Starr v Miller

Case •

[2021] NSWSC 426

•

06 May 2021

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Starr v Miller; Starr v Miller [2021] NSWSC 426
Hearing dates: 23 – 25 February 2021
2 – 4 March 2021
Date of orders: 6 May 2021
Decision date: 06 May 2021
Jurisdiction:Equity
Before: Hallen J
Decision:

Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons

Catchwords:

SUCCESSION – Contested probate – Lack of testamentary capacity and lack of knowledge and approval asserted – Suspicious circumstances - Application of the test in Banks v Goodfellow – Where deceased suffered a stroke before making Will – Consideration of contemporaneous evidence of solicitor to whom instructions given

SUCCESSION — Alternative claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult daughters of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for her

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Powers of Attorney Act 2003 (NSW)

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)

Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

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

Bondelmonte v Blanckensee [1989] WAR 305

Bool v Bool [1941] St R Qd 26, 39

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

Boughton v Knight (1873) LR 3 P&D 64

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

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

Boyse v Rossborough (1857) 6 HL Cas 1; (1857) 10 ER 1192

Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), 20 August 1993, unrep,)

Brown v Wade [2010] WASC 367

Bryant v Bryant (Supreme Court (NSW), Needham J, 24 July 1986, unrep)

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Burke v Burke (No 2) [2015] NSWCA 195

Camden v McKenzie [2007] QCA 136

Carey v Robson (No 2) [2009] NSWSC 1199

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

Chapple v Wilcox [2014] NSWCA 392

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

Christie v Manera [2006] WASC 287

Croft v Sanders [2019] NSWCA 303

Crossman v Riedel [2004] ACTSC 127

D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333

Davey v Fairhead (1996) ACL Rep 395 WA 7

Den v Vancleve (1819) 2 Southard

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

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Estate Cockell; Cole v Paisley [2016] NSWSC 349

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate Rofe [2021] NSWSC 257

Evans v Braddock [2015] NSWSC 249

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Fradgley v Pocklington (No 2) [2011] QSC 355

Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98

Frizzo v Frizzo [2011] QCA 308

Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Goodsell v Wellington [2011] NSWSC 1232

Gooley v Gooley [2021] NSWSC 56

Gorton v Parks (1989) 17 NSWLR 1

Gould v Gould [2005] NSWSC 914

Grey v Harrison [1997] 2 VR 359

Harkness v Harkness (No 2) [2012] NSWSC 35

Harrison v Rowan (1820) 3 Washington

Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117

Hawes v Burgess [2013] EWCA Civ 74

Hawkins v Prestage (1989) 1 WAR 37

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

Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2

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

Hunter v Hunter (1987) 8 NSWLR 573

Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17

In re Munn [1943] SASR 304

In re R (dec’d) [1950] 2 All ER 117

In the Estate of Puckridge, Deceased (1978) 20 SASR 72

In the Will of England (1900) 22 ALT 86

In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39

Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596

Kerr v Badran; Estate of Badran [2004] NSWSC 735

Key v Key [2010] 1 WLR 2020; [2010] EWHC 408

King v Hudson [2009] NSWSC 1013

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

Kogan v Martin [2019] EWCA Civ 1645

Kohari v Snow [2013] NSWSC 452

Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394

Leona Johnson (Deceased) [2015] SASC 51

Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3

Lumb v McMillan [2007] NSWSC 386

Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch)

MacGregor v MacGregor [2003] WASC 169

Manning v Hughes; Estate of Ludewig [2010] NSWSC 226

Marks v Marks [2003] WASCA 297

McCann v Ward & Burgess [2012] VSC 63

McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779

McGrath v Eves [2005] NSWSC 1006

McKenzie v Topp [2004] VSC 90

McNamara v Nagel [2017] NSWSC 91

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), 8 May 1992, unrep)

Nicholson v Knaggs [2009] VSC 64

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Oakes v Uzzell [1932] P 19

Paraskov v Paraskos [2002] WASC 109

Parker v Felgate (1883) 8 PD 171; [1883] UKLawRpPro 41

Pates v Craig & Anor; The Estate of Cole (Supreme Court (NSW), Santow J, 28 August 1995, unrep)

Pates v Craig [1995] NSWSC 87

Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep)

Perrins v Holland [2009] EWHC 1945

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Re Crooks Estate (Supreme Court (NSW), 14 December 1994, unrep)

Re Estate of Lau Heung [2019] HKCA 769

Re Griffith; Easter v Griffith (1995) 217 ALR 284

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re Levy [1953] VLR 652

Read v Carmody [1998] NSWCA 182

Richardson v Rearden [2006] NSWSC 1252

Romascu v Manolache [2011] NSWSC 1362

Salmon v Osmond [2015] NSWCA 42

Sangha v Baxter [2009] NSWCA 78

Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62

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

Seeley v Back - Estate of John Michael Pegus Seeley [2005] NSWSC 68

Sgro v Thompson [2017] NSWCA 326

Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449

Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280

Singer v Berghouse (No 2) (1994) 181 CLR 201

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

Smith v Johnson [2015] NSWCA 297

Smith v Tebbitt (1867) LR 1 P&D 398

Stanley v Stanley [2000] NSWSC 1133

State of New South Wales v Hunt [2014] NSWCA 47

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

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

Stevens v Vancleve (1822) 4 Washington

Stott v Cook (1960) 33 ALJR 447

Sung v Malaxos [2015] NSWSC 186

Taylor v Farrugia [2009] NSWSC 801

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22

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

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Tsagouris v Bellairs [2010] SASC 147

Tu v Tu; Estate of Tu [2008] NSWSC 458

Tyrrell v Painton [1894] P 151

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Verzar v Verzar [2012] NSWSC 1380

Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)

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

Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263

Webb v Ryan [2012] VSC 377

White v Barron (1980) 144 CLR 431

White v Chambers (Supreme Court (WA), Franklin J, 27 February 1985, unrep)

Woolf v Snipe (1933) 48 CLR 677; [1933] HCA 5

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Yee v Yee [2017] NSWCA 305

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co)

John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013)

Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh, Ian M. Hull and Pamela R. Champine, “Assessment of Testamentary Capacity and Vulnerability to Undue Influence” (2007) 164 The American Journal of Psychiatry 722

Category:Principal judgment
Parties:

2019/162571 – Susan Maree Starr v Margo Anne Miller
Susan Maree Starr (Plaintiff)
Margo Anne Miller (First Defendant)
David Patrick Brough (Second Defendant)
Bradford Frederick McInnes Stuart (Third Defendant)

2020/34748 – Susan Maree Starr v Margo Anne Miller
Susan Maree Starr (Plaintiff)
Margo Anne Miller (First Defendant & Cross-Claimant)
David Patrick Brough (Second Defendant)
Bradford Frederick McInnes Stuart (Third Defendant)
Representation:

Counsel:
Mr M Condon SC and Ms B Regener (Plaintiff)
Mr C Harris SC (Defendants)

Solicitors:
Young & Muggleton (Plaintiff)
Campbell Paton & Taylor (Defendants)
File Number(s): 2019/162571; 2020/34748
Publication restriction: Nil

Judgment

Introduction

  1. These are the reasons for judgment following the trial of separate, but closely related, proceedings, listed to be heard consecutively, involving the estate of Nancy Louise Starr (the deceased), who died on 26 May 2018, aged 72 years, leaving property in New South Wales. It is another group of cases involving, principally, adult siblings, all children of the deceased, who were prepared to incur significant amounts, by way of legal costs and disbursements, rather than coming to a resolution of the proceedings (in one case, doing so only at the commencement of the hearing). All attempts at alternative dispute resolution failed and there was no hint of any rapprochement between the remaining siblings during the hearing of the proceedings. The case remained hard fought till its bitter end. It is necessary, now, in this regrettably long judgment, to deal with the issues raised by the parties.

  2. The deceased left a professionally drawn Will dated 16 July 2012 (the 2012 Will). This Court granted Probate in common form of that Will on 15 October 2018, to her daughter, Margo Anne Miller, her accountant, David Patrick Brough, and her solicitor, Bradford Frederick McInnes Stuart, the first, second, and third Defendants, respectively, they being the executors appointed under that Will.

  3. The proceedings concern whether the grant of Probate in common form should be revoked based upon allegations of a lack of testamentary capacity and a lack of knowledge and approval.

  4. In Boyse v Rossborough (1857) 6 HL Cas 2 at 45; (1857) 10 ER 1192 at 1210, Lord Cranworth LC observed:

“There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.”

  1. The substance of that quotation needs to be remembered in these proceedings so far as it relates to the testamentary capacity of the deceased. One issue for the Court is to determine whether darkness had fallen when the deceased came to give instructions for, or then when she came to execute, the 2012 Will.

  2. In arriving at a conclusion, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:

“The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.”

Procedural Background

  1. By Statement of Claim, bearing proceeding number 2020/34748, filed on 3 February 2020, the Plaintiff, Susan Maree Starr, a now adult daughter of the deceased, sought an order for revocation of the grant of Probate of the 2012 Will and an order that Probate in solemn form of a professionally drawn Will, (incorrectly dated therein) 28 May 2006, be granted to her and the first Defendant, Margo Anne Miller, with leave reserved to Belinda Louise Atlee and Emma Jane Buckley, the only two other children of the deceased, to apply for Probate. The four daughters of the deceased were the executors named in the 2006 Will. The Plaintiff also sought an order for her costs.

  2. I shall refer to each of these Wills, although there is a dispute about the validity of the 2012 Will, as “the 2012 Will” and “the 2006 Will” (as correctly dated), respectively, only for convenience and without any prejudgment.

  3. The Plaintiff filed an amended Statement of Claim on 12 March 2020 naming the same Defendants, correcting the date of the 2006 Will, and seeking the same relief.

  4. Without conveying undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased by their first name.

  5. During the course of the hearing, Susan and Margo, sensibly, were able to agree that if Susan was successful in the Probate suit, letters of administration with the 2006 Will annexed, should be granted to an independent solicitor, Kim Rickards. His consent had been obtained to that course: Ex P5. In this way, the potential for further disputes between them, concerning the administration of the deceased’s estate, could be avoided.

  6. The Defendants opposed the revocation of the grant of Probate. They did not dispute the validity of the 2006 Will but stated that it had been revoked by the 2012 Will. There was really no dispute that even though Probate had been granted, the case was one requiring them to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2012 Will.

  7. In her Cross-Claim, filed on 14 February 2020, Margo sought a family provision order out of the estate, or notional estate, of the deceased, only in the event that Probate of the 2012 Will was revoked. Her claim for a family provision order was brought under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Margo also sought an order for costs of the proceedings.

  8. I shall refer to the proceedings for revocation of the grant of Probate as the Probate proceedings.

  9. The two other proceedings that were to be heard were proceedings in which a family provision order was sought out of the estate and notional estate of the deceased. The proceeding filed first in time, was a proceeding bearing number 2019/162556, in which the Plaintiffs were Belinda and Emma. At the commencement of the hearing, the Court was informed that the proceeding had been resolved between the parties and that Short Minutes of Order and a Deed between the parties to reflect the agreement that had been reached were in the course of preparation.

  10. The Court noted that Susan would need to agree with the form of orders and the way in which the matter had been resolved if the settlement involved any payment, out of the deceased’s estate, to Belinda and/or Emma, or otherwise. I shall refer to the events that occurred later in these reasons. (Subsequently, Susan did not oppose the orders that were made in these proceedings.)

  11. The other proceeding, which bears the proceeding number 2019/162571, is one in which Susan is the Plaintiff. She filed this proceeding because of the possibility that Probate of the 2012 Will would not be revoked, or would be revoked, with a grant of Probate in solemn form of that Will. However, senior counsel for Susan confirmed that in the event the Court found the 2006 Will to be the last valid Will of the deceased, the proceeding for a family provision order could be dismissed.

  12. The parties also agreed that if an order for provision out of the deceased’s estate were made in Susan’s favour, because her Probate proceeding was dismissed, that in order to save further costs and expenses, the order should be made “in lieu of the provision made for her” in the 2012 Will.

  13. I shall refer to Susan’s proceedings numbered 2019/162571, and the claim made by Margo, by way of Cross-Claim filed in the Probate proceedings, as the family provision proceedings.

