Smith v Moore

Case •

[2020] NSWSC 1446

•

19 October 2020

Supreme Court


New South Wales

Medium Neutral Citation: Smith v Moore [2020] NSWSC 1446
Hearing dates: 17 and 18 August 2020
Date of orders: 19 October 2020
Decision date: 19 October 2020
Jurisdiction:Equity - Family Provision List
Before: Williams J
Decision:

The plaintiff’s application for provision out of the estate of the late Yvonne Gwendoline Smith is dismissed.

Catchwords:

SUCCESSION – family provision – claim by adult child for provision out of the deceased’s estate – claimant is one of eight surviving adult children of deceased – deceased’s last will provided a pecuniary legacy to the claimant and five of the other adult children with the residue of the estate given to the defendant executor and another adult child – common ground that burden of any provision in favour of claimant would fall on residuary beneficiaries – claimant and residuary beneficiaries each had a close and loving relationship with the deceased – residuary beneficiaries closely involved in caring for deceased as she aged – where claimant found to be in a long-standing close relationship with another person in which they depend on each other for mutual financial support – where claimant’s debts exceed his total assets and expenditure exceeds income but no evidence of financial position of the other person in the relationship – where claimant and other person in the relationship gave false evidence that the claimant was indebted to the other person – not satisfied that adequate provision has not been made in the deceased’s will for the claimant’s proper maintenance, education and advancement in life – summons dismissed

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 58, 59, 60 and 61

Cases Cited:

Amaca Pty Ltd v Novek [2009] NSWCA 50

Blendell v Blendell [2020] NSWCA 154

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chan v Chan [2016] NSWCA 222

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

Collings v Vakas [2006] NSWSC 393

Doshen v Pedisich [2013] NSWSC 1507

Foley v Ellis [2008] NSWCA 288

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Hampson v Hampson [2010] NSWCA 359

Harris v Carter [2020] NSWSC 196

Keaton v Gumulak [2020] NSWSC 943

Middleton v Kiama District Hospital [1970] 3 NSWR 136

Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278

Page v Hull-Moody [2020] NSWSC 411

Sgro v Thompson [2017] NSWCA 326

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

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

Category:Principal judgment
Parties: Kenneth David Smith (Plaintiff)
Minerva Ruth Moore (Defendant)
Representation:

Counsel:
Mr J E Armfield (Plaintiff)
Mr S F Hughes (Defendant)

Solicitors:
Soothill & Associates Lawyers (Plaintiff)
Mark Mulock & Co (Defendant)
File Number(s): 2019/191473
Publication restriction: N/A

Judgment

INTRODUCTION

  1. Yvonne Gwendoline Smith passed away on 25 June 2018, aged 99 years (the deceased). She was survived by eight of her nine children, including the plaintiff and the defendant in this proceeding.

  2. In her last will dated 20 August 2014, the deceased appointed her daughter, Minerva Ruth Moore, as her executor. Mrs Moore is the defendant in this proceeding. Without intending any disrespect, I will refer to Mrs Moore as Ruth, this being the name by which she is known to the other witnesses who gave evidence. I will adopt the same convention in relation to the plaintiff, each of the deceased’s other children and Ruth’s husband, Mr Robert Moore (who was referred to by Ruth and other witnesses as Bob).

  3. The deceased made the following gifts to her children in her last will:

  1. $10,000 to her son, Donald Smith (Donald);

  2. $30,000 to her daughter, Yvonne Wonnocott (Yvonne);

  3. $30,000 to her son, Allan Smith (Allan);

  4. $30,000 to her son, Raymond Smith (Raymond);

  5. $30,000 to her son, Kenneth Smith (Ken), who is the plaintiff in this proceeding;

  6. $30,000 to her daughter, Lynda Sambolec (Lynda).

  1. The deceased gave the residue of her estate to Ruth and the deceased’s daughter, Deborah Smith (Deborah), as tenants in common in equal shares.

  2. Donald was initially a plaintiff in this proceeding, but his claim was settled prior to the commencement of the hearing.

  3. According to the agreed schedule of assets and liabilities tendered by the parties, the value of the estate as at the date of the hearing was $619,567.71 after payment of some of the pecuniary legacies above totalling $80,000 and after deducting a further amount of $80,000 owing to Ruth (who funded the payment of the balance of the legacies). From this amount must be deducted $29,367.75 already paid out of the estate for part of Ruth’s legal costs of this proceeding.

  4. The estate includes a property at Woy Woy, which is yet to be sold. The agreed estimated costs of sale are $19,875.00.

  5. In calculating the value of the estate available for distribution, it is relevant to consider the costs of the present proceeding because, if Ken’s claim is successful, he would ordinarily have the benefit of an order that his costs be paid out of the deceased estate. Ruth, as the executor, would ordinarily have the benefit of an order that her costs be paid out of the estate an on indemnity basis, irrespective of the outcome of the proceeding. If Ken’s legal costs were to be paid of the estate on an ordinary basis and Ruth’s legal costs of this proceeding were to be paid out of the estate on an indemnity basis, the net distributable estate after taking into account the costs of selling the Woy Woy property would be $445,542.17 calculated as follows:

Agreed value of estate as at date of hearing

$619,567.17

Less cost of selling Woy Woy property

$19,875.00

Less defendant’s costs on an indemnity basis

$96,000.00

(including $29,367.75 already paid out of deceased estate)

Less plaintiff’s legal costs on an ordinary basis

$58,150.00

Net distributable estate

$445,542.17

  1. Ken commenced this proceeding within the time permitted by s 58(2) of the Succession Act 2006 (NSW) by filing a summons on 20 June 2019.

  2. Ken claims an order that provision be made out of the deceased’s estate and/or notional estate for his maintenance, education and advancement in life pursuant to Chapter 3 of the Succession Act.

  3. Although the summons refers to notional estate, Ken did not submit that the pecuniary legacies referred to above should be clawed back and treated as notional estate. Nor did he identify any other property that should be designated as notional estate.

  4. Both parties conducted the hearing on the basis that the burden of any provision would fall on Ruth and Deborah as the beneficiaries of the residue of the estate. The Court heard evidence of Deborah’s financial circumstances and needs. Ruth did not put her financial circumstances or needs in issue.

  5. As the other beneficiaries have already received the pecuniary legacies provided for them in the deceased’s will, have been notified of Ken’s claim, [1] and have not made a claim for further provision for themselves (with the exception of Donald, whose claim has been settled), it is not necessary to consider their interests further for the purpose of determining Ken’s claim.

    1. Affidavit of Mark Joseph Mullock sworn on 28 August 2019.

  6. There is no dispute that Ken, as a child of the deceased, is an eligible person: see ss 57(1)(c) and 59(1)(a) of the Succession Act.

  7. Ken claims to have had a close and loving relationship with the deceased. He is 63 years of age and his trade is as a painter. Ken claims to be presently unemployed and living from hand to mouth. He claims that the provision of $30,000 made for him in the deceased’s will was neither adequate nor proper and seeks an order for further provision in an amount that would be sufficient to discharge his debts and to provide him with a modest fund. As will be referred to in more detail later in these reasons, Ken ultimately gave evidence to the effect that he had debts in the amount of approximately $115,545, comprising:

  1. an amount of $53,053 owing to the Australian Taxation Office for income tax in respect of the 2008 to 2019 financial years;

  2. an amount of $49,720 claimed to be owing to Deborah Lee Nelson (Ms Nelson); and

  3. credit card debt of $12,772, including $10,000 paid for legal fees relating to this proceeding.

