Tarbes v Taleb

[2023] NSWSC 565

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tarbes v Taleb [2023] NSWSC 565

Hearing dates:

15 – 16 May 2023

Date of orders:

5 June 2023

Decision date:

05 June 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Provision to be given in lieu of provision under Will — Parties to bring in short minutes of order

Catchwords:

SUCCESSION — Family provision — Large estate ($14.4M - $17.4M) — Claim by a widower of a lengthy marriage. Lump sum provision given to widower in lieu of $1M trust fund under Will allowing for purchase of accommodation and availability of income on balance of trust fund monies after cost of accommodation — Provision sought to cover claims for accommodation, and a lump sum for contingencies and to address a potential contingent liability arising from a potential payback to Centrelink of an amount arising from receipt of a disability support pension — Determination that widower not given adequate provision and order made for provision in lieu of trust fund provisions — Claim for a sum to address potential contingent liability rejected

SUCCESSION — Family provision — Discussion of statutory scheme and nature of the evaluative task — What is “proper provision” is not limited by some fixed concept or defined content. It requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances — The Court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards. In each case the Court applies a standard appropriate to all the circumstances of the case

SUCCESSION — Family provision — Fact finding in family provision cases — Difficulties of fact finding in respect of historical family disputes — Little point in attempting to make concluded findings about matters of only marginal significance or otherwise irrelevant — However, the Court is assisted by cross-examination on significant matters regarding contributions or significant claims for provision

SUCCESSION — Family provision — Discussion of approach to applications involving large estates characterised by no competing claims

SUCCESSION — Family provision — Discussion of approaches to large “windfall” increase in value of main asset of the estate

SUCCESSION — Family provision — Discussion of relevance of nature of marriage to assessment of family provision claims

SUCCESSION — Family provision — Discussion of whether any differing approach applies to family provision claims by widowers as distinct from claims by widows

EVIDENCE — Discussion of provisions of evidentiary effect of death certificate pursuant to provisions of Births, Deaths and Marriages Registration Act 2005 (NSW)

STATUTORY INTERPRETATION — Discussion of provisions of evidentiary effect of death certificate pursuant to provisions of Births, Deaths and Marriages Registration Act 2005 (NSW)

SUCCESSION — Family provision — Discussion regarding obligations of disclosure in family provision cases including early disclosure of information and obtaining Centrelink records. Distinction between “full and frank disclosure” and disclosure for the purposes of assessing the family provision claim

SUCCESSION — Family provision — Discussion regarding claim for a potential contingent liability for Centrelink debt

Legislation Cited:

Births, Deaths and Marriages Registration Act 2005 (NSW)

Civil Procedure Act 2005 (NSW)

Evidence Act 2005 (NSW)

Family Law Act 1975 (Cth)

Family Provision Act 1982 (NSW)

Freedom of Information Act 1982 (Cth)

Marriage Act 1961 (Cth)

Property (Relationships) Act 1984 (NSW)

Relationships Register Act 2010 (NSW)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Succession Act 2006 (NSW)

Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Cases Cited:

Afchal v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 24

Alvarez v Matthews [2021] NSWSC 1551

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

Anderson v Hill [2017] NSWSC 1149

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Aroney v Aroney (Supreme Court (NSW), McLelland J, 26 July 1988, unrep)

Auckland City Mission v Brown [2002] 2 NZLR 650

Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023

Bartlett v Coomber [2008] NSWCA 100

Bladwell v Davis [2004] NSWCA 170

Blendell v Byrne; The Estate of Noeline Joan Blendell [2019] NSWSC 583

Burke v Burke [2015] NSWCA 195

Clarke v Clarke [2022] NSWSC 1721

Clayton v Clayton [2023] NSWSC 399

Colantuono v Colantuono; Colantuono v Colantuono [2009] NSWSC 1445

Collings v Vakas [2006] NSWSC 393

Cringle v Cringle [2018] NSWSC 1558

Crisp v Burns Philp Trustee Co Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep)

Curnow v Curnow [2014] NSWSC 896

Curran v Harvey [2012] NSWSC 276

Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89

DJ Singh v DH Singh [2018] NSWCA 30; (2018) 17 ASTLR 317

Edgar v Registrar, Births Deaths and Marriages [2022] NSWCATAD 170

El-Helou v Smith [2009] NSWSC 741

Elliott v Elliott (Court of Appeal (NSW), Kirby P, Glass and McHugh JJA, 24 April 1986, unrep)

Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64

Field v Inglis (Supreme Court (NSW), Young J, 8 February 1994, unrep)

Flanagan v Fisher [2021] NSWSC 598

Fletcher v Furnance [2008] NSWSC 132

Gargano v Coves [2018] NSWSC 985

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Gorton v Parks (1989) 17 NSWLR 1

Graham v Graham [2011] NSWSC 504

Granatinov Radmacher [2011] 1 AC 534

Hertzberg v Hertzberg [2003] NSWCA 311

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Hughes v Sharp [2017] NSWSC 962

Ikonomou v Panagopoulos [2017] NSWSC 1805

In re Stollery [1926] Ch 284

In re Sylvester; Sylvester v Public Trustee [1941] Ch 87

In the Estate of Margaret, deceased [2012] NSWSC 1490

Jack v NSW Registrar of Births, Deaths and Marriages [2019] NSWCATAD 200

Jodell v Woods [2017] NSWSC 143

Johnston v Johnston [2004] NSWSC 497

Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437

Kearns v Ellis (Court of Appeal (NSW), Glass, Mahoney and McHugh JJA, 5 December 1984, unrep)

King v Foster [1995] NSWCA 240

Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215

Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189

Luciano v Rosenblum (1985) 2 NSWLR 65

Magill v Magill (2006) 226 CLR 551; [2006] HCA 51

Mallitt v Gow [2022] NSWSC 1012

Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47

Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23

Massingham v Massingham [1996] NSWCA 343

Mayfield v Lloyd-Williams [2004] NSWSC 419

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

McDonald v O’Connor [2019] NSWSC 261

Merkuloff v Yalisheff [2003] NSWSC 1183

Milillo v Konnecke [2009] NSWCA 109

Milillo v Konnecke; Borazio v Konnecke [2008] NSWSC 1069

Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25

Nudd v Mannix [2009] NSWCA 327

O’Loughlin v O’Loughlin [2003] NSWCA 99

Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

R v Barnet London Borough Council; Ex parteNilish Shah [1983] 2 AC 309

Re Clissold (deceased) [1970] 2 NSWR 619

Re Estate of Alan Bruce Beeby [2020] NSWSC 1512

Re Fulop deceased (1987) 8 NSWLR 679

Re Meier (deceased) [1976] 1 NZLR 257

Re Mercer (deceased) [1977] 1 NZLR 469

Re Pennington, deceased (No 2) [1978] VR 617

Re Thomas, deceased; Queensland Trustees Ltd v Thomas [1932] St R Qd 57

Robinson v Tame [1994] NSWCA 266

Sammut v Kleemann [2012] NSWSC 1030

Sarant v Sarant [2020] NSWSC 1686

Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524

Sgro v Thompson [2017] NSWCA 326

Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Spiteri v Vassallo [2020] NSWSC 890

Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114

Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep)

Stone v Stone [2016] NSWSC 605

Stone v Stone [2019] NSWSC 233

Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330

Tahana v Hines [2021] NSWSC 564

Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155

Varnel v Heyes [2008] NSWSC 978

Verzar v Verzar [2012] NSWSC 1380

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

Ward v New South Wales Registrar of Births, Deaths and Marriages [2015] NSWCATAD 86

Webb v Webb; Estate of W E Webb [1999] NSWSC 343

Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45

Wray v Wray [2007] NSWSC 164

Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

Young v Outtrim [2011] NSWSC 391

Texts Cited:

Births, Deaths and Marriages Registration Regulation 2017 (NSW)

Black, Ann, “Adaptions of Islamic family law for the Australian context” (2016) 30(3) Australian Journal of Family Law 159

de Groot, John and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis)

Handler, Les & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis)

Macquarie Dictionary, online ed

Marriage Regulations 2017 (Cth)

Practice Note SC EQ 7 – Family Provision

Supreme Court Rules (Amendment No. 337) 1999 (NSW)

Category:

Principal judgment

Parties:

Juan Segundo Tarbes (Plaintiff)
Tarek Taleb (First Defendant)
Laila Merza (Second Defendant)

Representation:

Counsel:
D Price (Plaintiff)
L Ellison SC (Defendants)

Solicitors:
McPhee Kelshaw Solicitors and Conveyancers (Plaintiff)
Heckenberg Lawyers (Defendants)

File Number(s):

2021/224473

JUDGMENT

Introduction

1. HIS HONOUR: The application before the Court is a family provision claim by Juan Segundo Tarbes (the plaintiff) in respect of the estate of his late wife Fekrat (Faye) Taleb (the deceased) who died on 10 August 2020 aged 65.

2. Claims by widowers are less common than claims by widows. As at late 2020, based on reported cases in all Australian jurisdictions, claims by widows have outnumbered claims by widowers by a ratio of approximately 4 to 1: John de Groot and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis) (de Groot & Nickel) at [2.1] fn 2.

A large estate

3. The formation of the deceased’s estate is characterised by a number of remarkable features.

4. The deceased over the 30 years prior to her death engaged in many property dealings resulting in her amassing a sizeable estate. The dealings were marked by a number of characteristics.

5. First, it is not entirely clear why the deceased was attracted to property dealings. In any event, there was some dispute on the evidence as to how the deceased was able to fund the property purchases. I address this below.

