Shymko v Lach - [2022] NSWSC 1096

Supreme Court

New South Wales

Medium Neutral Citation: Shymko v Lach [2022] NSWSC 1096
Hearing dates: 1 – 3 August 2022
Decision date: 18 August 2022
Jurisdiction: Equity
Before: Meek J
Decision:
Proceedings dismissed. Parties to address on costs.

Catchwords:
CONTRACTS – Testamentary promise – claimed general and specific statements of inheritance – whether statements certain and enforceable – General statements vague and uncertain based on equality and fairness – No form of exchange of promises nor request of action – No intention to give rise to legal relations – Claimed historic specific statements not established – Frailty of memory
ESTOPPEL – Equitable estoppel – Requirements – No clear and unequivocal representation – requirements of reliance – no evidence deceased aware of intended reliance or purported reliance – requirement of detrimental reliance – no substantial material disadvantage
SUCCESSION – wills, probate and administration – validity of a will – whether undue influence – no evidence amounting to coercion
SUCCESSION – family provision – structure of statutory scheme – requirements of dependency – requirements of factors warranting – reference point for assessing inadequacy of provision
SUCCESSION – family provision – claim by granddaughters – strength of financial resources of granddaughters – strong competing claim of daughter who lived with deceased entire life – substantial care for deceased particularly in later years.

Legislation Cited:
Conveyancing Act1919 (NSW), s 54A
Family Provision Act1982 (NSW), s 9
Interpretation Act 1987 (NSW), s 33
Succession Act 2006 (NSW), ss 57, 59, 60, Ch 3
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Trustee Act 1925 (NSW)

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Ashton v Pratt (No. 2) [2012] NSWSC 3
Ball v Newey (1988) 13 NSWLR 489
Baltimore and Ohio RR Co v US 261 US 592 (1923)
Bartlett v Coomber [2008] NSWCA 100
Bates v Cooke [2015] NSWCA 278
Blendell v Byrne [2019] NSWSC 583
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Boyce v Bunce [2015] NSWSC 1924
Brown v Faggoter [1998] NSWCA 44
Budden v The Public Trustee (Supreme Court (NSW), Needham J, 4 November 1986, unrep)
Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Chisak v Presot [2022] NSWCA 100
Churton v Christian (1988) 13 NSWLR 241
Clinch v Swift (Supreme Court (NSW), Young J, 13 October 1986, unrep)
Commissioner of Taxation (Cth) v Spotless Services Ltd (1996) 186 CLR 404; [1996] HCA 34
Corcoran v Bizannes (Supreme Court (NSW), Needham J, 4 June 1985, unrep)
Dijkhuijs(formerly Coney) v Barclay (1988) 13 NSWLR 639
Dillwyn v Llewelyn (1862) 4 De GF&J 517; 45 ER 1285
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317; [2012] FCAFC 106
Fincke v US 675 F 2d 289 (1982)
Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475
Georgopoulos v Tsiokanis [2022] NSWSC 563
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
Horton v Jones (1935) 53 CLR 475; [1935] HCA 7
Hurst v Public Trustee [2000] NSWSC 1109
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8
Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576
Mallitt v Gow [2022] NSWSC 1012
Maloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep)
Maxwell v Maxwell [2022] NSWSC 1028
McKenzie v Baddeley [1991] NSWCA 197
Moore v Aubusson [2020] NSWSC 1466
Morgan v Bohm [2013] NSWSC 145
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51
Petrohilos v Hunter (1991) 25 NSWLR 343
Pitkin v Henderson [2001] NSWSC 207
Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353; [1969] HCA 29
Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113
Porthouse v Bridge [2007] NSWSC 686
Ramsden v Dyson (1866) LR 1 HL 129
Re Fulop(deceased) (1987) 8 NSWLR 679 at 681D
Samsley v Barnes [1990] NSWCA 161
Sgro v Thompson [2017] NSWCA 326
Shaw v Lambert (Supreme Court (NSW), Young J, 9 October 1987, unrep)
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223
Singer v Berghouse(No 2) (1994) 181 CLR 201; [1994] HCA 40
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Steiner v Strang [2016] NSWSC 395
Strang v Steiner [2019] NSWCA 143
Sun v Chapman [2022] NSWCA 132
Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Vukic v Grbin [2006] NSWSC 41
Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In Liq) [2022] HCA 3; (2022) 399 ALR 1
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Watson v Foxman (1995) 49 NSWLR 315
Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep)
Winter v Crichton (1991) 23 NSWLR 116

Texts Cited:
Anna Lawson, "The things we do for love: detrimental reliance in the family home" (1996) 16 Legal Studies 218
JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis)

Category: Principal judgment
Parties: Natalie Shymko (First Plaintiff)
Katherine Vella (Second Plaintiff)
Mary Lach (Defendant)
Representation: Counsel:
M Pringle (Plaintiffs)
K Morrissey (Defendant)
Solicitors:
CMM Quay Legal Group (Plaintiffs)
Warren F. Ball & Co (Defendant)

File Number(s): 2021/217653

Judgment

HIS HONOUR: These are proceedings relating to the estate of the late Teofilia Shymko (the deceased/"Baba") brought by two of her grandchildren, the first plaintiff (Natalie) and the second plaintiff (Kathy) being the daughters of the deceased's son Myron who died in January 2002.
Without intending any disrespect, it is convenient to refer to the parties and the immediate family members, as the parties themselves have done in the proceedings, by reference to their given or familiar family names.
The defendant to the proceedings (Mary) is the deceased's other child.

Relief sought

The proceedings were commenced by summons filed on 30 July 2021 seeking family provision relief.
By statement of claim filed on 13 September 2021, additional relief apart from family provision relief was sought.
The further relief in fact has become the primary relief sought, with the family provision relief (family provision claims) now sought in the alternative.
The further relief is essentially relief that the deceased's estate is bound by alleged statements made by the deceased and purportedly relied upon by the plaintiffs as general inheritance promises.
The first alleged statements were said to be made in or about early 2002 shortly after Myron’s death by the deceased purportedly to make provision of an amount equal to one half of the net distributable estate for the plaintiffs as tenants-in-common. Although the statements are disputed in the proceedings for convenience purposes, in addressing the claims, I will simply refer to the statements or claims regarding the statements as being the ‘general inheritance promises’.
The plaintiffs claim that the deceased's estate is bound by a testamentary contract regarding the general inheritance promises or alternatively estopped from denying the general inheritance promises.
Further particular relief is sought in the nature of a testamentary contract or alternatively estoppel relating to sums of $50,000 said to have been offered by the deceased in or about 2005 (in the context of Natalie’s separation from her then husband) to Natalie as assistance to purchase property but also on the plaintiffs’ case as a promise of inheritance. Likewise, although the statements are disputed in the proceedings for convenience purposes I will simply refer to the statements or claims regarding the statements as being the ‘$50,000 promises’.
Additional further and alternative relief is sought that the deceased's Will, dated 13 March 2010 (2010 Will) and any Wills made between January 2002 and 23 March 2010, be set aside for undue influence (undue influence claim): CB 7.
Whilst the relief sought in particular in relation to the general inheritance promises, $50,000 promises and family provision claims is relevantly disputed, many of the facts pleaded in relation to the claim have been admitted pursuant to a defence filed on 24 September 2021: CB 19.
The family provision claims are opposed. In particular, the eligibility of the plaintiffs is disputed (T207) as is whether there are factors warranting the making of their claims: T223.
Mary is Natalie’s godmother and Natalie described the family a "small, tightknit family": CB 25[10].
Each of Natalie and Kathy speak fondly of their relationship with Mary prior to the events leading up to these proceedings (CB 35[80], 47[60]). In cross-examination Kathy stated (in reference to the time up to May 2019) “Mary treated me very, very well”: T113.
This case is a desperately sad one, as Ms Pringle acknowledged (T2) at the outset of the hearing.
The disputes over the deceased’s 2010 Will and general inheritance promises and $50,000 promises have fractured what appear to have been generally harmonious and loving relationships between the plaintiffs and Mary.
Mediation between the parties failed to resolve their issues: T2.
In the circumstances, the Court has been asked to determine the claims. The judicial duty is to hear the case according to law: T3.

Summary of outcome

For the reasons that I have outlined below, I dismiss all the plaintiffs’ claims for relief, namely claims (a) based upon the general inheritance promises and the $50,000 promises; (b) that the 2010 Will was affected by undue influence; and (c) for family provision.

Family details

The deceased

The deceased was born in August 1926 in the Ukraine and died on 3 August 2020, aged 94.
The deceased married Dymtro Shymko (Dido or Did) in 1946.
Dido was born in October 1913 and died in September 1976, aged 62.
The deceased was a devout Christian attending the St Athanasius Ukrainian Orthodox Church at Granville: T 25.
The deceased worked as a process worker with Smiths Industries at Granville: T 29.
She never drove and during her working life got to work from Guildford to Granville by train: T 29.
I refer in more detail below regarding the deceased and family events.
The deceased was described in the evidence by Natalie as being was fiercely independent even until her eighties: CB 33[67]. Kathy agreed: CB 46[48], 47[50].
However, in the last decade of her life the deceased had health issues which I refer to below.
In April 2020, the deceased had a massive stroke and went into full-time care: CB 53[113]. She passed away within four months of that stroke.

Myron and Mary

There are two children of the deceased’s marriage to Dido, namely Myron who was born in September 1947 and died in January 2002, aged 54.
Mary the other child was born in March 1950 and is aged 72.
Myron married Olga in October 1968.
Olga was born in the Ukraine in February 1943 and came to Australia with her parents in 1949: CB 63[6]. She is aged 79.
On January 2002, Myron died from kidney cancer having been diagnosed barely six months before his death: CB 29[41].
It is uncontested that the deceased loved Myron very much, that they had a close relationship and she was heartbroken when Myron died: CB 29[39]; 154[49]–[50]. Kathy describes Myron's relationship with the deceased as very strong and loving: CB 45[43].
In 1972, Mary gave birth to Alise and in October 1972 adopted her out as a child. Alise is currently aged about 30: CB 48[69], [72].
There was some conflicting evidence in the proceedings regarding Alise, mainly relating to whether the deceased had forced or insisted upon Mary adopting Alise out: e.g. CB 28[36]–[38]. Natalie says that Mary told her that she felt guilty for adopting out Alise. Mary denies that and says that she was the one who made the decision and never felt guilty about it: CB 163[65.11]. It is unnecessary to resolve that dispute.
In 1982, Mary married Stanislaw Lach (Stan) who was born in October 1950 and is aged 71. Stan although born in Australia has Polish heritage: T189.
Stan had previously married Robyn in 1970 and they have one child, Troy, aged 51. Troy is married and has three children: CB 191–192.

Natalie

Natalie was born in November 1969 and is currently aged 52.
Natalie married Taras Mercinsky (Taras) in January 1992.
There are two children of that marriage, namely Tomas (referred to in evidence as Tom) who was born in January 1996 and is aged 26 and Alex who was born in May 1998 and is aged 24.
Natalie's marriage to Taras ended in or about 2005 and they divorced by Court order in July 2006 which became effective in August 2006: exhibit D4.
The divorce was somewhat messy. Natalie indicates that Taras was an abusive alcoholic who had caused a lot of damage to the property in Amiens Street, Gladesville in which they were living in at the time: T 46.
Natalie later formed a relationship with Malcolm Jones (Malcolm) and they have been living together in a de facto relationship since 2011: CB 129[1], [6]. Malcolm was born in August 1946 and is currently aged 75.
Malcolm has three adult children from his first marriage.

