Spiro Pandelakis v Flora Chintis

[2007] NSWSC 1023

CITATION:	Spiro Pandelakis -v- Flora Chintis and Anor [2007] NSWSC 1023
HEARING DATE(S):	27 and 28 June 2007
JUDGMENT DATE :	13 September 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	1. I order that the proceedings be dismissed. 2. I order that the Plaintiff pay the costs of the Defendants. 3. The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by adult brother. Obligation upon applicant to provide as fully and as frankly as possible all information concerning his financial and material circumstances. Whether Plaintiff has been left without adequate provision for his proper maintenance. Statements by Deceased in her will and other documents regarding Plaintiff and any claim which he might make. Factors warranting the making of the application. Competing claims of Defendants.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
PARTIES:	Spiro Pandelakis (Plaintiff) Flora Chintis (First Defendant) Angela Vidovic (Second Defendant)
FILE NUMBER(S):	SC 3165 of 2003
COUNSEL:	Mr M. Pesman (Plaintiff) Mr R. Tregenza (Defendants)
SOLICITORS:	Needs Chan & Monahan (Plaintiff) Kalantzis Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MCLAUGHLIN

Thursday, 13 September 2007

3165 of 2003 SPIRO PANDELAKIS –v- FLORA CHINTIS and ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 5 June 2003 Spiro Pandelakis claims an order for provision for his maintenance, education and advancement in life out of the estate and notional estate of his sister the late Elizabeth Pandelakis (to whom I shall refer as “the Deceased”).

3 The Deceased, who was unmarried and childless, died on 9 December 2001, aged 56. She left a will dated 27 October 2001, probate whereof was on 4 March 2002 granted to Flora Chintis and Angela Vidovic, the executors named in such will (who are the Defendants to the present proceedings).

4 The Deceased, the Plaintiff and the two Defendants are the four surviving children of their parents, John Spiros Pandelakis and Eva Pandelakis. The Deceased was born on 30 May 1945; the Plaintiff was born on 26 July 1941, and is presently aged 66; Flora (Mrs Chinits) was born on 8 August 1943, and is presently aged 64; Angela (Mrs Vidovic) was born on 8 February 1947, and in presently aged 60.

5 The inventory of property discloses the following assets, together with the estimated values thereof:

House property situate at
and known as 25 Ward Street, Willoughby $700,000

Residential property situate at and
known as 204-284 Pacific Highway, Crows Nest, $180,000

Shares in Cympure Pty Limited $19,800

Shares in HiTec Engergy Limited $468

Loan owed by Cympure Pty Limited $13,200

Cheque account with ANZ Bank $54,585

Westpac Classic Savings Account $5,321

Furniture and household effects $7,000

Jewellery $3,000
Toyota Camry 1986 motor vehicle $5,000

Contractual right to indemnity from
Cympure Pty Limited and Peter Theodorou
in relation to debts owed by the estate to
Commonwealth Bank $195,000

Total $1,183,374

6 There was no evidence of any liabilities of the estate.

7 By her will the Deceased gave to the Plaintiff a legacy of $10,000, and, subject to the following provision set forth in clause 4 of the will, gave the residue of her estate to her two sisters, the Defendants, in equal shares,

Flora Chintis shall have the sole right to reside at my home at 25 Ward St, Willoughby for a period of one year after probate on my Will is granted, on condition that she pays all rates and insurance on the home during her period of residence there.

8 The following assets of the estate have been distributed:

(a) Studio apartment at 204-294 Pacific Highway, Crows Nest was sold on 15 December 2003 for $178,500. At settlement the following moneys were paid from the proceeds of sale:

(i) $37,500 was paid to Westpac Banking Corporation,

(ii) $1,399 was paid to Phillip Howell, Solicitors,

(iii) an amount (unquantified) was paid to Mariott Lane Real Estate, Crows Nest;

(b) ANZ bank account, having a credit of $86,489;

(c) Westpac bank account, having a credit of $6,271;

(d) Furniture, household effects, jewellery, the value of which was estimated by the Defendants to be about $13,000;

(e) Toyota Camry 1986 motor vehicle, being inoperative and unregistered, and of which the Defendants estimate the value to be nil.