  1. It was submitted on behalf of Ken that an order for further provision of $150,000 would be adequate and proper in all the circumstances because it would allow him to discharge his debts and leave him with a modest additional fund. Taking into account the legacy of $30,000 that has already been paid to Ken, this would mean that he would receive $180,000 from the deceased’s modest estate.

  2. The defendant submitted that no further provision should be made from the deceased estate in favour of Ken for two reasons.

  3. First, it was submitted that the evidence of Ken’s financial circumstances (including the nature of his relationship with Ms Deborah Nelson, which is relevant to Ken’s financial circumstances for reasons that will become apparent later in this judgment) was not sufficient to enable the Court to assess Ken’s financial position even at a “broad outline” level. It was submitted that Ken’s claim must therefore be dismissed on the basis that the Court could not be satisfied, as required by s 59(1)(c) of the Succession Act, as at the date of the hearing that adequate provision had not been made in the Will for Ken’s proper education, maintenance and advancement in life.

  4. Second, it was submitted that Ken did not have a close and loving relationship with the deceased, that his contact with the deceased was cursory and sporadic and that he provided little or no assistance to the deceased throughout her life and especially in her declining years. The defendant’s submissions contrasted this with the close and strong relationship of each of Ruth and Deborah with the deceased, the support and assistance provided by Ruth and Deborah to the deceased, and Deborah’s circumstances and needs.

APPLICABLE LEGAL PRINCIPLES

  1. The general legal principles applicable to family provision claims under Chapter 3 of the Succession Act have recently been set out by Hallen J in Page v Hull-Moody [2020] NSWSC 411 at [120]–[159] and [251]–[252] and Harris v Carter [2020] NSWSC 196 at [106]–[164]. His Honour has drawn together numerous judgments of this Court, the Court of Appeal and other courts through which principles guiding the exercise of the jurisdiction under Chapter 3 have been developed. I gratefully adopt his Honour’s careful and detailed summaries. This enables me to set out the principles of particular relevance to this proceeding succinctly.

  2. As noted above, there is no dispute that the plaintiff is an eligible person and that his application was made within time: Succession Act, ss 57(1)(c) and 58. The Court’s power to make an order under s 59 of the Succession Act for provision out of the deceased’s estate for the plaintiff therefore turns on whether the Court is satisfied, at the time of determining his application, that the deceased’s last will did not make adequate provision for his proper maintenance, education or advancement in life. As Hallen J said in Page v Hull-Moody (supra), this is a question of objective fact which requires a multi-faceted evaluation: see [125] and the authorities there cited; see also Harris v Carter (supra) at [111]–[112].

  3. The adequacy of the provision made by the deceased’s will is concerned with quantum, whereas proper prescribes the standard of maintenance, education and advancement in life. The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased’s estate. Adequacy is a broader concept that requires consideration of matters necessary to guard against unforeseen contingencies. In deciding whether adequate provision has been made for the plaintiff’s proper maintenance, education or advancement in life, attention may be given to how the parties lived and might reasonably be expected to have lived in the future. The concepts of adequate and proper are not assessed in a vacuum, but in the context of all of the circumstances of the case, including the plaintiff’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate: Page v Hull-Moody (supra) at [127]–[136] and the authorities there cited, including Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114] (Callinan and Heydon JJ); Harris v Carter (supra) at [114]–[122] and [149]–[154]; Blendell v Blendell [2020] NSWCA 154 at [7]–[8] (Meagher JA, Gleeson and Leeming JA agreeing).

  4. Incomplete or unsatisfactory evidence adduced by an applicant for a family provision order may permit inferences unfavourable to the applicant to be drawn. For example, any imprecision or inaccuracy in the evidence is not ordinarily resolved in favour of the applicant. If evidence is deliberately withheld, or if false evidence is given, the Court may be justified in proceeding on the basis that evidence of the true position would have been unfavourable to the applicant’s claim. Ultimately, it may not be possible for the Court to reach the positive state of satisfaction required to enliven the power to make an order for family provision that, as at the time of the hearing, the will of the deceased did not make adequate provision for the applicant’s proper maintenance, education and advancement in life: Succession Act, s 59(1)(c); Blendell v Blendell (supra) at [26]–[29] (Meagher JA, Gleeson and Leeming JJA agreeing) and [77]–[85] (Leeming JA). If so, then the applicant’s claim must fail. However, the level of detail that is required in order for the Court to determine whether proper and adequate provision has been made will vary depending on all the circumstances of the case, and it is often sufficient for the Court have a “broad outline” of the applicant’s financial position as the basis for an assessment of the adequacy and propriety of the provision made in the deceased’s will: Collings v Vakas [2006] NSWSC 393 at [67] (cited with approval in Blendell v Blendell (supra) at [29]).

  5. If the multi-faceted evaluation referred to above satisfies the Court that adequate provision has not been made by the deceased’s last will for the plaintiff’s proper maintenance, education or advancement in life, the question is whether the Court should exercise the power under s 59(2) of the Succession Act to make an order for provision and, if so, what provision ought to be made out of the deceased’s estate for the maintenance, education or advancement in life of the plaintiff having regard to all the circumstances of the case.

  6. Section 60 of the Succession Act provides that the Court may consider the following matters:

“(a)    any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)    the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)    the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)    if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)    any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)    the age of the applicant when the application is being considered,

(h)    any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)    any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)    any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)    whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)    whether any other person is liable to support the applicant,

(m)    the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)    the conduct of any other person before and after the date of the death of the deceased person,

(o)    any relevant Aboriginal or Torres Strait Islander customary law,

(p)    any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

  1. The matters in s 60 are available considerations in relation to ss 59(1)(c), 59(2) and 60 of the Succession Act: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] (Basten JA, Gleeson JA agreeing); Chan v Chan [2016] NSWCA 222 at [21] (Basten JA, Simpson and Payne JJA agreeing); Page v Hull-Moody (supra) at [150].

  2. The financial needs that may be considered under s 60(2)(d) must be more than simply wants, desires or demands, but are not limited to the necessities of life: Page v Hull-Moody (supra) at [139]–[144] and the authorities there cited; Harris v Carter (supra) at [124]–[128] and the authorities there cited.

  3. Although financial needs are an important matter to be considered by the Court, the jurisdiction is not exclusively needs-based: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [124]–[132] (Brereton JA, Simpson AJA agreeing). As Hallen J said in Page v Hull-Moody (supra) at [151] (and see also Harris v Carter (supra) at [133]):

“The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The subsection makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors.”

  1. As Basten JA said (with the concurrence of Simpson and Payne JJA) in Chan v Chan (supra) at [22]:

“A significant set of factors in many cases is that identified as ‘the financial resources (including earning capacity) and financial needs, both present and future, of the applicant …’. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator.”

  1. The Court gives considerable weight to the deceased’s testamentary wishes. However, s 59 of the Succession Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testamentary disposition. The question is how that freedom is to be factored in to the assessment of whether the provision made by the deceased is adequate for the proper maintenance, education and advancement in life of the applicant in all the circumstances of the case: Page v Hull-Moody (supra) at [155]–[159] and the authorities there cited; Harris v Carter (supra) at [138]–[152] and the authorities there referred to; Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [75]–[78] (White JA, adhering to the views his Honour expressed in Steinmetz v Shannon (supra) at [49]–[56]; Meagher JA and Emmett AJA agreeing); Steinmetz v Shannon (supra) at [49]–[56] (White JA), [89]–[90], [95]–[97] (Brereton JA, Simpson AJA agreeing); Sgro v Thompson [2017] NSWCA 326 at [83]–[87] (White JA, McColl and Payne JJA agreeing). A well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary: Steinmetz v Shannon (supra) at [112] (Brereton JA, Simpson AJA agreeing).