  14. During the course of submissions, the Court raised with senior counsel, the question whether, if the Probate proceeding was dismissed, it was necessary to revoke the grant in common form of Probate of the 2012 Will and to make a grant of Probate in solemn form of the 2012 Will. It was not necessary, at that stage, to express a concluded view about this aspect as much would depend upon the order for provision, if any, to be made for Susan, and the method by which the order could be satisfied.

  15. Although I shall leave that question to be determined after the parties have had an opportunity to consider these reasons for judgment, I should note that the practice of the Court, where probate in solemn form is granted after probate in common form has been granted, is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form, and the newly made grant in solemn form, are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred.

  16. I note that the original grant of Probate had been delivered to the Court and was marked, in the Probate proceedings, as Ex D3. It remains with the Court file.

  17. If a family provision order is made in favour of Susan, it is important to remind the legal representatives that a certified copy of any order made under the Act must be copied onto the grant of probate as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will: s 72(1)(a) of the Act. It is only if the order is actually endorsed on the grant of probate can the grant correctly represent what are the dispositive provisions of the Will of which probate has been granted: Gould v Gould [2005] NSWSC 914, at [6] (Campbell J). Also see Paragraph 23(a) of Practice Note SC Eq 7.

  18. Considering the above, the following alternatives exist: if the 2012 Will is confirmed to be the last valid Will of the deceased, then Susan’s claim for a family provision order will need to be determined and Margo’s Cross-Claim would be dismissed; if Probate in solemn form of the 2006 Will is granted, Susan’s proceedings for a family provision order will be dismissed and Margo’s claim for a family provision order will need to be determined.

  19. All proceedings were listed for concurrent hearing, for 9 days, commencing on 23 February 2021. (As it turned out, because of the settlement of Belinda’s and Emma’s proceedings, the hearing lasted 6 days). At the commencement of the hearing, without objection, the following order was made in the proceedings:

“Notes the associated proceedings…

Orders that these proceedings and the associated proceedings be heard consecutively, with the evidence in one being evidence in the other.”

  1. The order for a concurrent hearing had been anticipated when the matters were set down for hearing, and was made without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 2.1, which provides that the Court “at any time, and from time to time, [may] give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that “it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…”.

  1. There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were relevant to each proceeding, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the deceased’s estate has also been put to less expense in having only one set of hearings, rather than two or three; the just, cheap and quick hearing of all of the matters in dispute were facilitated; all parties, as affected persons, participated in the Probate proceedings; and the most efficient, and expedient, use of resources, for the parties, and, by implication, the Court, was achieved.

  2. For those reasons, it was not only “desirable”, but also “convenient”, to make an order that the proceedings be heard consecutively, with the evidence in one being evidence in the other. (In the events that happened, neither Susan, nor Margo, sought to read any of the evidence filed in the proceedings by Belinda and Emma.)

  3. The parties had discussed the order of witnesses before the hearing commenced. This necessitated some flexibility in the timing of the reading of the pleadings and the affidavits and in dealing with the objections to the affidavit evidence. However, this, too, was able to be achieved in an orderly manner and with the co-operation of the legal representatives.

  4. The legal representatives of the parties are to be commended for the co-operative approach taken during the hearing and also for the way in which the hearing was conducted by them. I am also grateful to all counsel for the detailed submissions provided before, and during, the hearing, which has assisted the Court in the preparation of these reasons.

  5. Finally, I should mention that the Court followed the Supreme Court’s Coronavirus (COVID-19) announcement of 29 January 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation.

Summary

  1. The main issues that needed to be determined were, and my conclusions, are:

  1. Did the deceased have testamentary capacity when she made the 2012 Will? I conclude that she did.

  2. Did the deceased know and approve the contents of the 2012 Will? I conclude that she did.

  3. Should a family provision order be made for Susan out of the deceased’s estate? I conclude that an order for provision should be made.

  4. Should a family provision order be made for Margo out of the deceased’s estate? I conclude that an order for provision should not be made.

Some formal matters not in dispute

  1. There are affidavits of each attesting witness of the 2006 Will. It was duly executed.

  2. There are affidavits of each attesting witness of the 2012 Will. It was duly executed.

  3. Whilst Susan was likely to have been aware of at least some of the facts and circumstances upon which she sought to base her assertions of the deceased’s lack of testamentary capacity, and also lack of knowledge and approval, she had made no attempt to oppose the making of the common form grant of Probate when it was sought by the Defendants. Then, despite the making of the common form grant, she made no attempt to have it revoked, but on the contrary, commenced the family provision proceedings in May 2019, and prosecuted them upon the basis that, because of the terms of the 2012 Will, Probate of which had been granted to the Defendants to those proceedings, she had been left without adequate provision for her maintenance, education or advancement in life.

  4. The matter had been in the Family Provision List (as the Succession List was then called) on 28 June 2019, 30 August 2019 (having, in the meantime, been to a private mediation), and on 27 September 2019. It was not until a directions hearing, held on 19 December 2019, that the Court was first informed, by junior counsel, that Susan intended to commence proceedings challenging the validity of the 2012 Will which had been the subject of a grant of probate made by this Court on 15 October 2018.

  5. In Paragraph 5 of her Statement of Claim filed on 3 February 2020, Susan attributed her failure to commence the Probate proceedings to being “mistaken as to the date on which the Deceased was diagnosed with Alzheimer’s disease and was not aware of many of the facts pleaded below”. She then set out various allegations concerning the deceased’s medical condition.

  6. Nothing more needs to be said about this matter as it was not raised as a matter going to the exercise of the Court’s discretion in relation to the revocation of the grant of Probate.

  7. The only persons, remaining in the proceedings, who would be adversely affected whatever orders are to be made in the Probate proceedings, or in the family provision proceedings, are Susan and Margo. Belinda and Emma, as will be read, no longer have any interest in the determination of what is the last valid Will of the deceased, or in the order for provision to be made for Susan.

  8. Susan commenced her family provision proceedings by Summons filed on 24 May 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

  9. Margo filed her Cross-Claim, in the Probate proceedings, on 14 February 2020, that is outside the time prescribed by the Act. At the commencement of the hearing, senior counsel for Susan confirmed that if it became necessary to determine Margo’s claim for a family provision order, and if an order were to be made for additional provision, Susan consented to the application being made out of time, as permitted by s 58(2) of the Act: Tcpt, 23 February 2021, p 6(19-41).