9 From those distributed assets the legacy of $10,000 was paid to the Plaintiff. The balance of those distributed assets was transferred to the Defendants, after payment of funeral and testamentary expenses. According to the evidence of the Defendant’s, those moneys (said by them to total about $220,000) have now been spent by the Defendants.

10 The undistributed assets of the estate consist of:

(a) Residential property at 25 Ward Street Willoughby, of which the Defendants estimate the current value to be $800,000. That property is encumbered to the Commonwealth Bank in a total amount of $195,000.

(b) Shares in Cympure Pty Limited. The Defendants estimate that those shares are no longer of any value, since that company has become deregistered, and the Defendants understand that it has no realisable assets.

(c) Loan of $13,200 owed by Cympure Pty Limited to the Deceased. According to the Defendants, their attempts to recover that money have been unsuccessful, and they are of the view that this asset has no realisable value.

(d) 3,600 shares in HiTec Energy Limited. The Defendants estimate those shares as having a total value of $68 (the shares being listed at $0.19 per share).

(e) Contractual right to indemnity from Cympure Pty Limited and Peter Theodorou in relation to encumbrance of Willoughby property, to the value of $195,000 owed to the Commonwealth Bank. Attempts by the Defendants have been made to recover this amount from both Cympure Pty Limited and Peter Theodorou, but without success. Both the Defendants are of the view that this asset has no realisable value.

11 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, in the event that he be successful in his present claim, will be entitled to an order that his costs be paid out of the estate, whilst the Defendants, irrespective of the outcome of the proceedings will be entitled to an order that their costs be paid out of the estate (although that fact may be of little practical significance). It was estimated on behalf of the Plaintiff that his costs will total about $34,800, whilst it was estimated on behalf of the Defendants that their costs will total about $48,700. Accordingly, it is appropriate that an amount of about $83,500 be deducted from the value of the estate not yet distributed, in order to calculate the amount available for distribution.

12 The Defendants in the affidavit filed by them as required by clause 5 in respect to the Family Provision Act in Part 1 of Schedule J to the Supreme Court Rules, stated that they were not aware of the Deceased, “imparting [sic] any of her property before her death for the purpose of frustrating any potential Family Provision Act claim. The Defendants, however, stated that they were aware that the Deceased transferred $10,000 to her cousin Spiro Michael Pandelakis, to be held on trust for the Plaintiff’s son John Spiro Pandelakis.

13 Mrs Vidovic in her affidavit of 18 October 2006 set forth details of her estimation of the expenditure incurred by her in the period 2001-2006 in respect to the Ward Street property ($30,500), as well as in respect to major repairs to that property ($27,000) and in respect to motor vehicle expenses ($12,750). In that affidavit she also set forth her recollection of estate expenses (totalling $33,330, stated to include legal fees in an amount of about $13,400 - which fees (I interpolate) may relate to the costs of the present proceedings), as well as details of expenses in relation to the home unit at 204 - 284 Pacific Highway, Crows Nest in the period 2001 – 2003 (totalling $79,450 – those expenses including repayment of mortgage and other loan repayments, totalling in excess of $67,000).

14 Clause 7 of the will of the Deceased is as follows,

I have decided not to give my brother, Spiro John Pandelakis, anything other than a bequest of $10,000 due to the great distress he caused me in relation to the administration of my mother’s estate, details of which I have given to my solicitor. I have however made provision for his son, John Spiro Pandelakis, by giving $10,000 to my cousin, Spiro Michael Pandelakis to be held on trust for John Spiro until he attains the age of 21 years.