6. Secondly, a number of properties intended for family members were registered in the deceased’s name seemingly at least in part for asset protection purposes.

7. Thirdly, the main asset of the deceased’s estate, a property at Bringelly (Bringelly property) which as of the date of the deceased’s death was estimated as having a value of $4.15 million, by the time of the hearing had rampantly increased in value by almost 3 to 4 times its date of death value, so as to create a type of “windfall”. This “windfall” might be reflective of an astute initial purchase or might simply be good fortune.

8. The size of the deceased’s estate, (approximately $14.383M-$17.458M, excluding liabilities) is what family provision lawyers would call a “large estate”.

9. There is no precise definition of what constitutes a “large estate”.

10. Nonetheless, within succession law, judges tend to make reference to estates as being:

1. “a relatively large estate”, “a reasonably large estate” or “a moderately large estate” when the estate size is estimated at approximately $2M to $5M; and

2. “a large estate” once the net size exceeds about $5M, with that description still holding when the estate is valued at $14M (see schedule to this judgment).

11. Rarely, there is litigation over estates in which the deceased might have been an ultra-high net worth individual: e.g. Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215 at [19] (about $1B).

12. The importance of the estate being a “large estate” is that for the purposes of making the evaluative assessment of a plaintiff’s claim, the size of the estate is invariably a material factor.

13. In many, if not most, family provision applications questions of financial need and competition for their satisfaction out of the estate are prominent because of the limited scale of the resources available: Clayton v Clayton [2023] NSWSC 399 (Clayton v Clayton) at [107] citing Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 (Lloyd-Williams v Mayfield) at [29]-[31] per Bryson JA (Giles JA and Stein AJA agreeing).

14. A particular characteristic of large estates is that financial needs and competition for their satisfaction out of the estate are often absent.

15. That is because the estate or potential notional estate is so large that any beneficiary who might bear the burden of any order for provision does not put his or her financial circumstances in issue or even if they are put in issue the reality is that an order will not impose any financial hardship nor have any significant adverse effect on the wellbeing of such beneficiary: Lloyd-Williams v Mayfield at [31]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2009] NSWCA 114 (Steinmetz v Shannon) at [100] per Brereton JA; Anasson v Phillips (Supreme Court (NSW), Young J (as his Honour then was), 4 March 1988, unrep) (Anasson v Phillips) at 20. I address this more particularly below.

The application

16. The proceedings were commenced by summons filed on 6 August 2021 seeking a family provision order pursuant to s 59 Succession Act 2006 (NSW) (Succession Act) for the plaintiff’s maintenance and advancement in life.

17. The deceased by clause 4 of her Will made on 16 October 2018 (last Will) directed sale of the Bringelly property within 6 months from the date of her death with the sum of $1 million to be held in a separate trust by the executors to purchase another property for the sole benefit, use and occupation of the plaintiff, and in the event that there were any surplus funds between the cost of the purchased property and the sum of $1 million, the deceased directed that the plaintiff have the benefit of income derived on such surplus funds. On the plaintiff’s death, the proceeds of the trust fund in any property were directed to form part of the deceased’s residuary estate (trust fund provision): CB 43-44.

18. Probate of the deceased’s last Will was granted to the defendants on 11 February 2021: CB 41.

19. I have determined that in lieu of the trust fund provision given to the plaintiff under the deceased’s Will, the plaintiff should receive a legacy in the sum of $2.5M.

20. Without intending any disrespect, it is convenient to refer to various of the deceased’s family by reference to their given or familiar family names.

21. Mr D Price of counsel appeared for the plaintiff. Mr L Ellison SC appeared for the defendants.

22. The parties provided written submissions prior to the hearing and throughout the hearing. Mr Price, in particular, provided additional submissions. Counsel also made oral submissions.

23. I will refer to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows:

1. the plaintiff’s written opening submissions (POS);

2. the plaintiff’s supplementary outline of submissions (PSOS);

3. the plaintiff’s submissions on full and frank disclosure (PSFFD);

4. the plaintiff’s submissions on the disability support pension (PSDSP); and

5. the defendants’ opening written submissions (DOS).

Family details

The deceased

24. The deceased was born in June 1955 in Damascus, Syria. She was known as Faye (in some parts of the evidence spelt “Fay”).

25. In or about 1973, as a young woman in her teens the deceased was married at the age of about 18 in Damascus to Ahmad Taleb (Ahmad).

26. The deceased had four children from her marriage to Ahmad being:

1. the first defendant (Tarek) – a son and one of the executors of the deceased’s estate;

2. the second defendant (Laila) – a daughter and the other co-executrix;

3. Basem Merza (Basem) – a son; and

4. Suzanne Merza (Suzanne) – a daughter.

27. The deceased divorced Ahmad in 1994 and he died in 2016: CB 286[6].

28. At some stage after 2005, the plaintiff indicates that the deceased suffered some “physical difficulties” including loss of vision to the degree that she could not drive or read: CB 23[31]. Tarek accepted that the deceased did suffer such difficulties and loss of vision, though he disputed the cause: CB 315[19].

29. In or about late 2019 or February 2020, the deceased was diagnosed with rectal cancer: CB 24[42], CB 325[35].

30. The cancer appears to have been aggressive and/or the deceased succumbed quickly to its effects, and it is the first specified cause of her death: CB 49, 158.

The plaintiff

31. The plaintiff was born in Chile in July 1954. He is currently aged 68.

32. In or about December 1980, the plaintiff finished high school in Chile. Prior to completing high school, he began working in an office for a textile company assisting with administrative tasks. After finishing high school, he did not go on to university but was able to do some courses on computing: CB 322[7]-[8].

33. Prior to meeting the deceased, the plaintiff had been married twice.

34. His first marriage was in 1977 to Savina Belarga (Savina). The deceased has two children from that marriage being Juan Fernando born in October 1978 (now aged 44) and Christian Andres born in October 1980 (now aged 42).

35. In or about 1984, the deceased divorced Savina. Seemingly, shortly thereafter, he married in 1984 Rosa Muñoz (Rosa). Rosa had a child named Oscar from a prior marriage. The plaintiff fathered a child, Phillippe, with Rosa – he being born in March 1985 and now aged 38.

36. The plaintiff emigrated to Australia in September 1987: CB 17[4]. He became an Australian citizen although does not recall the date on which that occurred.

37. In or about 1990-1991, the plaintiff divorced Rosa.

38. The plaintiff says he met the deceased in or about 1995 and began living with her in or about July 1996 at her house in Glen Alpine (Glen Alpine property): CB 18[12], 20[22]. This evidence is a little at odds with the plaintiff’s evidence that the deceased purchased the Glen Alpine property on or about 18 March 1997 (in the joint names of herself and Tarek): CB 20[21(b)]. Tarek did not respond to the evidence that the plaintiff commenced living with the deceased in July 1996. Laila did not deny the timing of July 1996. She stated: “I do not know and cannot admit that the de facto relationship commenced in about July 1996” and after her mother’s divorce “she was never wanting to get married again and was wary of the idea of a man coming into her life again”: CB 286[7]. However, Laila did not proffer any other possible commencement date. There was no cross-examination as to the inconsistency of dates. I propose to proceed on the basis that the plaintiff commenced living with the deceased from July 1996.

39. In May 1997, the plaintiff was injured leading to an application for a disability support pension (DSP). The plaintiff’s ongoing entitlement to the DSP after 2005 and whether he had any liability to repay monies (received pursuant to that entitlement) to Centrelink is one of the issues in the proceedings as it forms part of the plaintiff’s claim for provision.

40. On 7 September 1997, the plaintiff married the deceased in an Islamic ceremony: CB 18[13]. I will say more regarding the status of this marriage below.

The plaintiff’s proficiency with English

41. The plaintiff is a native Spanish speaker and even though he has lived in Australia for some 35 years considers that he has limited English language skills. He states that he cannot read or write English. He communicates on English basic matters but is not fluent in anything that requires in his words “technical understanding”. This affidavit evidence was translated into Spanish for him and on the hearing of the proceedings he was assisted by a NAATI accredited translator in Spanish and English (bidirectional) both for the purpose of his giving of evidence and more generally in having translated to him, through a hearing loop, the running of the proceedings.

41. There appeared to be mild dispute from the defendants regarding the extent of the plaintiff’s ability to speak English. Laila states she never had any difficulties in communicating in English “on routine everyday things” with the plaintiff: CB 286[5].

42. Tarek says that he was always able to effectively communicate with the plaintiff. Although, he says that there were some times when he had to repeat things or put them into a different way for the plaintiff to understand: CB 312[5]. The extent of the plaintiff’s capacity to speak English was not probed on the hearing.

The defendants and other beneficiaries

44. Three of the four children (being Laila, Basem and Suzanne) use the surname “Merza”. That was not particularly explained on the evidence, but it is evident that “Merza” is the deceased’s mother’s maiden family name: CB 49, 158.

45. The evidence did not disclose a great deal of detail about the relationships of the defendants, Basem and Suzanne with any partners. Perhaps that is explicable on the basis that neither of the defendants nor their siblings sought to place before the Court any details regarding their material circumstances. Much of the evidence of the defendants was addressed to more directly responding to the plaintiff’s evidence.

46. Nonetheless, it is possible to glean from the evidence the following brief details regarding the defendants.

47. In 1991, Laila married. There are three children from that marriage. The marriage ended in divorce in 2007: CB 286[9]; CB 19[15(g)]. Laila is a sales executive assistant and has at times worked in Parramatta and lived in or around Guildford or Guildford West in rental or other accommodation: CB 286[9].