  2. Although the determination of what is adequate and proper will necessarily depend on all the circumstances of the case, certain general principles were identified by Hallen J as useful to remember in cases involving claims by adult children of the deceased in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111] (cited with approval in Chapple v Wilcox (supra) at [21] (Basten JA, Gleeson JA agreeing)) and in Page v Hull–Moody (supra) at [176]. It is convenient to set out in full the principles as articulated by his Honour in Page v Hull–Moody (supra) at [176]:

“(a)   The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b)    It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]–[110]; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).

(c)    Generally, also, “… the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58] (Brereton J).

(d)    There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545– 546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].

(e)    The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M).

(f)    The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.”

  1. These are not inflexible principles or rules of law. There is no predisposition for, or against, the making of an order for provision in favour of an adult child: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [167]–[170] and the authorities there cited; Page v Hull–Moody (supra) at [178]–[185] and the authorities there cited.

  2. The interests of other claimants on the deceased’s estate, and of beneficiaries entitled to a share of the estate under the will, are relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for the plaintiff, both for the purpose of s 59(1)(c) and when determining whether any provision order should be made and the nature of any such order. For the reasons explained in [11]–[13] above, it is the interests of Ruth and Deborah that must be considered in this case.

  3. In a case where the beneficiaries have adduced evidence of their financial resources and needs (as Deborah has in this case), this includes consideration of their resources and needs: ss 60(2)(b) and 61 of the Succession Act; Sgro v Thompson (supra) at [71]–[74] (White JA, McColl and Payne JJA agreeing); Foley v Ellis [2008] NSWCA 288 at [9] (Basten JA) and [86]–[89] (Sackville AJA, Beazley JA agreeing) and the authorities there cited.

  4. Beneficiaries who do not adduce evidence of their financial circumstances and needs (such as Ruth, in this case) are nevertheless competing claimants in the sense that they are entitled to rely upon the terms of the deceased’s will and the fact that they are a chosen object of the deceased’s bounty. The fact that the defendant executor has not led evidence as to the financial position of a beneficiary will often provide a basis for the Court to infer that the beneficiary has sufficient income and resources to meet his or her needs. That inference may be drawn on the basis that the Court assumes that the executor has acted in accordance with her duty to lead such evidence, if relevant. However, as I have already referred to above, the financial resources and needs of the plaintiff and other beneficiaries are only one matter that is relevant to the exercise of the jurisdiction under Chapter 3 of the Succession Act. The determination of what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries: see Keaton v Gumulak [2020] NSWSC 943 at [14]–[18] and the authorities there referred to.

  5. The Court is not engaged in an exercise in achieving “fairness” or “equality” between beneficiaries and claimants on the deceased estate, or addressing wounded feelings or disappointed expectations: Page v Hull-Moody (supra) at [169]; Harris v Carter (supra) at [152].

  6. The determination of what is adequate and proper will ultimately depend on all the circumstances of the particular case.

RELEVANT FACTS

Introduction

  1. The following account of relevant factual matters is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where the matters referred to are the subject of dispute between the parties, I have identified the dispute and set out my findings of fact.

  2. It has not been necessary to resolve every factual dispute in order to determine Ken’s family provision claim. The disputed matters included how frequently Ken mowed the lawn when living at home with the deceased in his teenage years and early twenties, how often he telephoned or sent cards to the deceased after moving to Queensland in his late twenties and precisely how often he visited the deceased. It is not necessary to make findings about matters such as this in order to determine Ken’s family provision claim. As Campbell JA said in Hampson v Hampson [2010] NSWCA 359 at [79] (Giles JA and Handley AJA agreeing):

“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad–brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.”

Ken’s relationship with the deceased while living in the family home (1957 to 1979)

  1. Ken was born in March 1957. He was one of nine children born to the deceased and her husband. He lived in the family home in Campsie, New South Wales until the age of 22.

  2. Ken did part-time jobs from about the age of 10 and contributed his income to the household. He also provided some assistance with household chores.

  3. Ken had a close and loving relationship with the deceased as he was growing up.

Ken’s relationship with the deceased during his early years living out of home (1979 to 1985)

  1. Ken moved out of home in about 1979 when he was 22 years of age. He lived in New South Wales until he was 28 years old.

  2. There is some dispute about the frequency with which Ken visited or contacted the deceased during this period, but there is no dispute that he did remain in contact with her. For the reasons explained in [39] above, I do not find it necessary to resolve the dispute about this historical detail.

Ken’s relationship with the deceased after his move to Queensland in 1985

  1. Ken moved to Queensland in about 1985 at the age of 28 years. He lived in Queensland until May 2018.

  2. According to Ken’s evidence, his pattern of contact with the deceased remained the same throughout the whole of the period he lived in Queensland.

  3. Ken telephoned the deceased once a month and on her birthday (if he was not visiting in person), on Mother’s Day and at Christmas.

  4. Ken says that he “never had any spare money in the bank”, yet he travelled to New South Wales to visit the deceased once per year. These visits usually coincided with the deceased’s birthday in January, but sometimes with Ken’s birthday in March.

  5. Ken stayed with the deceased during these visits, until the deceased moved in with Ruth and Bob in 2013 at the age of 95.

  6. After Ken met Ms Nelson in about 1995, she usually accompanied Ken on his visits to the deceased.

  7. Ruth, Bob and Deborah each gave evidence to the effect that Ken’s visits to the deceased were less frequent than once a year.

  8. On the other hand, Ms Nelson gave evidence to the effect that Ken did visit the deceased annually.

  9. For the reasons explained in [39] above, it is not necessary to determine the precise frequency of Ken’s visits. There is no dispute that the deceased loved Ken, that she enjoyed the contact that she had with him, and that Ruth, Bob and Deborah had far greater contact with the deceased than any of the deceased’s other children due their involvement in assisting and caring for the deceased as she aged. I will refer to this in more detail below.

  10. Ruth and Bob sometimes took the deceased to stay with her daughter, Yvonne, in Queensland while Ruth and Bob took a break at their holiday apartment in Broadbeach. On some of those occasions, Ken visited the deceased during her stay with Yvonne. Again, is not necessary to resolve the dispute about how frequently this occurred, or whether or not Ken was given sufficient notice of deceased’s visits to Yvonne in order to make time to see the deceased on each occasion she was there.

  11. In 2016, Ken twice offered that he and Ms Nelson would care for the deceased while Ruth was on holidays. Ruth did not accept that offer, and made respite care arrangements instead. The deceased had told Ruth that she did not like Ms Nelson, and Ruth believed that the deceased would be upset if Ms Nelson had to attend to her in Ruth’s absence. In any event, Ruth had no confidence that Ken and Ms Nelson were capable of providing the 24 hour care that the deceased then needed. Ruth said in her affidavit sworn on 29 October 2019 and in cross-examination that she did not tell Ken these reasons at the time because it would hurt his feelings.

  12. In closing submissions, counsel for Ken submitted that Ruth’s failure to tell Ken the truth, revealed “an attitude towards the plaintiff”. However, it is plain from Ruth’s evidence that her decision to make alternative care arrangements and to conceal the true reasons from Ken was motivated by a desire to avoid distress or discomfort for the deceased and at the same time to avoid hurting the feelings of Ken or Ms Nelson. In my view, it does not reflect any negative attitude to Ken. Nor does it reflect poorly on Ruth in any other way.