15 About two months before making her will the Deceased on 22 August 2001 signed a document headed “Affidavit of Elizabeth Pandelakis”, which was witnessed by a solicitor. That document is in the following terms,

On the 22nd day of August 2001, I, Elizabeth Pandelakis of 25 Ward St, Willoughby solemnly and sincerely declare and affirm:

1. This Affidavit is made with the intention that it be used as evidence in the event that my brother, Spiro John Pandelakis, challenges my Will or makes a claim on my estate under the Family Provisions [ sic ] Act.
2. When I made a Will in 1998, I decided to exclude my brother as a beneficiary due to the distress he had caused me over the administration of my late mother’s estate. Annexed hereto and marked “A” is an unsigned copy of a statement I signed at that time to record why I had excluded him.
3. After I signed that statement, Spiro continued to cause problems in relation to my mother’s estate for some time. When I altered my Will on 2nd June 2001, my feelings toward my brother had not changed much. I made provision for him to have my car, but otherwise wished to exclude him as a beneficiary of my estate.
4. I am still of the opinion that my Will made on 2nd June 2001 makes appropriate provision for my brother, and I do not wish him to inherit a greater share of my estate than that provided for by my Will.

16 The document referred to in paragraph 2 of the foregoing document of the Deceased is in the following terms,

Statement by Elizabeth Pandelakis

In Relation to Spiro Pandelakis

1. This statement is made by Elizabeth Pandelakis with the intention that it be referred to should my brother, Spiro John Pandelakis, complain that I have not made him as a beneficiary of my Will. If necessary, I intend that this statement be used as evidence under section 32 of the Family Provision Act 1982.

2. Since my mother died in August 1996, Spiro has complained that her Will divided her estate equally between her four children. Spiro has asserted that he should be entitled to the whole estate. Not only has he questioned her Will, but he has queried what happened to our father’s estate. Our father died in August 1972.
3. Spiro has delayed signing documents in relation to our mother’s estate, with the result that the estate still has not been finalised more than 18 months after her death.
4. Spiro’s actions have caused me such distress that I have decided I do not wish him to share in my estate under any circumstances.
Dated:

Elizabeth Pandelakis

17 The statement in clause 7 of the will as well as the statements comprised in the foregoing document dated 22 August 2001 described as “Affidavit of Elizabeth Pandelakis” and the foregoing document headed “Statement by Elizabeth Pandelakis” are all admissible in evidence, pursuant to section 32 of the Family Provision Act.

18 It will be observed that, despite the sentiment expressed by her in paragraph 4 of the “affidavit” of 22 August 2001 (in which the Deceased expressed her opinion that the Plaintiff should receive nothing more than the motor car which she had given to him under the terms of her will of 2 June 2001), nevertheless, only about two months after the date of that “affidavit”, the Deceased by her will of 27 October 2001 gave to the Plaintiff a legacy of $10,000. That legacy was of far greater value than would have been the gift of the motor car, since the evidence disclosed that that motor car (to which an estimated value of $5000 had been given in the inventory of property) was inoperative and unregistered, and that the Defendants now estimate it to have no value.

19 The Plaintiff placed before the Court medical evidence concerning his psychiatric condition. Dr Kate Sugars, his treating psychiatrist, expressed his prognosis as follows,

Mr Pandelakis suffers with a chronic mental illness, that being Paranoid Schizophrenia. This is a life long condition which will require life long treatment in the form of antipsychotic medication. His current medication is outlined on page one of my report. His illness is likely to be adversely affected by non-compliance with medication, life stressors and illicit substance abuse. The nature of the illness typically has a chronic, fluctuating cause which can deteriorate without clear triggers.

20 The Plaintiff gave evidence concerning his education and employment histories (which latter has been frequently interrupted because of his mental problems) and concerning his present financial and material circumstances. The Plaintiff married his wife, Lila Wati Pandelakis, in 1991. They have a son John Spiro, who was born in 1995 and is presently aged 12. The Plaintiff’s evidence concerning his income was that he was currently in receipt of a disability pension in an amount of about $200 a fortnight, and that his wife (who is presently aged 46) receives a disability pension in an equivalent amount. The Plaintiff said that he also receives income from part-time tutoring, that income currently averaging an amount of about $70 a week, although the Plaintiff said that it had been somewhat higher in earlier years.

21 It cannot be emphasised too strongly that it is the responsibility of an applicant for provision to set forth as fully and as frankly as possible all information concerning the applicant’s financial and material circumstances. In the instant case the Plaintiff has signally failed to do so.