48. Tarek is referred to at least by Laila as “Terry”: CB 291[37]. Tarek, at some point (I infer after 2002), married Reema Charmand (Reema) (sometimes referred to as “Reena” in the evidence) under Islamic law and initially they lived in a granny flat on the Bringelly property: CB 19[15(d)].

49. Tarek has children but not with Reema: CB 289[23].

Formal matters

50. The application for a family provision order was filed within time (on 6 August 2021): see summons at CB 1.

51. Apart from the plaintiff, the only eligible persons identified on the evidence (bearing in mind that the deceased’s former husband Ahmad had passed away) were the deceased’s four adult children.

52. On 8 September 2021, the defendants’ then solicitor John Mackey (Mr Mackey) served by post as well as by email a notice of claim relating to the plaintiff’s application on the four children: CB 11.

Issues

53. The parties did not provide any specific list of agreed issues in the matter.

54. Nonetheless, when regard is had to the outline of opening submissions, it is apparent that there is no dispute (nor could there be) that the plaintiff is an eligible applicant. Even on the defendants’ case, it was conceded that the plaintiff was at least in a de facto relationship with the deceased which was long-term.

55. The ultimate issues on the application were whether the deceased’s last Will made adequate and proper provision for the plaintiff, and if not, what if any order for provision ought to be made.

56. Mr Price submitted that the trust fund provision for the plaintiff was inadequate for his proper maintenance and advancement in life and an order for provision should be made for the plaintiff comprised of three elements being amounts in lieu of his entitlements under the last Will as follows:

1. an amount to acquire accommodation in the sum of $1.25 million (accommodation provision);

2. an amount for the plaintiff to live on in the sum of $1.25 million (lump-sum provision); and

3. an amount to repay the plaintiff’s debt to Centrelink (if called upon) in the amount of initially $500,000 but revised seemingly to a figure in the order of $250,000 together with a component to cover any penalty charges (DSP contingent liability provision): POS 21.

57. Mr Ellison SC disputed that the trust fund provision for the plaintiff was inadequate. Mr Ellison SC further submitted that in the event that the Court found that the trust fund provision was not adequate, he challenged the plaintiff as to aspects of his claim for accommodation provision in the lump-sum provision. In relation to the accommodation provision, Mr Ellison SC raised the prospect that if an order were to be made a Crisp order (see below) may be a form of accommodation provision appropriately considered by the Court. Mr Ellison SC disputed the appropriateness of any DSP contingent liability provision.

58. I will address the particular submissions regarding whether the plaintiff was left with adequate and proper provision below.

59. Forensically, the contest on that question was informed by specific factual issues disclosed in the opening outline of submissions coupled with those which became apparent at the start of or during the hearing.

60. Broadly speaking, the factual issues include the following:

1. What was the nature of the marriage status as between the plaintiff and the deceased (Marriage status issue)?

2. What was the extent of the plaintiff’s contribution to the deceased’s estate and welfare, specifically:

1. First, what if any contribution did the plaintiff make to the renovation works carried out on the Bringelly property?

2. Secondly, did the plaintiff provide the funds for the purchase of the Run-O-Waters property?

3. Thirdly, what was the extent of the plaintiff’s involvement in the tobacconist business and assistance to the deceased in this regard?

4. Fourthly, was income from the tobacconist business used by the deceased to fund property purchases?

5. Fifthly, what was the extent of the plaintiff’s household contributions and assistance extended to the deceased’s family? (Contributions issues)

3. Did the plaintiff retain any of the deceased’s jewellery and cash (Jewellery and cash issue)?

4. What is the nature of and extent (if any) of the plaintiff’s DSP contingent liability (DSP contingent liability issue)?

Evidence

61. On the hearing of the application, the plaintiff read and relied upon three affidavits affirmed by him being:

1. an affidavit dated 9 September 2021 (first affidavit) and Exhibit JST-1 to that affidavit;

2. supplementary affidavit dated 28 April 2022 (second affidavit); and

3. an updating affidavit dated 12 May 2023 (final affidavit).

62. On the defendants’ side the following substantive affidavits were relied upon:

1. two affidavits from Laila namely:

1. the prescribed (Practice Note SC EQ 7 – Family Provision (Practice Note SC EQ 7)) paragraph 9.1 administrator’s affidavit dated 1 October 2021 (administrator’s affidavit); and

2. a reply affidavit dated 5 October 2021 (Laila’s reply affidavit), and

2. two affidavits from Tarek being:

1. a reply affidavit dated 21 October 2021 (Tarek’s reply affidavit); and

2. an updating administrator’s affidavit dated 5 May 2023 (updating administrator’s affidavit).

63. There were formal affidavits read on each side. The plaintiff read an affidavit of Paul Michael McPhee (as to costs). The defendants read affidavits (as to costs and service of notices of claims) by the defendants’ initial solicitor Mr Mackey and an affidavit of costs by Graeme Heckenberg, the defendants’ subsequent solicitor. None of the solicitors were required for cross-examination.

Fact finding in family provision cases

64. This case is the second case I have heard recently (see Clayton v Clayton) in which the lack of evidence on certain matters and forensic decisions to not cross-examine on issues has made determination of some disputes difficult. Determination of certain historical disputes raised on the evidence may be unnecessary in any given case, even if there is some cross-examination, where they are of only of marginal significance or irrelevant to the outcome. However, in fact finding, the Court will often be assisted by cross-examination on other matters, particularly matters bearing upon any significant contribution to the estate of the deceased or any significant claim for provision of the plaintiff. Family provision proceedings quintessentially involve important choices for counsel in cross-examining. It is a matter for counsel using their professional expertise to assess what matters need to be put before the Court and in what detail: Clayton v Clayton at [81]-[108], especially at [105]-[106].

65. Parties, particularly in family disputes, will be assisted by the Court outlining its approach to fact-finding.

66. The extent of reasons in judicial cases will depend upon the circumstances of the case and the function to be served by the giving of reasons: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (Tatmar Pastoral) at 386A-B per Mahoney JA; affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155 (Privy Council).

67. In New South Wales, in family provision cases generally there is a duty to state reasons for judgment. Occasionally, complaint is made regarding adequacy of reasons: e.g. Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 (Diver v Neal) at [57].

68. However, such a duty does not exist in respect of every matter, of fact, or of law, which was or might have been raised in the proceedings. It is not the duty of the judge to decide every matter which is raised in argument. The judge may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: Tatmar Pastoral at 385E-F citing R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 350.

69. The law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 271 per Mahoney JA; Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (Yates Property v Darling Harbour) at 160D per Kirby P.

70. The weight which a judge gives to a particular fact may be affected by the judge’s experience and, in particular, his experience of the significance of that fact in the order of things and “general human experience”. Reasons may partake as much of intuition based on experience as on formal and deductive reasoning: Soulemezis at 274A-B per Mahoney JA citing Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 at 173 per Knox CJ and Dixon J and Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23 at 375 per Dixon J, Latham CJ agreeing.

71. Particular considerations arise in family provision claims, in light of the evaluative nature of the statutory task (see below).

72. First, the Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 at 548-549 per Isaacs J.

73. Secondly, in many cases there may be little point in attempting to make concluded findings upon or adjudicate upon the rights and wrongs of historical family disputes whether involving estrangement or otherwise. The reasons for that will vary but often include the fact that a firm conclusion about those matters may be of only marginal significance in the case. The distant age of the events, the frailty of human memory, the unavailability of the deceased’s version (unless documented), and the fact that the deponents’ views about one another and the past will often be fixed and strongly held, may operate to make it difficult for a judicial fact finder to be confident in whatever conclusions were reached on the parties’ competing versions: e.g. Massingham v Massingham [1996] NSWCA 343 at 6 per Priestley JA (Mahoney P and Meagher JA agreeing); Webb v Webb; Estate of W E Webb [1999] NSWSC 343 at [40] per Hamilton J citing Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 (Pontifical Society v Scales) at 20 per Dixon CJ (McTiernan J agreeing).

74. Moreover, the Court in family provision cases might not find it necessary to resolve every factual matter raised and disputed by the parties in order to determine the plaintiff’s claim in accordance with the applicable legal principles referred to below, even if significant time is spent on disputed events in cross-examination, where they are irrelevant to the determination of the plaintiff’s family provision claim: Spiteri v Vassallo [2020] NSWSC 890 (Spiteri v Vassallo) at [41] per Williams J.

75. Whilst conduct and family relationships may, in some cases, have relevance to the outcome in family provision cases the Court disapproves of attempts by litigants in such cases to blacken each other’s character. Allegations and counter-allegations about incidents that occurred years before the deceased’s death are, generally, unlikely to advance either party’s case, and when it is sought to support them by lengthy affidavits in chief, which prompt equally lengthy affidavits in reply, they may merely deepen rifts in the family, dishonour the memory of the deceased and unnecessarily prolong the litigation: Graham v Graham [2011] NSWSC 504 at [198] per Hallen AsJ (as his Honour then was) citing Re Meier (deceased) [1976] 1 NZLR 257 at 258 per Wild CJ, which was cited with approval in Auckland City Mission v Brown [2002] 2 NZLR 650 at [15] per Richardson P for the Court.

76. Thirdly, it is not necessary for a judge who is exercising a discretionary judgment or evaluative decision, to detail each factor which he or she has found to be relevant or irrelevant, or to itemize in an order for provision each of the factual matters to which the judge has had regard: cf Tatmar Pastoral at 386D; Yates Property v Darling Harbour at 161D per Kirby P, at 171G per Mahoney JA and at 182G-183C per Handley JA (a valuation appeal from the finding of market value).

