Spata v Tumino; Estate of Gina Spata - [2017] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation: Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111
Hearing dates: 29, 30 March, 1 April, 13 May 2016
Date of orders: 24 February 2017
Decision date: 24 February 2017
Jurisdiction: Equity - Family Provision List
Before: Brereton J
Decision:
The plaintiff is not an eligible person. Proceedings dismissed.

Catchwords: SUCCESSION – Family Provision – claim by adult stepson – whether plaintiff eligible in category (e) – whether members of same household as deceased –whether dependent on deceased - whether circumstances warranting – whether left with inadequate provision – where deceased had received provision from plaintiff’s father’s estate to detriment of plaintiff
Legislation Cited: (NSW) Succession Act 2006, s 57(1)(e), s 59(1)(b)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew (2012) 81 NSWLR 656
Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/1986, 27 September 1989, BC8900913)
Ball v Newey (1988) 13 NSWLR 489
Benney v Jones (1991) 23 NSWLR 559
Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739)
Bladwell v Davis [2004] NSWCA 170
Burke v Burke [2015] NSWCA 195
Churton v Christian (1988) 13 NSWLR 241
Clinch v Swift (unreported, SC(NSW), Young J, No 3008/1985, 13 October 1986, BC8600634)
Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/1984, 4 June 1985, BC8500783)
Dijkhuijs v Barclay (1988) 13 NSWLR 639
Fulop (dec’d), Re; Fulop v Public Trustee (1987) 8 NSWLR 679
Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Henry v Hancock [2016] NSWSC 71
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1972-73] ALR 1266; (1973) 47 ALJR 184
Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10
Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486)
Marras, In the Estate of the late Anthony [2014] NSWSC 915
McKenzie v Baddeley (unreported, NSWCA, Priestley, Meagher JJA and Hope AJA, No 40299/1991, 3 December 1991, BC9101389)
McKenzie v Topp [2004] VSC 90
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894)
O'Shaughnessy v Mantle (1986) 7 NSWLR 142
Petrohilos v Hunter (1991) 25 NSWLR 343
Puie v Public Trustee of Queensland (1986) Q ConvR ¶54-215
Shaw v Lambert (unreported, SC(NSW), Young J, No 4126/1986, 9 October 1987, BC8701079)
Singer v Berghouse (No 2) (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Spata v Spata [2011] NSWSC 1221
Stewart v McDougall (unreported, SC(NSW), Young J, No 2985/1986, 19 November 1987, BC8702350)
Stone v Stone [2016] NSWSC 605
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/1989, 18 July 1989, BC8901948)
Category: Principal judgment
Parties: Giovanni Spata (plaintiff)
Franco Tumino (first defendant)
Enza Liberatore (second defendant)
Representation:
Counsel:
J. Brown (plaintiff)
J. Armfield (defendants)
Solicitors:
Hunter Lawyers (plaintiff)
George Khoury & Co (defendants)

File Number(s): 2015/087274

Judgment

The deceased Gina Spata died on 29 March 2014, aged 77 years, leaving a will dated 4 July 1998, probate of which was granted on 17 June 2014 to the defendants her nephew Franco Tumino and niece Enza Liberatore, to whom she left the whole of her estate. The deceased had been predeceased by her husband Rosario (Ross) Spata, whom she had married on 8 March 1980 and who had died on 7 February 2010, and had no issue. In these proceedings, by summons filed on 23 March 2015, Giovanni (John) Spata – one of Ross’s three children of his previous marriage to Nunziata (Nancy) Barone, who died in 1973 - seeks a family provision order in respect of Gina’s estate. [1] The essential issues are:

whether John is an eligible person in category (e), as a person who has been a member of the same household as the deceased and dependent on her;

if so, whether there are “circumstances that warrant” the making of his application; and

whether John has been left with inadequate provision for his proper maintenance and advancement in life and, if so, what if any order should be made by way of provision for him.
1. Consistent with the approach adopted by the parties in their evidence, after introductions, the anglicised versions of their names are used in this judgment.

Background

Gina was born on 1 January 1937. Her former husband Ross Spata, the father of the plaintiff John, was born on 21 September 1926.
In about 1953, Ross Spata married Nancy Barone. Of their marriage there were three children: Salvatore (Sam) born in 1954; John born on 11 September 1955, and Roberto (Robert) born in 1957; collectively I refer to them as “the brothers”. Nancy died in 1973.
Ross and his family appear to have occupied 306 West Botany Street Rockdale as their family home from at least the 1960s: John says that he lived there from the 1960s until the mid-1980s; and Sam says that he lived there until his first marriage in 1977. By 1973 – possibly earlier – Ross had also acquired the adjoining property at 304 West Botany Street Rockdale, and in the mid-1970s he purchased 24 Platts Avenue Belmore.
John married Valerie in June 1979. Following their marriage they continued to reside in 306 West Botany St for about five years until the mid-1980s, when they moved to rented premises, until they purchased and moved into 2 Chisholm Ave Belmore in 1990.
Gina and Ross were married on 8 March 1980. Gina owned a 5/6th interest in 2/59 Tebbutt St Leichhardt, as tenant-in-common with her sister Giovanna Tumino who owned the remaining 1/6th. Following their marriage, Ross and Gina initially resided in 306 West Botany St, until in about October 1980, they moved (with Robert) to Gina’s Tebbutt St flat, leaving John and Valerie in 306 West Botany Street. Robert married Marie in December 1980, whereupon he moved out of 2/59 Tebbutt St.
Ross, who was employed by Schweppes at Alexandria as a fitter, retired as a result of a work injury in about 1982. He received a compensation payment of approximately $40,000, which he used to purchase a motor vehicle and to fund his retirement. In November 1982, Ross purchased Gina’s sister’s 1/6th interest in 2/59 Tebbutt St. John claims that he gave his father $3,000 to assist with this purchase.
Gina retired in 1988; until then she was in full-time employment with AWA at Strathfield as a process worker. At that time, Ross and Gina moved from Tebbutt St to 24 Platts Ave Belmore, which had been renovated over the preceding eight years, to which renovations John and his brothers contributed.
In 1989 or 1990, Ross transferred 306 West Botany Street to Robert.
John and Valerie separated in September 1995; their marriage was dissolved in 2000. John says that he resided with Ross and Gina, at 24 Platts Ave, from the time of the separation in 1995 until about 1999.
Sometime in or after 1996, John met Emi Iwata, and by 1999 he was cohabiting with her at Kogarah. Their son Rosario (junior) was born on 18 March 2001. John moved with Emi to Japan in 2003 and resided there with her family until April 2011, when he and Emi returned to Australia.
Ross died on 7 February 2010, aged 83. His estate comprised 24 Platts Ave ($600,000), 304 West Botany St ($600,000), a 1/6th interest in 2/59 Tebbutt St Leichhardt ($70,833), moneys on deposit ($86,862) and shares ($5,994). By his last will, made on 16 June 2005, probate of which was granted on 12 May 2010 to Sam and Robert, he left his household chattels to Gina, and gave her a right of residence as long as she wished to reside in his principal place of residence (Platts Ave) provided that she paid the rates and outgoings, and he stipulated that the property was not to be sold until she remarried, entered into a defacto relationship, ceased to live there permanently, or failed to comply with the conditions of the right of residence. Upon sale, the proceeds were to form part of the residue, which after payment of debts, funeral and testamentary expenses were to be divided equally between those of his children who survived him and attained the age of 18 years.
Gina brought a family provision application in respect of Ross’s estate. Hallen AsJ gave judgment on that application on 28 November 2011,[2] and made orders to the effect that:
2. Spata v Spata [2011] NSWSC 1221.