22 The Plaintiff conducts business activities through the vehicle of a company Academic Systems Pty Limited (“Academic Systems”). Although the Plaintiff is a director and shareholder of that company (indeed, he is the only equity shareholder) and has effective control of its affairs, the Plaintiff adopted the attitude in the present proceedings that the company’s financial situation is quite separate from that of the Plaintiff.

23 It emerged during the course of the hearing that before the commencement of the present proceedings, Academic Systems was the owner of four pieces of real property in Queensland, which were rented out and which produced income. In the latter half of 2003, after the institution of the present proceedings, that company acquired two further investment properties in Queensland. In November 2003 some of the foregoing properties were transferred from the company to the Plaintiff personally. Subsequently, in February 2004 the Plaintiff, either in his own name or through the company, acquired yet two further residential properties in Queensland. That is, the Plaintiff, either personally or through the vehicle of Academic Systems, by early 2004 was the owner of seven income producing residential properties, purchased for prices totalling in excess of $600,000. No reference whatsoever was made by the Plaintiff in his affidavit evidence to any of those properties, the acquisition of which was stated by the Plaintiff under cross-examination to be for the purpose of providing some form of security for his family. He attempted to justify the omission from his affidavit evidence of any reference to those business activities by saying,

“because they were company transactions and the company and I were separate entities. The question in the affidavit was what my assets were, not what the company’s assets were.”

24 The evidence which emerged from the Plaintiff under cross-examination concerning his real property transactions was far from clear. It is not necessary for me to set forth details of the various responses which the Plaintiff gave to questions concerning those transactions.

25 Suffice it to say, however, that between 2002 and 2006 the Plaintiff, either in his own name or through the vehicle of Academic Systems, purchased seven properties, each being an income producing residential property. The total of the purchase prices was about $607,000 and the total of the mortgages on those properties was about $628,000. However, it was conceded on behalf of the Plaintiff that the totality of those mortgages now represents about 80 percent of the present value of the properties, and thus that those properties have a present value of about $785,000.

26 It is quite clear that the Plaintiff conducts the business of being a property manager. The balance sheet of Academic Systems disclosed a reduction in the indebtedness of that company to the Plaintiff’s loan account between 30 June 2003 and 28 February 2004 in an amount of $75,000. The Plaintiff could offer no explanation as to what had happened to that amount.

27 As I have already observed, it is the obligation of the Plaintiff to place before the Court as fully and as frankly as possible all details concerning his financial and material circumstances. The Plaintiff has not done so. It should not be for the Defendants, let alone for the Court, to attempt by some detailed process of investigation, to establish the nature and value of the assets of the Plaintiff.

28 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only persons having such competing claims are the two defendants (although the affidavit of the Defendants of 1 February 2006 identifies two children of Mrs Chintis, one child of Mrs Vidovic and a person, Rene Cazzulo (whose relationship to the Deceased is not specified), as possibly being eligible persons in relation to the Deceased.) In addition to the two Defendants themselves, those children of the Defendants resided with their respective mothers and the Deceased in the Ward Street property for varying periods.

29 The Defendants presently reside together in the house property at 25 Ward Street, Willoughby, which is one of the assets in the estate of the Deceased. That property, which had been purchased by the Deceased in about 1972 and which is about 50 years old, is a three bedroom residence, having a combined lounge and dining room, family room, kitchen, sewing room, bathroom and laundry, and also has a garage.

30 Mrs Chintis, who is presently aged 64, grew up in Goulburn, with her parents and her siblings. She left school at the age of 15 and worked as a shop assistant until and after her marriage to Michael Chintis in October 1966, when she was aged 23. They had two children (who are now aged 40 and 37 and are no longer dependent upon her). Mrs Chintis and her husband separated in about 1984, and Mrs Chintis returned to Goulburn to live with her mother, her father having died in 1975. Whilst residing in Goulburn Mrs Chintis and the Deceased maintained a close relationship both by telephone and by visits to each other’s residences in Goulburn and in Sydney.