  10. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of Susan, Belinda, Emma, and Margo, is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

  11. However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

  12. The only eligible persons are the four children of the deceased. The husband of the deceased, the father of the four children, Richard William Starr, predeceased the deceased, having died in 2005. Only Susan and Margo now have a claim for a family provision order to be determined. In view of the orders that have been made in Belinda’s and Emma’s proceedings, the position of each of them, as an eligible person, is no longer relevant.

  13. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

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

  15. There is no property that is able, or is sought, to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by each of Susan, and Margo, respectively, neither sought an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased’s estate that has been distributed, other than amounts that have been paid on account of the costs of the Defendants, as executors to whom Probate was granted. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

  16. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. In the family provision proceedings, it will be necessary to refer to Margo’s interest, and if necessary, Susan’s interest, respectively, as a beneficiary, later in these reasons, when the claim by the other for a family provision order is determined.

The Settlement of the claims made by Belinda and Emma

  1. On the second day of the hearing, at the request of the parties, I made the following orders and notations in the proceedings brought by Belinda and Emma:

“1.   Notes the associated proceedings 2019/162571 and 2020/34748.

2.   Notes that the parties in the associated proceedings consent to the orders being made in these proceedings.

3.   Orders that the whole of the proceedings be dismissed generally with the intention that the Plaintiffs are prevented from bringing fresh proceedings claiming the same relief.

4.   Makes no order as to the Plaintiffs’ costs to the intent that they will bear their own costs, respectively, of the proceedings.

5.   Orders that the Defendants’ costs, calculated on the indemnity basis, of the proceedings, be paid or retained, as the case may be, out of the estate of the deceased.

6.   Orders that the hearing dates listed on 25 February 2021, 2 – 4 March 2021, 31 March 2021 and 7 April 2021 be vacated.”

  1. On the fourth day of the hearing, senior counsel for Margo, filed in Court, without any opposition, the affidavit of Heather May Baker, sworn 1 March 2021. Ms Baker is an employed Australian legal practitioner at Campbell Paton Taylor, Margo’s solicitors. To that affidavit, was annexed a copy of a Deed of Settlement and Assignment made on 23 February 2021 between Belinda, Emma and the Defendants.

  2. Relevantly, by the Deed of Settlement and Assignment, Margo agreed that on or before 28 May 2021, she would pay $350,000 to Belinda, and pay to Emma, $500,000, as directed by the solicitor acting for them, and agreed to deliver to them certain personal items of the deceased and of Richard. For her part, each of Belinda and Emma assigned her interest and entitlements in the deceased’s estate, including any benefits, or rights, to which she might be entitled under the 2006 Will and under the 2012 Will to Margo. They also agreed to renounce Probate of the 2006 Will. (There were other terms, but they are not relevant to the Probate proceedings or the family provision proceedings.)

  3. In her affidavit, Ms Baker stated that the total amount to be paid to Belinda and Emma had been raised by a contribution of $250,000 from the funds of Margo and her husband, Scott; a sum of $300,000, which had been borrowed from Margo’s paternal aunt, Margaret Starr; and a sum of $300,000, which had been borrowed by Margo and Scott from the CBA.

  4. Ms Baker also stated:

“If the Defendants had been able to reach agreement with the plaintiff as to an amount to be paid to her in settlement of her claims, such amount would have been funded from the balance of the estate funds held in the controlled money account of CPT legal, and the sale of stock of the RW and NL Starr trust.”

  1. During her oral evidence, Margo confirmed the contents of Ms Baker’s affidavit. In answer to a question from the Bench, Margo estimated that the amount that would comprise the proceeds of sale of the stock, referred to in Ms Baker’s affidavit, would be about $100,000: Tcpt, 2 March 2021, p 300(16-41).

  2. Margo also confirmed that it was not possible for her and Scott to borrow any more money, and that, in order to meet any provision to be made for Susan, Scott's real estate at Manildra may be able to be sold (although she had not discussed this with Scott), or that a property known as “Hylands”, to which reference will be made, would need to be sold. Naturally, whether that should occur will depend upon the result of both proceedings.

  3. In submissions, senior counsel for Margo suggested that, if necessary, the deceased’s one quarter interest in a property known as “Koranui”, to which reference shall be made, could be transmitted, in specie, to Susan, in order to satisfy any order for provision made for Susan. For her part, Susan was unlikely to want to take the deceased’s interest in that property, in specie, as part of any provision to be made for her.

  4. Under s 65(1) of the Act, the Court, amongst other things, must specify “…(b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided”, and under s 65(2) may require the provision to be made “… (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property”.

  5. No reason was advanced why, if provision were made for her, a devise of the deceased’s interest, as a co-owner with a third party, in that property, should be made for Susan, as provision, or part of the provision, other than it would avoid Margo having to find a lump sum to satisfy an order for provision.

  6. I shall allow the parties an opportunity to consider how any provision to be made should be satisfied, and if possible, reach agreement as to the period within which any order for provision should be satisfied. As the Court may have to deal with the issue of costs, any dispute about the time within which the orders of the Court should be satisfied, and any other disputed matters, can also be determined. Needless to say, the parties should attempt to reach agreement on any outstanding issues in order to avoid further costs being incurred and the administration of the deceased’s estate being further delayed.

The Witnesses

  1. It will be necessary to examine the evidence bearing upon instructions for, and the execution of, the 2012 Will, with some care. It is important to remember that there is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker’s capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.

  2. Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined. I shall refer, first, to Susan’s witnesses.

  3. Susan gave evidence in support of her Probate proceedings and the family provision proceedings. Her partner of many years, Andrew Killingsworth, did not give evidence, although he was present in Court during the proceedings. I shall return to Susan’s evidence later in these reasons.

  4. Bruce Lyons, a wool-classer, who had known the deceased for about 65 years, and who was an employee of the deceased from 2007 to 2010, made an affidavit on 24 June 2020. In his affidavit, he did not give any evidence of observing any cognitive deficits in the deceased. Rather, he described her, in the period 2007 to 2010, as “a fit, reasonably lean, strong looking woman” who he “observed [was] working like a slave on the farm doing very hard manual work”. He was not cross-examined.