In lieu of the provision made for her in clause 4 of Ross’s will, Gina receive:

a lump sum legacy of $143,000;

Ross’s interest in 2/59 Tebbutt St (and all income derived from it since his death), subject to a charge over the whole of that property in favour of Rosario’s executors securing payment to them of 61.5% of the value of the property, to be paid to the executors (upon trust for the brothers in equal shares) on the earlier of sale of the property or the death of Gina; and

24 Platts Ave absolutely;

The executors were to carry out certain repairs and renovations to the Belmore property; and

Gina’s costs on the ordinary basis and the executors’ costs on the indemnity basis be paid out of the estate.

Ross’s executors (Sam and Robert) filed a notice of intention to appeal. Negotiations ensued between them and Gina in respect of the implementation and variation of Hallen AsJ’s orders. On 23 February 2012, Hunter Lawyers (solicitors acting for the executors) wrote to Coorey & Fitzgerald (solicitors acting for Gina), asserting that John was destitute and with the executors’ permission was occupying 304 West Botany Street with his wife and 10 year old son, but would have to be ejected if the orders of 28 November 2011 were implemented (in order to fund the lump sum legacy); and that Sam had contacted Gina with a view to finalising the matter and resolving the situation; and proposing that the estate transfer 24 Platts Ave, and its one-sixth interest in 2/59 Tebbutt Street, to Gina, that the rest and residue (including 304 West Botany Street) go to the brothers, and that each party bear its own costs.
On 27 February 2012, Gina gave written instructions to her lawyers that she had had a private discussion with Sam and had decided to consent to setting aside the orders of 28 November 2011 and replacing them with arrangements under which (1) the executors would not appeal; (2) she would receive clear title to Ross’s one-sixth interest in 2/59 Tebbutt Street and the whole of 24 Platts Ave; (3) she would bear her own costs; (4) she would not receive the ordered legacy of $143,000; and (5) the rest of the estate would go to the brothers. She acknowledged that she had been advised that this would leave her about $40,000 worse off than she would be under the orders of 28 November 2011, but still wished to proceed.
A Deed of Family Arrangement was executed on 30 March 2012. It provided for the orders which had been made in the proceedings to be vacated and in their place, for Gina to receive, in lieu of the benefits provided by Ross’s will, (a) his interest in 2/59 Tebbutt St (and all income derived from it since his death), and (b) 24 Platts Ave absolutely. The deed included a release of all claims – including of rights to make a family provision application – against Ross’s estate, but none in respect of Gina’s. Thus in essence, Gina relinquished the lump sum legacy, in return for the sons relinquishing the charge over Leichhardt.
As a result, the estate retained 304 West Botany Rd, which was sold for $670,000. In early 2012, John (and presumably each of his brothers) received a distribution of about $200,000 each from their father’s estate, presumably representing one-third each of the net proceeds of 304 West Botany Road, after estate liabilities.
On 1 August 2012, Gina sold 2/59 Tebbutt St, for $450,000, and on 17 August 2012, she sold 24 Platts Ave, for $690,000. Also on 17 August 2012, Gina purchased a unit at 3/70 Norton St Ashfield, for $625,000.
Gina died on 29 March 2014, aged 77 years. Probate of her will made on 4 July 1998 was granted to the defendants on 17 June 2014.

The estate

Gina’s estate comprised:

Unit 3/70 Norton St Ashfield, worth $675,000; and

St George Retirement Access Account $70,240.

Subject to the following observations, the net distributable estate as at the hearing was agreed to be $685,416.43, which is held in the estate account.
The costs of the plaintiff on the ordinary basis were estimated (on the basis of a three day hearing) to be $80,611, [3] and those of the defendants on the indemnity basis $102,650 (of which $27,500 has been paid, leaving $75,150 unpaid). The additional fourth hearing day is likely to have incurred a further $7,500 costs on each side. Accordingly, if the plaintiff were to succeed and the usual costs order were made, the distributable estate net of costs would be approximately $515,000.
3. Approximately: the plaintiff’s costs to the commencement of the hearing amounted to $46,536, with a further $28,000 to $40,000 estimated for the hearing.
But in addition, there was a term deposit of $300,000, held by Gina and Franco jointly, which passed by survivorship to Franco. Gina’s legal half interest was thus $150,000, and that at least would be potential notional estate. Moreover, although nominated as a joint holder, Franco admittedly did not contribute to this fund, which was established some time in 2013 and (it is to be inferred) represented the balance proceeds of Belmore and Leichhardt, after acquisition of Ashfield. The better view of the evidence, such as it is, is that the entire fund was beneficially owned by Gina, but even if it was not and Franco was beneficially entitled to a half, the ultimate effect is that since 2013 Franco has received a benefaction of $300,000 from Gina.

The plaintiff

John and his partner Emi have gross assets of just under $400,000:

X/XX Marybeth Crescent, Molindinar, Queensland, which they purchased on 16 December 2015 for $370,000 plus costs (jointly held);

a Mitsubishi motor vehicle (worth $5,000); and

Emi’s superannuation of $23,000.

They have liabilities amounting to $300,000:

ANZ Bank mortgage loan of $255,000; and

$45,000 loan from Emi’s family, which was used to fund the purchase of the Molindinar property.

John is 61 years of age. He has operated a plumbing/home maintenance business since 2013. His taxable income, according to his taxation return for FY2015, was $26,584. In an application for finance dated 6 October 2015 in connection with the purchase of the Molindinar property, he claimed to have a taxable income of $42,109, which was supported by a certificate of income from Grey Power, but this appears to have been an overstatement. Emi, who is aged 49, is in fulltime employment earning $40,000 gross ($28,000 net) per annum, equivalent to $1077 net per fortnight. Her taxable income in FY 2015 was $41,969. John claims that they have expenses of $4,106 per month, including mortgage payments of $612 per fortnight. The loan is for a term of 30 years; John will be 90 when it expires.
Of the $200,000 received from his father’s estate in 2012, John purchased two motor vehicles – a Mazda for $18,000, and a Mitsubishi for $11,000. He purchased furniture of $10,000, paid a rental bond of $1,320, paid for his son’s braces, education, and living expenses, and retained $100,000 in an investment account with Suncorp – which was ultimately applied to the acquisition of Molindinar.
John claims to be affected by bipolar disorder, hearing loss (for which he says he requires aids at a cost of $3,000 to $4,000) and cataracts (requiring an operation costing $12,000). He says that his needs are to pay off the mortgage, and repay the loan from Emi’s family.

The witnesses

Before turning to the issues, it is necessary to make some observations about the witnesses, most of whom were more or less overtly partisan, with many manifesting signs of a want of objectivity.
John’s credibility was adversely affected by a number of matters, of which the chief were the following. First, while in his affidavits he contended that Gina had resided with Ross in 306 West Botany Street from June 1979, in cross-examination he accepted that she had not cohabited with Ross before they were married in March 1980 – a matter which was plain enough on the evidence as a whole (although at least Sam, though he had no actual knowledge of the position, was reluctant to make the same concession). Thus John’s affidavit materially misstated the position, on a highly material matter (to establishing eligibility), to his advantage. He explained this as a mistake.
Secondly, he conceded that he was entirely indifferent to posting untrue statements on Facebook. However, this was in the context that he (at least arguably correctly) took the view that there was no obligation to be truthful in Facebook posts. While this attitude provides some ground for circumspection, I do not accept that it follows from his attitude to truthfulness in Facebook posts that he would tell untruths when under an obligation to tell the truth.
Thirdly, he did not, in the earlier proceedings, contradict matters deposed to by Gina, which he now disputes (in particular, the duration of the period following her marriage to Ross that they resided in 306 West Botany Street); nor did he advance in those proceedings matters which he now relies on, although they would have been important and relevant then (in particular, Gina’s alleged agreement to Ross’s expressed intention that his properties pass to his sons, a matter which is discussed in greater detail below). But while he had no real explanation for these omissions, on these issues – as will appear – the evidence before me tends to support his present position.
Fourthly, there is an overall inconsistency between the position espoused by John in the earlier proceedings as to the nature and quality of his relationship with Gina, and that which he now advances: his evidence in the earlier proceedings gave the impression that they barely had any relationship, whereas he now asserts that it was a close, loving and practically maternal one. This is further discussed below.
Fifthly, as has been mentioned, he overstated his income in a finance application, and used a certificate of income from “Grey Army” in support of that finance application, which he knew to be untrue.
Sixthly, despite his professed affection for Gina, he obviously harbours a degree of resentment towards her, which was particularly manifest in the following answer, and the tone and demeanour that accompanied it. The context was that John had disputed that Gina retained a five-sixths interest in 2/59 Tebbutt Street, maintaining that she had only a 50% interest:

Q. Coming back to this question of you receiving money from Gina whilst you say you were at Platts Avenue. Do you agree that Gina was getting some rent from her five-sixth interest in the Tebbutt Street unit?
A. She was getting the whole lot.

John’s evidence manifested a somewhat cavalier attitude to accuracy.
It should not be supposed that the evidence of the defendants, and their witnesses, is unaffected by similar difficulties; to the contrary, both the defendants were partisan, as were their witnesses, and appeared committed to positions of which their actual knowledge could have been but slight. However, I need not descend to the same detail in critiquing their evidence – partly because it is the plaintiff, not they, who bears the onus of proof, and also because ultimately little turns on the defendants’ evidence, much of which was directed to the nature and quality of the relationships between Gina and the Spata brothers, and between Gina and themselves. As will appear, although I do not accept that Gina’s relationship with John was a quasi-maternal one, the foundation of any moral obligation Gina may have had to make provision for John does not depend on the quality of their relationship, and is not undercut by the quality of her relationship with the defendants.

It follows that I do not unequivocally accept the evidence of John (and his brothers, who were also partisan), nor that of the defendants and their witnesses. However, I exempt from my general reservations about the witnesses the evidence of Sylvia Echegoyen and Alissa Volpe in the plaintiff’s case, and that of Maria Pia Carmela Tumino, in the defendants’ case; as will appear below, I found them generally reliable. In particular, I reject the attack on Sylvia’s impartiality based on the unsubstantiated allegation (which she denied) that she was or had been in a relationship with Robert; although there was an element of advocacy in her evidence, she was unshaken and persuasive. And although Alissa is Sam’s daughter, her evidence appeared to be given with care for accuracy, and demonstrated a good recollection. The same can be said of Maria, notwithstanding that she is Frank’s wife.
My findings on the material remaining issues of fact, and the reasons for them, appear below.

Family provision

Applications such as these for provision out of the estate of a deceased person have been described by the High Court of Australia (in the context of the (NSW) Family Provision Act 1982) in Singer v Berghouse(No 2) [4] as involving a two stage approach. The first requires the determination of the jurisdictional fact of whether the applicant has been left with inadequate provision for his or her proper maintenance, education and advancement in life, and the second – which arises only if the first is resolved affirmatively – involves the discretionary assessment of what provision ought to be made out of the estate for the applicant. However, as the High Court explained, similar considerations inform both stages of the process:[5]

The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.
4. (1994) 181 CLR 201.
5. (1994) 181 CLR 201 at 210.

Although there have been suggestions that subtle changes in the language now used in (NSW) Succession Act 2006, s 59, may have affected this,[6] the prevalent view is that no change to the conventional two-stage approach is warranted. As Bergin CJ in Eq observed in In the Estate of the late Anthony Marras:[7]

15 There has been some difference of opinion about the approach to be adopted by the Court in applications under s 59 of the Act compared to applications under the Family Provision Act 1982 (Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 per Basten JA at 663 [29]; and Hallen J's careful analysis in Aubrey v Kain [2014] NSWSC 15; and Dudic v Jakovljevic [2014] NSWSC 169). In hearing these applications judges at first instance are bound to adhere to the approach referred to in the decisions of the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. In line with those cases the Court must determine whether the provision is inadequate for the applicant's proper maintenance, education and advancement in life and if so, whether any provision ought be made for the applicant. Although there may be some overlap in the matters to be considered in these determinations, the pre-requisite of a finding of inadequacy is pivotal to the restraint that courts must exercise in refraining from rewriting wills or interfering with the intestacy regime beyond what is necessary to make adequate provision, paying due regard to the intentions of the testator or in this case, that of the Parliament.
6. Andrew v Andrew (2012) 81 NSWLR 656.
7. [2014] NSWSC 915.

That said, because the considerations relevant to both stages overlap in this way, consideration of a family provision application does not always divide neatly into the two questions, as Callinan and Heydon JJ pointed out in Vigolo v Bostin. [8] Nonetheless, in a family provision application, the Court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes.
8. [2005] HCA 11; (2005) 221 CLR 191 at 230-1.
The relevant principles and considerations were summarised by McLelland J, in Re Fulop Deceased:[9]

In making these determinations, the following principles apply: First, the Court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiff’s proper maintenance, education and advancement in life. Secondly, the expression ‘proper’ in this context connotes a standard appropriate to all the circumstances in the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff, (c) the nature and extent of the plaintiff’s present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.
9. (1987) 8 NSWLR 679.

It is also important to bear in mind the principle articulated by Young J, as he then was, in Stewart v McDougall, [10] in explaining that the Court’s role is limited to making adequate provision for an eligible person’s proper maintenance and advancement:

It is important to state what the Family Provision Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equally, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty.
10. Unreported, SC(NSW), Young J, No 2985/1986, 19 November 1987, BC8702350.

Formerly, the yardstick applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of “community standards”, although I am not at all sure that this is any different from the moral obligation of a wise and just testator: the community would expect a testator to act wisely and justly; and as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty – subject to the qualification that the court’s determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator’s will or death. [11]
11. Bladwell v Davis [2004] NSWCA 170 at [12]-[19]; Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 at [125] (White J); Burke v Burke [2015] NSWCA 195 at [101]-[102] (Ward JA); Henry v Hancock [2016] NSWSC 71 at [69].

Eligibility

Standing to apply for a family provision order is conferred only on “eligible persons” within the definition of that term. [12] John’s eligibility is in issue in the proceedings: he is an “eligible person”, if at all, only under category (e) of the definition, which is as follows:

(e)  a person:
(i)  who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii)  who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …
12. (NSW) Succession Act 2006, s 57(1).

In order to qualify as an eligible person, John – not being a grandchild of the deceased – must therefore establish that he was (1) at some particular time, wholly or partly dependent on the deceased; and (2) at that or any other time, a member of the household of which the deceased was a member.