31 In 1988 at the suggestion of the Deceased, she and Mrs Chintis purchased a sandwich shop business at Artarmon, which they conducted from 1988 until the end of 1997. Mrs Chintis and the Deceased borrowed from the ANZ Bank sufficient funds to finance the purchase of that business. From 1988 Mrs Chintis resided in the Deceased’s residence in Ward Street Willoughby, where she continues to reside. Theirs was a close sisterly relationship until the death of the Deceased. After the sale of the sandwich shop Mrs Chintis and the Deceased travelled to Europe for six months, staying with friends in Greece and in Italy and with Mrs Chintis’s son in London. After their return from Europe in 1998 the Deceased and Mrs Chintis renovated the old family home of their parents in Goulbourn, their mother having died in 1996. That renovation (most of which they performed personally) occupied them over a period of eight months. Upon their return to Sydney Mrs Chintis and the Deceased continued to reside together in the residence of the Deceased at Willoughby, where they shared the living expenses. During that period the Deceased worked for Peter Theodorou in a business conducted by him under the name Home Base. Mrs Chintis also worked part-time, three days a week, for Mr Theodorou in that business.

32 After the Deceased was diagnosed with lung cancer in 2000, the other Defendant, Mrs Vidovic, came to live with her and Mrs Chintis in the Willoughby house, and has continued to do so for the present time. Whenever the Deceased was required to go to hospital during the period between the diagnosis that she was suffering from lung cancer and her death in December 2001, Mrs Chintis accompanied her.

33 In 2001 Mrs Chintis was diagnosed with bowel cancer and underwent chemotherapy and surgery at the Royal North Shore Hospital, being accompanied to hospital by the Deceased on those occasions.

34 The Deceased died in her own residence at Willoughby, being looked after by her two sisters, the Defendants.

35 Although Mrs Chintis has undergone successful surgery for cancer, she requires annual medical examinations. She is not in employment. In that regard, first, she considers that she has no prospect of obtaining employment, and, second, she does not wish to do so.

36 Mrs Chintis has the following assets:

Her interest in the estate of the Deceased
Home unit at 127 Warringah Street, Mosman,
being a one bedroom home unit,
having an estimated value of $250,000
ANZ bank account $3,782
Westpac cheque account $3778
Westpac classic account $329
Personal effects

37 Mrs Chintis has no liabilities of significance.

38 In addition to receiving a Commonwealth Government part age pension of $270 a fortnight, Mrs Chintis also receives a weekly rental of about $200 from the Mosman home unit. In respect to that home unit she has liabilities by way of body corporate fees and rates and taxes. For the year 2005-2006 her net income from that home unit was $3600. She also set forth in her affidavit details of her personal expenses.

39 Mrs Vidovic also resided with her parents and her siblings until she left school at the age of about 15. She then worked in the family business in Goulburn. She later came to Sydney where she was employed, and where she and the Deceased lived together in rented accommodation for a period. They then travelled to Europe together in 1970. When the Deceased purchased the house property in Ward Street, Willoughby in about 1972 Mrs Vidovic moved into residence with her.

40 When Mrs Vidovic married her husband Stan Vidovic in April 1974 she and her husband resided in the Ward Street property for about six months, before removing to Queensland, on account of Mr Vidovic’s employment. Mrs Vidovic maintained a close and affectionate relationship with the Deceased. After she and her husband separated in about 1979 Mrs Vidovic returned to Sydney, where she and her two children resided with the Deceased in the Ward Street property. Mrs Vidovic later resumed cohabitation with her husband in Queensland for a period of about three years. However, in 2000, at the request of the Deceased, Mrs Vidovic returned to Sydney and worked with the Deceased at the store known as Home Base, which was conducted at Seven Hills by Peter Theodorou. When the Deceased was diagnosed with lung cancer in late 2000, Mrs Vidovic decided to remain with her in the Ward Street property, where she has continued to reside to the present time.

41 Mrs Vidovic’s sole income is a disability pension of $467 a fortnight. Apart from household goods and personal effects her only asset is a Toyota Camry motor vehicle, which is about 16 or 17 years old and is currently not working. She does not have sufficient money to meet the cost of having it repaired. Mrs Vidovic has liabilities totalling about $10,500 owing to Mastercard. She has not contributed to the outgoing on the Ward Street property for the last three years, and feels under an obligation to make some contribution to Mrs Chintis on that account. Mrs Vidovic gave details of her weekly expenses, totalling $250.