Kathy

Kathy was born in October 1970 and is currently aged 51. She married Christopher Vella (Chris) in March 2006. Chris was born in September 1976 and is currently aged 45. They have a daughter Zoey who was born in May 2014 and is currently aged 8.

The deceased's estate

On 30 June 2022, the Court directed the parties to provide an agreed schedule as to assets and liabilities and costs. The parties in compliance with the direction prepared a joint schedule which was marked without objection as Ex JP2.

Net estate

As at the date of the deceased's death, the deceased held an interest in the following property:

Real estate at Guildford Road, Guildford - $825,000

Cash accounts CBA and St George Bank - $32,660.47

Jewellery - (no value indicated)

Total: $857,660.47.

There were liabilities for funeral expenses and home care expenses totalling $14,797.85 leaving a net estate of $842,862.62 (and in addition the value of the jewellery).
The deceased’s property at Guildford Road, Guildford (Guildford property) has been transmitted into the name of Mary as executor: exhibit P2.
Since the date of death there have been other expenses, including legal expenses and PEXA fees on the transmission application.
In late March 2021, an interim distribution was made to Mary of $10,022.28: CB 138[3], 313, 314; exhibit P2.
It is agreed that the property of the deceased effectively as the date of the hearing comprises the Guildford property estimated at $975,000, the interim distribution to Mary (approximately $10,022) and the jewellery of the deceased.
The estimate of $975,000 is supported by an L.J. Hooker appraisal that suggests the Guildford property has a value between $950,000 and $1 million as at 24 June 2022: CB 382.
There is some indication that Mary will have to pay capital gains tax on the sale of the Guildford property which, on a sale price of $975,000 (if that be achieved), is estimated to be in the order of $5,000: CB 217[4(d)]. Prima facie that would appear to be a liability of the estate.

Costs

Mary has funded legal fees in relation to the proceedings to date in the sum of $35,000.
Mary's costs of the proceedings, which are currently outstanding are in the sum of $75,000. Thus, her costs of the proceedings on the indemnity basis are in the sum of $110,000.
The net estate, having regard to the estimate of legal fees is in the sum of approximately $875,022.
The Guildford property, it is agreed, will be sold: e.g. T 226. Further costs that may be incurred on the sale will include legal fees and disbursements on sale ($2,500), marketing fees ($4,000) and real estate agents commission ($19,500) totalling $26,000.
The plaintiffs’ costs of the proceedings estimated on the indemnity basis are $146,700 of which the plaintiffs have paid $138,701.65.
Their costs estimated on the ordinary basis are $118,500.

The deceased’s wills

The deceased made a number of Wills prior to her last Will in 2010.

Prior Wills

The evidence discloses Wills made on 29 June 1977 (1977 Will), 22 August 2002 (2002 Will) and 13 July 2006 (2006 Will): CB 42[10].

2010 Will

Probate of the 2010 Will was granted to Mary on 18 November 2020: CB 281.
The 2010 Will appoints Mary as executor and after payment of funeral, testamentary, duty and other expenses and debts leaves the residue of the estate to Mary absolutely: CB 282.
In the event that Mary predeceased the deceased the Will made provision for the balance of the estate to be distributed as follows:

40% to Stan;

20% to Natalie;

20% to Kathy; and

20% to Alise.

(CB 282–283)

Significantly, whilst there is reference to the 1977 Will and the 2002 Will (made approximately seven months after Myron’s death), there is no detail in the evidence of the terms of those Wills.
There is in evidence a draft copy of the 2006 Will, by which the deceased appointed Mary as executor and gave gifts of $30,000 to each of Natalie and Kathy, and $10,000 to the deceased's brother Bogdan: CB 226–227.
The balance of the deceased estate under draft of the 2006 Will after payment of funeral and testamentary expenses, duties and debts is given to Mary: CB 227.
The event of Mary predeceasing the deceased, the draft discloses there was a gift over of the residue to such of Natalie, Kathy and Alise as survived the deceased and if more than one of them in equal shares: CB 227.
It is not agreed that the draft document which appears in the court books (CB 226–228) of the 2006 Will reflects what was in the Will as signed. The plaintiffs say that it is simply not known: T184-185.
There is a letter from Mary’s solicitors dated 13 May 2021 which shows that the firm Warren F Ball & Co had acted for the deceased since 2002. The letter indicates that during this time the deceased made two Wills. The letter (exhibit P2) relevantly indicates

“Our client has advised that she could not locate a copy or the original of the 2006 Will at home. Our records show that we do not appear to hold in safe custody the original 2006 Will but we are still completing our enquiries. It is the firm’s policy that when a client signs a new Will that they are advised to destroy any old Wills they have made and we do likewise re. any copies held in our files. We only have a computer copy of the 2006 Will but if there were any ink changes made to that Will they would not be shown. We will advise you as soon as we have completed our further enquiries.”

Accordingly I proceed on the basis that there is uncertainty as to the actual terms of the 2006 Will.
However, whilst the terms of the actual 2006 Will are not known, the fact that the deceased proposed gifts of $30,000 to each of Natalie and Kathy as recorded in the draft copy of the 2006 Will arguably bears some relevance to the $50,000 promises issue. I will refer to this below.

Evidence and witnesses

Each of Natalie and Kathy filed affidavits in the proceedings and there was additional evidence in their case by their mother Olga and by their partners respectively Malcolm and Chris. Their solicitor Mr Papadopoulos provided the formal costs affidavit.
In Mary’s case she swore a number of affidavits, including the prescribed administrator’s affidavit. Additionally Stan gave evidence. Mary’s solicitor Ms Newsom provided a number of the prescribed affidavits including the formal costs affidavit, which were read on the hearing. Specifically both Stan and Olga were served with notices of claim and did not make any claims: affidavits of Ms Newson sworn 14 September 2021, 20 September 2021 and 19 October 2021.

Credit and reliability

Each of Natalie and Kathy gave their evidence in a clear way. Subject to some reservations I note below regarding their evidence, in particular on the topics of the $50,000 promises and reliance on the general inheritance promises and $50,000 promises, I generally accept their evidence.
Mary likewise gave evidence in a straightforward way. On the whole I accept her evidence. I had some reservation regarding Mary’s recollection of the precise details in relation to the $50,000 promises. Otherwise, I accept the substance of Mary’s evidence on the contested issues on that topic.
Whilst Stan was a little defensive in cross-examination, I had no reason to doubt that he was attempting to tell the truth as best he recalled it.
Malcolm was somewhat combative during cross-examination, suggesting at one point that the assumptions for the questions were vague and asserting that the conclusions would be similarly vague: T 133.
When asked what appeared to be a relatively straightforward question of how much of loan expenses of $5,000, he claimed as a tax deduction his response was "I don't know, because it would be annualised, so you have to multiply everything by 12, which is not the nature of your question": T137.
For a person who practised and specialised as a financial advisor, he seemed surprisingly vague regarding detail about amounts that were contributed by each of himself and Natalie to the purchase of a property at Hunters Hill (Hunters Hill property): T 132–133.
Nonetheless, in re-examination, he gave evidence of some effects of his illnesses which included inability to concentrate for long periods of time, tiredness and chronic tiredness, and it may be that his ability to recall was to some extent affected by his health: T 144.
Overall, I have no particular reason to doubt he attempted to give his evidence as best he could recall it.
Chris was not required for cross examination: T 144.
Olga, by her own admission, was somewhat stressed in giving evidence: T 75.
I had the impression that she felt the cross-examination was a little personally intrusive: T 75.35.
Clearly, she was frustrated about the events relating to the deceased's Will (T 76).
She had a view that the deceased should have left her estate equally to Mary and Myron's family, asserting that that the deceased used to talk about things being equal and fair always: T 83.
She was evidently blindsided by news regarding the 2010 Will and could not conceive of why the Will took the form it did:

“A. I heard about that.
Q. Well, that's it--
A. I cannot believe it. She must have been under a lot of pressure or manipulated or something was done, because I cannot believe that, I'm terribly sorry. That's not her. It's an insult to her memory.” (T 83.42-.47).

My concern regarding Olga’s evidence is not that she was not attempting to tell the truth. However, as the above passage shows, she had a strong sense of her own view of the righteousness of the deceased’s moral obligations to the family and it seems to me that a disappointment in the terms of the deceased’s 2010 Will pervaded Olga’s thinking and also coloured, albeit subconsciously, her evidence. It seems to me that this is particularly so in relation to her evidence regarding the $50,000 promises.

Disputes regarding the extent of contact between the plaintiffs and the deceased

There were some differences as between Mary and the plaintiffs regarding the extent of the contact that the plaintiffs had with the deceased. The disputes in this regard were relevant to a number of issues.
One aspect of the dispute is that on Mary’s case there were limited opportunities for the deceased to make the general inheritance promises to the plaintiffs.
Further, Mary says that there was no opportunity for the deceased to make statements to Olga regarding looking "after the girls": CB 174[68.1].
Mary asserts that she was always present during the deceased conversations with family members and never heard her mother make promises to that effect: CB 176[69.1].
Kathy says that Mary holidayed annually away from the deceased for approximately two months of the year: CB 103[60b].
Each year Stan and Mary took annual holidays initially going to foster with their caravan staying for about a month.
From 2012, they went further afield taking their caravan to North Queensland annually and were away for longer periods for about 6 to 8 weeks: CB 162[65.10]. However, Mary says that she spoke with the deceased on the phone every day during these times: CB 162[65.10].
As I note below, I accept that there were occasions on which the deceased interacted with Natalie and Kathy where Mary was not present and I do not doubt that there were opportunities for the deceased to make statements to Natalie and Kathy, away from the presence of Mary.
A second aspect of the level of contact related to the opportunities for Natalie and Kathy to spend time with the deceased as part of the claim for reliance upon the general inheritance promises and the $50,000 promises.
Mary commented on the relationship of Natalie and Kathy with the deceased.
Mary accepted that when Natalie and Kathy were growing up, they had a close relationship with the deceased because Myron brought them regularly to visit the deceased and for mutual family activities at that time. Mary further indicates that the period of time that Myron's family lived with the deceased in Guildford brought them closer together: CB 155[53].
However, Mary says that when Natalie and Kathy became adults that contact with the deceased was far less frequent: CB 155[54].
Mary disputes Natalie’s evidence that she and Natalie called each other as frequently as once a fortnight (CB 35[80]) and rather says that she (Mary) was the one who initiated the calls: CB 167[65.28].
Mary commented that Natalie and Kathy rarely visited the deceased, particularly when she was in hospital: CB 157[59]. Kathy was cross-examined regarding this. She indicated that in 2009 she did not visit any hospitals when she was going through IVF for concern of catching infections: T 119.
It is clear that Mary lived with her mother for her whole life at the Guildford property and spent considerable time with her other than occasions when Mary and Stan went on annual holidays.
Stan indicates that in the 40 years he lived with Mary and the deceased, with the exception of family celebrations held with the Guildford property he hardly saw the plaintiffs visit, although accepts that he never formed any particular relationship with either plaintiff over that time: CB 200–201[50]–[51].
However, Stan’s seeming lack of involvement in some of the family activities related to his health issues regarding vertigo and suffering migraines: T 174.
Natalie and Kathy indicate that because of the general inheritance promises and $50,000 promises they amongst other things spent more time with the deceased than perhaps they might have otherwise done, including on occasions throughout the years they did from time to time visit the deceased and additionally they celebrated birthdays and Christian and other festive events during the year.
I accept their evidence of a goodly amount of contact with the deceased. However, I have doubts regarding Natalie’s and Kathy’s assessment of “increased extent” of their contact with the deceased, particularly in the context of reliance on the general inheritance promises and the $50,000 promises.
Mary disputed that the contact between the plaintiffs and the deceased was constant. She indicated the contact was occasional and “not a great deal that she would’ve liked”: T170.
As I understood this evidence, this is not said in an untoward way but rather simply recognising that the deceased appreciated the contact that she had with the plaintiffs, but recognised that their lives were busy and was perhaps even a little bit reluctant to initiate contact.
This is borne out in cross examination of Mary as follows:

“Q. Because Natalie and Kathy always had contact with Baba, didn’t they?
A. Well, when you say, “Always had contact,” because the girls worked, mum never used to bother - she knew they were busy with their working lives and their families, so nine times out of ten or eight times out of ten, it’d be me that would instigate the phone call. I’d have a talk to the girls and then they’d talk to mum on the phone. But, you know, we understood that they had family and that they were busy. So, we would ring when it was more convenient for them.” (T170)

I accept that Mary was generally speaking, the instigator of contact as between the deceased and the plaintiffs.
The cross-examination of Mary proceeded on the basis that from 2011 after Mary retired, Mary “pretty much” took the deceased everywhere and she really did not go anywhere without Mary: T174.
Kathy gave some evidence regarding the deceased’s independence which also confirmed the deceased’s reliance upon Mary and Mary’s great involvement particularly in the last 10 years of the deceased’s life. Kathy’s evidence to my mind supported Mary’s assessment of the plaintiffs’ contact with the deceased especially from about 2006 (CB 47[50]-[53]):

“50    Baba was fairly independent up until she reached approximately 80 years of age Baba did not drive. She was able to get herself to church and appointments using public transport. She was able to walk on her own to Guildford shops for groceries.
51    In her eighties, Baba started to become reliant on Mary due to her health and age. Mary cared and assisted Baba when needed.
52    In the last few years of Baba's life, Baba received Community Care services and had regular visits from an Aged Care worker who took her out for a coffee.
53    In her eighties, Baba was especially reliant on Mary for transport. So much so. Baba bought Mary her car. During these later years. Mary drove Baba to church, the shops, the cemetery. and medical and legal appointments. Mary often attended these appointments with Baba.”

I consider that Mary was in a good position to assess the general level of contact as between the plaintiffs and the deceased. Whilst it is true that she had no direct means of observing contact while she was away on holidays she did keep up phone contact with the deceased and had some degree of awareness that way.

Disputes regarding the general inheritance promises and the $50,000 promises

I address below my particular findings regarding the disputes regarding the general inheritance promises in the $50,000 promises.

The deceased

Upbringing and migration

In 1942 during the German occupation of Ukraine during World War II when the deceased was 16 years old, she was deported to Germany where she met Dido in an American displacement camp. They married in Frankfurt.
Myron was born in Germany.
In 1949, the deceased and Dido migrated to Australia, arriving in Melbourne.

Life in Australia

Dido worked as a "powder monkey" at Warragamba Dam and they travelled to Cowra where the deceased lived with Myron in an immigration camp whilst Dido went to live and work in Warragamba.
After about three months, the deceased and Myron moved to live with Dido in Warragamba.
In about 1957, the deceased and Dido purchased the Guildford property: CB 142[7].
The deceased continued to live in the Guildford property essentially until a few months before her death.
In September 1976, Dido passed away. It is common ground that this had a profound effect on the deceased.
I set out below some details of the relationship between the deceased and the parties.
The deceased communicated in a number of languages. Sometimes she spoke in Ukrainian or Polish. Other times she changed to English to include others such as Stan (who could understand a reasonable amount of Polish) in the conversation: T189-190.
Although there was a little uncertainty about the timing it appeared that the deceased retired in or about 1984-1985: T174.

Deceased’s failing health

The deceased suffered from bad arthritis in her hands and had operations for carpal tunnel when she was younger: T191.
In her later years, the deceased had several serious health issues requiring hospitalisation.
In August 2009, she had a bowel resection at Concord Hospital, following which she had a stoma bag for eight months: CB 151[42].
In 2016, the deceased had a severe lung infection after a right knee replacement and was in Fairfield Hospital for seven weeks: CB 151[42].
In 2019, the deceased suffered a severe bout of pneumonia and was in Westmead Hospital for ten days: CB 151[42].
On 28 April 2020, the deceased had a major stroke and was admitted to Westmead Hospital for four weeks: CB 151[42].
On 28 May 2020, the deceased was discharged from Westmead Hospital and was admitted to St Vincent's care facility at Yennora for respite care. The plan that she would return to the Guildford property was not realised: CB 152[43].

Financial resources

There was some debate in the proceedings regarding the size of the resources the deceased was likely to have had at times referable to the claimed promises in 2002 and 2005.
Mary indicated that the deceased was very thrifty with her money and saved well: CB 160[65.3]. Stan indicated that the deceased used to hate spending unnecessary money and agreed she lived a very frugal lifestyle and managed her money very carefully: T191-192. He stated she “knew exactly what she was doing with her money”: T192.
Natalie did not know precisely about the deceased’s financial circumstances. She “just knew that she had her house in Guildford which she owned”: T58, 63.
Olga was cross-examined regarding where the deceased had the money in order to make good financially the general inheritance promises and $50,000 promises.
Olga indicated that the deceased did not go anywhere, she had a pension and that she was aware from other people that “if you don’t go anywhere and you save up, you can have money in the bank”. Olga had the impression that the deceased was able to save and put a bit aside: T 82. However, Olga accepted that she did not know and was not privy to the deceased’s finances: T83.
The deceased had relatives in Poland and she sent them money and clothes: CB 66[38].
It appeared clear on the evidence that the deceased's property following her retirement only comprised the property at Guildford, some amount of money, which was not precisely identified at any relevant point of time (other than the date of death) and the aged pension: T 82 (Olga).
It is clear from the administration of the estate that the deceased had at a term deposit with St George that at that stage had a sum of approximately $26,143 and a bank account with a small amount of money albeit that the sum of $3,100 had been withdrawn in cash post death. The deceased also had two accounts with the Commonwealth Bank with some amounts totalling a little over $4,000 which had been withdrawn in cash post death: CB 312.

Financial arrangements with Mary and Stan

Mary has lived with her mother in the Guildford property since it was purchased.
Prior to Mary being married she paid board to the deceased and was “a contributing member of the household”: T 149.
In 1980, after Stan had been dating Mary, he moved into live with Mary and the deceased in the Guildford property: CB 143[8]-[9].
Since 1980, Mary and Stan split household bills three ways: T191.
Mary and Stan did not pay rent for living in the Guildford property. However they did do work.
Mary was cross-examined to some degree about the board. It was suggested to her that she stopped paying board when Stan came to live in the house. Essentially, she affirmed that: T149-150. However, her further answers clarified the position somewhat. Neither Mary nor Stan viewed the financial arrangements as being formalised in the sense of the work they did being an “exchange” for or in lieu of rent: T152, 191.
In Mary’s words “We were still paying bills and food and like all the different bills that were coming in” (T150) and “We were living there, so, those things had to be done so they were done”: T152. Although, in the scheme of things it was relatively minor, Stan gave some content to this in terms of willingness to fix even minor things that were required to be done including changing a tap washer when the deceased complained that the tap in the bathroom or kitchen or laundry was dripping: T191.
Mary confirmed that the improvements which Mary and Stan did to the property were discussed with the deceased and the deceased approved “everything”: T152.
However, Mary accepted that in terms of the improvements that were done if she had had to pay rent over 30 years it would have cost her more than that (i.e. the cost of the improvements): T152.

Mary (and Stan)

Upbringing, education and employment

Mary attended initially Warragamba Public School and then Guildford Public School. She later attended Merrylands High School leaving in year 10 when she was 15 years old: CB 143[11].
Mary then attended Granville TAFE completing a course in shorthand typing and business principles. After leaving the college she worked the Commonwealth Bank in Sydney at a number of branches doing various jobs including working as a teller: CB 143[12].
Stan left school in year 10 at the age of 15 years and commenced a five-year apprenticeship as a fitter machinist with State Rail: CB 192[17]-[18].
After finishing his apprenticeship he stayed on for another nine years working in that capacity and then became an instructor with State Rail Apprentice Training College he remained for 14 years. After 28 years with State Rail, he was made redundant and received a redundancy package of about $60,000: CB 192[18].
In 1976, after ten years Mary left the bank: CB 143[12].
Between approximately 1976 and 1992, Mary worked for 16 years with Bankcard: CB 143[12].
In or about 1982, following her marriage to Stan, Mary made a promise to the deceased that they would live with her until she passed away so that she would never have to live on her own: CB 145[18].
With that in mind Mary and Stan planned to save and buy house where they could eventually live.
Between 1994 and 2011, Stan worked as a subcontractor with Triple M Mechanical Services at Silverwater doing air conditioning maintenance and mechanical work: CB 193[20].
In 1986, Mary and Stan purchased a house in Gooden Drive, Baulkham Hills (Baulkham Hills property) for $175,000 and took out a mortgage with St George Bank for about $120,000 which was repaid over the next 30 years. In the meantime, they rented that house and made up any shortfall in the mortgage repayments from the cash funds. For a number of years of high interest rates the shortfall was substantial: CB 145[19].
Between 1992 and approximately 2000, Mary had other employment.
In 2000, Mary accepted a position as a container controller with United Transport at Arndell Park and worked there for 11 years until she retired in November 2011: CB 143[12].
In November 2011, Stan retired on the same day that Mary retired: CB 193[20].
When Mary and Stan retired they had liquidated their assets (apart from the Baulkham Hills property), including their superannuation and had $600,000 in savings and term deposits as well as the rental income from the Baulkham Hills property.
In about 2015 by the time that Mary and Stan attained the age of 65, because of their holding of the Baulkham Hills property, they did not qualify and therefore did not apply for the age pension. They continue to live off the rental income and their cash funds which has been depleting: CB 144[16].

Relationship with the deceased

Mary gave evidence of an affectionate and loving relationship with the deceased sharing "a special bond": CB 148[28]–[29].
Mary also indicated assistance she gave to the deceased sharing in cooking and housework and taking the deceased shopping into various appointments: CB 148–149[30]–[32].

The deceased loved gardening and Mary frequently took her to garden centres: CB 149[33].
Mary provided significant detail of family celebrations and other activities, including taking the deceased to the Granville Ukrainian Orthodox Church, Remembrance Day occasions and various trips: CB 149–151[34]–[40]. Poignantly Mary says whilst there were many family celebrations, they never celebrated Father's Day: T 174.
Stan took the deceased to most of her medical appointments as his work permitted him opportunity to work around times for the deceased to see various doctors: CB 149[31], 153[47].
Natalie commented upon Mary's relationship with the deceased asserting it was unusual and a "love, hate, love" relationship and at times that Mary would use some degree of coarse language in referring to the deceased. Mary, whilst acknowledging that at times she does swear, denied she called her mother by such names: CB 33[66]; 166[65.22]. On the other hand, Natalie seems to accept that there may have been an element of occasional teasing in some of the interaction between the deceased and Mary: CB 33[68]–[69].
Kathy observes that whilst it was clear that Mary and the deceased loved each other they clash loudly and "fired up" each other: CB 47[54].
Overall, I accept that Mary had an enduring loving relationship with her mother.