Plaintiff’s credit

77. The plaintiff was the only deponent cross-examined.

General observations

78. In giving evidence, a little unusually for much of his evidence, his head was bowed down and he did not make, in my estimation, particular eye contact with Mr Ellison SC who was cross-examining him. I did wonder whether this might be due to the fact that the plaintiff has difficulty hearing and raised this with him. However, he indicated he had no trouble hearing: T 30.40-31.1. Nonetheless, in my estimation, the plaintiff gave his evidence in a straightforward way.

79. He frequently responded in a direct and simple way to questions: T 32.15-33.

80. There were occasions on which he readily made concessions or responded frankly, such as in relation to expenditure of money (T 30.36-38) and aspects of his health (T 37.23-43). On other occasions, he held to the version contained in his affidavit evidence, such as in relation to questions about funds he had available to him (T 31.20-22) and his accommodation preferences: T 31.24-32.33, 35.46-36.14.

81. He was not confronted with any significant prior inconsistent statements. Nonetheless, in relation to his requirements for accommodation, which I will refer to below, he was challenged in cross-examination regarding his reasons for a change in his evidence as between his first affidavit identifying properties with 2 to 3 bedrooms as being appropriate and his final affidavit identifying properties in excess of 3 bedrooms as being desired or appropriate.

82. On the whole, other than in several respects I mention below, I accept the plaintiff’s evidence.

Material matters

83. There were a number of material matters in particular relating to the plaintiff’s claims of contributions to the acquisition, maintenance and improvement of the deceased’s property and other household and family contributions in which there were disputes in varying degrees as between the plaintiff’s affidavit evidence and that of Tarek and Laila. I have addressed these specifically below.

Minor matters

84. There were also a number of minor matters in respect of which there was dispute as between the plaintiff and Tarek and or Laila. This includes matters raised in solicitor correspondence post the deceased’s death. In respect of some of these it is not necessary to make any finding.

Deceased’s Wills

85. The evidence identifies at least three Wills made by the deceased, being the last Will and two prior Wills made respectively 12 November 2010 (2010 Will) and on 4 April 2017 (2017 Will): CB 34[97].

86. The 2010 Will was prepared by solicitors at Campbelltown. In the 2010 Will, the deceased appointed her brother Ramez (aka Gasan, often spelt “Gassan”) and her four children to be jointly and severally her executors: CB 208.

87. The deceased gave the plaintiff a right of use, occupation and enjoyment of the property occupied by her at the time of her death together with household furniture, goods, chattels and effects on terms that he pay all rates, taxes and outgoings in respect of the property and keep the property and such personalty in good and substantial repair and insured. The use was for the plaintiff’s lifetime.

88. Upon the plaintiff’s death, there was a direction for the estate be converted into money with the proceeds divided as to 25% to each of the four children, with provision for a gift over: CB 208-209.

89. The deceased’s 2017 Will and last Will were prepared by Mr Mackey.

90. By the 2017 Will, the deceased appointed the defendants or the survivor of them as executors: CB 212.

91. The deceased made specific gifts as follows. The deceased:

1. gave a property at Minto (referred to below as the “Minto property”) to Tarek subject to his being solely responsible for any outstanding mortgage debt;

2. gave a property at Glen Alpine (referred to below as the “Second Glen Alpine property”) to Basem, subject to him being responsible for any outstanding mortgage debt;

3. forgave a loan to Suzanne of $710,200 (in respect of the purchase of what is referred to below as the “Currans Hill property”);

4. forgave a loan to Laila (which had enabled her to purchase what is referred to below as the “Guildford property”); and

5. gave sums of $250,000 to each of Tarek, Basem and Laila.

92. The 2017 Will made provision for the plaintiff in terms of what I have called the trust fund provision: CB 213.

93. Lastly, the deceased left the residue of her estate upon the plaintiff’s death to be divided equally between the four children, with a provision for a gift over in the event that any of them did not survive the deceased: CB 213.

94. The deceased by her last Will appointed the defendants as executors: CB 43.

95. The last Will bore some similarity to the 2017 Will.

96. The provisions regarding the gifting to Tarek of the Minto property and the forgiveness of loans to Suzanne and Laila were maintained. The last Will did not include a gift of the Second Glen Alpine property (6 Belltrees Close) to Basem, as by that stage it had been sold.

97. The gift to Laila of $250,000 was maintained. The gifts to Tarek and Basem of $250,000 were each increased to a sum of $500,000 each.

98. The deceased gave a reason for not leaving Suzanne a legacy sum as being the fact that she had helped Suzanne pay off her house at Currans Hill completely and as such Suzanne had been adequately provided for noting that the legacies to the other children were (from the deceased’s perspective) a way of ensuring that they received a similar benefit: CB 44.

99. The trust fund provision for the plaintiff and gift of residue to the four children as specified in the 2017 Will were maintained in the last Will: CB 43-44.

Estate and costs details

100. Pursuant to a pre-trial direction, the parties prepared an agreed schedule of assets, liabilities, costs and expenses. The schedule was tended and became Exhibit JP-1.

101. In summary, the details are as follows.

Assets as at date of death

102. The schedule discloses the following assets as at the date of death (the properties are referred to according to the description afforded to them later on in these reasons):

1. the Bringelly property $4.15 million;

2. a property at Sanctuary Point (Sanctuary Point property) $675,000;

3. a property at Run-O-Waters (Run-O-Waters property) $650,000;

4. the Minto property $500,000;

5. monies in ANZ term deposit and ANZ and St George bank accounts $73,698.76; and

6. the loan to Suzanne $710,200.

Total: $6,758,898.76.

103. The schedule disclosed no liabilities at the date of the deceased’s death.

Assets as at date of schedule (5 May 2023)

104. The schedule discloses the following:

1. the Bringelly property $11.825 million to $14.9 million;

2. the Sanctuary Point property $725,000;

3. the Run-O-Waters property $410,000;

4. the Minto property $700,000;

5. funds in executors’ estate trust account $13,271; and

6. the loan to Suzanne $710,200.

Total: $14,383,471-$17,458,471.

105. The schedule disclosed that a number of liabilities had been paid out of the deceased’s estate or personally by the defendants in anticipation of reimbursement. The liabilities totalled $182,554.06 and included funeral and wake expenses, legal fees of the defendants, mediators’ fees and other fees including rates and valuation expenses. The schedule indicates that Tarek had paid $29,405.13 for funeral expenses, rates and insurances for the Minto property and a valuation report. Laila had paid the wake expenses ($5,500).

Costs and expenses consequent upon sale of estate property

106. The schedule indicated that expenses associated with a future sale of the Bringelly property including estate agent’s marketing services, commission and conveyancing fees were likely to be the order of $204,102.50 to $254,850. By far the largest component related to the agent’s commission. The schedule indicates that there was no capital gains tax likely to be applicable to the sale of the Bringelly property.

107. Costs and expenses associated with any sale of the Sanctuary Point property were estimated to total in the order of $37,262 including marketing fees commission, conveyancing fees and capital gains tax.

108. Costs and expenses associated with any sale of the Run-O-Waters property were estimated to be in the order of $68,842 including marketing services, commission, conveyancer’s fees and capital gains tax. By far the largest component of that was the estimate for capital gains tax.

Costs

109. The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST are as follows:

Party	Ordinary Basis	Indemnity Basis
Plaintiff	$185,982.48	$204,191.80
Defendant	$224,887.55	$251,218.65
Total	$410,870.03	$455,410.45

110. The plaintiff has not paid any amount on account of his costs and disbursements.

111. The defendants have paid $88,046 on account of costs and disbursements.

The Bringelly property

Description of the property

112. The Bringelly property is described in a number of places within the Court Book: e.g. CB 58. The property extends to 2.056 ha: CB 468. It is described as having on it a single level dwelling appearing to date from around the 1980s encompassing an attached self-contained granny flat to the rear of the garage. The main accommodation includes an entry foyer, a lounge room, a sitting room, a powder room, a rumpus room, a kitchen, a family/dining area, a study (fifth bedroom), four bedrooms, an ensuite, a main bathroom and a laundry: CB 475-476.

113. The granny flat is described as including a porch area, an entry, a bedroom, living/dining room, a kitchen and a bathroom: CB 476-477.

Valuation of the property

114. The property is located in the Aerotropolis Core within what is described as the broader Western Sydney Aerotropolis Precinct: CB 463. It is clear that the value of the property increased significantly after the deceased’s death. The inventory of property recorded the value of the Bringelly property at $4.15 million as at the date of the deceased’s death: CB 47, 281.

115. In the plaintiff’s first affidavit, he indicated that there was a strong likelihood that at least a portion of the Bringelly property would be acquired by the government as part of the development of the Western Sydney Airport: CB 24[48]. He stated that he understood that Lend Lease had already obtained an easement over one corner of the property: CB 24[48].

116. In the initial administrator’s affidavit, Laila disclosed as part of the assets of the deceased’s estate a figure of $45,000 described as “Acciona Compensation Settlement Sum”: CB 273[6], 283. Laila later clarified this in a reply affidavit indicating that after the deceased’s death, Tarek and she had negotiated a settlement with Acciona representing Transport for NSW and Sydney Water for the sum of $45,000 not for any acquisition but for certain works undertaken, damage and remediation issues. She indicated that at that stage (5 October 2021), no monies had yet been received and it was disclosed in the administrator’s affidavit as being essentially a future payment - it appears because Laila thought at the time that the negotiations may have come to nought and the estate may have been entitled to receive nothing: CB 290[31].