42 Each of the Defendants wishes to remain in residence in the Ward Street property, where Mrs Chintis has resided since 1988 and Mrs Vidovic from 1981 to 1987 and since 1996.

43 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

44 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained on the Court file.

45 The Plaintiff asserts that he is an eligible person within paragraph (d) of the definition of that phrase contained within section 6 (1) of the Family Provision Act, in that he was a member of the same household as the Deceased at various times (during childhood and their formative years, when they both resided with their parents in the family home at Goulburn; and, subsequently, for a short period in 1971 when he stayed with the Deceased in rented accommodation in Sydney; and later, in 1974 and in 1980, when the Plaintiff for two separate periods resided with the Deceased in the Ward Street property), and, that he was partly dependent upon the Deceased, especially for accommodation in the Ward Street property. The Defendants admit the status of the Plaintiff as an eligible person.

46 It should be appreciated that each of the Defendants is also an eligible person within paragraph (d) of the foregoing definition, in that each of the Defendants was also at various times a member of the same household as the Deceased, and was also partly dependent upon the Deceased, for the accommodation of each of the Defendants in the Ward Street property.

47 The Plaintiff, being an eligible person within paragraph (d) of the foregoing definition, must also, pursuant to section 9 (1) of the Act, establish that there are factors which warrant the making of the present application.

48 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 –210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of the Deceased the Plaintiff has been left without adequate provision for his proper maintenance.

49 As well as receiving income from the rental of the various properties owned by himself or by Academic Systems, it also emerged that the Plaintiff was working as a financial consultant. He said that his business in that regard was to “source mortgages and place the business through master brokers”. It would appear that he has been performing that work continuously since 1994. No reference was made to that activity in the Plaintiff’s affidavit evidence.

50 So far as I am able to ascertain, the Plaintiff, either in his own name or through Academic Systems, owns no fewer than seven pieces of income producing residential property. One of those properties, that located at 9 Cook Street, Tully (which was acquired after the institution of the present proceedings), consists of a house converted into five flats, which the Plaintiff purchased for about $250,000.

51 I regarded the Plaintiff as a most unsatisfactory witness, who chose deliberately not to place before the Court an accurate picture of his financial and material circumstances. By that omission he deliberately misled the Court concerning those circumstances. In expressing that view, I do not overlook the Plaintiff’s psychiatric condition. Nevertheless, that condition has not in any way prevented him from, or impeded him in, conducting a number of real estate transactions in recent years, and managing seven separate properties (one of which consists of five residential flats), and receiving the income from those properties. In addition, the Plaintiff, according to the webpage which he has established on the internet, conducts tutoring and other educational activities. Further, the Plaintiff works as a finance consultant, and on occasion receives commission for deals which he arranges in that regard. The Plaintiff’s psychiatric condition has not prevented him conducting those activities.

52 The details of the Plaintiff’s alleged academic qualifications which are disclosed on his internet homepage include the following postnominals, “D.D.(Hon), B.Sc., M.A.C.S., M.A.T.A”.

53 The first of the foregoing postnominals is described in the curriculum vitae of the Plaintiff (which is part of annexure SP 1 to the Plaintiff’s affidavit of 28 December 2006) as being “Doctor of Divinity (Hon), Mystical Theology”. It is somewhat unclear whether this alleged academic distinction was conferred upon the Plaintiff by the entity referred to in that annexure as “The Church of The Holy Smokers”, in respect whereto the Plaintiff is described as “Rev. Spiro Pandelakis”. The Plaintiff’s entitlement so to describe himself was not revealed. There was no suggestion in any of his other evidence that he had pursued an ecclesiastical or religious calling.

54 I am not satisfied that the Plaintiff has established that he been left without adequate provision for his proper maintenance. In this regard, it should not be overlooked that the Plaintiff under the terms of the will received a legacy of $10,000, and that that legacy has been paid to him. The evidence did not reveal how that legacy had been expended.