Relationship with plaintiffs (nieces)

Natalie indicates that she genuinely loved Mary and used to call one another approximately each fortnight ending the conversations with expressions of love for one another: CB 35[80]. Mary says she was the one who initiated calls (which I accept) and that the calls were not as regular as once a fortnight: CB 167[65.28].
Kathy indicates that Mary always treated her with love, inclusion and admiration: CB 47[60].

Promises to Mary and Stan

Mary and Stan did a lot of repair work, both major and minor to the Guildford property including renovations and improvements. Mary details the degree of this work over the period from 1983 to 2019 totalling $121,500: CB 153–154[48]. Mary indicates that often after jobs Stan attended to regarding the house she heard the deceased say to Stan:

"you will have all this back when I die as the house will be yours and Mary's": CB 153[48]

Further, Mary indicates the deceased said to her:

"you will get back all the money you and Stan spent on the house as it will be yours when I die": CB 153[48]

Stan refers to work he did around the house and indicates that on the occasion of completing the new garage driveway and paving at the Guildford property he gave the deceased a tour of the renovations and said to him:

"Son, you have done a marvellous job. You should be proud of yourself. You will get all this back when I go, as the house will be yours and Mary's.” (CB 198[41])

Stan states that in the last 10 years (2011/12–2021/22), the deceased said to Mary and himself several times:

"You know this house will be yours": CB 198[41]

Stan was cross-examined regarding the statements: T192. I accept Stan’s evidence that the deceased made the above-mentioned statements. By 2010, Mary and Stan had been coupled for the best part of 30 years (briefly living together and married in 1982).
Whilst the 2010 Will formally leaves the house to Mary, the deceased’s statements regarding the house in including reference to Stan benefiting was, it seems to me, not attempting to convey the precise legal position regarding inheritance but rather simply acknowledging the factual reality of he and Mary being a couple and his being able to live in the property with Mary after the deceased’s death.

Building contract for Baulkham Hills property

In December 2020, Mary and Stan entered a building contract with Beechwood Homes (dated 23 December but signed on 24 December 2020: CB 194[30]).
The building contract (CB 287–299) has a contract price of $467,269. It is described as a "supplementary building contract".
The written contract does not (it seems) provide for demolition costs.
Nonetheless, Mary indicates that she and Stan have paid to the builder approximately $30,000 for demolition costs, plans and Council fees. She indicates the builder omitted to check the flooding issues affecting the property resulting in the commencement of works being delayed and additional costs.
The contract price has been revised. One such variation appears dated 25 February 2022 was placed in evidence. It contains a list of various additions, deletions and modifications which provided a varied figure to be paid of $727: CB 360-367. The variation was signed by the parties on 3 March 2022 (CB 363). A payment of $41,226.90 was made by Mary and Stan on that day: CB 368.
On 4 May 2022, on the laying of the slab for the property further payments have been made by Mary and Stan of $80,000 and $36,817.25 covering the total amount due for the slab: CB 380-381.
Photos of the construction of the property including the slab appear in evidence: CB 383-385.
Mary indicated in her 23 September 2021 affidavit that the construction costs will now be approximately $500,000 and take approximately 12 months to complete once a new contract is signed: CB 146[23].
At some point Mary and Stan arranged a line of credit with St George Bank for $300,000 to assist with building costs. But since before Christmas 2020 (when the tenants moved out) and the house was demolished, they have lived off and paid expenses from their cash funds and line of credit and spent $56,500 from the line of credit: CB 146[24].
Stan in his updating 26 January 2022 affidavit gave evidence regarding the building contract noting that the revised cost of the bill is estimated to be $619,269 which, coupled with other expenses (installation of carpet, floating floor, blinds, shutters, driveway, paths, clothesline, landscaping, etc) at an estimated cost of $82,450, will total $700,719: CB 194–195[30].

Financial circumstances

In about 2015 by the time that Mary and Stan attained the age of 65, because of their holding of the property at Baulkham Hills, they did not qualify and therefore did not apply for the age pension. They continued to live off the rental income (until prior to Christmas 2020) and their cash funds: CB 144[16], 146[22].
They have not qualified for the pension and will not do so until they move into the completed residence on the Baulkham Hills property: CB 144[16].
Mary and Stan’s current assets and liabilities and anticipated liabilities are as follows (CB 218[6]):

Assets:
94 Gooden Drive Baulkham Hills (land) ("Baulkham Hills Property") - estimate market price	E $1,500,000
Furniture for new home (with cost of new lounge added since my January 2022 Affidavit)	$19,525
Mary's Jewellery	E$2,500
Box Trailer	E$500
Goldstream Caravan (9 years old)	E$20,000
2013 Mazda BT50	E$20,000
2010 Ford Festiva (with hail damage)	E$3,000
Great South Bank Account No [xxx] 778	E$50,000
St George Bank Account No [xxx] 684	E$16,000
Australian Mutual Bank Account Nos [xxx] 07871 & [xxx] 604	E$15,000
E$1,646,525
Liabilities:
St George Bank Line of Credit ($300,000) Account No [xxx] 67871	E$54,950
Balance due under Building Contract with Beechwood Homes (paragraph 3(c))	$304,450
Balance legal fees of these proceedings	$75,000
Anticipated Liabilities
Living Expenses before moving into Baulkahm [sic] Hills Property	E$16,100
Capital Gains Tax	E$5,000
Additional Costing pursuant to Building Contract (paragraph 3(d))	E$ 59,000
Installation of Additional Items in new home (paragraph 4 (a))	E$66,110
Additional Furniture for new home (paragraph 4(b))	E$9,000	E$589,610
E$1,056,915

It was clarified during cross-examination that the balance for the Australian Mutual Bank account item comprised two accounts including an account that Stan had earlier referred to in the affidavit and also proceeds of sale of a boat and trailer that Stan had sold in September 2021: CB 209[11], 218[5(b)]; T 194- 195.
The figure for capital gains tax would appear to be a liability of the estate not of Mary and Stan.
There was a Valuer General’s valuation for the land value for the Baulkham Hills property being the sum of $771,000 as at 28 April 2022: CB 316.
On 1 September 2021, an estate agent gave an appraisal for the unimproved value of the Baulkham Hills property as being $1 million up to $1.1 million: CB 318. The agent provided an updated valuation on 5 July 2022 revising that figure to $1.5 million: CB 386.
Mary estimates that after the building fit out and finishing is completed the Baulkham Hills property will be worth around $2 million to $2.2 million: CB 210[18]. She attempted to obtain a market appraisal with respect to a completed home, but agents would not provide an appraisal without the home having been actually built: CB 210[18].
Stan was cross-examined regarding the likely potential value of the completed property. Whilst it is common ground that Mary and Stan are building the property to live in, it was suggested (by reference to other sales in the area: see exhibit P1) that the completed property could sell for as much as $2.7–$2.8 million. However, Stan rejected that suggestion, indicating that the locality of the houses in exhibit P1 is several kilometres away, being on the other side of Baulkham Hills closer to Castle Hill and that the houses depicted in exhibit P1 are Eden Brae homes, being almost a third more expensive to build than a Beechwood home: T 197.

Health

Mary has glaucoma for which she takes medication in form of eye drops daily. Occasionally she suffers bouts of anxiety and has medication for that, as required. She also has trouble sleeping and has medication for that: CB 144[13].
Stan suffers from migraines and has done for most or all of his life. Some years ago he was diagnosed with reflux and formally diagnosed with benign positional vertigo of the left ear, which gives rise to episodes of dizziness and severe nausea: CB 144[14]. The vertigo, which has been a more recent illness (last six or seven years), Stan finds very debilitating: T190.

Competing claim to retain benefits

Mary states her future needs include:

$470,000 to complete building the Baulkham Hills home;

$81,450 for inclusions;

$56,500 to repay the line of credit with St George;

$121,500 for reimbursement for repairs and improvements to the Guildford property;

$150,000 at least to top up cash funds: CB 147[27].

It is not obvious that the claim for $121,500 for reimbursement for work in respect of the Guildford property is a need, let alone claimable. That is money that has been spent over many years. It was not advanced in any way as a form of loan. In any event, the Guildford property, it is agreed, will be sold: e.g. T 226.
However, leaving the sum of $121,500 aside, importantly, it appears that Mary and Stan expect that much of the cost associated with the building work would come from the proceeds of the sale of the Guildford property and also to top up their joint savings: CB 195[31].

Natalie

Upbringing, education and employment

As noted above Natalie talks fondly of her upbringing in a small ‘tightknit family’ in which she had a loving relationship with the deceased which persisted to the deceased’s her death: CB 25[10]-[11].
Family occasions were celebrated. This included, according to Natalie every family milestone being birthdays, christenings, weddings, kitchen teas, graduation ceremonies, formals, Christmas, Easter and Mother’s and Father’s Days and remembrance services: CB 25[11].
On birthday, Easter and Christmas occasions the deceased gave Natalie and her sons small sums of money, such as $50.
On particular special occasions such as Natalie's 21st birthday or her wedding day, the deceased gave her larger sums of money: CB 26[15].
Natalie deposes to the fact that during her teenage years her relationship with the deceased deepened: CB 27[21].
Natalie attended Carlingford High School.
In 1989, she commenced a BA in Politics at Macquarie University and graduated in 1991.
Following her marriage to Taras in 1982, in February 1983 she commenced employment as an advisor and researcher at Parliament House working for Virginia Chadwick and subsequently for Malcolm Jones: T 33, 35.
Apart from approximately a year in America (1995–1996) Natalie remained in her employment at Parliament House until approximately April 2006: T 33.
In adult years Natalie says Kathy checked on the deceased regularly when Mary and Stan went away on holidays. Natalie also visited, took the deceased shopping and to lunch: CB 27[29].
In 1998, Natalie returned to work and for several years until 2000, the deceased looked after Alex one day a week so that Natalie initially could work part-time and then full-time at Parliament House: CB 28[31]–[33].
Natalie says she was dependent on the deceased to look after Alex and could not have gone back to work part-time without the deceased’s support: CB 28[35].
Natalie indicates that her relationship with the deceased into adult years remained a close and loving one: CB 32[61].
In 2000 Natalie met Malcolm: CB 129[6].
In 2005 in the midst of her marital breakdown with Taras, Natalie moved out of the marital home in Amiens Street, Gladesville, and into Kathy's two-bedroom apartment in Meriton Street, Gladesville (Meriton Street unit), with her sons.
Taras and Natalie had an informal property settlement, in which she received "half of the assets" (which assets included the matrimonial home in Amiens Street Gladesville). That occurred before the formal divorce order of the Court, which enabled Natalie to purchase another property being a unit in Linsley Street, Gladesville (Linsley Street unit): CB 30[54]; T93.
On 10 November 2005, the Linsley Street unit was transferred into Natalie's name showing consideration of $463,000. It was subject to a mortgage to ING Bank (Australia) Ltd: exhibit D1.
On or about 2 September 2011, the Linsley Street unit was sold for $540,000: exhibit D1. This appears to have been relatively contemporaneously to the time at which Natalie started living together with Malcolm.
On or about 7 October 2011, Natalie and Malcolm purchased the Hunters Hill property for $1.34 million: CB 129[1]; exhibit D5.
On or about 19 September 2014, Natalie and Malcolm purchased a unit at Surry Hills (Surry Hills unit) for $760,000 (exhibit D6), which Malcolm used as an office: T134-135.
In April 2018, Natalie, Kathy and the various family members travelled to Cowra to take the deceased to places that she had stayed at when she had settled into the immigrant camp after the war: CB 32[62], 46[42].
Natalie refers to the fact that the deceased asked her to promise that she would not let her go into a nursing home: CB 33[70]. Ultimately, the deceased remained in the Guildford property until her stroke in April 2020 and following a four-week admission to Westmead Hospital she was discharged and admitted to St Vincent’s care facility at Yennora: CB 152[43].