117. On 30 March 2021, the plaintiff obtained valuation of the property by Lynette Savage, a certified practising valuer, in the sum of $5 million: CB 58.

118. The defendants provided a number of valuations prepared by Kohler Bird valuers.

January 2022 report

119. As at 27 January 2022, according to a valuation prepared by Kohler Bird valuers, the property was valued at $10.26 million.

120. The report records, in part, that the announcement and confirmation of Badgerys Creek in 2014 as the site for Sydney’s proposed second airport resulted in a significant increase in interest within both the immediate and broader surrounding suburbs: CB 482.

121. The report records certain planning events from late 2020 to the time of the report: CB 484-485. At some point, the property zoning appears to have changed from open space network to a zoning of MU – Mixed Use: CB 486.

May 2022 report

122. On 2 May 2022, Kohler Bird updated its valuation report dated 27 January 2022 and provided an increased estimate of valuation being $14.4 million: CB 517-536.

May 2023 report

123. On 4 May 2023, Kohler Bird provided an updated valuation as at 28 April 2023 valuing the property at $11.825 million “[s]ubject to a ‘Typical Quick Sale Period’” and gave an estimate of $14.9 million “[s]ubject to a ‘Market Typical Extended Settlement Contract’”: CB 359, 378, 380.

124. An extended settlement period was indicated as being 2 to 3 years on the one hand and a quick sale with a “usual settlement period” indicated as being a period of 3 to 6 months on the other: CB 354[9], 366.

Windfall increase

125. The parties, in their presentation of the case, recognised that there had been a degree of a windfall increase in the value of the property.

126. The reasons for the significant increase in the estimated value for the Bringelly property were not the subject of detailed evidence or submissions.

Background facts

127. Except as otherwise qualified, I find the following facts as established.

1995-2005

128. Prior to entering his relationship with the deceased, the plaintiff worked as a labourer.

129. In or about 1995, when the plaintiff met the deceased, she operated a tobacconist shop at Rosemeadow Marketplace (Rosemeadow shop): CB 20[20].

130. At the time of the plaintiff’s marriage to the deceased, the deceased had already accumulated property. She owned a property at Bradbury which was seemingly co-owned with Ahmad (Bradbury property).

131. No later than about 18 March 1997, the deceased purchased the property at Glen Alpine in the joint names of herself and Tarek for $250,000: CB 20[21(b)] (as noted above there is inconsistent and unresolved evidence suggesting that the deceased owned this property as at July 1996).

132. In or about May 1997, the plaintiff was injured while working for Nepean Engineering. He states he received the Newstart Allowance whilst he was unemployed and saved approximately $65,000 in cash which he did not keep in a bank: CB 20[19].

133. On 8 January 1998, the Bradbury property was sold but by Advance Bank Australia Ltd as mortgagee for $130,000: CB 20[21(a)].

134. On or about 2 July 1998, the Glen Alpine property was transferred from joint ownership to the sole ownership of the deceased: CB 20[21(b)].

135. In or about November 1998, the deceased purchased the property at Rosemeadow for $100,000 (Rosemeadow property): CB 26[59(a)].

136. On or about 27 April 1999, the Run-O-Waters property was purchased. I address this in more detail below.

137. In November 1999, the deceased purchased a property at St Helens Park for a sum of $119,000 (St Helens Park property): CB 26[59(b)]. The property was purchased for Tarek: CB 18[15(b)], 312[6]. Tarek says he paid the deposit from his own savings and after he and his then girlfriend moved in, he renovated the property at his own expense. He paid mortgage amounts, council and water rates. Tarek says that the deceased held the property in her name because she did not “want any girlfriend of yours taking what is yours”: CB 312[6].

138. In early October 2000, the deceased purchased a property at Raby for $190,000 (Raby property): CB 26[59(c)].

139. In or about late 2000 or early 2001, a year or so after the purchase, Tarek and his girlfriend broke up. He moved back to live with the deceased and rented the St Helens Park property out. The plaintiff states that Tarek moved into the Bringelly property with him and the deceased: CB 19[15(c)].

140. In or about July 2002, the deceased purchased the Bringelly property. The plaintiff and the deceased moved into the house on the property and continued to live there until her death. Various family members lived with them at some stage. Laila lived with them for some time although the plaintiff cannot remember for how long.

141. In early September 2003, the Raby property was sold for $318,000: CB 26[59(c)].

142. In or about September 2003, Tarek states that he and Reema needed more privacy, and he located a property at the Narellan Vale (the Narellan Vale property) to live in: CB 313[8]; 19[15(e)]. The price was $430,000: CB 26[59(d)]. Tarek states he paid for the deposit and stamp duty from his own savings. A mortgage for $400,000 was taken out by the deceased. Tarek says the property was put it in the deceased’s name as he could not show sufficient income as he had been self-employed and taken time off over the prior 12 months to renovate the Bringelly property. Tarek says he paid all the mortgage repayments and outgoings: CB 313[8]. It appears the marriage between Tarek and Reema did not last long. The plaintiff says they left the Narellan Vale property which was then rented out for some period of time: CB 19[15(f)].

143. On or about 30 September 2003, the Glen Alpine property was sold for $460,000: CB 20[21(b)].

2005-2010

144. From 2005 until approximately 2010, the plaintiff worked in the Rosemeadow shop. There is some dispute regarding the extent of his involvement. I refer to this below.

145. In or about December 2006, the Rosemeadow property was sold for $242,000: CB 26[59(a)].

146. On 23 October 2007, the deceased sold the Narellan Vale property for $420,000: CB 19[15(f)], 26[59(d)].

147. In October 2007, the deceased purchased an industrial unit at Minto for $202,500 (Minto property): CB 25[49].

148. In early July 2009, the St Helens property was sold for $255,000: CB 26[59(b)].

149. In June 2009, the deceased purchased a property at Guildford for $380,000 in the name of Basem (Guildford property): CB 19[15(h)], 27[59(g)].

150. The plaintiff asserts that it was purchased for Laila to live in but purchased in the name of Basem out of concern that if the property were in Laila’s name it might become involved in a property settlement between Laila and her ex (or soon-to-be-ex) husband: CB 19[15(h)]. Laila did not dispute the plaintiff’s evidence regarding this.

151. In early March 2010, the deceased purchased a property at Englorie Park for $550,000 (Englorie Park property): CB 26[59(e)].

152. In or about 2010, the deceased sold the business conducted at the Rosemeadow shop.

2010-2016

153. It is clear that after 2010, there was some hiatus, and the deceased took a break from being involved in any tobacco business.

154. In 2013, the plaintiff indicates that another tobacco shop at Liverpool (Liverpool shop) was opened with the plaintiff and the deceased operating that business for about three years. There is some little dispute regarding this which I refer to below.

155. On or about 5 November 2013, the Guildford property was transferred to Laila for a consideration of $50,000: CB 27[59(g)], 291[34(b)]. At some stage, Basem moved in to live with the deceased and the plaintiff in the Bringelly property.

156. In or about 2013, Basem married and moved out of the Bringelly property: CB 19[15(i)].

157. At some point, Suzanne moved in to live with the deceased and the plaintiff at the Bringelly property. She remained living at the property and continues to live in the property currently: CB 19[15(j)].

158. In early July 2016, the Englorie Park property was sold for $865,000: CB 26[59(e)].

2017-date of the deceased’s death

159. In or about 2017, the plaintiff states that the business associated with the Liverpool shop was sold for approximately $150,000 and that he and the deceased then retired: CB 23[37], 325[35].

160. In mid-March 2017, Suzanne purchased a property at Currans Hill with a loan from the deceased in the sum of $710,200 (Currans Hill property): CB 27[60], 138, 291[35].

161. On 13 October 2017, Mr Mackey wrote to the plaintiff and the deceased at the Bringelly property providing the deceased with a copy of her (2017) Will and certified copies of powers of attorney and “guardianships” for each of them. The letter noted that the original documents of those provided were held by the firm in safe custody: CB 216.

162. At some point, which is incorrectly identified in the evidence as being November 2020, the deceased purchased the Second Glen Alpine property: CB 26[59(f)]. The 2017 Will made in April 2017 refers to the Second Glen Alpine property and accordingly I infer it was purchased at least prior to 4 April 2017.

163. On or about 23 March 2018, the Second Glen Alpine property was sold for $810,000: CB 27[59(f)].

164. In mid-May 2018, the deceased purchased a property at Sanctuary Point for $545,000 (Sanctuary Point property): CB 25[53]. The plaintiff states, and this was not relevantly disputed, that the proceeds of the purchase price came from the sale of another property the deceased had purchased, he thinks being the Englorie Park property: CB 25[53]. The Sanctuary Point property is leased to a tenant returning a weekly rental of $350.00: CB 25[54].

165. In October 2018, the plaintiff states he attended Mr Mackey’s office twice with the deceased and Suzanne to discuss the deceased’s Will. He cannot recall the date of the first visit. The second visit was on 16 October 2018: CB 34[99].

166. The plaintiff states that on the second visit, the following discussions took place (CB 34[100]-[104]):

100. During the course of the meeting on 16 October 2018, my Wife said to Mr Mackey, whilst I was present, words to the effect of: “I want Juan taken care of.”

101. There was then a conversation between my Wife and Suzanne, in Arabic. After that conversation, my Wife said words to the effect of: “I want half to go to my kids and half to Juan.”