55 Indeed, the Plaintiff’s evidence did not reveal any details of the regular outgoings of himself and his family. No information was placed before the Court concerning the nature of the residence of the Plaintiff at 70 Frank Street, Caboolture in Queensland; indeed, whether that residence is a house property, and, if so, details of the accommodation therein.

56 My foregoing conclusion that the Plaintiff has not established that he has been left without adequate provision for his proper maintenance is of itself sufficient to dispose of these proceedings.

57 However, even if, (contrary to my foregoing conclusion) the Plaintiff were to have established that he had been left without such adequate provision for his proper maintenance, it would still be necessary for him, pursuant to section 9 (1) of the Family Provision Act, to establish that there are factors which warrant the making of the present application.

58 The Plaintiff submitted that the following matters constitute such factors:

(a) The Plaintiff is, and has been for most of his life, suffering from severe mental illness.
(b) The Plaintiff is aged 65, and has an 11 year old son.
(c) Although it is accepted that the Plaintiff was not as close to the Deceased as were his sisters, nevertheless he remained in contact with her throughout his life, and was from time to time dependent upon her.
(d) The Plaintiff’s life has been exceptionally hard.
(e) The principal asset of the Deceased was, at least in part, a ‘family’ asset.
(f) The matters complained of by the Deceased in both the will and her affidavit do not amount to disentitling conduct, particularly when viewed in light of the Plaintiff’s medical condition. Further, given her willingness to assist the Plaintiff for extended periods earlier in life, the Court should infer that had the Deceased been aware of the Plaintiff’s condition, she would have been more, not less, likely to consider the Plaintiff a proper object of testamentary beneficence.
(g) The Deceased died leaving neither spouse nor children.

59 In Re Fulop Deceased (1987) 8 NSWLR 679 McLelland J (as he then was) said, at 681,

The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf the Wills, Probate and Administration Act 1898, s 1B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

60 It must not be overlooked that the present claim of the Plaintiff is a claim brought against the estate of the Deceased, who was his sister. The present is not a claim brought against the estate of either of the Plaintiff’s parents.

61 I am not persuaded that any of the matters so relied upon by the Plaintiff constitute factors warranting the making of the application, being factors of the nature described by McLelland J in the foregoing passage. That is, I am not persuaded that any of those matters, when added to the membership of the Plaintiff of the same household as the Deceased and to the brief periods of the Plaintiff’s dependency upon the Deceased, give to the Plaintiff the status of a person who would be generally regarded as a natural object of testamentary recognition by his deceased sister.

62 It should not be overlooked that, apart from three relatively brief periods when he resided with the Deceased (one in a rented home unit, two in the Deceased’s Willoughby residence), the Plaintiff either resided with his parents in the family home in Goulburn, or resided independently of members of his family. The fact that the Plaintiff may have maintained contact with his sister, the Deceased, does not constitute a factor warranting the making of the application. Neither does the fact that the Deceased may have assisted the Plaintiff, either by way of providing accommodation or by way of financial or emotional assistance, constitute a factor warranting the making of the application. The suggestion that the house property at Willoughby could be regarded as a “family” asset, cannot be supported by the evidence. That property had been purchased by the Deceased in about 1972, that being about three years before the death of their father, and about 24 years before the death of their mother.

63 It should also be appreciated that the various statements of the Deceased (Clause 7 of the will, the “affidavit” of the Deceased dated 22 August 2001 and the “statement” of the Deceased annexed to that “affidavit”) paint a completely different picture of the relationship between the Plaintiff and the Deceased from that which the Plaintiff would have the Court accept. The perception by the Deceased of the relationship between herself and the Plaintiff which is set forth in the foregoing statements is totally inconsistent with the close and loving relationship which the Plaintiff asserts obtained between himself and the Deceased. As I have already stated, I prefer the evidence of the Deceased in that regard to the evidence of the Plaintiff.