Relationships between Ruth and Deborah and the deceased

  1. It is not in dispute that Ruth and Deborah each had a close relationship with the deceased.

  2. Ruth assisted the deceased in many different ways throughout her life. Ruth was actively involved in the care of her father (deceased’s husband) when he was seriously ill, and arranged his funeral in 1982 when the deceased was too distressed to be involved herself. Ruth also assisted her brother Garry and the deceased with their medical appointments and various domestic needs during the period from about 1982 until mid-2006 when the deceased lived with Garry.

  3. Garry passed away suddenly in mid-2006, and the deceased inherited his estate. There was a great deal of work to be done in cleaning and selling his properties and other assets and finding and preparing a new home for the deceased. The majority of this work was done by Ruth, Bob and Deborah.

  4. There is a dispute between Ken on the one hand, and Ruth on the other hand, as to whether or not Ken offered to assist with this work. Ruth and Bob gave evidence that Ken offered no assistance. Ken maintains that he did offer to help. In his affidavit sworn on 20 November 2019, Ken complained that Ruth had “appointed herself as the matriarch of the family” after his father passed away and “she behaved as if she was the only one who knew what should happen, and when it should happen, and how it should happen, and she always refused help”. It is not clear how Ken was able to form that view when he was living in Queensland and having only monthly telephone contact with the deceased and infrequent personal contact with her. However, I do not find it necessary to resolve this dispute for the purpose of determining Ken’s claim for provision.

  5. In 2007, the deceased moved into a villa in Woy Woy, New South Wales after it had been extensively renovated for her by Ruth, Bob and Deborah. The villa was very close to Ruth and Bob’s home.

  6. The deceased was able to live alone in her villa at Woy Woy, but needed a lot of assistance. Between them, Ruth and Deborah were at the villa daily, and took care of the cleaning and shopping, assisted the deceased with paying bills and took her to medical and other appointments. Bob took care of the gardening and general maintenance about once a fortnight. Ken and the deceased’s other children lived further away and so were not involved in providing this kind of assistance to the deceased during this period. As Ken said in his affidavit sworn on 20 November 2019:

“It is natural that Ruth and Deborah did most of the routine things that Mum needed help with as she got older, since Ruth and Deborah and Mum all lived in Sydney while our other siblings had moved to other locations. I lived in Queensland. When Ruth and Deborah moved to Woy Woy, and Garry died, Ruth moved Mum into Ruth’s and Deborah’s home town and Mum’s other children still lived long distances away.”

  1. By 2013, the deceased required an even greater level of assistance. She moved into Ruth and Bob’s home, where she continued to live for the rest of her life with a high level of care from Ruth and Bob, assisted by professional carers.

  2. There is no dispute that Ken offered to help Ruth pack up and clean the deceased’s villa when she moved into Ruth and Bob’s home. Ruth told Ken that she and Bob had already organised everything and that they did not need help.

  3. Ruth and Bob made various modifications to their home in order to accommodate the deceased’s needs and limited mobility.

  4. Deborah came to stay at Ruth and Bob’s home on her two days off work each week in order to help them care for the deceased and to make it possible for Ruth to continue to work in the business that she and Bob ran in Penrith for those two days.

  5. I disregard the veiled suggestions in Ken’s affidavit that the deceased was not well cared for in Ruth and Bob’s home. There was no objective evidence of this, and Ken was not in any position to assess the quality of care. He simply was not there except for the occasional (at most, annual) visit. Moreover, it was not put to Ruth or Bob in cross-examination that the deceased was not well cared for.

Summary of findings in relation to the relationship between Ken and the deceased

  1. In summary:

  1. Ken and the deceased had a close and loving relationship while he was living at home up to the age of 22 years (see [40]–[42] above);

  2. Ken stayed in touch with the deceased after moving out of home, although he had contact with the deceased in person no more than once a year after he moved to Queensland in 1985, with some telephone contact and written correspondence between those visits (see [43]–[54] above);

  3. although personal contact was relatively infrequent, the deceased loved Ken and enjoyed what contact she had with him (see [53] above);

  4. Ruth, Bob and Deborah had far greater contact with the deceased than Ken or any of the deceased’s other children due their involvement in assisting and caring for the deceased as she aged (see [57]–[67] above); and

  5. Ken offered to assist with the deceased’s care and/or work that needed to be done in relation to the deceased’s home on at least two occasions in 2007 and 2016, but his offers were not taken up by Ruth (see [55], [60] and [64] above).

Ken’s life in Queensland and relationship with Ms Nelson

  1. Ken first met Ms Nelson in about 1995. Ken described the first nine years of their relationship as a period in which they were sometimes boyfriend and girlfriend, and sometimes went their separate ways.

  2. In about 2003, Ken moved into Ms Nelson’s home at Mermaid Waters, Queensland and they began a de facto relationship.

  3. Ken and Ms Nelson each gave evidence that their de facto relationship ended after about five years in 2008, and they lived separately from one another for about the next six years. However, they continued to be friends and Ms Nelson said that they visited one another regularly. Ms Nelson also continued to accompany Ken when he made visits to the deceased and his family.

  4. In 2014, Ken moved back into Ms Nelson’s home at Mermaid Beach. Both Ms Nelson and Ken gave evidence that their living arrangements were as flatmates and not as a couple. Ms Nelson paid the mortgage, utility bills and body corporate levies, whilst Ken paid rent to Ms Nelson. They had separate bedrooms.

Ken’s painting business in Queensland

  1. In about 2008, Ken began his own painting business. He gave evidence that he had some degree of success in the business. By 2018, he had built up a clientele and goodwill.

  2. In the financial year ended 30 June 2017, Ken’s gross income was $130,208, but his taxable income was only $40,883 after deducting business expenses. Those expenses included $16,095 for administrative support.

  3. In the financial year ended 30 June 2018, Ken’s gross income was $75,310 and his taxable income was $17,331 after deducting business expenses. Those expenses included $9,309 for administrative support.

  4. It is plain that the level of expenses incurred by the business was very high compared to the income disclosed in the tax returns. In cross-examination, Ken repeatedly denied receiving additional income in the form of cash payments not disclosed in his income tax return.

  5. The administrative support services were provided by Ms Nelson, who operated a part-time business providing administrative services. Ken gave evidence that Ms Nelson organised his invoicing and quoting, email correspondence with clients, bookkeeping, payments to his suppliers and advertising. Ms Nelson gave evidence that her administrative services business had several clients. She said that she charged an hourly rate of $50 for her services, and invoiced for those services on a monthly basis. The amount charged varied from month to month, depending on the work done.

  6. Ken had a Westpac Choice account, a Westpac Business One account and a Westpac Business Cash Reserve account. Ms Nelson had internet access to all of these accounts and made online withdrawals from the accounts with Ken’s permission. This occurred for several years while Ms Nelson was providing administrative services to Ken’s business and continued until at least 2019. So far as Ms Nelson is aware, she was the only person who operated those accounts online during that time. Ken gave evidence that he is not computer literate and does not operate his bank accounts online.

Ms Nelson’s move to Valla in April 2017

  1. In November 2016, Ms Nelson purchased a 33 acre property in Valla in New South Wales. She moved to live there in April 2017, initially living in a shipping container on the property while she was building a tiny house to live in.