  5. Dr Mesut Cetiner, a Consultant Psychogeriatrician, swore two affidavits, one on 19 June 2020 and the other on 19 February 2021, shortly before the commencement of the hearing. He is employed as a Senior Visiting Medical Officer, in the Older Persons Mental Health Service, NSW Health, Western NSW Local Health District operating out of Orange Base Hospital. He is also a Senior Staff Specialist in Psychiatry of the Aged, at St George Hospital in Sydney. I shall return to his evidence later in these reasons.

  6. Mr Timothy Young, an Australian legal practitioner, and the principal of Young & Muggleton, the solicitors for Susan, gave evidence about the costs of the Probate proceedings and the family provision proceedings. He was not cross-examined.

  7. I turn next to Margo’s witnesses.

  8. Margo gave evidence in both the Probate proceedings and in respect of her family provision claim. Her husband, Scott Miller, did not give evidence, although he was present in Court during the proceedings.

  9. Emily Reynolds, who had been employed as a receptionist, by Yates Baker McLean, accountants and business advisers, and who was one of the attesting witnesses of the deceased’s signature on the 2012 Will, swore an affidavit on 21 February 2020, which was in the form of what might be described as the usual affidavit of attesting witness. She was not cross-examined.

  10. Philip Francis Hodges, a partner at Yates Baker McLean, accountants and business advisers, was the other attesting witness of the deceased’s signature on the 2012 Will. He gave evidence by affidavit and he was cross-examined remotely. On 25 February 2021, the Court with the consent of the parties, directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that he, give evidence by telephone link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

  11. Mr Brough, the second Defendant, who had a number of conversations with the deceased, relevantly, in 2012, gave evidence. It is clear that the deceased trusted him. He made full, and detailed, written attendance notes, which set out events with, it would seem, precision and clarity.

  12. Mr Stuart, the third Defendant, and the Australian legal practitioner who took instructions for the 2006 Will and the 2012 Will and who drafted each Will, gave evidence. By 2012, he had been in practice for 36 years and, over that time, had drafted a large number of Wills and had held conferences with many clients to discuss testamentary intentions, or in order to provide advice about wills and estate matters generally. He stated that he “was aware of the test for testamentary capacity in Banks v Goodfellow and… was experienced in assessing whether the persons I was asked to prepare Wills for, or to advise, appeared to have testamentary capacity”.

  13. It could not be, and was not, disputed that, by 2012, he was an experienced solicitor in wills and estates. The deceased had been his longstanding client and of his firm and she was known to him. I am satisfied that the deceased trusted him. He did not have any written diary notes because he had suffered a cardiac arrest in 2008, after which he found writing difficult. On some occasions, he had confirmed his instructions, subsequently, in correspondence addressed to the deceased.

  1. Mr Stuart swore an affidavit on 17 March 2020 which was in the form of the usual affidavit of an attesting witness. He was one of the attesting witnesses of the deceased’s signature on the 2006 Will. His affidavit was read in Susan’s case and he was not cross-examined on that affidavit.

  2. (Since 2013, it is only if the court has doubts about the due execution of the will, even where the attestation clause is sufficient, that an affidavit as to due execution will be required, and generally, if a will contains a sufficient attestation clause, it is not necessary to file a separate affidavit of attesting witness. However, as Susan sought a grant of Probate in solemn form of the 2006 Will, she was required to call at least one of the attesting witnesses to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19; Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].)

  3. Jacquelyn-Anne Christopherson, a registered nurse, who saw the deceased on one, or two, occasions between November 2011 and October 2012 gave evidence. Ms Christopherson observed the deceased to be anxious when she came to the surgery and to the medical practice. As a nurse, one of her tasks was to talk with the deceased prior to any procedure, to help reduce her anxiety. Ms Christopherson gave evidence that she had spoken with the deceased about her farm, her family and a family friend, Ron Copson, and that she had come to know the deceased reasonably well during these conversations. She was cross-examined remotely.

  4. Richard Ivey, an Agricultural Consultant and forensic accountant, gave evidence in a report which “investigates the impact on the viability of the farming operations run by RW & NL Starr Trust… if land available for the Trust were to be reduced from “Arakoon” and “Hylands” to “Arakoon” alone. He, also, was cross-examined remotely.

  5. In relation to the cross-examination of Ms Christopherson and Mr Ivey, with the consent of the parties, on 2 March 2021, the Court directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act, that she and he, respectively, give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

  6. Ms Baker swore several costs affidavits, and also the affidavit to which I have referred relating to the settlement of Belinda’s and Emma’s family provision proceedings. She was not cross-examined.

  7. There was no objection taken to statements made by the deceased about which evidence was given. These were admissible, principally to show the knowledge, intention, and mental state of the deceased at the time of the making of the 2012 Will. A number of the statements also described the deceased’s view of one, or other, of her children. Those statements were also admissible as original evidence and as evidence of the deceased’s state of mind.

  8. In making factual findings, I have borne in mind that the principal events took place over 8 years ago and that memories are bound to have become weaker, or less reliable, with the passage of time. In addition, I have allowed for the strong feelings that this type of dispute, undoubtedly, will have engendered, within the deceased’s family, and which may have influenced the recollection of events by Susan and Margo.

Documentary evidence

  1. In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material, particularly going to the deceased’s medical condition.

  2. There was also a certain amount of other contemporaneous documentary material produced from Mr Brough and from Mr Stuart that has been relied upon going to events leading to the execution of the 2012 Will. There was no dispute as to the authenticity of any of the documents and indeed, most were tendered without objection.

The deceased

  1. Margo gave evidence that the deceased “participated in all activities on the farm and… loved the rural way of life” and that “because of her lifestyle [the deceased] was still in good physical shape at the time of her death”.

  2. Susan gave evidence that, “rather than loving her life, [the deceased] was depressed for many years and probably from the 1980s when she became the victim of domestic violence at [her husband’s] hands”.

  3. Bearing in mind the evidence as a whole, to some of which I shall refer later, I tend to the view that Margo’s view of the deceased as stated above is a more accurate one.