Financial circumstances

Natalie is employed by Thales Australia as a Communications Manager and earns $5,423 per month net.
During the majority of Malcolm's working life, he was a licensed financial advisor. He is currently retired and does not receive any government benefits or pensions. He has no superannuation and subject to what is noted below states he has no income: CB 129[5], [8]–[9].
Malcolm draws approximately $4,000 per month from the investment account (CB 129[9]) which as at 10 July 2022 had a market value of approximately $2,459,804 (CB 387-388) and a closing balance as at 12 July 2022 of approximately $2,425,400 (CB 130[16)] which is primarily used to pay rent and health insurance.
Their monthly expenditure totals $9,798, the most significant items of which relate to groceries ($1,732), rent ($3,432) and entertainment ($1,500).
In late 2021, they sold the Hunters Hill property (in which they had resided) and also the Surry Hills unit and entered into a contract purchase a property in Drummoyne (Drummoyne unit) off the plan.
The purchase price is $1.9 million. They paid a 5% deposit on exchange of contracts (in September 2021): CB 130[11]. The front page of the contract indicates that a 10% deposit of $190,000 was payable: CB 319. However in “additional provisions” to the printed form the contract there was provision for payment of the deposit by instalments being the sum of $95,001 upon exchange and the balance of $94,999 on completion (or default): CB 333.
Completion is expected towards the end of this year or early 2023.
The sale of the Hunters Hill property and Surry Hills unit has left Natalie and Malcolm with funds in excess of $2 million with which to complete the purchase of the Drummoyne unit.
They are renting accommodation at Rundle Place, Gladesville for $3,432 per month for the period 13 November 2021 to 12 November 2022: CB 336.
In summary their joint resources appear as follows:

investment funds approximately $2,425,400;

motor vehicles approximately $68,000;

camper trailer approximately $35,000;

sole and joint bank accounts (nominal amount);

furniture and household contents approximately $120,000; and

Natalie's Thales shares approximately $3,532.

In addition, Natalie has a superannuation entitlement currently valued at approximately $331,408.
Their liabilities are, in summary, as follows (CB 131[18]):

Malcolm MasterCard $9,630;

share of legal fees approximately $40,000;

balance due on Drummoyne unit $1,805,000 (plus adjustments in legal fees);

stamp duty on contract for the Drummoyne unit $89,097.

Alex has a degree in communications, works full-time in and has been financially dependent upon Natalie up until the present. He found other accommodation last month: CB 126[22]; T87.
Tomas has finished a degree in economics and lives independently in an apartment in Glebe, although he is assisted by Natalie from time to time with some money for home improvements: CB 126[23]; T87.

Health

Natalie has been under a degree of health and financial strain and required counselling sessions, physiotherapy and remedial massage. She has been previously treated for alopecia areata, a stress related condition: CB 125[13], 420.
In December 2020, Malcolm was diagnosed with throat cancer. He was treated with radiation and chemotherapy until April-May 2021. Whilst his assessment period has not finished yet, the prognosis according to his doctors so far is good: T141.
Malcolm has other conditions including a heart condition.
He has had a left knee replacement in February 2022 (CB 400) and suffers from some mobility issues in pain and discomfort in his lower back, following an operation in 2014: CB 131.
Natalie has since it seems March 2021 been Malcolm's primary carer: CB 125[12]-[13].

Claim

Natalie's claim for provision in her initial affidavit (2 September 2021) outlined needs, including additional superannuation for her retirement of $200,000 and a fund for contingencies of $150,000: CB 37[107].
Natalie also outlined a need for secure unencumbered accommodation although, noted that she expected that she and Malcolm would be able to cover that from the proceeds of the sale of their home.
Natalie's claim for superannuation and a fund for contingencies was repeated in her updating affidavit (18 July 2022): CB 127[29].
Natalie makes reference to assistance they have provided to bring Natalie's cousin and her son from the Ukraine as refugees following the Russian invasion: CB 126[24]-[27], 374.
It can be seen that once Natalie and Malcolm complete the purchase of the Drummoyne unit their expenses will drop considerably having regard to the amount of rent currently paid: CB 436.

Kathy

Upbringing, education and employment

Kathy gave evidence of her childhood years and memories of her upbringing and involvement with the deceased. The deceased was present on occasions where Natalie and Kathy completed milestones for primary school, secondary school and tertiary education: CB 43[15].

The deceased paid for Kathy's annual church membership which continued into adulthood: CB 43[16].
Kathy outlined her relationship with the deceased leading up to and after the time of her father's death. Kathy describes the deceased as a "large presence" in her life and believed they had a close and loving relationship: CB 44[25].
Like Natalie, Kathy records birthdays and other events being celebrated and monetary gifts being received from both the deceased and Mary: CB 45[36]–[38].
In February 2000, Kathy purchased the Meriton Street unit for $255,000: CB 45[39]; T103.
She records that the deceased gave her a new fridge and washing machine for use in the unit: CB 45[39].
Kathy commenced a relationship with Chris Vella in or about 2004 or 2005 (T104) marrying him in 2006: CB 45[40].
In 2005, Kathy and Chris commenced building a house in Silverdale. They have lived there 17 years: CB 57[145]–[146].
In early August 2006, Kathy hosted the deceased’s 80^th Birthday party at the Silverdale home for her friends and family: CB 51[97b].

Financial circumstances

The financial circumstances of Kathy and Chris are as follows.
Kathy has worked full-time since leaving university up to 2013. She currently works part-time three days a week: CB 58[146b].
Kathy has net fortnightly income of $1,848. Her taxable income for the year ended 30 June 2021 was $68,425 and like Chris she has not yet prepared a return for the year ended 30 June 2022: CB 118[10]–[11].
Chris operates a company Black Earth Excavations Pty Ltd (Black Earth), which owns excavation equipment and leases trucks and trailers. He is employed full-time by his company as a plant operator: CB 59[154]. Chris works often 6 to 7 days a week: CB 58[146b].
For the 2021 financial year Chris had a taxable income of $51,872. He had not at the time of the hearing prepared a return for the financial year ended 30 June 2022: CB 112[14].
Recent events such as the COVID pandemic, flooding and long periods of wet weather have had some (undisclosed) impact upon the turnover of Chris's business: CB 114[27].
The business is also affected to some degree by mechanical breakdowns and rising fuel costs: CB 114[28]–[29].
Kathy prepared a schedule of what appears to be family fortnightly income ($5,734) and expenditure ($4,904): CB 118[12], 435.
Kathy still owns the Meriton Street unit which has a net value of approximately $438,133: CB 118[14]. An appraisal for the Meriton Street unit as at 13 July 2022 assesses its current market value at $650,000: CB 398.
Kathy owns jointly with Chris a property at Spring Farm which is mortgaged with a net value of approximately $803,410: CB 118[15], CB 113[19]. There is an appraisal for the property dated 14 July 2022 which gives an estimate of its current value at $900,000-$950,000 (differing from earlier in the year of $950,000 to $1.05 million): CB 402.
The property is tenanted and the gross rent is $580 per week: CB 113[19].
Chris recently received an inheritance of approximately $84,647 from his grandmother's estate which he paid into his Spring Farm home loan: CB 113[21].
They have a joint offset deposit account with a balance of approximately $5,668: CB 113[20].
Chris and Kathy own the property at Silverdale, which is unencumbered and worth approximately $1.6 million: CB 112[15]. There is an appraisal from a Penrith real estate agent assessing the value of the property as at 12 July 2022 in the range of $1.6 million to $1.65 million: CB 389.
Chris has a number of cars valued at $8,000: CB 112[15]. Kathy has a motor vehicle estimated at $8,000: CB 118[13b].
Chris’s company Black Earth owns plant and equipment totalling approximately $275,000: CB 112[15e].
Additionally, Chris has two investment properties:

at Pacific Pines with a net value of $498,756, which property is tenanted with a gross rent of $600 per week; and

a property in Gooloogong which is unencumbered with an estimated value of $270,000 but which property is not tenanted: CB 113[17]–[18].

An appraisal for the Pacific Pines property values the property in the range of $720,000-$750,000: CB 396.
An appraisal for the Gooloogong property as at 12 July 2022 suggests a value for it of $260,000 to $300,000: CB 390.
Kathy has superannuation with Hesta (approximately $184,974) and as at 30 June 2021 and superannuation with the Commonwealth Superannuation Corporation in the sum of approximately $365,533: CB 118[13].
Kathy explained that she had not separately contributed to the superannuation. Rather, the Commonwealth has a very generous superannuation scheme: T 122.
The superannuation from the Commonwealth Superannuation Corporation arose from Kathy’s employment with Australian Hearing for the period of about 11 years between 1993 and 2004 and she does not continue to add to that fund: T 122–123.
The Hesta superannuation amount arises from, or is connected with Kathy's employment with Audika at Penrith and has accumulated from about December 2004: T 123.
Chris has superannuation valued at approximately $176,743: CB 112[15].

Health

Kathy has infertility and early menopause, and it took them 21 cycles of IVF over seven years at a cost of $100,000 before Zoey was born: CB 58[146d].
Kathy has high blood pressure, which is controlled with medication and occasionally she suffers anxiety: CB 59[152].
Chris suffers from severe migraines and has allergies and sinus issues, but is otherwise in good health: CB 113–114[22]–[26].
Chris's father is aged 76 and is a widower. Kathy assists in his care: CB 58[146g].

Claim

In her initial affidavit (2 September 2021) Kathy outlined her claim for provision as being to reduce the mortgage on her solely owned property (the Meriton Street unit) then in the sum of $208,000 and also to add to her superannuation ($200,000) and replace her motor vehicle ($40,000): CB 60[165].
Kathy was cross-examined regarding her financial circumstances and claim.
She agreed with the proposition that she had assets, including superannuation of approximately $1,400,844 and Chris had assets of approximately $3.718 million collectively totalling over $5 million in assets: T 121.
Kathy further agreed that albeit she was working part-time, she was on a good wage, that Chris was working full-time and on a good wage and they netted at least $150,000 a year income between them: T 121.
They have no major liabilities apart from the mortgages.
Kathy has like Natalie given assistance to the Ukrainian cousins: CB 119–120[18]–[25].
Zoey attends a State primary school and Kathy accepted that her education costs would be minimal: T 121.
It was put to Kathy that with assets and income, as outlined above she did not need further provision. She indicated that provision would be to continue to raise Zoey and they had payments for before and after school care and expenses: T 121.