  2. Ms Nelson gave evidence that she did not do any paid work after moving to Valla, with the exception of:

  1. travelling to the Gold Coast on a monthly basis to provide occasional care services to two clients with whom she had been working for many years; and

  2. continuing to do some administrative work for Ken’s business until about late 2018 at an hourly rate of $50. The amount charged varied from month to month depending on the amount of work done. The amount of that work had declined significantly before Ken moved to Valla in May 2018. Ms Nelson noticed the work she was doing for Ken dropping in early 2017, and her fees invoiced to him in the second half of the 2017 year dropped significantly. (I note that this is consistent with the significant reduction in administrative support expenses claimed in Ken’s income tax return for the year ended 30 June 2018 compared to the year ended 30 June 2017: see [74] and [75] above.) Ms Nelson said that, by late 2018 “it was just dribs and drabs”.

  1. Ms Nelson was otherwise busy working on the property and building the tiny house.

  2. Ken continued to live in Ms Nelson’s apartment at Mermaid Beach and pay rent. Copies of Ken’s bank statements show that amounts of $200 described as “rent” were transferred out of his Westpac Business One account most weeks from April 2017 to May 2018.

  3. From at least 2 June 2017 until 23 February 2018, there was an additional weekly payment of $400 transferred out of Ken’s Westpac Business One account labelled “Pymt Deb Nelson Deb’s inc. share”. These weekly payments continued from 2 March 2018 until 6 April 2018 at the increased rate of $450 per week. The total amount of the payments described as “Deb’s inc. share” during the period from 2 June 2017 to 6 April 2018 was $16,250.

  4. In cross-examination, Ken acknowledged that the description suggests that he was sharing his income with Ms Nelson. He suggested that “it could be for her bookkeeping”, but then remarked that it seemed a bit odd that the payment was made every week. When it was put to him that the payments were at least partially to share his income with Ms Nelson, Ken replied: “I have no answer for that one”.

  5. Ms Nelson also acknowledged that the description “inc. share” – a description that she entered when completing the online banking transactions – meant “income share”, but insisted that the payments were for administrative services. Ms Nelson claimed that the manner in which she had charged Ken for her services had changed after she moved to Valla. However, that evidence is entirely inconsistent with evidence that Ms Nelson had given just a short time earlier, to which I have referred in [80] above. Ms Nelson sought to explain the discrepancy by saying that she had not been given an opportunity in her earlier evidence to explain that her charging methodology and billing frequency had changed after she moved to Valla. That is not correct. When she gave the evidence referred to in [80(2)] above, Ms Nelson was speaking about the period after she moved to Valla.

  6. I find that Ms Nelson’s evidence that the “Deb’s inc. share” payments were payments for administrative support services rather than payments of a share of Ken’s income to her, was false. First, it is inconsistent with her earlier evidence that she billed monthly at an hourly rate and that the amount of work done and amount charged varied from one month to the next. Second, Ms Nelson was the person operating the account online and writing the transaction description “Deb’s inc. share”. As she acknowledged, “inc. share” plainly means share of income. Ms Nelson gave evidence in cross-examination that, in describing transactions when entering them online, she was conscious of “being descriptive for his sake and mine so that we could understand the accounts”. There is simply no reason why Ms Nelson would have described these payments as “Deb’s inc. share” if they had some character other than a payment of a share of Ken’s income to her. Third, the “inc. share” payments amount to $16,025 for the period 2 June 2017 to 6 April 2018, which is significantly greater than the $9,309 paid by Ken for administrative support services in the financial year ended 30 June 2018, as disclosed in his income tax return for that year.

  7. I further find that Ms Nelson gave that false evidence in an attempt to conceal from the Court the true nature of her relationship with Ken which, for reasons that I set out in [131]–[138] below, is a close relationship in which Ken and Ms Nelson provide one another with mutual financial support. Ken sharing his income with Ms Nelson during the period from June 2017 to April 2018 was one aspect of that mutual support.

  8. In addition, there were payments of several thousand dollars transferred out of Ken’s Westpac Business One account on 12 September 2017 and 5 January 2018 described as “cover Dln visa”.

  9. In cross-examination, Ken acknowledged that “Dln” could be a reference to Deborah Lee Nelson and “Dln visa” could be a reference to Ms Nelson’s visa card. However, he maintained that it “could stand for anything though”. Although he had “no idea” what else it might stand for, he refused to agree that it was a payment to Ms Nelson’s visa card.

  10. However, Ms Nelson readily accepted that these were payments from Ken’s funds to pay or reduce her visa card debt. In re-examination, Ms Nelson said that Ken was lending her money to help cover her Visa card or “basically giving me, or, you know, money which reduced his loan”. The loan that Ms Nelson is referring to is a loan of $49,720 that Ken now says he owes to Ms Nelson. For the reasons explained in [131]–[138] below, I have found that Ken does not owe any such debt to Ms Nelson. Moreover, having regard to Ms Nelson’s evidence referred to above about her description of transactions in the online banking entries for Ken’s accounts, if the nature of the transaction was a payment against a loan allegedly owed by Ken to Ms Nelson, it is likely that she would have described it accordingly so that both she and Ken could more readily identify the status and balance of the alleged loan between them by reviewing the bank statements.

  11. I therefore reject Ms Nelson’s evidence that Ken’s funds were used to pay or reduce Ms Nelson’s visa card debt as part payment of a loan owed by Ken to Ms Nelson. I further find that this was a false explanation given by Ms Nelson in an attempt to conceal from the Court the true nature of her relationship with Ken. For reasons that I set out in [131]–[138] below, their relationship included a commitment to provide one another with mutual financial support. Ken allowing Ms Nelson to use his funds to pay down her Visa card debt on these two occasions in the first twelve months after she moved to Valla and was undertaking limited paid work was one aspect of that mutual financial support.

  12. For completeness, I note that Ms Nelson claimed in re-examination that the payments described as “cover Dln visa” were taken into account in Ken’s favour in Ms Nelson’s calculation of the $49,720 that she now claims is owed by Ken. A review of the schedule of calculations annexed to Ms Nelson’s affidavit affirmed on 14 July 2020 reveals that this is not the case. That is a further reason to reject Ms Nelson’s evidence on this subject.

Ken’s move to Valla in May 2018

  1. Ken moved to Valla in May 2018. Ms Nelson puts the precise date of his move at 23 May 2018. He has been living in the shipping container on her property since that time. He initially shared the shipping container with Ms Nelson, before she moved into the tiny house when it reached a sufficient state of completion in early 2019.

  2. Ken and Ms Nelson both gave evidence that Ken pays rent for his occupation of the shipping container. I will return to this subject below.

Ken’s painting business after moving to Valla

  1. Ken gave evidence in cross-examination that he knew that moving to Valla would mean that he would give up the existing clientele of the painting business that he had operated with some degree of success since 2008 and the goodwill associated with that business. He knew that he would effectively have to start again in Valla.

  2. The adverse financial impact on Ken of his move to Valla is readily apparent from his tax return for the financial year ended 30 June 2019, Ken’s gross income was only $9,312. His business expenses were considerably reduced compared to the previous two years and he incurred no expenses for administrative support, but he still made a net loss.

  3. Ken admitted in cross-examination that he did not make the move to Valla for business reasons. The only reason that he offered for making the move was that he and Ms Nelson wanted to continue their relationship as friends.

Death of the deceased on 25 June 2018

  1. The deceased was diagnosed with a malignant skin lesion in October 2016 and passed away on 25 June 2018 at the age of 99 years.