Member of same household

A claimant in category (e) – unless a grandchild of the deceased – must prove that, at some time, he or she was a member of a "household" of which the deceased was also a member. Membership of a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree and there are no hard and fast rules, [13] at least generally, the minimum requirements include at least some element of residing (as distinct from visiting) by the claimant and the deceased in the same house, [14] and mutual living so that there is a quasi-family unit (as distinct from boarding). [15]
13. Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894); Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486).
14. Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486).
15. Benney v Jones (1991) 23 NSWLR 559, affirming Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739).
There is no controversy but that John resided in 306 West Botany St from his childhood until at least the early 1980s, and in particular that he resided there following his marriage to Valerie in June 1979. Nor is there any controversy but that his father Ross resided there until sometime after his marriage to Gina in March 1980. Nor is there any controversy but that Ross and Gina resided there together following their marriage for at least a couple of months. Suggestions that they cohabited there before their marriage, which were advanced in the affidavit evidence of John and Sam, did not survive cross-examination, and it is clear that Gina did not commence to reside there until their marriage.
Just how long they remained is less clear. John says it was for about eight months. Sam’s recollection is that Ross and Gina were still living in 306 West Botany St when he moved to Queensland in August 1980, as he had moved some furniture to Leichhardt shortly before his departure in anticipation of their moving there. Robert’s evidence is to the effect that he moved with Ross and Gina from 306 West Botany Road to Leichhardt, and stayed with them in Leichhardt for a month or two before his marriage in December 1980. Despite my general reservations as to their reliability, on this topic I found their evidence – given as it was in each case by reference to what was a significant life event for them - persuasive. Ultimately, little turns on whether it was six or eight months. In the earlier proceedings, Gina deposed that she lived at 306 West Botany Street with Ross for a couple of months after their marriage, and in those proceedings this was not contradicted by John nor Sam nor Robert. However, although I accept that this matter was not without relevance in those proceedings, as it bore on the relationship between John and his father, it was not then an issue of great importance, and I am unpersuaded that the failure to contradict Gina in that respect in those proceedings is to be attributed to intentional agreement, as distinct from indifferent acquiescence. I accept that Gina and Ross resided in 306 West Botany Street, where John also resided with his wife Valerie, for between six and eight months after their marriage on 8 March 1980.
John says that during this period Gina (with Valerie’s assistance when able, though she was pregnant at the time), washed and dried his clothes, and cleaned the house; that she cooked his meals and prepared his lunches; and that (with Ross) she shopped for groceries. Given their living arrangements, it is entirely probable, and I accept, that she did these things. Accordingly, I accept that for a period of about six or seven months following their marriage, Ross and Gina and John and Valerie shared a common household at 306 West Botany Street, and thus that for that period John was a member of the same household as Gina. Indeed, in Franco’s affidavit of 13 October 2015, he deposes that after Ross and Gina returned from their honeymoon, she returned to full-time work: “Valerie, the plaintiff’s wife undertook the majority of the household tasks, including cleaning and cooking. The deceased [Gina] assisted when she could when she was otherwise not working”. That is quite inconsistent with their not being members of the same household at that time.
There is controversy as to whether following his separation from Valerie in 1995 John resided in 24 Platts Ave, where Rosario and Gina unquestionably resided. John says that he moved into Platts Ave when he was “kicked out” of 2 Chisholm Ave Belmore by Valerie, and used a folding bed in the second bedroom, which had been used as a storeroom until he moved in, and that Gina once again washed, dried and occasionally ironed his clothes; that she cooked his meals and prepared his lunches (sometimes with Ross’s assistance); did the grocery shopping (with Ross); and provided comfort and solace when he was distressed in the circumstances of his marriage breakdown.
John produced no documents (such as tax returns, driving licences, electoral enrolments, or bills) which might have shown his address during that period. (He said he had no tax returns because he had no taxable income between 1980 and 2000, although in the earlier proceedings he had deposed that he had employment from 1979 until 1983 as a warder overseer at Long Bay, between 1983 and 1990 as a plumber, between 1990 and 1995 in his own business John Spata Plumbing, and between 1995 and 2003 with various limousine companies).
However, a significant body of evidence supports his evidence that he resided at 24 Platts Ave following his separation from Valerie. Sam says that he was present at a conversation in about 1996 when John informed Ross and Gina that he and Valerie had separated, and they invited him to stay with them; and on subsequent visits observed signs of his occupying the second bedroom, for at least two years thereafter. Sam also observed Gina preparing and serving John’s meals and washing his clothes, as well as her own and Ross’s. Robert deposes to a similar conversation, to making observations of John’s presence at 24 Platts Ave on his regular visits over about the following three years; and that Gina always did the cooking, and put loads of washing, including John’s clothes, into the washing machine and hung them out to dry. While Sam and Robert might be regarded as partial witnesses, their evidence was confirmed by Sam’s daughter Alissa, a credible witness who recalls John being present in the property and occupying the spare bedroom when she visited in the mid-1990s, and specifically in 1997, though she cannot recall for how long that remained the case. Moreover, Sylvia Echegoyen testified that in 2009 Gina had told her that when John separated from his wife, “he came to live with us for a while as his wife kicked him out of the house”.
The evidence to the contrary is of a negative kind, to the effect that visitors to 24 Platts Ave during the period did not observe any sign that John was living there. But such signs would not necessarily be noticed by an occasional visitor – especially if, as Alissa mentioned, the door to the room which John occupied was often closed. Significantly, no-one has suggested where else John may have been residing during that period following his separation from Valerie. The high point of the evidence to the contrary was that of Frank’s wife Maria Pia Carmela Tumino, who said that she took their child (who was born in March 1998) to visit Gina approximately fortnightly at 306 West Botany Road, and would leave her sleeping in her pram in the room which was allegedly occupied by John, but saw no sign of occupation. Notwithstanding her relationship with Frank, I found her evidence objective. But even accepting her evidence, it related only to the period after mid-1998, and does not bear on any residence by John prior to then.
In cross-examination, it was put to John, and he disagreed, that he never slept at 24 Platts Ave between 1996 and 1999; that the “second bedroom” was at all times used as a storeroom and never as a bedroom; and that any visitors to the premises would necessarily have seen and noticed a bed in the spare room if there was one. John admittedly did not refer to any such co-residence in his affidavit in the previous proceedings, in which he deposed that after his divorce he moved to Kogarah with Emi. However, that statement was made in the immediate context of a reference to his divorce, which was in 2000 – not his separation in 1995. John denies that he commenced to cohabit with Inata in 1996, and although his Facebook page refers to his having been in a relationship since 1996, that does not mean – even if it be true – that they have been cohabiting since then. The only evidence on the matter is John’s – Emi gave no evidence and was asked no questions on this topic.
Strikingly, there is no evidence of him living, during this period, at any particular place other than 306 West Botany Road. While I accept that in the broader context of a description of his relationship with his father, one might have expected a reference in the earlier proceedings to having lived with him for two or three years during that period, the omission of any such reference is outweighed by the affirmative evidence to which I have referred, and the conspicuous absence of any suggestion as to where else he might have lived upon separation from his wife.
Accordingly, I accept that John and Gina were members of the same household, at Platts Ave, for a period of at least a couple of years following his separation from Valerie in 1995.

Dependency

Membership of a common household is a necessary but insufficient condition of eligibility under category (e); the claimant (if not a grandchild) must also have been at some time wholly or partly dependent on the deceased. Whether a person is dependent on another is a question of fact, to be determined on the basis of the actual fact of dependence – or reliance on another to fulfill a need. [16] In Ball v Newey,[17] Samuels JA said:

“Dependent”, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.
16. Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189; [1972-73] ALR 1266; (1973) 47 ALJR 184 (Gibbs J); Ball v Newey (1988) 13 NSWLR 489; Benney v Jones (1991) 23 NSWLR 559.
17. (1988) 13 NSWLR 489 at 491.

In Amaca Pty Ltd v Novek,[18] the Court of Appeal re-endorsed the following statement of the law in Middleton v Kiama District Hospital:[19]

Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.
18. [2009] NSWCA 50 at [45] (Campbell JA, with whom Giles JA and Tobias JA agreed).
19. [1970] 3 NSWR 136 at 138 (Sugerman P, Jacobs and Mason JJA).

A useful description of the concept was provided by Palmer J in Re Estate of Hakim; Simons v Permanent Trustee Co Ltd: [20]

Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance.
20. [2005] NSWSC 223 at [42].