The Wills of the deceased

  1. I shall deal with the 2012 Will first.

  2. The original grant of Probate dated 15 October 2018 was tendered as Ex D3. Relevantly, the deceased:

  1. revoked all prior testamentary dispositions made by the deceased: Clause 1;

  2. appointed the three Defendants as executors and trustees of the Will: Clause 2;

  3. gave a devise of the deceased’s right, title, and interest in the property known as “Arakoon” and the property known as “Hylands”, both in Molong (a small town in the Central West region of New South Wales) to Margo absolutely: Clause 3;

  4. gave all the deceased’s shares in Arakoon Pty Limited, including all shares and loan accounts in that company, to Margo absolutely: Clause 4;

  5. gave “any current account that may be due to me from RW & NL Starr Family Trust, the trustee of which is Arakoon Pty Limited”, to Margo absolutely: Clause 5;

  6. requested that the proceeds of any superannuation fund be paid to her estate, to form part of her residuary estate: Clause 6;

  7. gave all items of personal use or ornament including furniture and jewellery to Margo, with the request that “she does distribute to her sisters such items as she may desire”: Clause 7;

  8. divided the rest of her real and personal property, of whatsoever nature, and wheresoever situated, after payment of debts, funeral and testamentary expenses and all duties payable on the estate, to be divided between Susan, Belinda and Emma, as survived the deceased, and if more than one, as tenants in common in equal shares: Clause 8; and

  9. directed that any executor who was a solicitor, or accountant, or engaged in any other profession or business was able to act in a professional or business capacity in relation to the administration of the estate and was entitled to charge and retain all professional and other charges for any business or act done by him or his partner or partners, with nothing in the Will preventing the executors from applying to the Court for commission: Clause 10.

  1. It was not suggested that the 2012 Will was wholly irrational, although, as will be read, senior counsel pointed to the fact that Susan was provided for in the same way as were Belinda and Emma, which seemed unusual because her relationship with the deceased was very different from each of them: Tcpt, 3 March 2021, p 344(12-38).

  2. The 2006 Will was tendered and marked Ex P1. The attesting witnesses to the 2006 Will were Mr Stuart and Ms Therese Sprenger.

  3. Relevantly, the deceased in the 2006 Will:

  1. revoked all prior testamentary dispositions made by the deceased: Clause 1;

  2. appointed Belinda, Margot (sic), Susan and Emma, to be executors and trustees of the Will: Clause 2;

  3. gave her real and personal property, of whatsoever nature, and wheresoever situated, after payment of debts, funeral and testamentary expenses and all duties payable on the estate, upon trust to be divided between such of her daughters as survived, and if more than one as tenants in common in equal shares: Clause 3.

  4. stated that it was her “desire” that Emma be given the option to purchase from the estate the land adjoining her property on the western side of the Euchareena Road, known as “Highlands” [sic], such option for purchase to be at market value and such option to be for a period of 12 months following the deceased’s death: Clause 4;

  5. directed that any executor who was a solicitor, or accountant, or engaged in any other profession or business was able to act in a professional or business capacity in relation to the administration of the estate and was entitled to charge and retain all professional and other charges for any business or act done by him, or his partner or partners, with nothing in the Will preventing the executors from applying to the Court for commission: Clause 6.

  1. The earliest Will of the deceased, in time, which was the subject of evidence, was one made by her on 7 December 1973. By that Will, the deceased left the whole of her estate to her husband, Richard, but, in the event that he did not survive her, provided that her estate was to be divided equally amongst her children. (As will be read, only Belinda and Margo had been born when this Will was executed.)

  2. In the circumstances of the Probate proceedings, since there is no dispute about the validity of the 2006 Will, if the 2012 Will is not a valid Will, the 1973 is not really relevant in the proceedings other than to demonstrate that the deceased’s long held testamentary intention was to provide for her husband if he survived her, and if he did not, to divide her estate between her surviving children.

The estate of the deceased

  1. On 2 December 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

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

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

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

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

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

  1. At the hearing, a final version of the document, was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

  2. The deceased left an estate with an agreed value, as at the date of death, of $7,824,653.

  3. The parties agreed that the gross value of the deceased’s estate, at the date of the hearing, was $8,674,379: Ex. JS 1. The estate was said to comprise:

  1. the real estate known as “Arakoon”, which comprises almost 507 hectares ($4,600,000); the real estate known as “Hylands”, which comprises almost 209 hectares ($2,350,000); and the deceased’s one-quarter share of “Koranui”, also in Molong, comprising about 93 hectares ($500,000);

  2. cash held in the controlled monies account of the Defendants’ solicitors ($717,736);

  3. cash in the Defendants’ solicitors trust account ($1,036);

  4. the amount held in RW & NL Starr Family Trust Beneficiary current account ($505,594). The Court was informed, from the Bar table, without objection, that the amount said to be held in RW & NL Starr Family Trust Beneficiary current account is not a cash amount but is “a book entry”: Tcpt, 2 March 2021, p 230(10-30); and

  5. the shares in Arakoon Pty Limited ($11.00).

  1. The Defendants contended that executors’ commission and capital gains tax, which would be incurred in selling the real estate, would be at least $1,139,831: Tcpt, 3 March 2021, p 327(18-30). I shall use this amount to reach a net estimated value of the estate (excluding the costs of the proceedings), which is $7,534,548. (Of course, it may not be necessary to incur some of the liabilities, immediately, particularly if “Arakoon” is not sold.)

The Costs of the Proceedings

  1. In relation to the probate proceedings, Susan’s costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.

  2. The balance of the Defendants’ costs, calculated on the indemnity basis, of the probate proceedings, were estimated to be $79,400.

  3. There is no suggestion that either the Civil Procedure Act2005 (NSW) or the UCPR do not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about them at this time.

  4. The balance of the Defendants’ costs, calculated on the indemnity basis, of Belinda’s and Emma’s family provision proceedings were estimated to be $73,000.

  5. In relation to the family provision proceedings, Susan’s costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.

  6. The balance of the Defendants’ costs, calculated on the indemnity basis, of the family provision proceedings, were estimated to be $60,500.

  7. In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

  8. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

  9. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

  1. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

“... To exclude from consideration the diminution in the estate and hence [the applicant’s] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court ‘is determining whether or not to make such an order’.”

  1. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

  2. Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the probate proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.