102. Mr Mackey then said words to the effect of: “You can't say half. You've got to say a number.”

103. My Wife then said, words to the effect of: “Can we put fifty percent down?”

104. Mr Mackey then said words to the effect of: “No. You've got to put down a number.”

167. The plaintiff asserts that he thought that the deceased was leaving him half the estate: CB 34[105].

168. In about late 2019 or February 2020, when the deceased was diagnosed with cancer, she required increasing assistance with managing her daily life. The plaintiff indicates that Suzanne became the deceased’s primary carer (seemingly from this point) until her death with assistance from the plaintiff: CB 24[42]-[43]. During the last few months of the deceased’s life, Suzanne quit her own work to care for the deceased: CB 28[67].

169. Tarek acknowledged that the plaintiff and Suzanne provided assistance although indicated that the rest of the family also provided assistance: CB 315[21].

170. Laila, like Tarek, also indicates that other family members helped. She indicates that she also took time off work and lived in the Bringelly home to assist caring for the deceased: CB 291[37].

Post-death events

171. At some stage after 10 August 2020, the plaintiff ceased to be able to pay living expenses from the deceased’s accounts as the accounts were frozen: CB 27[61].

172. Seemingly, some arrangement was made for the plaintiff at the discretion of the defendants to receive from the tenant of the Sanctuary Point property the rental of $350 per week directly rather than that being paid to the estate: CB 27[62]; 316[26].

173. On 27 November 2020, the plaintiff started to receive those rental funds: CB 27[62].

174. Between 18 December 2020 and early February 2021, there was correspondence between the parties’ solicitors regarding the plaintiff’s access to the bank accounts: CB 27[63]-28[66]; CB 98-101.

175. The plaintiff adduced evidence of certain communications with the defendants or other family members and as between the solicitors that post-dated mid-December 2020: CB 35-38[112]-[128].

176. The plaintiff indicates that he felt intimidated by conduct of Tarek in a telephone call on 16 December 2020 and by an attendance of the defendants (with others) at the Bringelly property: CB 35-36[112]-[117].

177. Tarek disputes the conduct attributed to him in the telephone call on 16 December 2020 and further disputes any intention to intimidate the plaintiff: CB 317[31]-[36]. Laila, for her part, disputes any intention to intimidate the plaintiff on the occasion on 19 December 2020: CB 293[48]-[50].

178. There was no cross-examination on these issues raised by the plaintiff. Neither counsel otherwise addressed them. In that context, I do not propose to make any findings regarding them.

Plaintiff

Relationship with the deceased

179. The plaintiff, in describing his relationship with the deceased, indicated that his life with the deceased was wonderful: CB 324[34].

180. The plaintiff states that at the time he began living with the deceased he had a bank account of his own: CB 21[23(b)].

181. However, also, from that time, the plaintiff states the deceased authorised him to operate bank accounts in the deceased’s name, and they were essentially operated as “joint accounts” and that they did not open any new joint accounts: CB 21[23(a)], 27[61].

182. Laila, whilst believing that they were not joint accounts, nonetheless confirmed that the plaintiff operated the accounts with the deceased’s knowledge and permission: CB 291[36].

183. Laila says that the deceased was always doublechecking the plaintiff’s transactions on her accounts: CB 287[13].

184. Laila indicates that in early January or February 1998, the deceased stated:

“I don't trust anyone, even Juan, so I always have to check my accounts. Ever since my problems with your dad. I have learnt a lot”: CB 287[13].

Financial and material circumstances

185. The plaintiff set out details of his financial circumstances in his first affidavit: CB 28-29[68]-[78].

186. He disclosed assets being:

1. 2002 Nissan utility (which regularly suffers mechanical trouble) estimate $3,000;

2. furniture and personal effects – negligible value; and

3. bank account containing approximately $250: CB 28[77].

187. Those assets and their valuation had not materially changed by the time of the hearing.

188. The plaintiff has no superannuation: CB 29[78].

189. As at the time of the plaintiff’s first affidavit, he received an Age Pension providing him with net monthly income of $2,036 (i.e. in the order of $24,432 per annum). He also received an Age Pension from the Chilean government of approximately $285 per month ($3,420 per annum).

187. In the plaintiff’s final affidavit, he indicated that there had been no material changes to the amount of the aged pension which he receives both from the Australian government and the Chilean government: 395[2]-[3]. He indicated that he had not acquired or disposed of any significant assets since his (second) affidavit: CB 395[4].

188. In his final affidavit, the plaintiff indicated that his current annual income totalled AU$31,925.20, being comprised of the Australian aged single pension ($27,664) and the Chilean pension (converted to AU$4261.20): CB 397[10].

Health

192. The plaintiff stated in his first affidavit that he suffered from various medical issues which he identified as being: neck and back pain, arthritis in his knees and left ankle, periods of chest pain, periods of dizziness, hypertension, high cholesterol, depression (causing issues with his memory), some hearing loss and prostate difficulties: CB 31-32[89]. He states that the depression he has suffered has manifested itself in headaches and affected his eyesight which is blurred: CB 32[90].

193. He made reference to having ongoing fear as a result of being a victim of a violent crime whilst driving between the Rosemeadow shop and his home: CB 32[89(j)]. However, the details of that were not elaborated.

194. In his second affidavit, the plaintiff outlined over two pages various conditions from which he said he suffered: CB 326-327. He referred to testing that he had undergone in the last couple of years and specialists that he had been referred to: CB 328. He also referred to his family history of medical conditions: CB 329[44]. The details he provided in this regard go beyond the conditions identified by his medical practitioner in a report dated 19 March 2021: CB 333. In that report, the conditions referred to were benign prostatic hyperplasia, hand and right hip osteoarthritis, depression, grade 1 anterolisthesis and lumbar disc bulge. In the plaintiff’s final affidavit, he asserted he continued to suffer from the medical conditions set out in his previous affidavits although indicated that he had had a prostate operation on 29 July 2022, and as a result of suffering an infection was scheduled for an ultrasound blood test in late-May 2023 and is due to see the specialist on 6 June 2023 to clarify whether he needs any further operation: CB 397[12]-[14].

Family provision principles

The statutory scheme

195. In New South Wales, the three principal forms of family provision legislation since 1916 (Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act); the Family Provision Act 1982 (NSW) (FP Act) and the Succession Act) have broadly followed a similar structure. Namely:

1. a statutory test is stated in a very general way;

2. the content of what is “adequate” and “proper” is not spelt out nor does the legislation establish any fixed concept of those matters; and

3. the Court is entrusted with the application of the general test stated to the facts and circumstances special to each case: Gorton v Parks (1989) 17 NSWLR 1 (Gorton v Parks) at 10G-11B per Bryson J (as his Honour then was).

196. The scheme under the Ch 3 Succession Act, as with those under earlier Acts, allows flexibility for the judicial function to be exercised over time as society evolves and community standards change: e.g. Gorton v Parks at 10G-11A; Ikonomou v Panagopoulos [2017] NSWSC 1805 (Ikonomou) at [93] per Parker J.

197. The exercise of power to make a family provision order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements of the judicial task in s 59(1)&(2) are in a sense described in s 60(1)(b) as being (a) whether to make an order and (b) the nature of any such order. Section 60(2) provides a detailed body of considerations for the task in s 59: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (Andrew v Andrew) at [6] per Allsop P.

198. The Court may make a family provision order if it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made: s 59(1)(c) Succession Act.

199. The Court:

1. must be so satisfied at the time when the Court is considering the application: s 59(1)(c) Succession Act; and

2. have regard to the facts known to the Court at the time the order is made: s 59(2) Succession Act.

200. The adjective “adequate” derives its meaning in context. The adjective generally conveys the meaning of something being equal to or fully sufficient to the particular requirement or occasion: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “adequate” qualifies the noun “provision”.

201. The adjective “proper” derives its meaning in context. Generally, the word conveys the notion of something being fit or suitable or appropriate to the particular purpose or circumstances being addressed: Macquarie Dictionary, online ed. Within s 59(1)(c), the adjective “proper” qualifies the expression “maintenance, education or advancement in life” (emphasis added).

202. “Adequacy” is concerned with the form and or quantum of provision, whereas what is “proper” is concerned with the standard of the maintenance, education and advancement in life of the applicant for relief: Verzar v Verzar [2012] NSWSC 1380 (Verzar v Verzar) at [127] per Lindsay J.

203. The composite expression “maintenance, education or advancement in life” is a way of describing types of provision. An order for provision operates as a codicil to a Will (or a Will in the case of intestacy) unless the Court orders otherwise: s 72(1) Succession Act.

204. The statutory language which speaks to the type of order which the Court may make is in very broad plentiful terms. Thus, a family provision order may require the provision to be made in various ways including various forms of payment, by application of specified existing or future property, by way of an absolute interest, or a limited interest only, in property, by way of property set aside as a class fund for the benefit of two or more persons, or indeed in any other manner the Court thinks fit: s 65(2) Succession Act.

205. The extraordinary breadth of the form and type of provision is seen in the statutory power entrusted to the Court to make consequential and ancillary orders in a multitude of ways including in any other matter the Court thinks necessary: s 66(l) Succession Act.

206. For that reason, it is wrong to assume that orders addressing an applicant’s proper “maintenance, education or advancement in life” are limited to only particular purposes or types of provision.

207. The powers in ss 65 and 66 are reflective of the way that a deceased may provide for a beneficiary with the deceased’s financial resources whether by income, capital or otherwise.