64 Those statements present to the Court various assertions by the Deceased concerning the conduct of the Plaintiff (which assertions are, in the main, disputed by the Plaintiff) which explain, and, indeed, justify, the decision of the Deceased to make no provision for the Plaintiff beyond the legacy of $10,000. It is not necessary that I should be satisfied that those assertions by the Deceased go so far as to constitute conduct on the part of the Plaintiff disentitling him from any order for provision an entitlement to which he might otherwise have established. For the Deceased herself considered it appropriate that the Plaintiff should receive $10,000. However, those matters must be taken into consideration in deciding whether the Plaintiff has been left without adequate provision for his proper maintenance.

65 To the extent that the various statements of the Deceased are disputed by the Plaintiff, I prefer the statements of the Deceased (albeit, not tested by cross-examination) to the evidence of the Plaintiff (which, as I have already observed, I considered totally unsatisfactory and unreliable).

66 In the absence of such factors which warrant the making of the application, the Court is precluded from proceeding with the application. Accordingly, my conclusion that there are no such factors warranting the making of the application would, in any event, be determinative of the claim of the Plaintiff.

67 I have already observed that the Plaintiff has failed to place before the Court complete or accurate information concerning his financial and material circumstances.

68 The Plaintiff, further, has failed to identify any specific needs. Ultimately it was submitted on his behalf that those needs consisted of medical expenses, of which there was no quantification of the cost thereof; the need to support his family, of which no specific information was provided and of which there was no quantification of the cost thereof; and the need for a buffer to meet unexpected contingencies.

69 I am in agreement with the submission on behalf of the Defendants that the legacy of $10,000 given to the Plaintiff by the will discharged any obligation of the Deceased towards the Plaintiff. Further, it should not be overlooked, especially in regard to the Plaintiff’s submission concerning his need to support his family, that, as well as giving to the Plaintiff by will a legacy of $10,000, the Deceased also, during her lifetime, gave to her cousin the sum of $10,000 to be held on trust for the Plaintiff’s son, John Spiro Pandelakis, until he attains the age of 21 years.

70 The competing claims of the Defendants upon the testamentary bounty of the Deceased (claims which were recognised by the Deceased, by making the Defendants the chief objects of her testamentary beneficence) were such that I would not, in any event, be disposed to make any order for provision in favour of the Plaintiff which would have the effect of depriving the Defendants of their entitlement to remain in residence in the Ward Street property. However, in this regard I observe that cash amounts totalling $220,000 have been distributed to the Defendants, and it was submitted on behalf of the Plaintiff that those amounts (which have now been expended by the Defendants) could (indeed, should) have been available to meet any order which might be made in favour of the Plaintiff, without the need to resort to (and to sell) the Ward Street property. It will be appreciated, however, that by section 7 of the Family Provision Act the Court is enjoined to have “regard to the circumstances at the time the order is made”.

71 Further, it will be appreciated that any additional benefit which might be given to the Plaintiff beyond the foregoing legacy of $10,000 will have the practical effect of reducing the benefit given to each of the Defendants by the will of the Deceased. The close relationship which obtained between the Deceased and her two sisters was reflected by the testamentary provision made in favour of the Defendants.

72 I summarise, as follows, my foregoing conclusions.

73 The Plaintiff has not fulfilled his obligation to provide to the Court as fully and as frankly as possible all information concerning his financial and material circumstances. What information has been provided to the Court discloses that the Plaintiff is able to earn income, and has considerable assets by way of real estate (even though those properties are encumbered by mortgages). I am not satisfied that the Plaintiff, who under the will of the Deceased received a legacy of $10,000, has been left without adequate provision for his proper maintenance. Neither am I satisfied that there are factors which warrant the making of the present application. In any event, the competing claims of the Defendants are such that, even if I were persuaded that the Plaintiff had established an entitlement to receive some relatively small additional legacy from the estate of the Deceased, the giving of such a legacy would almost certainly have the practical effect of depriving the Defendants of their residence (in circumstances, where each of the Defendants, in the expectation of continuing to reside in that house property, had expended not inconsiderable amounts of money on its maintenance and renovation).

74 It follows, therefore, that the claim of the Plaintiff should be dismissed.

75 I make the following orders:

1. I order that the proceedings be dismissed.
2. I order that the Plaintiff pay the costs of the Defendants.
3. The exhibits may be returned.
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