The standard of support is set by the parties themselves, so the fact that the claimant may have been able to support himself or herself from his or her own resources does not negative dependence, if in fact the claimant was reliant on the deceased. [21] In Ball v Newey, [22] the deceased and the claimant had been cohabiting when they decided to purchase a house in which to live together, and which neither of them separately would have been able to buy, so they pooled their incomes and made mortgage repayments out of the joint fund, bought the house and lived in it together. Samuels JA, with whom Hope JA agreed, said (at 492):

Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of ‘needs’ in the Liquor Act 1912 as ‘reasonable demands or expectations’: Toohey v Taylor [1983] 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is ‘the actual fact of dependence or reliance on the earnings of another for support that is the test’: per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. ‘The standard of support is set by the parties themselves’ (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other.
21. Ball v Newey (1988) 13 NSWLR 489 at 492 (Samuels JA).
22. (1988) 13 NSWLR 489.

Reliance on the deceased for needs other than financial and material may amount to dependence, which extends to anything that connotes the condition of depending on someone for what is needed. [23] In particular, reliance on the deceased for accommodation may amount to dependence, especially if the deceased and the claimant were in a family-like relationship – whether quasi-parental[24] or quasi-marital. [25] However, the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence. [26] Moreover, it is necessary to give close attention to who provides the accommodation to whom: where accommodation is not provided directly to the claimant, but he or she gains the benefit of accommodation provided for another (for example, the claimant’s spouse or parent), mere residence in the deceased’s house may not amount to dependency on the deceased. Thus in Clinch v Swift, [27] the deceased’s son and daughter-in-law lived with her, but the daughter-in-law was not dependent on her mother-in-law; and in Shaw v Lambert, [28] the deceased’s granddaughter, who lived with her mother in the deceased’s house, was not dependent on her grandfather.
23. Ball v Newey (1988) 13 NSWLR 489 at 491; Petrohilos v Hunter (1991) 25 NSWLR 343.
24. Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/1984, 4 June 1985, BC8500783); Re Fulop (dec’d); Fulop v Public Trustee (1987) 8 NSWLR 679 at 682 (McLelland J).
25. Puie v Public Trustee of Queensland (1986) Q ConvR ¶54-215; Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/1986, 27 September 1989, BC8900913); Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/1989, 18 July 1989, BC8901948).
26. Benney v Jones (1991) 23 NSWLR 559.
27. Unreported, SC(NSW), Young J, No 3008/1985, 13 October 1986, BC8600634.
28. Unreported, SC(NSW), Young J, No 4126/1986, 9 October 1987, BC8701079.
“Partial” dependence does not require “substantial” dependence, but it is necessary that the claimant is “more than minimally” or “significantly” dependent on the deceased. [29]
29. McKenzie v Baddeley (unreported, NSWCA, Priestley, Meagher JJA and Hope AJA, No 40299/1991, 3 December 1991, BC9101389).
Circumstances in which a step-parent incurred a dependency to a step-child were considered in Petrohilos v Hunter, [30] in which the plaintiff was born on 6 August 1941, to parents who were divorced in 1945. In 1946, her father married the deceased, and the plaintiff – then aged five - lived with them in a house at Keepit Dam which her father owned. For most purposes the plaintiff, who had little memory of her natural mother, regarded the deceased as her mother, and the deceased treated and looked after her as her own child, along with two younger daughters of her own born in 1951 and 1954. The plaintiff continued to live at Keepit Dam with her father and step-mother and siblings, until she married in 1959 at the age of eighteen. [31] Hope AJA, with whom Clarke and Sheller JJA agreed, explained:

While the plaintiff was living with her father and the deceased at Keepit Dam, the deceased had no assets of any significance and her only income was so small as to be irrelevant. The family lived on the salary of the plaintiff's father, who also had provided the house they lived in. The father gave most of his earnings to the deceased who controlled its banking or spending. So far as money spent on her needs is concerned, the plaintiff was wholly dependent upon her father during this period. However the deceased did all those things for the plaintiff that a mother in her circumstances does for a daughter from the age of five to the age of eighteen. For quite a number of years the plaintiff was wholly dependent upon the deceased for the many services that a mother provides for a young child, as well as for the services she provided in looking after the house. As the plaintiff grew up, she no doubt did some of these things for herself, or helped do them. It is probable that she remained partly dependent upon the deceased for some of these services until she married and left home. If it be relevant, she would also have had an emotional relationship with dependence upon the deceased, particularly when she was very young.
30. (1991) 25 NSWLR 343.
31. (1991) 25 NSWLR 343 at 345-6.

In those circumstances, the Court of Appeal disagreed with the conclusion of Master Windeyer, as he then was, that dependency on the step-mother was not established. Hope AJA said (emphasis added):[32]

Master Windeyer decided that the dependency referred to in the definition of “eligible person” means financial dependency. He adopted the opinion expressed by McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 682, that “dependent upon” denotes the provision of financial or material needs. He concluded that the plaintiff did not become dependent upon the deceased through the provision of financial or material needs, and hence was not an eligible person. He went on to consider whether, if he were wrong in his conclusion, there were factors which warranted the bringing of the application. Relying on the views expressed by McLelland J in Re Fulop Deceased (at 681) and by Priestley JA in Churton v Christian (1988) 13 NSWLR 241 at 252, he defined the necessary factors as being those which would have brought the plaintiff within the class of persons whom the deceased should have considered as falling within those persons who could be regarded as natural objects of her bounty and for whom she had a moral obligation to make some provision. He concluded that while the plaintiff may have come within this category when she was an infant, the obligation did not continue after she became independent, especially in circumstances where there was no close contact and where she was not disposing of assets acquired as a result of the work of or inheritance from the plaintiff's father.
I would respectfully disagree with the master in both respects. The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that “‘Dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed”. If the correct view were that the context of the statute requires a limitation of the word to “financial or material” matters as McLelland J said in Re Fulop Deceased or to “other forms of dependence analogous to but distinct from financial dependence” as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.
32. (1991) 25 NSWLR 343 at 346-7.

However, it is important to note that in that passage:

His Honour consistently referred to the dependency of a young child on a mother or step-mother for what might conveniently be called “maternal services”;

His Honour recognised that such a dependency decreased as the child became more able to look after herself (or himself); and

The rationale for concluding that there was a dependency was that the child could not survive without the provision of the services; he or she needs them.

