s, it was really hard to borrow. Yeah, I had to get an agreement from my sister-in-law, yeah.

…

Q. You don’t have to pay your brother back the money, do you?

A. I have to, but my brother just agreed that when it can be, so when it’s, if it, if I’m possible, I can, I have to, of course, of course I have to. It’s not my money.”

  1. The Defendant’s costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $350,000. The Defendant stated that on 30 January 2023, she had borrowed approximately $99,734.11 from FSSA to fund the litigation. She will have to repay FSSA in due course.

  2. By the conclusion of the hearing, the parties agreed that whatever the result of the proceedings, the costs of each party, as estimated, should be paid out of the estate of the deceased and that the Court, before costs are referred for assessment, should make a gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW): Tcpt, 29 March 2023, p 412(25-46).

  3. (There is no doubt that the Court may make a gross sum costs order. Such an order may be made when the Court considers that it can be done fairly between the parties and when it has sufficient confidence in arriving at an appropriate amount on the available materials. The specified gross sum can be fixed by a “broad brush” approach: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22]. Also see Hamod v New South Wales and Anor [2011] NSWCA 375 at [813]-[820]; Wilkie v Brown [2016] NSWCA 128 at [50]-[51]).)

  4. Having reviewed the evidence, I am satisfied that a gross sum costs order should be made. Amongst other things, it will avoid argument about what costs should be paid, and by whom, and the delay, expense and aggravation involved in a protracted assessment of those costs.

  5. Thus, the Plaintiff should receive a gross lump sum costs order of $165,000, and the Defendant should receive a gross sum costs order of $350,000: Tcpt, 28 March 2023, p 319(4-32). Counsel for the Plaintiff agreed: Tcpt, 29 March 2023, p 412(42-46).

The estimated value of the distributable estate

  1. On current estimates, the gross value of the estate, available for distribution, excluding the parties’ costs was $4,201,597. Deducting the total costs ($515,000), the amount that is estimated to be available out of which an order for provision may be made will be $3,686,597: Tcpt, 29 March 2023, p 443(30-34). It is a reasonably large estate.

The dramatis personae

  1. The evidence relied upon consisted of many affidavits, the oral evidence of the witnesses (who I will identify), and, as stated, a vast number of documents which formed exhibits to the affidavits, or that were otherwise tendered at the hearing. It is obviously impracticable to set out the contents of the affidavits, the documents, or the cross-examination in full.

  2. The Plaintiff relied upon her own evidence and the evidence of six witnesses. Although there was an initial suggestion that she needed to give evidence through an interpreter, in fact, the use of an interpreter was only permitted when it was necessary because the Plaintiff requested assistance when she did not understand the question.

  3. (In raising the issue at the commencement of the hearing, the Court did not forget that a person whose first language is not English has a right to an interpreter, which is an important right and is critical to ensuring a fair trial. However, s 30 of the Evidence Act 1995 (NSW) provides that a “witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact”.)

  4. Bearing in mind the form and contents of the Plaintiff’s affidavit, and other evidence in the case to which reference will be made, I was not satisfied that the conditions for entitlement to an interpreter had been met. The Plaintiff, in fact, gave oral evidence that she could speak English, that she could understand English, although she was not really confident. She also gave evidence that she could read documents in English, although her conversations with her solicitor were mainly in the Korean language: Tcpt, 21 March 2023, p 60(4-50). Nothing that I observed, subsequently, caused me to have any concern about the Plaintiff’s ability to understand the questions or to communicate her responses to the Court.)

  5. However, without objection, on occasions, during her cross-examination, it was necessary to allow the use of the interpreter to ensure that she fully understood the question and was able to articulate the response to it.

  1. Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

  2. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

  3. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

  4. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance.

Some Additional Principles

  1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the current Act. Other judges, and I, have repeated them in many cases under the Act.

  2. The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

  3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

  4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

  1. In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court’s own notions of fairness. His Honour added:

“There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged.” (emphasis in original)

  1. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

“The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

  1. Of course, in considering the question, the nature and content of what adequate provision for the proper maintenance, education, and advancement in life of an applicant is, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propogation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker [1996] NSWSC 188 at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

  2. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

  3. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the rules of intestacy in accordance with its own ideas of justice and fairness. Nor is the role of the Court “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

  4. In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

“… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

Qualifications on “Principles”

  1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

“[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

  1. As I have stated in many cases, I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

  2. The formulation of principles to guide the exercise of the discretion, hopefully, avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

  3. Yet, it is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].”

  1. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], by Barrett JA at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and by White JA in Steinmetz v Shannon [2019] NSWCA 114 at [37]. They must be remembered.

Conclusion

  1. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant to the circumstances set out below.