  3. The total of the various costs, including in the case of the Defendants, the balance of their costs, totals $407,900. (The amount of costs referred to as agreed during the hearing was $334,900: Tcpt, 3 March 2021, p 327(06-16). However, that did not include the estimated amount of $73,000, being the balance of the Defendants’ costs, calculated on the indemnity basis, of Belinda’s and Emma’s family provision proceedings.)

  4. (In this regard, Ex JS 1 confirmed that $108,039 of the Defendants’ costs had been paid out of the estate of the deceased.) It can be seen, therefore that in excess of $515,000 has been incurred in costs of the various proceedings.

  5. Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of $7.1 million.

  6. Without having undertaken any exercise designed to assess the reasonableness, or otherwise, of the costs and disbursements, I draw to the attention of the practitioners, as officers of the Court, that in Woolf v Snipe (1933) 48 CLR 677 at 678-679; [1933] HCA 5, Dixon J wrote:

“The superior Courts of law and equity possess a jurisdiction to ascertain, by taxation, moderation, or fixation, the costs, charges, and disbursements claimed by an attorney or solicitor from his client, and that jurisdiction is derived from three sources and falls under three corresponding heads.

First, a jurisdiction exists founded upon the relation to the Court of attorneys and solicitors considered as its officers. This jurisdiction, commonly called the general jurisdiction of the Court, enables it to regulate the charges made for work done by attorneys and solicitors of the Court in that capacity, and to prevent exorbitant demands.

That such a jurisdiction was exercised by the Court of Chancery was never doubted.

Second, when a contested claim for costs comes before the Court it has jurisdiction to determine by taxation or analogous proceeding the amount of costs. (See In re Park; Cole v. Park…; In re Foss, Bilbrough, Plaskitt & Foss…; Jones & Son v. Whitehouse…)

Third, there is a statutory jurisdiction…”

Background Facts

  1. As with all probate and family provision disputes, a proper understanding of the events is critical. It is sufficient, for present purposes, to set out what follows as the findings of the Court.

  2. The deceased was born in November 1945 and was 66 years old when she executed the 2012 Will.

  3. “Arakoon” was purchased by Richard’s father on his return from World War I and was acquired by Richard prior to his marriage to the deceased.

  4. The deceased married Richard in 1968 and moved onto “Arakoon”. It was both the family home, and the source of the family income, sustaining mixed grazing (sheep and cattle) farming operations. The deceased remained living there until about May 2015.

  5. In the 1950s, after Richard took over “Arakoon”, Richard’s father purchased “Hylands” for his wife and three daughters. Richard purchased “Hylands” from his sisters in 1980.

  6. “Arakoon” and “Hylands” are farming properties, located about 10km apart, in Molong (about 13 km north of Manildra and 50 km from Orange).

  7. As stated, there were four children of the deceased and Richard, namely:

  1. Belinda, born in April 1969 and now almost 52 years old;

  2. Margo, born in September 1972 and now 48 years old. She is married with no children;

  3. Susan, born in August 1976 and now 44 years old. She has three children with Andrew, being Tom, who was born in May 2008, who is 12 years old, Sarah, who was born in October 2010, who is 10 years old, and Lachlan, who was born in December 2012, who is 8 years old; and

  4. Emma, born in May 1978 and now 42 years old. She is married to Craig Gordon Buckley.

  1. The four children of the deceased and Richard attended a private boarding school (Kinross Wolari School) in Orange. They assisted with the farming operations during their primary and high school years. They worked in the shearing sheds, helped with the marking of lambs, checked on livestock, drafted sheep and cattle, loaded stock trucks and fed livestock during droughts.

  1. In Bryant v Bryant (Supreme Court (NSW), Needham J, 24 July 1986, unrep), Needham J stated, at 8:

“I bear in mind, very much, the desire of the defendant to maintain the farm… However, with regret, I feel that the proposition put by the defendant is not a sufficient provision for the plaintiff and I think that a sum in excess of that amount should be provided for her. If this means that the defendant has to sell the property, well I am afraid that is unavoidable. It is to be noted, of course, that the testator provided a trust for sale, even though there was a very extensive power to postpone the sale. The testator did not indicate in his will any desire that the property should be maintained in the family name, although it is possible to extract from the will provisions which, perhaps, the testator considered might enable the defendant to maintain the property in its then state, while appropriating some portion of the estate to the interests of the widow. Unfortunately, the property is, essentially, the only substantial asset in the estate.”

  1. In Davey v Fairhead (1996) ACL Rep 395 WA 7, Walsh J stated, at [22]-[24]:

“In Roberts v Roberts (1992) 9 WAR 549 Pidgeon J at 5587 and 559 had this to say about the family farm:

‘If the assets comprise a family farm and if a will makes provision for a member of the family to continue its operation, then I would consider that the principles applicable are those referred to by Malcolm CHJ in Young v Young (unreported, Supreme Court, WA, Malcolm CJ, Library No 7626, 26 April 1989). When dealing with the facts of that particular case, his Honour said (at 32): ‘According to the evidence before me I am satisfied that it was very common in farming families to take the view that it was the moral duty of a testator or testatrix to discriminate between male and female children in certain circumstances. Where the male had foregone wages, worked on the farm and help build it up in the expectation of inheritance and the female children were supported by the family through their education to the point where they were qualified to obtain employment which would enable them to live comfortably and independently of the farm, the moral duty was discharged by the male inhering the farm. This is such a case. No doubt the situation might be different if a son left the farm to become a nuclear physicist and the daughter chose to remain on the farm and run it.’

… When Young’s case (supra) was heard on appeal by this Court (Young v Young (unreported, Supreme Court, WA, Full Court, Library No 8175, 3 April 1990)) I said: ‘In my view a wise and just testator, who has as one of his assets a farm on which he has resided or occupied for the greater part of his life and personally conducted and which is subsequently being conducted by one of his children, would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm. This would, a fortiori, be the position if the farm had been in the family for a number of generations. It would still be necessary to make proper provision for other members of the family. …”

At [25], Walsh J further stated:

“The learned Commissioner said (AB at 26):

‘On the other hand, the fact that the assets of the estate are substantially farming lands and that the sons are seeking to continue farming, does not permit the court to discriminate in favour of those sons as against other children with competing interests.’