The same cannot be said of able-bodied adult children who are perfectly capable of washing their own clothes, preparing their own meals and shopping for their own supplies. That they may not do so, and that their parent or step-parent does so, is an arrangement of convenience, not of dependence. If the parent or step-parent did not provide those services, the able-bodied adult child could provide them himself or herself, or source them elsewhere. A convenient division of labour and responsibility between able-bodied adults does not create a case of dependence. It is not reliance on another for the satisfaction of a need. Thus an able-bodied husband in remunerative employment would not be said to be (even partly) dependent on his wife just because, in the way they arranged their affairs, she was the primary homemaker and parent and cooked the meals, cleaned the house and did the laundry.
Gina was not a proprietor of 306 West Botany St, nor of 24 Platts Ave; Ross was the sole proprietor of both. It cannot be said that while John resided there he was dependent on Gina – as distinct from on Ross – for accommodation. In truth, both Gina and John were dependent on Ross.
The provision by Gina of services such as putting clothes in the washing machine, hanging them out to dry, preparing meals and shopping for groceries is an aspect of the arrangements of mutual living that makes a household, and reflects the division of labour and responsibilities within the household, but does not constitute a dependency – at least in the case of an adult child who is capable of performing the activities of daily living himself. This is demonstrated by the circumstance that, during the first period of residence in the same household, John was in employment, and his own wife Valerie was also performing at least some of the homemaking functions; and once Ross and Gina moved to Leichhardt, John and his family continued to reside in 306 West Botany St, and presumably provided those same services themselves, without requiring any substitute for the services Gina had rendered.
On the same reasoning, John did not become Gina’s dependent on account of the domestic services that she provided when he returned to 24 Platts Ave, although he once again became dependent on Ross for accommodation. Nor did Gina’s provision of comfort and solace when he was distressed in the circumstances of his marriage breakdown create a dependency; while dependence is not limited to financial or material dependence,[33] the existence of an emotional relationship alone is insufficient. [34] John refers to having received an occasional financial benefit – $50 or so, so that he could go out for a social occasion – from Gina – such trivial assistance does not make a case of dependency, even if it were established that it was sourced in Gina and not Ross, which it is not. To the extent that John had any remaining need for maternal services of this kind after the death of his mother Nancy – he was then aged 16 – it was his father who provided them; in the earlier proceedings he deposed that after his mother’s death, his father took on the role of both parents, and there was no reference to any contribution by Gina, who did not arrive on the scene until John was in his twenties and married.
33. Petrohilos v Hunter (1991) 25 NSWLR 343.
34. Benney v Jones (1991) 23 NSWLR 559 at 565-6.
John also says that during the second period of residence in the same household he had little income and was in receipt of unemployment benefits, and was using his savings to pay maintenance and service the mortgage on Chisholm Avenue, and that Rosario and Gina supplied all his food. This is the high point of the argument; and if it were established that Gina was supplying from her own resources (that is to say, purchasing and not merely cooking) his food, for a period of two or three years, a case of partial dependency might well be established. But there is nothing to show that it was Gina’s as opposed to Ross’s resources that were used for this purpose. That is telling, given four other factors: first, that after Gina and Ross moved to 24 Platts Ave, they no longer used a joint account but separate accounts; secondly, that they did the grocery shopping together; thirdly, that the wider picture of the relationships is that both Gina (Ross’s wife) and John (Ross’s son) were dependents of Ross; and fourthly, that if Gina had used her resources to support Ross’s son, that is a matter which she would have deployed in support of her family provision application, yet there is no mention of it in her affidavit in the earlier proceedings. Accordingly, I am not satisfied that Gina provided (as distinct from prepared) John’s food and household supplies during the second period.
It therefore follows that one of the essential criteria of eligibility under category (e) – namely, dependency on the deceased – is not established. As John was not an eligible person, his claim must fail.

Factors warranting

If the plaintiff were an “eligible person” under category (e) of the definition of that term,[35] the court would be required to first determine whether, in its opinion, having regard to all of the circumstances of the case (whether past or present) there are factors which warrant the making of the application. [36] The accepted test is that factors which warrant the making of an application by a person who is eligible only under category (d), (e) or (f) of the definition of that term in s 57(1), are such factors which, when added to the facts which render the applicant an eligible person, give him or her status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. [37]
35. (NSW) Succession Act 2006, s 57(1)(e).
36. (NSW) Succession Act 2006, s 59(1)(b).
37. Re Fulop deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681E (McLelland J); Churton v Christian (1988) 13 NSWLR 241 at 242G, 244F, 252A-E.

In this respect, it is necessary in the context of this case to consider:

the characteristics of the relationship that qualifies John, if at all, as an eligible person;

John’s expectations of inheritance from his father Ross, and from Gina;

the significance of the earlier proceedings concerning Ross’s estate and the subsequent settlement of those proceedings.

The qualifying relationship

If I be wrong in respect of eligibility, and there was some qualifying dependency of John on Gina, nonetheless the periods of common membership of the same household were short, and the nature extent and duration of any dependency slight. In particular, there was no dependency as at, or for many years before, the deceased’s death; and while that is not fatal, any general community expectation that a testator will provide for those who are dependent on him or her does not apply where the dependency has long since ended.
The paradigm case of “circumstances warranting” a claim by a category (e) claimant is where the claimant is treated and regarded in a manner similar to a child of the deceased. In these proceedings, John claims that he treated Gina as his mother, and vice versa. However, the flavour of the evidence in the earlier proceedings – including both Gina’s evidence and his own – is quite to the contrary. Gina made no reference to the quality of any relationship she had with Ross’s children, nor to any contribution she made in respect of them. It is improbable that she would not have propounded such contributions, had she made them, in support of her claim on Ross’s estate; yet she did not do so. The relationship which John now describes is radically different from what emerges from his affidavit in the earlier proceedings, in which he (1) made no reference to any contribution by Gina; (2) said that after he and Valerie moved to Chisholm Ave, less than 300 metres from where Ross and Gina lived in Platts Ave, his father visited at least three times per week, but “As for [Gina], she hardly ever visited”; and (3) said that when Rosario junior was born on 18 March 2001, Ross came to the hospital and was more emotional than Sam had ever seen him when he saw the name Rosario, but made no mention of Gina – yet John now claims that Gina also visited, and proudly proclaimed “I finally have a grandson”.
Moreover, Gina was not a step-mother who arrived on the scene when the plaintiff was still a child: he was already married, before she married Ross. And while John made Facebook posts in connection with the death of his father and his uncle, he did not do so in connection with Gina’s death; although he disputed that this was because he did not have a close relationship with her – he said “I just probably didn’t do it” – it is one of a number of indicia which, taken together, indicate that the relationship was not such as he now claims.
Accordingly, I do not accept that the relationship between Gina and John was analogous to a parent-child relationship.