208. Once one understands the above, that assists in understanding the generalised way in which the Court in dealing with family provision claims refers to “maintenance, education or advancement in life”. Invariably, the Court describes these terms in ways which give a generalised indication of their nature but allow flexibility for types of provision to be filled by content from the facts of each given case and to adapt to changes in society and how life is generally lived over time.

209. For example, one sees in the caselaw descriptions indicating that:

1. “provision” covers the many forms of support and assistance which one individual can give to another: Mallitt v Gow [2022] NSWSC 1012 at [187] per Hallen J citing Diver v Neal at [34] per Basten JA (Allsop P and Ipp JA agreeing);

2. “maintenance” includes provision over and above a mere sufficiency of means upon which to live but is clearly not confined to that: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Vigolo v Bostin) at 228-229 per Callinan and Heydon JJ; and

3. “advancement” goes beyond the need for education and maintenance. In a proper case, it will extend to a capital payment designed to set a person up in business or upon marriage: Bartlett v Coomber [2008] NSWCA 100 at [50] per Mason P (Hodgson JA agreeing) citing McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 575 per Dixon CJ and Williams J; Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep); Mayfield v Lloyd-Williams [2004] NSWSC 419.

The evaluative task

210. What is clear is that there is an interaction between the expressions “adequate provision” and “proper maintenance, education and advancement in life” in s 59(1)(c). Thus, one must have some conception of what is proper maintenance, education and advancement in life for an applicant, in order to be able to assess whether the provision made, if any, is adequate: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).

211. What is “proper” is not limited by some fixed concept or defined content. It requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances: ss 59(1)(c), 60(2); Sgro v Thompson at [86] per White JA (McColl JA at [1] and Payne JA at [2] agreeing).

212. Whilst what is “proper” provision is largely informed by the facts of each given case, the Court is left to form opinions as to what is “proper” on the basis of its own general knowledge and experience of current social conditions and standards: Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 (Goodman v Windeyer) at 502 per Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing). In each case, the Court applies a standard appropriate to all the circumstances of the case: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64 (Estate of Grundy) at [95] per Lindsay J; Steinmetz v Shannon at [41]-[42] per White JA, at [132] per Brereton JA.

213. Lindsay J described this element of the Court being left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards as “making due allowance for current social conditions and standards”: Estate of Grundy at [97].

214. The fact that there is an element of the Court making an assessment of what is “proper” provision upon the basis of its own general knowledge and experience of current social conditions and standards is undoubted: Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 211 per Mason CJ, Deane and McHugh JJ; Goodman v Windeyer at 502 per Gibbs J. This is acknowledged by Gummow and Hayne JJ in their dissent in Vigolo v Bostin at [74]-[75].

215. The current position is that the High Court has recognised that in the assessment of the Court of what is “proper” in any given case a judge will consider what a judicious person would do in the circumstances of each given case, by reference to contemporary community standards or current social conditions and standards described as “moral duty” or “moral obligation”: Vigolo v Bostin at [2]-[25] per Gleeson CJ, and at [109]-[121] per Callinan and Heydon JJ. This has been acknowledged by White JA in Steinmetz v Shannon at [40].

216. How a Court makes due allowance for current social conditions and standards is somewhat elusive and has prompted discussion both in caselaw and extrajudicially as to concepts of moral duty and community standards and their application to any given case.

217. Conventionally, making due allowance for current social conditions and standards is something that is left to the knowledge and experience of each individual judge that determines family provision cases. It is not something that is susceptible to some form of external proof: Steinmetz v Shannon at [40]-[46] and especially at [42] per White JA; Gorton v Parks at 11A-C per Bryson J (both his Honour and White JA in Steinmetz v Shannon) referring to comments of Mahoney JA (dissenting) in Kearns v Ellis (Court of Appeal (NSW), Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) at 7-8.

218. Thus, what is proper will vary in each case.

219. This has been the essence of the approach in each of the forms of family provision legislation enacted in New South Wales: Pontifical Society v Scales at 19 per Dixon CJ (McTiernan J agreeing), Goodman v Windeyer at 502 per Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing); Re Fulop deceased (1987) 8 NSWLR 679 at 680 per McLelland J (as his Honour then was).

220. In a practical sense, under the Succession Act the issues are (a) whether a family provision order should be made, and (b) the nature of any such order: Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 at [17] per Basten JA (Leeming JA agreeing).

221. The size or amount of any order for provision is informed by the expressions “adequate” and “proper”. Moreover, those expressions also may inform the nature and form of a family provision order.

222. The evaluative task embodies human values and norms of conduct and assessment of what is proper cannot be constrained by or reduced to quantitative analysis: cf Andrew v Andrew per Allsop P at [1]. As Lindsay J observed in Verzar v Verzar at [152]:

152. … Some of the circumstances which the Court has to take into account on consideration of an application for Family Provision relief defy any precise calculation even if underlying facts can be identified with precision. Some, not uncommonly, relate to the present position, or future prospects, of a range of people whose claims on an estate may complement, or more likely compete with, those of the applicant for relief. The nature and range of factors to be taken into account are more qualitative and nuanced than an expert, quantitative analysis based upon accounting or actuarial assumptions can allow.

Approaches to large estates

223. Mr Price made submissions regarding the approach to be taken to determining family provision claims in respect of large estates. He cited observations of Brereton JA and White JA in Steinmetz v Shannon respectively at [100]-[105] and [47]-[48], [51].

224. The same approach to family provision proceedings in addressing the questions outlined above in respect of whether adequate provision has been left for an applicant, and, if not, the nature of any order applies to all family provision proceedings. The application of the approach and the evaluative assessment depends upon the facts of each particular case.

225. The statutory provisions do not suggest any different approach specifically because an estate happens to be large.

226. In large estate cases, the limited scale of resources available in most estates and the competition for satisfaction of financial needs out of such limited resources cease in fact, to be limiting considerations in the Court’s overall assessment of what is adequate provision for the proper maintenance and advancement in life of the applicant.

227. Thus, it has been said that the Court is free to make a more liberal assessment of what is proper provision in the sense that competition for limited resources is much reduced or eliminated and unqualified by competing claims.

228. In Anasson v Phillips, Young J (as his Honour then was) expressed this concept in the following terms (at 20-21):

If the estate is a large one the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially p412.

229. In Lloyd-Williams v Mayfield, Bryson JA at [32] expressed the concept in following terms:

32. It was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the Court ought to order. The concept of advancement in life can take consideration well beyond needs. The purposes White J considered are not concrete projects, but are means of appraising the provision which ought to be made, and of giving dimensions to an exercise which cannot be made highly concrete. Nothing commits the respondent to using the provision in the ways which White J considered.

230. In Estate of Grundy, Lindsay J at [114] expressed the same concept in these terms:

The potential availability to a claimant for family provision relief of a large estate, unqualified by competing claims upon it by any living person, may have a gravitational pull on the size of an award of family provision relief, beyond the bare notion of the claimant’s “need” for relief (Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 at [29]-[32]), even if (as illustrated by Estate Hemmes; Cameron v Mead [2018] NSWSC 85) respect for the testamentary intentions of the deceased operates as a restraint upon the amount of provision deemed “proper” to award. In a large estate a “proper” provision for maintenance, education or advancement of an eligible person may (but will not necessarily) far outweigh what is necessary for his or her “adequate” maintenance, education or advancement: Wentworth v Wentworth (1995) 37 NSWLR 703 at 737.

231. The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased’s estate: Spiteri v Vassallo at [19] per Williams J.

232. What is adequate in any given case may transcend the necessities of life in a sense of basic requirements for food, clothing and shelter or what is necessary for subsistence. It may extend to consideration of matters that for example make life more comfortable or to advance a person’s position in life.

233. This was the point of the discussion by Bryson J (as his Honour then was) in Gorton v Parks in particular addressing remarks to comments in caselaw limiting notions of the need of adult children for maintenance and support by reference to views that moral obligations of parents can be limited or possibly escaped: at 6C-11F. The point was emphasised by Brereton JA in Steinmetz v Shannon, namely, that in assessing what is proper provision to the extent that “needs” are relevant, no narrow view of that notion limited to the necessities or essentials of life is to be taken: at [132].

Windfall property increase

234. The fact that the value of an estate might significantly increase on the one hand or significantly decrease on the other between the time of the deceased’s death and the time that the Court hears the application is simply one of the exigencies of life.

235. There is no special principle in family provision proceedings that a “windfall” increase in the value of an estate must necessarily be considered in a particular way.

236. The Court’s approach to the matter is dictated by the terms of the statutory provisions which provide that the Court’s satisfaction as to whether or not adequate provision has been made for the proper maintenance or advancement in life of an applicant is a satisfaction as at the time that the Court is considering the application having regard to facts known to the Court at the time that the order is made: s 59(1)(c), (2) Succession Act (emphasis added).

237. For practical purposes, that timing occurs in the period where the Court hears the matter and delivers judgment. Often, that period will not be of any material length.

238. There may of course in some cases be particular reasons as to why an estate has substantially increased or decreased in value as between a date of death and the time of a hearing. In some circumstances, that may be due to factors arising from the input or control of one or more of the parties. In other circumstances, it may be by reason of circumstances entirely out of the parties’ hands.

573. The particular inadequacy of the accommodation provision in clause 4 of the deceased’s Will is that there is no flexibility which might allow the purchase of an alternative property should the plaintiff as he ages wish to move accommodation.