  2. Ken had last seen the deceased in hospital in May 2018.

Ken’s life in Valla with Ms Nelson

  1. Ruth and Bob have the clear impression that Ken and Ms Nelson are long-term de facto partners, based on their attendance at family weddings and other occasions “as a couple”, their shared cruise holiday in March 2016, and their sharing of a bed on the occasion when they stayed overnight with Ruth and Bob to visit the deceased after that holiday.

  2. Ken and Ms Nelson deny that they are in a de facto relationship or that he moved to Valla in order for them to live as a couple. They characterise their relationship as a friendship. In her affidavit affirmed on 19 November 2019, Ms Nelson deposed:

“We live our lives separately, as good friends and neighbours who care about each other and help each other out as friends might do. On average, in any normal week, I see Ken about twice.”

  1. In cross-examination, they adhered to their evidence that Ken lives in the shipping container and Ms Nelson lives in the tiny house on the Valla property. Their neighbour, Mr Day, gave evidence that the shipping container and tiny house are located approximately 200 metres and 80 metres from Mr Day’s home. Mr Day said that he can clearly see the tiny house from his home. His impression, based on his observations of activities and vehicle movements on Ms Nelson’s property is that Ms Nelson lives in the tiny house whilst Ken lives in the shipping container.

  2. Mr Day was not required for cross-examination.

  3. As I have referred to above, Ken and Ms Nelson both gave evidence that Ken pays rent for his occupation of the shipping container on Ms Nelson’s property. Their evidence was that the amount of rent was $150 per week.

  4. Ken’s bank statements that were produced in the course of this proceeding and tendered in evidence do not show any payments described as rent between 22 May 2018 and 5 March 2019. On 5 March 2019, two online withdrawals totalling $1,000 were made from Ken’s Westpac Choice account, described as payments to Ms Nelson for “Kds rent”. Further weekly payments of $200 bearing the same description were made from that account in the period from 12 March 2019 to 30 April 2019. The payments appear to have ceased thereafter. It is difficult to reconcile the $200 weekly amount with the evidence of Ken and Ms Nelson that the rent was $150 per week.

  5. I have referred above to two payments made from Ken’s Westpac Business One account on 12 September 2017 and 5 January 2018 (before Ken moved to Valle) to “cover Dln visa”. A further payment bearing this description was made from that account in the amount of $1,000 on 19 June 2018, shortly after Ken moved to Valla. This payment was also not included in the amounts that Ms Nelson credited to Ken in the schedule annexed to her affidavit affirmed on 14 July 2020 purportedly showing the amount owed by Ken under the loan allegedly made to him by Ms Nelson. My findings in relation to the other two payments from Ken’s funds towards Ms Nelson’s visa card debt set out in [90]–[91] above apply equally to this payment.

  6. Between the end of June 2018 and the end of May 2019, Ken’s Westpac Business One account had a minimal balance and there were no transactions other than the debit of monthly plan fees. From the end of May 2019, any payments made into the account were transferred out almost immediately. Specifically:

  1. On 31 May 2019, the sum of $1,259.50 was paid into the account by a third party. On 12 June 2019, the sum of $1,200 was debited by online withdrawal described as “part-cover mtge-06”. Ken’s evidence was that he did not know what this payment was for, but Ms Nelson acknowledged in cross-examination that this was a payment against the mortgage secured over her property in Queensland;

  2. On 18 June 2019, the sum of $3,778.50 was paid into Ken’s Business One account by a third party. On the same day, $3,800.00 was withdrawn from the account by an online transfer described as “reduce Loc”. In cross-examination, Ms Nelson said that this was a payment to reduce the amount owing under a line of credit in her name. She characterised this as a payment to reduce an amount owing by Ken to her under a loan that she had made to him. For the reasons explained in [131]–[138] below, I have found that Ms Nelson did not make any such loan to Ken, and I therefore reject her characterisation of this payment as being for the purpose of reducing a loan owed by Ken to Ms Nelson. It was a payment to reduce the amount owed under the line of credit in Ms Nelson’s name, which Ken and Ms Nelson treated as a joint facility as referred to later in these reasons; and

  3. On 11 October 2019, a third party paid the amount of $5,000 into Ken’s Business One account. On 15 October 2019, that same amount was withdrawn in an online transfer “to Loc”. For the same reasons as those given immediately above in relation to the June 2019 transactions, I find that this was a further instance of Ken’s funds being used to the amount owed under the line of credit in Ms Nelson’s name and was not a form of repayment by Ken of debt that he owed to Ms Nelson.

  1. During the period in which no deposits were made to Ken’s Westpac Business One account (that is, from June 2018 to May 2019), payments described as wages and other payments from third parties were credited to Ken’s Westpac Choice account. There is no discernible pattern to the amount or frequency of these deposits. During part of this same period, there were eight online withdrawals from Ken’s Westpac Choice account described as transfers “to J/T a/c”. The amount of these transfers varied from $950 to $4,700. In cross-examination, Ken said that he did not know where these moneys were transferred to, but it was possible that “my wages were going into the line of credit account of what I owed Deborah”. Ken denied that he and Deborah were sharing their financial resources.

  2. Ms Nelson gave evidence that she had entered the description “to J/T a/c” for each of these online transfers out of Ken’s Westpac Choice Account. Ms Nelson gave the following explanation for these transfers:

“They were transferred to what I was referring as a joint account, which is the line of credit. The reason I referred to it as a joint account is that this is not a business statement, this is a personal bank statement. Because both he and I – well, in terms of the, the money available on the line of credit, I was using it as well for my purposes, and I was using it for Ken’s purposes when he couldn’t cover his credit cards. And then he was transferring money back in to cover that as he had money. So it does mean joint – the, the shorthand means to me joint account. It means an account that I was using for both of us.

… I was giving, I was using this money, this loan, to cover Ken’s credit cards when he couldn’t.”

  1. What Ms Nelson described in this evidence is a line of credit in her name that was used by both of them, and to which they both contributed repayments when they had money available to do so. In other words, they treated the line of credit as a joint facility, even though it was in Ms Nelson’s sole name. This part of Ms Nelson’s evidence is entirely consistent with she and Ken providing mutual financial support to one another as part of their close relationship.

  2. As referred to in more detail below, in her affidavit affirmed on 14 July 2020, Ms Nelson has sought to characterise amounts drawn from the line of credit in order to pay credit card bills in Ken’s name as a loan from Ms Nelson to Ken that he is required to repay to her. For the reasons set out in [131]–[138] below, I reject this characterisation, which emerged for the first time approximately one month before the final hearing of these proceedings. There is no evidence that Ms Nelson and Ken had previously discussed these transactions as involving a loan repayable by Ken to Ms Nelson.

Evidence of Ken’s financial circumstances served in this proceeding prior to July 2020

  1. Ken confirmed in cross-examination that, when he affirmed each of his three affidavits in this proceeding, he was aware that he had an obligation to ensure that each affidavit was truthful, accurate and complete. He confirmed that he read each of his affidavits carefully before affirming them to ensure that the affidavit was truthful, accurate and complete.

  2. In his affidavit affirmed on 24 July 2019, Ken deposed that he had assets of $35,185 (including $30,000 superannuation) and that his sole liability was a credit card liability of $3,433.92.

  3. In a further affidavit affirmed on 20 November 2019, Ken deposed that his financial position had deteriorated because the Australian Taxation Office had issued a “taxation bill” to Ken requiring him to pay $53,041.55 in respect of tax for the 2010 to 2019 financial years, plus accrued interest. In cross-examination, Ken explained that he had not filed tax returns for those financial years. Accordingly, his net assets were reduced from the $31,751.08 stated in his 24 July 2019 affidavit to a net deficit of $21,290.47.