Olga’s financial position and testamentary intentions

Olga was cross-examined regarding her financial resources.
She had purchased the unit in Mitchell Street, Putney in August 2003, about a year after Myron's death: T 74.
She paid $648,000 for that property: T 74; exhibit D2.
It was suggested to her that the property is currently worth in the order of $1.5 million to $1.65 million based on an appraisal: T 74; exhibit D3.
Olga accepted that she had some other financial resources including more than $100,000 in the bank and that she owned a car, jewellery and household contents: T 75.
Olga was cross-examined regarding her Will and her current testamentary intentions in relation to Natalie and Kathy: T 76.
There was objection to the questioning on the basis that a Will is a confidential matter for the witness, and more particularly that it is subject to change.
I permitted the questioning, noting that the issue may be ultimately one of relevance and utility of any answer.
Logically, the prospect of a child or children, even if they are on very good terms with a single parent (as was admittedly the case here: T 75–76) of inheriting, is of contingent and limited value, if at all, as being regarded as a financial resource.
The probabilities that the plaintiffs might receive any significant benefit from Olga's estate are influenced by numerous factors including the health of the parties, Olga's own need for her financial resources and the exigencies of life, which are inherently uncertain.
I do not accept that Olga's financial resources, current as they are, can be counted upon as being a financial resource for the plaintiffs in the form of an inheritance, in any significant way.
Nonetheless, Olga did indicate in relation to questioning that if Kathy and Natalie needed financial assistance at the present time if she could, she would help them in some way: T 76–77.

The 1978 stay at the Guildford property

In 1978, Olga and Myron commenced building a house at Carlingford as in effect an owner-builder: T29.
They sold their house at Merrylands and moved in to live with the deceased at the Guildford property for approximately up to 16 months.
At the time of the move to the Guildford property Myron was working full-time as a customs officer and Olga was working three days a week at David Jones in Parramatta as a beauty therapist, normally between the hours of 9 AM and 4 PM: CB 64[17]. She owned her own business renting a room at David Jones: T 73.
Natalie (then about 8) and Kathy (then about 7) attended Merrylands East Primary School starting school at about 9:00 AM: CB 43[20]; T 80.
During the time living with the deceased Natalie and Kathy shared a room at the Guildford property: CB 27[27].
It is common ground that Olga and Myron did not pay the deceased rent during that period of time: CB 27.
Evidence about the exact layout of the Guildford property emerged in cross-examination. The parties indicated it was described as a three bedroom with one sunroom property: T 30, 56 (Natalie), 79 (Olga), 152 (Mary).
Natalie indicated that her mother and father worked full-time, and that the deceased looked after Natalie and Kathy before and after school. She said that the deceased picked them up, helped with meals, washing and homework and that they were very reliant upon her: CB 27[27].
Natalie was cross-examined regarding this. She appeared to accept that, given the deceased was working and did not drive, that in all likelihood, Olga must have taken Natalie and Kathy to school, although she definitely recalls the deceased picking them up after school: T 30–31.
The deceased would make them some afternoon tea or something before their parents came home from work: T 31.
Olga helped with cooking and cleaning at the house and sharing chores: T 31.
Kathy says that whilst they lived with the deceased she was dependent upon the deceased's care noting that the deceased collected Natalie and Kathy from primary school three days a week: CB 43[22].
She was also dependent upon the deceased for care and support until Olga returned home from work around 4:30 PM: CB 44[23].
Olga was somewhat unclear as to who took the girls to school although thinks that she must have taken them: T 80. She indicates that the deceased may have occasionally taken them to school, which was close by to Merrylands train station: CB 64[19].
Olga indicates that they lived with the deceased for about 14 to 16 months before the home in Carlingford was completed and during that time she and Myron were dependent upon the deceased whilst living with her and grateful for her help: CB 64[22]–[23].
In or about 1979 or 1980, Myron and the family moved into the Carlingford property: CB 27[28].

General inheritance promises - facts

Natalie’s recollections

Natalie says Myron’s death in 2002 took a heavy toll on the whole family and that she was in shock: CB 29[41]. Natalie says that the deceased was very depressed following Myron's death and was prescribed antidepressants and in fact continued on medication "for years after [he] died": CB 29–30[47]–[49].
On her first visit to the deceased at her home after that occasion, Natalie says that Mary was away with Stan.
Critically, Natalie says that the deceased engaged her in a number of conversations making what Natalie claims were general inheritance promises. The evidence is as follows:

“43 Baba said to me:
"I am so proud of you, Natalka. and Katia [Kathy's Ukrainian name] and the boys [Tom and Alex]. Your dad would be proud of you all too. You know, I promised him I would look after you. Myron is no longer here, he died too young, but we have to keep his memory alive. We need to keep things in the family and look after one another. That's all we have - each other."”

Natalie was cross-examined regarding the context of the discussions.
Taras had a Bachelor of Engineering and was working at Sydney Water on or about the same salary as Natalie.
Natalie was on approximately $60,000 a year or what could have been a bit more, perhaps $63,000 including superannuation: T 45–46.
She accepted the proposition that between them at that stage their combined salary would have been at least $120,000 and may be up to $140,000: T 46.
She disputed the contention that they were financially comfortable asserting that they had a big mortgage and two children to raise with household expenses: T 46.

Comments to Olga

Part of Natalie’s evidence regarding the general inheritance promises as I understood it were comments that were made by the deceased not to Natalie directly, but rather to Olga which were then recounted by Olga to Natalie.
Natalie’s evidence regarding this was as follows:

“44    Baba had conversations with my mother after Dad died. Baba said to Mum: "I will look after the girls. I promised Myron I would look after you and the girls."
45    Baba also talked to my mum about fairness and making sure to do the right thing where family is concerned. Baba often talking about being "fair with family and money" and making sure "everyone is treated equally".
46    After Dad died, Mum saw Mary and Baba often. Mary drove Baba to Mum's house at Putney and they went to lunch at North Ryde RSL Baba said she loved to do this. Baba wanted to do this once a month, but they usually got together once every couple of months. Mum said to me that occasionally she would have "private discussions with Baba" during which Baba said "I will look after the girls".” (CB 29[43]-[46]).

Kathy’s recollections

Kathy, like Natalie visited the deceased shortly after her father's death. On this occasion Kathy visited by herself and Mary and Stan were not present. The conversation took place around the kitchen table and the deceased made Kathy aware that she was taking antidepressants. She indicates that the deceased, naturally, was very upset about the passing of Myron: CB 48–49[75].
Kathy records the conversation with the deceased as follows:

“75 During this conversation Baba told me she wished she could have done something to help Dad recover from his cancer. Baba said ·
"I will never get over the pain of losing him".

77 While we were talking about Dad. Baba said to me in English:
"Katya, we are a close family and I look after my family. When I am gone, I promise I will pass on your father's share of inheritance to you and Natalka. I will look after you girls."
"I am very proud of you and Natalka, and your father would be proud of you too. I miss him very much."

We both had tears in our eyes. I hugged Baba and thanked her for sharing this with me. I told her "I love you".” (CB 49 [76]-[77])

Kathy said in her initial affidavit:

“Even though Baba and I were close, I never presumed to ask Baba about the specific contents of any of her Wills. I respected Baba. I never dared to ask Baba what was in her Will”: CB 50[91].
“Following my conversation with Baba in 2002 shortly after Dad died, I did not believe I needed to ask Bab a about her Will because she had promised to look after me”: CB 50[92] and
“Our family never really talked openly about our Wills”: CB 52[110].

Kathy was cross-examined regarding the conversations. Like Natalie she had no particular notes of the conversation. It was suggested to her that her memory of the conversation might not be clear, having regard to the fact that it was long ago and that it was an emotional time: T105-106.
Kathy disputed that and indicated that the event was a "very clear moment": T 106.

$50,000 promises – facts

Natalie’s recollections

In 2005, following Natalie’s separation from Taras she moved with her sons out of the matrimonial home in Amiens Street Gladesville and into Kathy's Meriton Street unit: CB 30[55].
In the context of her separation and/or divorce, Natalie says she wanted to purchase a property, preferably a house in the same area (Gladesville) and considered buying either a duplex in Junction Road Gladesville (duplex), or the Linsley Street unit. She says she needed another $50,000 to buy the duplex and was afraid to extend herself financially: CB 30[57].
Natalie says during this time the deceased and Mary called her, indicating that they had heard from Olga that Natalie was short of money and they had a conversation to the following effect:

“Mary: We heard you are short of money for the house you want to buy. Don't worry, Baba wants to help.
Mary passed the telephone to Baba.
Baba: Natalochka, I will give you the $50,000 now if you need it. I want you to buy the house for you and the boys so you have a home. You and Kathy are my only granddaughters. my family, Myron's daughters. I promised your father I would look after you both. I love you so much. You and Kathy have inheritance money from me and you can have some of this money now.
Natalie: Thanks Baba, I will think about it ... but wait what if I decide not to take the money now, what if I wait and take the money later ... what then? ... and what about Kathy?
Baba: It's ok if you want to wait ... if you do, then I promise to give you the money later when I die, kicked the bucket. Kathy and you will get the same amount.
Natalie: Thanks Baba. I will think about it.” (CB 31[57c])

Natalie says that she telephoned the deceased that afternoon and had a conversation which included the following exchange:

"Natalie: Thanks Baba for the early offer of my inheritance money, but I'm not going ahead with the duplex. If it's OK with you, I prefer to wait to get my inheritance money at the appropriate time and at the same time as Kathy.
Baba: OK but if you see some other property in the meantime and want some money, I promise you it's there for you. You are my blood, my family, my eldest granddaughter. I've always said, we Shymko women stick together. I make this promise to you, you can have part of your inheritance money now or later, whichever you prefer. You know my promise is my word and when I make a promise, Baba keeps it ... God is my witness. Us Shymko women stick together.” (CB 31[57g])

Whilst Natalie needed the $50,000 to buy the duplex she did not go ahead with that. Instead she purchased the Linsley Street unit, which was cheaper, and she did not require the $50,000 in order to purchase the Linsley Street unit.
Natalie was cross-examined about the $50,000 promise.
She stated (T58-59):

“A. No, because I was very desperate at the time and out of the - out of - I just sat there. I was living in my sister’s apartment and Mary and Baba called me and Mary said, “I heard that you are short of $50,000 to buy a house,” and I said, “That’s correct,” and then Baba came onto the phone and Baba said, “I want to help,” and that’s when the offer, the testamentary promise of the inheritance and I was absolutely, like, blown away and could not believe that - the generosity and I was really touched.
Q. Yes, but so there’s no mistake about it, Mary denies saying that she said to you, “We’ve heard you’re short of money,” that’s on the record, she denies that. If that was said, you’d be surprised because here’s an aged pensioner offering to give you $50,000. Where—

There have been many judgments of this Court which have considered that expression.
However, for the last 35 years, this Court both by judges at first instance and judges on appeal have consistently applied the consideration of that expression of McLelland J (as his Honour then was) in Re Fulop(deceased) (1987) 8 NSWLR 679 at 681D in which his Honour (in addressing the filtering process which distinguishes between classes of applicants) indicated that the factors referred to in that subsection, are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
In Churton v Christian (1988) 13 NSWLR 241 at 252A-E Priestley JA substantially agreed with the analysis of McLelland J in Re Fulop, although added that:

“although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

See also Petrohilos v Hunter at 347C per Hope JA.