If the intent of this passage is that a farm should not be awarded to a son to the exclusion of other children with legitimate competing interests then I consider that is an accurate statement of the law. The learned Commissioner later said (AB at 34): ‘As I have already observed, it is now well established that the sons of farming parents do not have a right to inherit the farm to the exclusion of their sisters if proper provision has not been made for the sisters.’

Again I would see that as an accurate statement of the law with the qualification that I doubt if there had even been a time when the law was different. Changing social conditions may well determine the nature of a competing claim by a sister in these circumstances. It is for these reasons that my terminology would not coincide with that of the learned Commissioner when he earlier referred to a ‘discredited’ view that sons should inherit farming properties to the exclusion of daughters. I would see it as always having been the law that in proper circumstances provisions can be weighted to enable some members of a family to inherit a farming property formerly carried on by the family, provided that proper provision is made for those with competing claims.”

  1. I have borne in mind Margo’s desire to retain both properties. However, I have come to the view, bearing in mind Susan’s claim for a family provision order, and the possibility of costs being paid out of the estate, that this may not be possible. However, some reasonable opportunity should be given to Margo to satisfy the order for provision that should be made in Susan’s favour.

Qualifications on “Principles”

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

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

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

  2. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]:

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

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

Determination of Susan’s family provision claim

  1. In my opinion, the deceased, in all the circumstances to which I have referred, failed to make adequate provision for the proper maintenance and support of Susan in the 2012 Will. In this regard, I have borne in mind all the circumstances, including, amongst other things, Susan’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between Susan and the deceased, and the relationship between the deceased and Margo, the only other person with a legitimate claim upon the deceased’s bounty.

  2. I have also made an assessment of what is the proper level of maintenance and advancement in life bearing in mind all of the circumstances. In this regard, I consider that a wise and just will-maker would have made greater provision for the future needs of Susan taking into account that she has not very much by way of her own property.

  3. The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the applicant and the expectations to which that has given rise and the fact that she was throughout her adult life independent upon the deceased for any ongoing financial support.

  4. I have also taken into account, as I may do pursuant to s 60(2)(e) of the Act, since Susan is cohabiting with Andrew, his financial circumstances. I also bear in mind that, in the event of a breakdown of their relationship, she has rights upon which she can rely (being a financial resource).

  5. In reaching these conclusions, I have also borne in mind the deceased’s wish, reflected in the 2012 Will, to provide “Arakoon” and “Hylands” to Margo, based upon, amongst other things, her significant sacrifices, services and contribution made directly and indirectly, financially and non-financially, towards the deceased. It is clear, as set out above, that her desire was to make provision to preserve “Arakoon” and “Hylands” as an indivisible entity, even if it provided a significantly greater share of her estate to Margo. The fact that she discriminated between her four daughters in this way is not, however, a determinative factor. She was entitled to do so.

  6. I turn next to give consideration to the provision that should be provided for Susan.

  7. Senior counsel for Susan submitted that the maximum amount by way of provision that should be ordered was $1,000,000: Tcpt, 4 March 2021, p 397(29-32). Senior counsel for Margo submitted that the maximum amount by way of order for provision for Susan was $810,000: Tcpt, 3 March 2021, p 391(13-16). Both agreed that the minimum figure to be awarded to Susan was about $440,000: Tcpt, 4 March 2021, p 397(29).

  8. The parties agreed that if provision were made for Susan, it should be in lieu of her entitlement under the deceased’s Will. In this way, Margo can determine how best to satisfy the order for provision as she will effectively be entitled to the whole of the estate after satisfying the order for provision made for Susan and the agreement that she has reached with Belinda and Emma.

  9. The determination of the quantum of the provision to be made is not an arithmetical exercise, based on fiscal micrology, but involves the exercise of discretion within the confines of the Act and having regard to the numerous factors, both tangible and intangible, for which the Act provides and to which I have referred. In reaching the quantum of provision, I have considered what are said to be the “needs” of Susan. I do not accept that all of what she described as “needs” should, after the death of the deceased, fall to be met from her estate. As I have written, I consider that some of those “needs” are not within the concept of “adequate and proper” provision. That concept cannot extend to any, or every, thing which it would be desirable for the applicant to have. In this regard, what is “proper” provision, should be informed, at least in part, by the scope of an applicant’s dependency upon the deceased during her, or his, adult life. Susan is an adult fully emancipated daughter of the deceased who had lived her own life and made her own lifestyle decisions without financial assistance from the deceased for many years prior to the deceased’s death.

  10. Ultimately, I am of the view that Susan requires a lump sum that should enable her to be, at least partially, financially independent of Andrew and which lump sum she can use, as she sees fit, for the exigencies, or vicissitudes, of life.

  11. Taking into account the submissions made with respect to Susan’s circumstances and all of the circumstances of Margo, even though Susan could not be regarded as being in necessitous circumstances, in my view, and in lieu of the provision made for her in the 2012 Will, she should receive a lump sum of $750,000 out of the estate of the deceased. Such a sum is capable of providing Susan with a financial buffer, whilst at the same time giving due consideration to the competing claim of Margo.

  12. The parties should also consider other matters to which I shall refer below. I shall allow them the opportunity to consider these reasons and provide short minutes of order which should include an order:

  1. for the dismissal of the Probate proceedings brought by Susan;

  2. for the grant of Probate in solemn form of the 2012 Will;

  3. that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return the original to the Defendants;

  4. for the dismissal of the family provision proceedings brought in the Cross-Claim (in the Probate proceedings) by Margo;

  5. pursuant to s 59 of the Succession Act 2006 (NSW), that in lieu of the provision made for her in the Will of the deceased, Susan should receive, by way of provision, a lump sum of $750,000, out of the estate of the deceased;

  6. that the provision made for Susan be borne by the share of the deceased’s estate passing to Margo;

  7. specifying the time by which the lump sum should be paid;

  8. that interest is to be paid on the lump sum if not paid in accordance with the time agreed to by the parties; and

  9. that the Exhibits, excepting Ex D3, be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rr 31.16A and 33.10) and Practice Note No SC Gen 18.

  1. When delivering the reasons for judgment, I shall adjourn the matter to enable the parties to agree on the orders for costs and to provide the form of orders to me. If they cannot be agreed within 10 days thereafter, the matter shall be re-listed to enable the determination of any outstanding issues.


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Decision last updated: 07 May 2021

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