  2. Having found that the Plaintiff is an eligible person, that having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application, and that the parties consent to the time for making her application being extended to the date of the filing the Statement of Claim, it is necessary, finally, to determine whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the operation of the intestacy rules in relation to the estate of the deceased.

  3. I have already referred to the submission made on behalf of the Plaintiff as to the nature of the provision that was sought. I do not accept, in the circumstances of this case, that the deceased had an obligation to make such provision for the Plaintiff. Whilst the relationship, overall, existed for about 13 years, the domestic relationship existed for about 5 years.

  4. Nor do I accept the submission made by the Defendant that considering the benefits the Plaintiff has received since the death of the deceased, there should not be any additional provision made for the Plaintiff.

  5. When it was suggested during submissions, that in the alternative, the Court would be assisted by submissions on what would be adequate and proper in all the circumstances, senior counsel for the Defendant said (Tcpt, 29 March 2023, p 482(18-25)):

“…a figure in the range of $250 to $300,000. … I'm instructed to tell the Court that my client instructed me, and sometimes your Honour doesn’t want to hear what my instructions are, but you will this time, that my client would be content with an equal 1/9 distribution between the plaintiff and the eight beneficiaries. So, and that comes to about $450,000.”

  1. Whilst I am of the view that instructing senior counsel to indicate the nature of the instructions reflects favourably upon the character of the Defendant, the calculation is mathematically incorrect bearing in mind the value of the net distributable estate ($3,686,597). The percentage (11.1 per cent) equates to $409,621.

  2. In reaching my conclusion about the quantum of the provision that ought to be made for the Plaintiff, I have considered all the evidence and the submissions. I have also remembered that the Court should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application and treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 20 (Dixon CJ). The Court also makes allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

  3. The net estate of the deceased is also reasonably large and is sufficient to make some provision for all the persons to whom the deceased owed a testamentary obligation, although not all those persons have advanced a financial claim upon the bounty of the deceased.

  4. I also remember that the relationship ended a very short time prior to the death of the deceased, and that prior to the ending, it had existed for about 5 years, although a form of relationship that was not a de facto relationship existed for about 8 years before that. I have also remembered the provision made by the deceased for her during his lifetime and what she has received, including accommodation in Unit 215, since his death.

  5. I have earlier referred to the Plaintiff’s financial and material circumstances which demonstrates that she does not have much by way of property. She also currently is unemployed and whilst she has an earning capacity, even if employed, her income would not be large. Yet, it is to be remembered that she is single with no dependents.

  6. Judged by quantum and looked at through the prism of her own financial resources and needs, adequate provision for the proper maintenance or advancement in life has not been made under the operation of the rules of intestacy. As stated above, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

  7. As the Plaintiff has established the jurisdictional threshold, the next question is what provision ought to be made for her out of the estate of the deceased. I am satisfied that her claim for provision from the estate of the deceased ought to be by way of what might be termed a lump sum for exigencies of life and to provide a modest sum to assist her with security of accommodation.

  8. This is a more difficult question, and it involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”.

  9. However, as earlier stated, similar considerations as are set out above often arise. The assessment of her needs is not a mechanical process.

  10. My evaluative judgment should be, and has been, “guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought [to] be made”; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P). I have remembered that the Plaintiff does have a lack of any substantial reserves to meet some demands, particularly of ill health, and some financial security to protect against the ordinary vicissitudes of life.

  11. I am of the opinion that the provision made for the Plaintiff should equate to 15 per cent of the net distributable estate. On the estimates provided above, the lump sum that equates to 15 per cent of the net distributable estate will be about $553,000. As agreed, she should also receive the gross sum for costs ($165,000). That will leave 85 per cent of the net distributable estate to be divided equally between the deceased’s 8 brothers and sisters. This should not impact, significantly, on the share to which each of his siblings is entitled on intestacy as instead of each receiving a lump sum that equates to 12.5 per cent, each will receive about 10.62 per cent, thereof.

  12. I shall allow the parties an opportunity to consider these reasons and decide how they wish to proceed. Obviously, if the estate has to be collected, the debts and testamentary expenses determined, and then paid, and then the provision made for the Plaintiff distributed thereafter, an independent administrator (Mr Neal) should be appointed. If, on the other hand, the parties can agree upon the lump sum that is to be paid to the Plaintiff bearing in mind the conclusions to which I have come, and when it might be paid, other orders might be appropriate.

  13. In accordance with s 65(3) of the Act, since provision is to be made by payment of a lump sum, the orders should specify whether interest is payable on the whole or any part of the amount payable, and, if so, the period during which interest is payable and the rate of the interest. The parties should consider this aspect also.

  14. I direct the parties, within 14 days of these reasons being delivered, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons. This period should allow the parties to agree on orders to give effect to these reasons.

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Decision last updated: 09 May 2023

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