In Brown v Faggoter [1998] NSWCA 44 Fitzgerald JA explained at 7:

“Subs9(1) is considered difficult to implement in practice. As Priestley JA pointed out in Churton v Christian in most cases it is very difficult to see how the Court could comply with the command that it should 'first' determine whether there were factors which warranted the making of the application 'having regard to all the circumstances of the case (whether past or present)' until all the evidence that any party wished to put before it concerning the case was before the Court and the Court had had an opportunity to have regard to the circumstances shown by that evidence. There may be cases where the executor thought the applicant would have no chance of succeeding because the criteria in s6(1)(c) or s6(1)(d) of the definition of “eligible person” in s6(1) were not satisfied as in the case, for example, where the applicant was neither wholly nor partly dependent upon the deceased person at any particular time or never a member of a household of which the deceased person was a member. Such might be a discrete issue suitable for a preliminary hearing and not requiring an investigation of other circumstances such as the applicant's need. Provided its operation is appropriately limited to unwarranted applications, subs9(1) has a potentially useful operation in ensuring that estates are not wasted on futile proceedings.
What needs to be emphasised, however, is that the Court is not authorised by the subsection to refuse to proceed with an application if there are “factors which warrant the making of the application”. Once the Court is satisfied that such factors exist, the application must be determined on the merits. While an onus is cast on an applicant by the subsection, it is only an onus to establish that the application was warranted. In my opinion, the trial judge was wrong in his view that subs9(1) involves a “reasonably strict test”. The requirement that an application is warranted is fulfilled if the application has reasonable prospects of success. It need not be demonstrated for the purpose of subs9(1) that the application is entitled to succeed; ie, that an order in favour of the applicant is warranted. Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted".

In many judgments of Macready AsJ, his Honour drew attention to the fact that that the comments of Fitzgerald AJA (with whom Sheller JA and Sheppard AJA agreed) seem to suggest that an application might be warranted if the application has reasonable prospects of success, and presented a somewhat different and perhaps easier test than that which the Court of Appeal had approved in Churton v Christian: e.g. Morgan v Bohm [2013] NSWSC 145 at [144].
In late 2017, in Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576 White JA (after referring to Re Fulop, Churton v Christian and Dijkhuijs(formerly Coney) v Barclay (1988) 13 NSWLR 639) cast doubt on the observations of Fitzgerald AJA in Brown v Faggoter in the following terms (at [9]-[10]):

“9. It is true that in Brown v Faggoter [1998] NSWCA 44 Fitzgerald AJA with whom Sheller JA and Sheppard AJA agreed, said that:
‘The requirement that an application is warranted is fulfilled if the application [for a family provision order] has reasonable prospects of success. … Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted.’

10. In Yee v Yee [2017] NSWCA 305 McColl JA observed in a footnote (footnote at n 136) that Brown v Faggoter has never been applied nor commented upon in this Court and although this Court has not said that Brown v Faggoter is wrong, the fact that it has been singularly ignored is ‘surely telling’. I agree. I agree with Windeyer J’s observations in Penfold v Perpetual Trustee [2002] NSWSC 648 at [50] concerning Brown v Faggoter. It has often not been followed at first instance, as being inconsistent with other statements of principle in this Court (Doshen v Pedisich [2013] NSWSC 1507 at [75]-[81] per Hallen J).”

As recently as late July 2022, the Court of Appeal has yet again referred to the comments of McLelland J in Re Fulop in respect of factors warranting with seeming approval: see Sun v Chapman [2022] NSWCA 132 at [119] per White JA, Leeming JA at [1] and Brereton JA at [88] agreeing. Indeed, Brereton JA in additional comments expressly endorsed the test, as indicated by McLelland J: at [193].

Adequacy of provision

Logically, in approaching the question of inadequacy provision one needs to have some reference point for assessing inadequacy.
This issue was addressed by White JA in Sgro v Thompson. His Honour stated at [86] that:

“The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate”

The evaluative judgment made under s 59(2) is fact specific and that the general words of the provision cannot be read down by applying constraints that are not to be found in the text of the legislation: Sgro v Thompson per White JA at [67] citing Bates v Cooke [2015] NSWCA 278 at [67].
Whilst an applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, it “is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter”: Sgro v Thompson at [71] citing Basten JA in Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 at [22]. The adequacy of provision is not to be determined by a calculation of financial needs: Sgro v Thompson at [71].
Nonetheless, judicial comment at the highest levels of Court hierarchy have provided sufficient guidance to enable judges in applying the legislation to the facts of the various cases that come before the courts.
"Provision" covers the many forms of support and assistance which one individual can give to another”: Mallitt v Gow at [187] citing Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 at [34] (Basten JA).
“Maintenance” clearly includes sufficiency of means upon which to live but is clearly not to confined to that: Vigolo v Bostin (2005) 221 CLR 191 at 228-229; [2005] HCA 11 per Callinan and Heydon JJ.
“Advancement” goes beyond the need for education and maintenance: Bartlett v Coomber [2008] NSWCA 100 at [50] per Mason P (Hodgson JA agreeing).
The question as to whether an applicant has been left with inadequate provision for her proper maintenance, education or advancement in life involves a finding of fact, albeit one that is, in light of the substantive character of the matter to be decided, evaluative. It does not involve an exercise of discretion: see Strang v Steiner [2019] NSWCA 143 at [76] per Macfarlan JA and at [131] per White JA; Georgopoulos v Tsiokanis [2022] NSWSC 563 at [256] per Hallen J.
In relation to the general principles regarding grandchildren claims both counsel referred me to the decision of Hallen AsJ (as His Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] and the apparent approval of those comments by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 per Basten JA at [17]–[21] and Barrett JA at [65]–[67].
A specific consideration, as acknowledged by Hallen J and also by the Court of Appeal is that the general principles are not rules of law and each case is fact specific: e.g. Sgro v Thompson per White JA at [49].

Determination of family provision claims

Dependency

On the facts of the present case, it is evident from the primary evidence and the cross-examination that:

Natalie and Kathy resided with their parents at the home of the deceased for a period of at least a year and on other versions up to a period of 14 to 16 months in or about 1978 to 1979;

the deceased over that period of time at least three out of the five weekdays collected Natalie and Kathy from school, safely saw them home and provided them with afternoon tea and supervision.

Further, Natalie refers to occasions where between 1998 and 2000, the deceased looked after Alex one day a week to enable Natalie to go back to work part-time and full-time at Parliament House: CB 28[31]–[35].
I find that in the circumstances, each of Natalie and Kathy were at least partly dependent upon the deceased for the provision of accommodation for period of at least a year and perhaps up to 14 to 16 months and for at least some degree of regular care on afternoons at least three days a week for school terms during that period of time.

Factors warranting

Mr Morrissey submitted that I must look at the facts now not at the time of the Will, nor when Myron died and indicated that his in submission, the plaintiffs would not now be regarded as natural objects of testamentary recognition: T 225.
Whilst the determination of the Court as to whether to make a family provision order is made, having regard to the facts known to the Court at the time that the order is made: s 59(2), the consideration of facts or circumstances that may bear upon factors warranting is not limited to circumstances as of the date of the hearing.
The wording of the statutory provision is that the Court may have regard to all the circumstances of the case (whether past or present) as to whether there are factors which warrant the making of the application: s 59(1)(b).
I do not think it is right to assess factors warranting through the prism of a pecking order of scheme of merited claims on the deceased's bounty nor, do I consider it appropriate to assess it through a prism of community value or “a pub or café test”: T 223–224.
It seems to me that that submission conflates the assessment with the consideration of whether adequate provision has been made (s 59(1)(c)) which it is the point of the observation of White JA in Chisak at [44].
The facts which in my opinion could have established the dependency of Natalie and Kathy, and so permit the finding of eligibility relates to the period of time in which they with their parents resided with the deceased at the Guildford property between 1978 through to 1979–1980.
Apart from those circumstances, a clear indication of whether an applicant is or might be described as a natural object of testamentary recognition involves looking at the terms of the Will or Wills that the relevant deceased person has made.
The terms of the Wills, apparently made in 1977, 2002 and 2006 (leaving aside the draft 2006 document) are not in evidence.
The 2010 Will makes clear reference to Natalie and Kathy in a provision of a gift over of the residue of the estate in the event that Mary were to have predeceased the deceased.
Each of Natalie and Kathy are given in that circumstance 20% of the deceased’s estate.
That fact is, in my estimation, a strong factor suggesting factors warranting. It is one of a number of indicia that arise.
There is other very significant material indicating a warm and loving relationship between each of Natalie and Kathy with the deceased for many years and up until the time of her death.
This is borne out in part by numerous photos of family gatherings showing many if not most members of the plaintiffs’ families celebrating events with the deceased and Mary: CB 82–83[19], 223, 229, 230 234–237, 241–246, 248-253, 258, 278, 422–423.
In particular, there are comments that on their account of the evidence were made by the deceased, which, even if they did not amount to general inheritance promises were some indication of the deceased's then present intention towards Natalie and Kathy.
It seems to me that in the circumstances there are factors which warrant the making of the application by each of Natalie and Kathy.

Adequacy of provision

The more difficult hurdle for each of Natalie and Kathy in the proceedings is the question as to whether in the circumstances of the case having regard to the facts known to the Court they have been left with inadequate provision.

Submissions

Ms Pringle indicated that Natalie and Malcolm were essentially on a comparable footing in relation to Mary and Stan in respect of properties: T206, 209. Ms Pringle noted that Natalie and Malcolm had been compelled to downsize into unit that “will no doubt be relatively comfortable, but it is not an extraordinarily valuable remarkable property having regard to Sydney prices”: T209.
Ms Pringle submitted that Natalie has some need in so far as she does not have secure employment. It is said that she only has contract work which may or may not endure: T209. Ms Pringle reinforced that if Natalie is unable to secure another contract, she will be too young for anything like the age pension and if she is forced rely upon Centrelink for unemployment benefit, it is unlikely that she would survive financially: T210.
Ms Pringle, with commendable frankness, acknowledged that Kathy’s family provision claim was far more problematic: T210. She observed, in my view rightly:

“Her husband has significant assets and Kathy herself is not without resources. It is submitted that a further modest provision might be made for her, but having regard to her family circumstances, that may not be, in your Honour's mind, a realistic submission.” (T210)

Mr Morrissey submitted that the deceased’s testamentary intentions as reflected in the will are of paramount and primary importance and should only be interfered with where absolutely necessary: T225.
In relation to Kathy, Mr Morrissey commented that she is in an extremely good financial position. She's a qualified audiologist and has a capacity to earn a substantial income. She and her husband have combined assets of at least $4.7 million and through hard work, savings and not being extravagant, which is to their credit, they simply are extremely well off: T225.
In relation to Natalie’s claim, Mr Morrissey submitted Natalie is young and highly qualified. She has been continuously in employment, to her credit, for 30 years and (because of Malcolm’s health problems early last year) she has been choosing at the moment not to exercise her full vocational capacity: T226.
He continued (T226) as follows:

“The relationship with Mr Jones seems to be a stable one. They've been together now for over a decade, I think it's around 11 years now. He's a bit older than her, but they have three cars between them, they have superannuation, they have funds in accounts, most of which will be used towards the house, but she has not established that she's been left without adequate and proper provision, nor if she did, should she receive provision.”

As to the s 60 factors, regarding Mary, Mr Morrissey submitted that Mary had a relationship with her mother which was as close as “could probably imagine”. He indicated that there was a high degree of obligation owed by the deceased to Mary, which the deceased recognised, leaving her whole estate to Mary. He submitted that Mary and Stan have made a substantial contribution to the main asset being the Guildford property, in the sense that they enabled the deceased to hold onto it, “not to have to sell it or move”. They “improved it, conserved it and enabled it to be available for sale in 2022”: T 226.