Expectations of inheritance from Ross and Gina

John and his brothers each gave their wages to their parents (Ross and Nancy), until they married or left home. They also undertook significant works to repair and renovate Ross’s three properties. In particular, John performed plumbing work on the properties, and also plumbing maintenance for the Leichhardt unit. In these ways, all three made a substantial contribution to Ross’s estate. In the previous proceedings, Hallen J’s judgment acknowledged and recognised that each of Ross’s sons had made substantial contributions, from their own wages and through their labours, to the conservation and improvement of his properties, and that those contributions provided the basis for powerful legitimate claims (in competition with those of Gina) on Ross’s testamentary bounty. [38]
38. [2011] NSWSC 1221 at [116]-[119].
John claims that during his lifetime, Ross made statements in the presence of the brothers and Gina, to the effect that it was his intention that upon his death there be a house for each of the brothers; and that Gina promised that if Ross died first, she would give the properties (presumably Belmore, 304 Botany Road and 306 Botany Road) to the brothers. According to Sam, from the 1970s until his death, Ross often said, including in the presence of Gina, that the brothers had worked hard and contributed, and that the properties belonged to them when he died, and that Gina assented to this. Robert says that in 1989, Ross said – in Gina’s presence – that he had made a will which gave her the right to reside in the property (presumably Belmore) for life and money to live on, “but after you die I want the properties to go to the three boys”, and that Gina responded “I agree”.
In the earlier proceedings, Gina deposed to conversations with Ross in which he had said “this house [Platts Ave] is yours one day”. On one view, that is not entirely irreconcilable with the evidence of the Spata brothers, or the terms of Ross’s will: it may have been a statement to the effect that “this will be yours to live in for life”. Nonetheless, the statements by Ross to which John, Sam and Robert now depose would have been a relevant and potent answer to Gina’s assertion. Yet none of them referred to them in their evidence in the earlier proceedings. No suggestion that she was reneging on a promise to which she was party was raised in those proceedings.
John pointed out that he was not a party to the earlier proceedings (not being an executor) and merely provided an affidavit covering what he was told was relevant, most particularly his circumstances. Sam, in cross-examination, said that he did not refer to it because he was then very emotional, devastated at being taken to court, was inexperienced in litigation, and did the best he could; in his words, “it was a difficult period”. He explained that they were pursuing a course of negotiation, which appeared promising, but this then changed and the matter went to court. But there was really no good explanation for why a very obvious defence, if it existed, was not then raised. This raises a significant doubt about the brothers’ claims that such statements were made.
However, the evidence does not rest there. John claims that on a number of occasions, Gina made statements that effectively acknowledged that Ross had expressed such wishes and that she would honour them. In particular, he says that at Ross’s wake, Gina said: “When I die, my estate will go to you and your brothers”, and that over the period from 1980 until her death, she often said: “Your father wanted all of his estate to go to his three boys and I will leave everything to your brothers and you”. According to Sam, when, following the judgment in the earlier proceedings, the settlement was negotiated, Gina said: “I agree. Don’t worry, I will think of you when I write my will. I know it was your father’s wish to leave you the properties. But I could live up to another 20 years and I need to support myself”.
No reference to any such understanding (about the ultimate disposition of Gina’s estate) is to be found in the correspondence, the formal instructions or the documentation associated with the 2012 settlement. And according to Robert, Sam told him only: “Gina wants to break ties with all of us … we will take 304 West Botany so that John can live there. Gina will take all of Leichhardt and all of Belmore”; Robert does not appear to have been told of any understanding about how Gina would deal with the properties. Of course Robert had already received 306 West Botany Street, and thus may have had no further expectation of inheritance.
However, Sam’s daughter Alissa deposed to two conversations in which Gina referred to wanting “to look after you boys … just like Ross would have liked it” (in late 2011 or early 2012, at Belmore in Sam’s presence when she said she wanted to sell Belmore), and “I will look after you and the boys as that is what Ross would have wanted …” (at her father Sam’s place in 2014, a few weeks before Gina’s death). In cross-examination she said that Gina mentioned her testamentary intentions only in the second conversation, which occurred after October 2013, when her daughter was born. She manifested a good recollection of the setting of, participants in and content of both conversations. She did not claim to be have been party to other aspects of conversations on either occasion, to which Sam referred, where her corroboration might well have assisted her father. I accept her evidence.
Moreover, according to Sylvia Echegoyan, Gina told her “I have no kids. When Rosario and I pass away all will go to the boys”, and “My nephew is pushing me to start court action against Rosario’s will because of the car. I am not going to do any of that because all of it was to go to the boys”. I accept her evidence also.
Accordingly, I accept that:

John, Sam and Robert had strong legitimate claims on Ross’s testamentary bounty arising from their contributions to the acquisition, conservation and improvement of his estate, as Hallen J found;

During his lifetime, Ross on a number of occasions made statements in the presence of Gina to the effect that the properties were for the boys and that each was to have a house, and that Gina acknowledged and agreed to this. Although these were not considered by Hallen J – because there was no evidence of them before him – they reinforce the claims of the sons on Ross’s estate;

In addition, Gina herself made representations to John and to Sam to the effect that she would honour Ross’s wishes and make provision for them.

The relevance of such promises and expectations was explained in Alexander v Jansson:[39]

Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148], though this may be more so where a claimant has relied to his or her detriment on any such promise or expectation. The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of “moral duty” which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74]; and see now (NSW) Succession Act 2006, s 80(2)(b), which like its predecessor in the Family Provision Act expressly recognises the notion of moral duty].

39. [2010] NSWCA 176 at [18].

The earlier proceedings and their settlement

As was explained by Nettle J, when a judge of the Supreme Court of Victoria, in McKenzie v Topp,[40] where a testator leaves the whole of his estate to his widow, to the exclusion of adult children of earlier marriages, the widow may incur a moral obligation to make provision for those children:

[58] … Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.
40. [2004] VSC 90 at [56]-[60]; see also Stone v Stone [2016] NSWSC 605 at [65].

[60] That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.

Likewise, where a testator’s provision for his or her adult children of an earlier marriage is disturbed by a family provision order in favour of the widow, similar obligations may be incurred: it cannot make a difference whether the claims of the children of the first marriage are subordinated to adequate provision for the widow of the second marriage deliberately by the testator, or involuntarily as a result of the intervention of the court. Although it is true that in making an order the court will consider and weigh competing claims, so will a wise and just testator; and a decision by the court, upon such consideration, to subordinate the claims of the children to those of the widow does not preclude the widow incurring a moral obligation to the children, any more than does such a decision by the testator.
Gina’s estate represented, in substance, the proceeds of the Leichhardt unit, and of 24 Platts Ave. She had introduced the Leichhardt unit to the matrimonial estate, and Ross’s interest in it was a minor one. Although John suggested otherwise, in my view it is unlikely to have been one of the three properties to which Ross’s statements of testamentary intentions had referred. [41] However, 24 Platts Ave was undoubtedly one of Ross’s three properties, to the acquisition conservation and improvement of which the brothers had significantly contributed, and which Gina received in priority to them pursuant to the family provision order and settlement. Its proceeds remain reflected in Gina’s estate. That circumstance contributed to the creation of a moral obligation on the part of Gina to make provision for the brothers, relevantly including John. In this case, it was reinforced by Gina’s representations that she would make provision for the brothers. The accumulation of their legitimate expectations of inheritance from Ross, the impact on them of the provision made for Gina, and the representations made by her, have the consequence that Gina’s receipt of 24 Platts Ave, in priority to the claims of the brothers, was impressed with a moral obligation to make provision for them from any residue that might ultimately not be required for her maintenance and advancement, so that – to the extent the remaining resources permit – they might each have a house.
41. Even if John had contributed $3,000 to its acquisition, which appears unlikely given his then financial position, it would make no material difference to this assessment.
An additional feature of this case, however, is that there was a settlement between the parties, in connection with which there was reference to Gina wanting to break ties with all the boys. It may be that a family settlement which resolved all issues between the parties so as to bring about a “clean break” with the intention that there be no further obligations between them could bring to an end any moral obligation of one party to another – although even a final divorce settlement does not necessarily do so. [42] However, in this case no intention to effect such a severance is apparent. First, there is evidence of statements made by Gina contemporaneously with and subsequent to the settlement to the effect that she would leave the properties to the brothers, albeit that they are not documented, and there is no evidence of reliance upon them. Secondly, however, although the deed of family arrangement included releases of rights to make any further claim against Ross’s estate, it included no release in respect of Gina’s estate – when it would have been a fairly obvious inclusion, had such a severance been intended.
42. See O'Shaughnessy v Mantle (1986) 7 NSWLR 142; Dijkhuijs v Barclay (1988) 13 NSWLR 639; and the recent discussion in Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 at [52]-[61].
In my view, therefore, John had a claim on Gina’s testamentary bounty arising from (1) his legitimate claim to and expectation of inheritance from his father, arising from his contributions to his father’s estate and his father’s representations, which Gina had acknowledged and agreed to implement; (2) the subordination of that claim, at least in part, by the court’s earlier order, and the deed of family arrangement, to enable adequate provision to be made for Gina; (3) the fact that Gina’s estate is comprised, in part, of the provision she received from Ross’s estate, which is no longer required for her maintenance and advancement; and (4) the representations made by Gina to the effect that she would make provision for the boys. The moral obligation incurred by Gina as a result of those matters was not extinguished by the deed of family arrangement.
Accordingly, had John been an eligible person, and notwithstanding the marginal nature of his eligibility, I would have concluded that there were factors that warranted the making of his claim.

Inadequate provision?