  4. Ms Nelson also swore an affidavit in these proceedings on 19 November 2019.

  5. Neither Ms Nelson nor Ken referred to any debt allegedly owed by Ken to Ms Nelson in their November 2019 affidavits.

  6. As I have referred to above, Ms Nelson deposed:

“We live our lives separately, as good friends and neighbours who care about each other and help each other out as friends might do. On average, in any normal week, I see Ken about twice.”

  1. Ms Nelson made no mention of the “help” to which she referred involving any loan made by her to Ken.

Ken and Ms Nelson first adduce evidence of a loan to Ken

  1. Just over one month prior to the final hearing of these proceedings, Ken and Ms Nelson each affirmed an affidavit on 14 July 2020.

  2. Ken deposed that his liabilities included $49,720.68 allegedly owed to Ms Nelson, in addition to the $53,053 owed to the Australian Taxation Office and a credit card debt of $2,771.96. This reduced his net financial position to a deficiency of $72,898.82 assets over liabilities. Ken also deposed to having a deficiency of income compared to expenditure of about $2,000 per month.

  3. Ken’s explanation concerning the amount said to be owed to Ms Nelson was limited to the following:

“Deborah Nelson has assisted me greatly with loans over a period of the last 3 years to cover my daily living expenses.”

  1. Ken offered no explanation in his 14 July 2020 affidavit for failing to mention any debt to Ms Nelson in his previous two affidavits.

  2. In her affidavit affirmed on 14 July 2020, Ms Nelson deposed:

  1. I have been financially assisting Ken by way of loans over a period    of the last 3 years.

  2. I have access to a Line of Credit (LOC) account from many years ago, when I opened it against the equity in my then property in order to pay a deposit on an investment unit.

  3. Because the interest rate on credit cards is much higher, I’ve been paying Ken’s credit card monthly balances from my LOC account, and Ken has been transferring any wages, and very recently, Centrelink payments he receives into my LOC account in order to minimise the increasing debt he owes me.

  4. Consequently, I have a debt to the bank in the form of my LOC. But the interest rate is at variable mortgage rates, rather than at the credit card rates Ken would be paying if he was to neglect to pay out the items he purchases on his credit card.

  5. The debt that Ken currently owes me is estimated at about $49,720.68. Annexed hereto and marked ‘A’ is a copy of a schedule setting out the total estimate of the debts owed by Ken to me.

  6. Ken has not paid me, directly, the rent we agreed upon of $150/week. Alternatively, pays me in the following way.

  7. Since I’ve been living at my property in Valla, I have minimised my trips to town, both because I was doing physical work (fencing, building, excavating, landscaping) that kept me filthy and in an unfit state for polite society, and because I’d rather be at home building something than out shopping.

  8. Since Ken moved to the NSW property in May 2018, he often takes a shopping list from me when he plans to do his own shopping, and he puts all the purchases on his credit card. These purchases included groceries, alcohol and tobacco for me and occasionally pharmaceutical scripts and the purchase of building materials.

  9. When Ken returns to the property, he drops my shopping into me, and gives me the receipts so I can record which purchases are for me. The monthly total of the purchases he makes on my behalf form a payment ‘in lieu of rent’.

  10. I then adjust Ken’s debt owed to me by either adding or subtracting the difference between the value of the purchases he had made on my behalf and the rent for the month, depending on whether the purchases-in-lieu fall short of, or exceed, the rent payable.

  11. In summary, Ken pays me rent by way of purchasing my necessary monthly supplies, and I also loan him some money to cover his own expenses. As a result, hid debt to me grows, and I do expect repayment in full as soon as that is a financial possibility for him.

  12. I have, somewhat recently, advised Ken that I wish to formalise our debt agreement via a visit to a local lawyer, and he has agreed to that.”

    1. The schedule in Annexure A to Ms Nelson’s affidavit is in two parts.

    2. The first part of the schedule sets out amounts said to be payable by Ken to Ms Nelson in respect of rent and health insurance for each month during the period from January 2017 to June 2020, amounts actually paid by Ken in rent and the amount of credit card purchases made by Ken on behalf of Ms Nelson during each month, with the difference between the amount owing and the amount paid in each month treated as increasing or reducing the balance of the loan said to be owed by Ken to Ms Nelson. According to the first part of the schedule, Ken owed Ms Nelson a net amount of $9,058.88 as at 30 June 2020 in respect of rent and health insurance, after taking into account rent paid by Ken and credit card purchases made by Ken on behalf of Ms Nelson.

    3. The second part of the schedule sets out amounts said to have been paid from the line of credit in Ms Nelson’s name in order to repay Ken’s credit card during the period from 19 March 2018 to 26 June 2020, and amounts said to have been paid from Ken’s accounts into the line of credit. The difference between those two amounts over that period as at 26 June 2020 is said to be $40,661.80.

    4. The total balance of the two parts of the schedule – $9,058.88 plus $40,661.80 – comprises the total debt of $49,720.68 that Ken and Ms Nelson claim is owing in their affidavits affirmed on 14 July 2020.

    5. The bank statements for the line of credit account were not in evidence.

    6. It is clear from Ms Nelson’s evidence in cross-examination that these schedules were prepared solely for the purpose of this proceeding. Ms Nelson said:

“…I sourced the documents from the last three years and put them together into this format for this, the purpose of the affidavit, yes.”

  1. It was put to Ms Nelson, and she denied, that the schedules were prepared working backwards solely for the purpose of assisting Ken with his claim rather than for the purpose of giving a true account of their financial dealings. It was put to Ken, and he denied, that he the alleged loan had been concocted between by him and Ms Nelson together in order to assist Ken’s claim in this proceeding.

Findings in relation to alleged loan from Ms Nelson to Ken

  1. I reject the evidence of Ken and Ms Nelson that Ken is indebted to Ms Nelson in the amount of $49,720, or in any amount. I find that their evidence of this alleged loan is a recent invention made shortly before the final hearing of this proceeding in the hope of improving the prospects of success of Ken’s family provision claim. I find that the Ken and Ms Nelson have a long-standing, close relationship during which they have come to naturally rely upon and look to one another, rather than looking to others, for anything that either of them may find necessary or desirable for their maintenance and support. In the course of this relationship, they have provided mutual financial support to one another since at least early 2017. They intend to continue this relationship, including the element of mutual financial support, and Ken moved to Valla in May 2018 for this purpose. Irrespective of whether their relationship might properly be characterised as a de facto relationship, they are financially dependent on one another as a matter of fact: see Doshen v Pedisich [2013] NSWSC 1507 at [39]–[47] and the cases there cited concerning the matters relevant to whether a relationship of dependency exists between two persons. The transactions that they now seek to characterise as part of a loan from Ms Nelson to Ken that he is expected to repay are, in truth, merely instances of their mutual financial support for one another.

  2. My reasons for these findings are as follows.

  3. First, on their own evidence, Ken and Ms Nelson have had a close relationship since 1995.

  4. Second, in the period immediately after Ms Nelson moved to Valla and ceased paid work in April 2017, Ken was sharing his income with Ms Nelson and making payments from his own funds towards her credit card debts: see [83]–[92] above.

  5. Third, the move from the Gold Coast to Valla was financially devastating for Ken’s business and income: see [95]–[97] above. The only reason for his move was to continue his relationship with Ms Nelson.