Section 60(2) factors

The Court in assessing that may have regard to factors as set out in section 60(2) on the question of whether the applicants have been left with inadequate provision.
Many of the s 60(2) factors are applicable to consideration on that question.
Clearly, as has already been indicated there was a warm and loving relationship between each of Natalie and Kathy and the deceased.
Reference has already been made to evidence of testamentary intentions of the deceased, including evidence of statements made by her: s 60(2)(j).
There is no suggestion that there is any aspect of the character and conduct of Natalie and Kathy that count against them in the consideration: s 60(2)(m).
Each of Natalie and Kathy have given evidence of some contribution by them at least to the welfare of the deceased: s 60(2)(h).
Whilst Natalie and Kathy have each received some gifts from the deceased during her lifetime, the gifts would not be considered to be significant provision for them: s 60(2)(i).
However, there are compelling factors that count against each of Natalie and Kathy.
Natalie's financial position, albeit somewhat weaker than that of Kathy, is relatively strong. That is particularly so when one has regard to the financial resources of Malcolm, with whom which Natalie cohabits: s 60(2)(e).
Whilst Natalie has some health issues she is able to work and function relatively well: s 60(2)(f). She is still relatively young: s 60(2)(g).
Whilst I accept that Natalie has contributed to the welfare of the deceased there is no suggestion that she contributed in any way to the acquisition, conservation and improvement of the deceased's estate: s 60(2)(h).
Further, Natalie has the support of Malcolm Jones, both financially and relationally: s 60(2)(l).
Kathy’s and Chris’ financial position is very strong: s 60(2)(e). Kathy has a few health issues, which are not disabling. She is able to work and function well: s 60(2)(f). She is a year younger than Natalie: s 60(2)(g).
As is the case with Natalie, whilst I accept that Kathy has contributed to the welfare of the deceased she did not contribute in any financial sense to the acquisition, conservation and improvement of the deceased's estate: s 60(2)(h).
Kathy is secure in a long-term loving marriage with Chris with whom she has support both financially and relationally: s 60(2)(l).

Mary

I accept the submissions of Mr Morrissey that Mary has a very strong competing claim in order to be able to retain the benefits given to her under the 2010 Will.
There is very considerable force to the submissions of Mr Morrissey in relation to Mary. She had a close and loving relationship with the deceased effectively living with the deceased for most of her life.

The plaintiffs’ case was predicated on the basis that the deceased was dependent upon Mary for care and supervision and physical support: T 205. Whilst that concession was made in the context of seeking to support the case for undue influence (which I have rejected), it nonetheless has relevance for the assessment of the family provision claims.
Apart from occasions when Mary was away on annual holiday, accompanied the deceased on most outings, she provided the deceased with company and companionship for decades contributing to her welfare in a very significant way: s 60(2)(h).
It is clear from Mary’s and Stan’s financial position that whilst the Baulkham Hills property is valuable in the land sense, clearly they have they have no sufficient resources to complete payment for the residence being built on the land apart from the benefits received under the 2010 Will.
Since retirement in 2011, because of the holding of the Baulkham Hills property, by the time they attained the age of 65, they did not qualify and therefore did not apply for the age pension. They continued to live off the rental income and their cash funds: CB 144[16], 146[22]. The rental income ceased after the tenants left and the house was demolished.
It is only when the residents of the Baulkham Hills property will be completed, that they expect they will be in a position to apply for pension income: CB 144[16].
Mary and Stan are now aged respectively 72 and 71 and beyond the stage of any remunerative employment. They have no superannuation: s 60(2)(d),(e),(h).

Natalie

In relation to Ms Pringle’s submissions about Natalie and Malcolm having a comparability of property situation with Mary and Stan, in the sense of having available to them real property, that is correct.
Both Natalie and Malcolm on the one hand and Mary and Stan on the other hand are in situations in which their residences are in the process of being constructed. They have financial outlays that are required before they can move into their residences going forward.
However there is a significant difference in the sense that Natalie and Malcolm have financial resources of their own in order to complete purchase of the Drummoyne unit, whereas, Mary and Stan are reliant upon the provision that is given to Mary under the Will in order to effectively pay for the completion of the Baulkham Hills property.
Whilst Malcolm draws upon his investment amount clearly the investment amount generates a degree of income and interest albeit that it is susceptible to market movements: CB 421.
Taking into account the balance due under the contract for the Drummoyne unit and stamp duty and discharging Malcolm’s MasterCard debt will consume approximately $1.9M of the funds available to Malcolm.
I accept that once the monies needed to complete the Drummoyne unit purchase is used Malcolm will have significantly less capital to generate income.
Nonetheless, that will still leave him with in the order of $500,000 of funds available to him.
Natalie is employed part-time. I do not accept that Natalie’s employment or contract work is as tenuous as suggested.
In any event, Natalie has significant superannuation available to her in the order of $331,408: CB 125[18].
Once they complete the purchase of the Drummoyne unit their expenses per month will drop, by over one-third, by virtue of not having to pay rent. Without any revision of budgeting based on their current income that would have a shortfall of income over expenses of about $12,000 per annum, if one only counted Natalie’s net wage: CB 436. With contributions from Malcolm’s drawings they are able to cover expenses.
They maintain at least three motor vehicles which accounts for at least some of the expenditure as outlined by Natalie. Their expenditure may be able to be diminished by budgeting, quite apart from whatever further income may be able to be cleaned by Natalie and Malcolm using their initiative and undoubted qualifications.
The assessment of whether Natalie has been left with inadequate provision is not merely a financial one. However, when I have regard to all the circumstances of the case including the s 60(2) criteria I have referred to above, I am not persuaded that Natalie has been left with inadequate provision.
I consider that in light of Mary circumstances and her claim to retain the provision that has been given to her that Natalie has not established that adequate provision for her proper maintenance, education and advancement in life has not been made.

Kathy

Similar considerations apply to the claim of Kathy. However, in Kathy's case, the considerations are in my estimation, more compelling against the success of family provision claim.
On any view of it Kathy, when one looks at her own financial position coupled with that of her husband Chris, is in a very strong financial position well beyond many members of the community.
She has good employment. She has only one dependent child who as at the moment attends a state school without the expense of private school education.
Chris, despite some health issues is considerably younger than Natalie's partner Malcolm and Chris still has significant working years ahead of him.
As has been observed above, the assessment of whether Kathy has been left with inadequate provision is not merely a financial one. However, when I have regard to all the circumstances of the case including the s 60(2) criteria I have referred to above, I am not persuaded that Kathy has been left with inadequate provision.

Conclusion

In the above circumstances, I dismiss the plaintiffs’ claims and will give the parties an opportunity to address on the question of costs.
The parties have made me aware that there may be correspondence which bears upon the question of costs and have requested me not to deal with the question of costs.
The orders of the Court are:

Dismiss the proceedings.

As to the costs of these proceedings:

The matter is stood over to 9:30 AM on 25 August 2022 to enable the parties to address on the question of costs.

In the event that the parties are able to agree on the question of costs they have liberty to provide my Associate with proposed orders in that respect.

In the event the parties are unable to agree on the question of costs they should provide a short outline of submissions and any affidavits by 4:00 PM on 22 August 2022.

**********

Decision last updated: 18 August 2022

Medium Neutral Citation:	Shymko v Lach [2022] NSWSC 1096
Hearing dates:	1 – 3 August 2022
Decision date:	18 August 2022
Jurisdiction:	Equity
Before:	Meek J
Decision:	Proceedings dismissed. Parties to address on costs.
Catchwords:	CONTRACTS – Testamentary promise – claimed general and specific statements of inheritance – whether statements certain and enforceable – General statements vague and uncertain based on equality and fairness – No form of exchange of promises nor request of action – No intention to give rise to legal relations – Claimed historic specific statements not established – Frailty of memory ESTOPPEL – Equitable estoppel – Requirements – No clear and unequivocal representation – requirements of reliance – no evidence deceased aware of intended reliance or purported reliance – requirement of detrimental reliance – no substantial material disadvantage SUCCESSION – wills, probate and administration – validity of a will – whether undue influence – no evidence amounting to coercion SUCCESSION – family provision – structure of statutory scheme – requirements of dependency – requirements of factors warranting – reference point for assessing inadequacy of provision SUCCESSION – family provision – claim by granddaughters – strength of financial resources of granddaughters – strong competing claim of daughter who lived with deceased entire life – substantial care for deceased particularly in later years.
Legislation Cited:	Conveyancing Act1919 (NSW), s 54A Family Provision Act1982 (NSW), s 9 Interpretation Act 1987 (NSW), s 33 Succession Act 2006 (NSW), ss 57, 59, 60, Ch 3 Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Trustee Act 1925 (NSW)
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 Ashton v Pratt (No. 2) [2012] NSWSC 3 Ball v Newey (1988) 13 NSWLR 489 Baltimore and Ohio RR Co v US 261 US 592 (1923) Bartlett v Coomber [2008] NSWCA 100 Bates v Cooke [2015] NSWCA 278 Blendell v Byrne [2019] NSWSC 583 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Boyce v Bunce [2015] NSWSC 1924 Brown v Faggoter [1998] NSWCA 44 Budden v The Public Trustee (Supreme Court (NSW), Needham J, 4 November 1986, unrep) Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Chisak v Presot [2022] NSWCA 100 Churton v Christian (1988) 13 NSWLR 241 Clinch v Swift (Supreme Court (NSW), Young J, 13 October 1986, unrep) Commissioner of Taxation (Cth) v Spotless Services Ltd (1996) 186 CLR 404; [1996] HCA 34 Corcoran v Bizannes (Supreme Court (NSW), Needham J, 4 June 1985, unrep) Dijkhuijs(formerly Coney) v Barclay (1988) 13 NSWLR 639 Dillwyn v Llewelyn (1862) 4 De GF&J 517; 45 ER 1285 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317; [2012] FCAFC 106 Fincke v US 675 F 2d 289 (1982) Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 Georgopoulos v Tsiokanis [2022] NSWSC 563 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Horton v Jones (1935) 53 CLR 475; [1935] HCA 7 Hurst v Public Trustee [2000] NSWSC 1109 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8 Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576 Mallitt v Gow [2022] NSWSC 1012 Maloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep) Maxwell v Maxwell [2022] NSWSC 1028 McKenzie v Baddeley [1991] NSWCA 197 Moore v Aubusson [2020] NSWSC 1466 Morgan v Bohm [2013] NSWSC 145 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51 Petrohilos v Hunter (1991) 25 NSWLR 343 Pitkin v Henderson [2001] NSWSC 207 Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353; [1969] HCA 29 Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 Porthouse v Bridge [2007] NSWSC 686 Ramsden v Dyson (1866) LR 1 HL 129 Re Fulop(deceased) (1987) 8 NSWLR 679 at 681D Samsley v Barnes [1990] NSWCA 161 Sgro v Thompson [2017] NSWCA 326 Shaw v Lambert (Supreme Court (NSW), Young J, 9 October 1987, unrep) Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223 Singer v Berghouse(No 2) (1994) 181 CLR 201; [1994] HCA 40 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steiner v Strang [2016] NSWSC 395 Strang v Steiner [2019] NSWCA 143 Sun v Chapman [2022] NSWCA 132 Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vukic v Grbin [2006] NSWSC 41 Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In Liq) [2022] HCA 3; (2022) 399 ALR 1 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Watson v Foxman (1995) 49 NSWLR 315 Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep) Winter v Crichton (1991) 23 NSWLR 116
Texts Cited:	Anna Lawson, "The things we do for love: detrimental reliance in the family home" (1996) 16 Legal Studies 218 JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis)
Category:	Principal judgment
Parties:	Natalie Shymko (First Plaintiff) Katherine Vella (Second Plaintiff) Mary Lach (Defendant)
Representation:	Counsel: M Pringle (Plaintiffs) K Morrissey (Defendant) Solicitors: CMM Quay Legal Group (Plaintiffs) Warren F. Ball & Co (Defendant)
File Number(s):	2021/217653