John’s circumstances are modest. The price of the house he and Emi have acquired in Molindinar ($370,000) suggests that it is basic. He and Emi have a child aged 15. Their net asset position is less than $100,000, represented by a $5,000 motor vehicle, Emi’s superannuation of about $23,000, and equity in their home of about $70,000. Their liabilities include a mortgage of $255,000. John will be 90 years of age when the mortgage loan, which has a term of thirty years, will expire. Their combined monthly after-tax earnings of about $4,000 are barely adequate to cover their expenses, and they have no accumulated savings or funds for contingencies. Health issues limit the extent and longevity of John’s earning capacity, such as it is. They have precious little in the way of resources to provide for retirement. In short, not far from retirement, John is left with a modest house, heavily encumbered, which will have to be paid off over his retirement. In the context of an estate which, after providing for costs, but adding back the $300,000 which Franco has received, exceeds $800,000 – of which well in excess of half represents the proceeds of 24 Platts Ave (if one has regard to the relative selling prices of 2/59 Tebbutt St ($450,000) and 24 Platts Ave ($690,000)), which Gina received impressed with the moral obligation to which I have referred – John has been left with inadequate provision for his maintenance and advancement in life.
While John received some provision – ultimately about $200,000 – from Ross’s estate – he would have received substantially more were it not for the provision made for Gina. Gina had also asserted, in her affidavit in the earlier proceedings, that she had been informed that Robert had paid one-third of the value of 304 West Botany Street to each of Sam and John, when it was transferred to him; but they denied it, and there was no other evidence of it; I do not accept that there was any such payment. Regardless, such provision as John has so far received has not been adequate for his proper maintenance and advancement.
As I have explained, Gina’s receipt of 24 Platts Ave in priority to the claims of the sons was impressed with a moral obligation to make provision for the brothers from any residue that might ultimately not be required for her maintenance and advancement, so that (to the extent resources allow) they might each have a house. However, Robert has already received 306 West Botany Street, and neither has advanced any claim, so their interests may be disregarded. Only the claims of John and those of the beneficiaries under the will – the defendants – need be considered.
While prima facie Gina was legally free to leave her estate as she pleased, the significance of her testamentary wishes as expressed in her will is somewhat affected by the circumstance that she made it many years before her death, and most relevantly before the death of Ross and before she received provision out of Ross’ estate. It appears (from a contemporaneous written statement made by Gina) that her will was made at a low point in her relationship with Ross, which (perhaps contrary to her then expectation) would endure another 12 years. When the will was made, the moral obligation which arose from receipt of provision out of Ross’ estate in priority to the claims of the sons did not exist, and it was entirely reasonable that she should leave her estate – which essentially would have comprised the Leichhardt property – to her closest relatives, the defendants. The provision she received from Ross’s estate, in the form of Platts Ave, wrought a significant change in that circumstance, which, as I have found, Gina acknowledged.

In circumstances where John is married, and his wife is in employment, and her family have lent funds towards the acquisition of their home, I do not consider that Gina’s estate should be exclusively responsible for providing an unencumbered home for John and his family. There is no reason why Emi’s family should not share in that responsibility, at least to the extent that they have already done so by advancing a loan to assist with its acquisition.
The competing claims of the defendants are not such as to require John’s claim to be disregarded or discounted. Enza and her husband have net assets of in excess of $2.8 million. Franco and his wife have net assets in excess of $800,000, and Franco has already received the benefit of the $300,000 which was held in the joint names of Gina and him.
In my view, John if eligible should receive $300,000 from Gina’s estate. That would enable him to discharge the ANZ mortgage, and provide a modest fund for contingencies.

Conclusion

For the foregoing reasons, I have concluded that although John was a member of the same household as Gina for at least six months in about 1980, and for at least a couple of years following his separation in 1995, he was never dependent on her. Accordingly, he is not an eligible person in category (e), and his claim must be dismissed.
However, if he were an eligible person, and notwithstanding the marginal nature of his eligibility, I would have concluded that there were factors that warranted the making of his claim, namely (1) his legitimate claim to and expectation of inheritance from his father, arising from his contributions and his father’s representations, which Gina had acknowledged and agreed to implement; (2) the subordination of that claim, at least in part, by the court’s earlier order to enable adequate provision to be made for Gina; (3) the fact that Gina’s estate is comprised, in part, of the provision she received from Ross’s estate, which is no longer required for her maintenance and advancement; and (4) the representations made by Gina to the effect that she would make provision for Ross’s sons. The moral obligation incurred by Gina as a result of those matters was not extinguished by the deed of family arrangement.
If eligible, I would have found that he had been left with inadequate provision for his proper maintenance and advancement, and would have made orders to the effect that he receive a lump sum legacy of $300,000 from Gina’s estate.
However, because he is not an eligible person, the order of the court must be that:

the summons be dismissed.

The defendants have sought an opportunity to be heard in respect of a special costs order.

**********

Endnotes

Decision last updated: 01 March 2017

Medium Neutral Citation:	Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111
Hearing dates:	29, 30 March, 1 April, 13 May 2016
Date of orders:	24 February 2017
Decision date:	24 February 2017
Jurisdiction:	Equity - Family Provision List
Before:	Brereton J
Decision:	The plaintiff is not an eligible person. Proceedings dismissed.
Catchwords:	SUCCESSION – Family Provision – claim by adult stepson – whether plaintiff eligible in category (e) – whether members of same household as deceased –whether dependent on deceased - whether circumstances warranting – whether left with inadequate provision – where deceased had received provision from plaintiff’s father’s estate to detriment of plaintiff
Legislation Cited:	(NSW) Succession Act 2006, s 57(1)(e), s 59(1)(b)
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Andrew v Andrew (2012) 81 NSWLR 656 Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/1986, 27 September 1989, BC8900913) Ball v Newey (1988) 13 NSWLR 489 Benney v Jones (1991) 23 NSWLR 559 Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739) Bladwell v Davis [2004] NSWCA 170 Burke v Burke [2015] NSWCA 195 Churton v Christian (1988) 13 NSWLR 241 Clinch v Swift (unreported, SC(NSW), Young J, No 3008/1985, 13 October 1986, BC8600634) Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/1984, 4 June 1985, BC8500783) Dijkhuijs v Barclay (1988) 13 NSWLR 639 Fulop (dec’d), Re; Fulop v Public Trustee (1987) 8 NSWLR 679 Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Henry v Hancock [2016] NSWSC 71 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1972-73] ALR 1266; (1973) 47 ALJR 184 Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486) Marras, In the Estate of the late Anthony [2014] NSWSC 915 McKenzie v Baddeley (unreported, NSWCA, Priestley, Meagher JJA and Hope AJA, No 40299/1991, 3 December 1991, BC9101389) McKenzie v Topp [2004] VSC 90 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894) O'Shaughnessy v Mantle (1986) 7 NSWLR 142 Petrohilos v Hunter (1991) 25 NSWLR 343 Puie v Public Trustee of Queensland (1986) Q ConvR ¶54-215 Shaw v Lambert (unreported, SC(NSW), Young J, No 4126/1986, 9 October 1987, BC8701079) Singer v Berghouse (No 2) (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Spata v Spata [2011] NSWSC 1221 Stewart v McDougall (unreported, SC(NSW), Young J, No 2985/1986, 19 November 1987, BC8702350) Stone v Stone [2016] NSWSC 605 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/1989, 18 July 1989, BC8901948)
Category:	Principal judgment
Parties:	Giovanni Spata (plaintiff) Franco Tumino (first defendant) Enza Liberatore (second defendant)
Representation:	Counsel: J. Brown (plaintiff) J. Armfield (defendants) Solicitors: Hunter Lawyers (plaintiff) George Khoury & Co (defendants)
File Number(s):	2015/087274