  6. Fourth, in the period after Ken moved into the shipping container in Valla, his gross income dropped dramatically. Ms Nelson has forgone rental payments and has drawn against the line of credit in order to fund some of Ken’s credit card repayments since May 2018. Ken and Ms Nelson treat the line of credit facility as a joint facility (see [108]–[111] above), and they did not treat amounts drawn from the facility that were applied towards repaying Ken’s credit card as a loan from Ms Nelson to Ken. If they had agreed to treat these drawings as a loan from Ms Nelson to Ken, it is to be expected that Ken would have mentioned the loan in his July 2019 and November 2019 affidavits, and Ms Nelson would have mentioned it in her November 2019 affidavit. Even if they did not know the precise amount calculated, they would have known that they had entered into a loan and that the balance owing by Ken was growing as his income had been reduced dramatically after he moved to Valla. According to Ms Nelson’s schedules, the balance as at July 2019 was approximately $41,000.

  7. Fifth, Ms Nelson’s evidence in her affidavit affirmed on 14 July 2020 that she expects Ken to repay the loan in full, does not ring true. The evidence does not reveal any reasonable basis for any expectation of repayment from Ken who, on his own evidence, is living “from hand to mouth” in a shipping container on Ms Nelson’s property. Ms Nelson is providing financial support for Ken, just as he provided financial support for her when she first moved to Valla and he was still earning an income from his business on the Gold Coast.

  8. The spreadsheets annexed to Ms Nelson’s affidavit are reverse engineered documents prepared for the purpose of presenting evidence of the transactions in which Ms Nelson has provided financial support for Ken as if they were a loan, and ignoring the transactions in which Ken provided financial support for Ms Nelson (as to which, see [83]–[92] and [106] above).

Ken’s financial circumstances and needs

  1. Ken has very few assets in his name, and a debt of $53,053 to the Australian Taxation Office.

  2. His own income does not cover his monthly expenses. However, he has a long-term and close relationship with Ms Nelson in which they have provided one another with mutual financial support as required since at least early 2017. Ken moved to Valla in May 2018 to continue that relationship. Since that time, the shortfall between Ken’s living expenses and the funds in the Westpac accounts in his own name has been met by funds drawn from the line of credit that Ken and Ms Nelson treat as a joint account.

  3. There is no evidence of Ms Nelson’s assets or income or her capacity to provide ongoing financial support for Ken in the future.

Ruth’s financial circumstances and needs

  1. As I have already mentioned, Ruth did not put her financial circumstances in issue.

Deborah’s financial circumstances and needs

  1. Deborah has net assets of approximately $649,015, including $87,015 in superannuation.

  2. Deborah earns an annual salary of $52,000 (gross), plus $43,160 in rental income from a property that she owns. Deborah’s annual expenditure is approximately $51,280. It appears that this does not include an additional $30,000 per annum in strata fees, council rates and other expenses relating to her ownership of the property from which she derives income of $43,160. Deborah gave evidence that her income is sufficient to meet her expenses.

  3. Deborah’s four children are all adults, but she provides financial support as required to one of her daughters to assist with looking after that daughter’s four children.

CONSIDERATION AND DETERMINATION

  1. The Court has power to make an order for provision out of the deceased’s estate in favour of Ken only it is satisfied of the three matters in s 59 of the Succession Act.

  2. As to the first matter, I am satisfied that Ken, as a child of the deceased, is an eligible person: ss 57(1)(c) and 59(1)(a) of the Succession Act. As I have already noted above, this was not in dispute.

  3. The second matter in s 59(1)(b) is not relevant to Ken’s application.

  4. The third matter of which the Court must be satisfied is that, at the time of considering the application, adequate provision has not been made by the deceased’s will for Ken’s proper maintenance, education or advancement in life: s 59(1)(c) of the Succession Act.

  5. As the applicant for provision, Ken bears the onus of persuading the Court that adequate provision has not been made for his proper maintenance, education and advancement in life. It is therefore incumbent on him to lead evidence as to his financial and material circumstances. There was no evidence to suggest that he was not in a position to adduce that evidence.

  6. As I have found above, Ken gave false evidence about his financial position in that he claimed that he was indebted to Ms Nelson in the amount of $49,720. Ms Nelson gave false evidence to the same effect. In doing so, they sought to withhold from the Court the true nature of their relationship as one involving mutual financial support and dependence.

  7. I considered whether it would be possible to determine whether adequate provision has not been made for Ken’s proper maintenance, education and advancement in life on the basis that Ken did not owe any debt to Ms Nelson.

  8. However, in my opinion, an assessment of the adequacy or otherwise of the $30,000 provision for Ken in the deceased’s would require consideration of Ms Nelson’s capacity to provide financial support for Ken in the future now that he has abandoned his business in order to move to Valla to continue their close relationship. This, in turn, would require consideration of at least a broad outline of Ms Nelson’s financial position, such as the approximate value of her assets and any income (including income derived from those assets). As I have already mentioned, there was no evidence of Ms Nelson’s financial position.

  9. In her affidavit affirmed on 19 November 2019, Ms Nelson deposed that she does not regard herself as financially responsible for Ken. Similarly, Ken gave evidence in his affidavit affirmed on 24 July 2019 that no other person is liable to maintain or support him. However, for all of the reasons already addressed above, Ken and Ms Nelson have a long-standing relationship in which they are in fact financially supportive of one another, irrespective of whether they have any obligation to support one another: see Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138, in which the Court of Appeal observed that dependency by one person on another may exist as a matter of fact even though there is no legal duty on the second person to maintain the first person. [2] Their commitment to continuing this relationship is demonstrated by Ken’s financial support of Ms Nelson during 2017, Ken’s move to Valla in May 2018 in order to continue the relationship despite the adverse financial impact of the move on his painting business and income, and their use of the line of credit as a joint facility to fund Ken’s expenses in the period after Ken’s move to Valla.

    2. Cited with approval in Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45] (Campbell JA, Giles and Tobias JJA agreeing) and Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [79] (Payne JA, Macfarlan JA agreeing).

  10. In the circumstances, it is not possible for the Court to reach the state of positive satisfaction required by s 59(1)(c) of the Succession Act that adequate provision has not been made in the deceased’s will for Ken’s proper maintenance, education and advancement in life. Accordingly, the Court’s power to make an order for further provision is not enlivened and the summons must be dismissed: see [22] above.

CONCLUSION AND ORDERS

  1. For the above reasons, I am not satisfied that the deceased’s last will failed to make adequate provision for Ken’s proper maintenance, education or advancement in life. The Court therefore has no power under s 59 of the Succession Act to make an order for provision in favour of Ken in this case.

  2. I make the following orders and directions:

  1. Order that the summons filed on 20 June 2019 is dismissed.

  2. Direct that:

  1. within 14 days of the date of these orders, the parties file and serve written submissions of no more than 4 pages in length addressing the orders for which they contend in relation to the costs of this proceeding; and

  2. within 21 days of the date of these orders, the parties file and serve any written submissions in reply to the submissions referred to in order 2(a) above, of no more than 2 pages in length.

  1. Direct that the question of the costs of this proceeding be determined on the papers.

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Endnotes

Decision last updated: 19 October 2020

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Cases Citing This Decision

5

Alessandra Hart v Gerard John Basha [2024] NSWSC 1441
Frank v Angell [2024] NSWSC 158
Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524
Cases Cited

32

Statutory Material Cited

1

Amaca Pty Ltd v Novek [2009] NSWCA 50
Blendell v Blendell [2020] NSWCA 154
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275