574. I accept that the plaintiff contributed in a significant way to the acquisition, conservation and improvement of the deceased’s estate. I accept that he provided either the purchase price or a substantial part of it for the Run-O-Waters property. I accept that the plaintiff worked in the tobacconist business at the Rosemeadow shop for a not insubstantial period of time for at least a period of five years (2005-2010) and in the Liverpool shop for a further approximately four years (2013-2017). He was not paid any specific wage for that although the deceased provided a supplementation to his pension income with an amount of $300 a week: CB 290[29].

575. The plaintiff assisted in and around the house and I accept that he assisted in maintaining it in the manner that he describes.

576. The plaintiff has no superannuation and no general fund on which to fall back upon.

577. The plaintiff contributed to the deceased’s welfare by being a loving husband and companion.

578. Whilst there was some evidence from the plaintiff suggestive that the deceased intended that he receive half of her estate, the evidence does not disclose that any application has been made by the plaintiff to seek to rectify the deceased’s Will. I proceed on the basis that the deceased’s testamentary intentions for the plaintiff are those that appear in the final Will.

579. The case is not a case in which any of the deceased’s children who are the other beneficiaries of her estate are competing in any relevant financial sense against provision that would otherwise be appropriate to award to the plaintiff.

580. I consider that the provision for the plaintiff in clause 4 of the final Will is also inadequate in the sense that it does not provide any separate fund for the plaintiff for the contingencies of life. The so-called “surplus funds” referenced in clause 4 after the purchase of accommodation are not made separately available for the plaintiff but rather only to be used to pay him the income derived from the separate funds.

Discussion regarding the form and amount of family provision order

593. The estimate of an amount of provision is not necessarily tied to a demonstration of how much the plaintiff requires to live on. The jurisdiction is not solely needs-based, but by reason of some of the factors specified in s 60(2), plainly also contributions-based: Steinmetz v Shannon at [132].

594. Further, it may be in some circumstances that the style of living to which a surviving spouse may be said to have been accustomed during the lifetime of the parties may be lower than the standard of living which is her or his proper due after the death of the deceased: Aroney v Aroney (Supreme Court (NSW), McLelland J (as his Honour then was), 26 July 1988, unrep) (Aroney v Aroney) at 6 (a widow’s claim).

595. The plaintiff addressed his claim for provision by reference to a requirement for accommodation and he identified particular matters for which he would require cash outlays and other matters for which he would require income sufficient to cover recurring expenses.

596. In light of that, I propose to discuss those matters. However, apart from rejecting the claim for a particular fund in relation to the DSP contingent liability (see below), I do not propose to award provision by reference to discrete amounts tied to accommodation or otherwise.

597. Whilst a Court frequently justifies a particular family provision order by reference to what it assesses to be an applicant’s financial needs, it is usually a matter for the applicant how he or she uses a provision ordered: Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 at [186] per White JA citing Lloyd-Williams v Mayfield at [17].

Accommodation

598. The accommodation the plaintiff has identified has varied to a degree as between his first affidavit and final affidavit. Whilst the plaintiff was challenged regarding whether he “needed” a four-bedroom property and whether he “needed” a two-car garage, I consider that having regard to the totality of factors I have addressed including the relationship as between the plaintiff and the deceased, his contributions, and the size of the estate, it would not be appropriate to take a stinting approach to accommodation.

599. In the plaintiff’s final affidavit, he indicated that he had lived in a house of reasonable size with space around it for over 20 years, including a pool and several bedrooms and did not wish to be confined to a small property where he was forced into close proximity with neighbours such as a townhouse or a unit. He indicated that he had always had pets and would need a backyard for the animals to exercise: CB 395[5].

600. The plaintiff did not depart from that evidence even though he was tested on it in cross-examination.

601. Part of the cross-examination revealed that the plaintiff had not inspected the particular properties he identified in his final affidavit. On the particular facts here, I did not regard that as being of great moment. The plaintiff was not, as I understood his evidence, identifying the properties referred to in his final affidavit as being specific properties which he wished to purchase. Rather, he was providing updated examples of properties that he regarded would be suitable for his needs: CB 396[7]. The properties were four-bedroom properties. They varied in size from approximately 520 m² to just under 1000 m². The price range varied from $1.1 million to $1.35 million.

602. An applicant’s expression of a preference for a proposed expenditure, if the preference is soundly based, informs what is “proper” maintenance (or advancement) for the applicant: Steinmetz v Shannon at [32] per White JA citing Sgro v Thompson at [74].

603. I reject the submission of Mr Ellison SC that it might be appropriate to consider framing provision for the plaintiff’s accommodation in the form of a portable “Crisp” order: DOS [4.28].

604. Mr Ellison SC, in final submissions, persisted with the submission that a form of Crisp order might be appropriate provision for the plaintiff. He submitted that there was no evidence that there was any interference by the defendants in the plaintiff’s lifestyle and that the plaintiff had not stated that he did not wish to be beholden to the defendants and did not get on with them: T 84.4-9.

605. I doubt that submission accurately reflects the reality of the relations between the plaintiff and the defendants. I have referred to the plaintiff’s evidence above regarding the defendants’ discussions with him after the deceased’s death regarding his claims on the deceased’s estate. I accept that there is clearly some degree of tension in the relationships between the plaintiff and the defendants, and without attributing any blame, I consider that it is not ideal that the plaintiff have ongoing ties with the defendants in managing a fund for his provision.

606. Mr Ellison SC accepted the possibility that if a Crisp order were to operate that it might persist for a long time, in his words, “for ten years at least, may be more”: T 84.29-30.

607. Whilst there are some circumstances in which some degree of ongoing interaction as between the plaintiff with the defendants managing a Crisp order fund may be able to be limited by a mechanism of a mortgage (as noted by Mr Ellison SC: T 84.30-34), I do not accept that that is appropriate in this case.

Lump sum

608. Apart from accommodation provision the plaintiff identified particular matters for which he would require cash outlays and other matters for which he would require income sufficient to cover recurring expenses.

609. In relation to particular cash outlays the matters identified by the plaintiff were:

1. A vehicle – with various costing in the order of approximately $50,000-$70,000; and

2. Various electrical, furniture and household items in the order of $30,000.

610. Whilst the plaintiff was challenged in relation to his claim in respect of those items, I do not regard the claims in respect of them as being unreasonable. In relation to the vehicle the plaintiff indicated that he always used a utility.

611. Mr Ellison SC submitted that the plaintiff’s claim for furniture and appliances in the sum of $30,000 was flawed because there was no “breakup” of the details regarding that and that it was “just a figure suggested by the solicitor”: T 84.3-4.

612. The plaintiff’s evidence was that he in fact agreed with the solicitor’s figure. It is of some assistance for the Court to be provided with some detail regarding claims for furniture, appliances and household items. However, the sort of evidence that might be required will vary in the circumstances of any particular case. If there is a very small estate with competing claims for limited resources, it might be appropriate in such circumstances to expect some more particular detail.

613. However, as the plaintiff is a surviving spouse of a marriage well over twenty years, the estate is a large estate where there are no seriously competing financial claimants, I do not regard the plaintiff’s reference to a figure of about $30,000 which might be required for furniture, appliances and household items, as being unreasonable or requiring more intense interrogation.

614. The plaintiff’s evidence is that he spends all of his current income ($31,925.20) on household and personal expenses: CB 397[10(b)].

615. The plaintiff indicated that his initial estimate of $15,000 per year for personal expenses was an underestimate, implying that the figure is at least double that having regard to the fact that he spent all of his current income ($31,925.20) on household and personal expenses.

616. The plaintiff’s specific claims in respect of his requirements for income to cover recurring expenses were essentially as follows:

1. medical health insurance – initially approximately $2,760 per annum but updated by his second affidavit a figure approximating $7650 per annum;

2. property outgoings (up to approximately $1,250 per annum for council rates; up to approximately $1370 per annum for water rates; up to approximately $2000 per annum for insurance and up to approximately $3000 per annum for ongoing maintenance) – approximately $7620 per annum;

3. the cost of gas – approximately $1,000 per annum; and

4. personal expenses approximately $31,925 per annum.

617. The plaintiff’s figures for council rates and water rates were clearly generalised indicative figures rather than specific to any actual property that he might purchase.

618. I refer to the above figures not for the purpose of attempting to precisely calculate the plaintiff’s recurring expenditure but rather, for the purpose of giving a broad rough indication of the types of expenses and potential cost of expenses.

619. Noting that I am not attempting to achieve any precise calculation, I make the observation that if one totals the plaintiff’s final estimate for personal expenditure together with the assessment of property outgoing expenditure, gas costs and medical and dental insurance the figures exceed $48,000 per annum.

620. The plaintiff is aged 68 and within couple of months will be aged 69. He has various health issues which he has outlined although there was no particular suggestion that those health issues would materially act to cut short the life expectancy of a male of his age.

621. In materials handed up by Mr Price in his submissions regarding the DSP contingent liability, he made reference to the provisions of s 1064-G3 and the asset threshold for pension purposes. Essentially, he submitted, and Mr Ellison SC accepted, that if the plaintiff, being single (or strictly speaking not a member of a couple) owned a home and had other assets to the value of $250,000 then his pension entitlements would cease: T 86.15-87.44.

622. There was no evidence as to the effect of any order for provision upon the plaintiff’s continued receipt of the Chilean pension. Mr Price submitted that I would have to accept that the plaintiff would continue to receive the Chilean pension whatever the outcome of his claim for provision: T 86.3-10.

623. Mr Price accepted that if the plaintiff were to receive provision in the form of a home and a lump sum (assuming the lump sum was of the order as sought by Mr Price for the applicant) it is inevitable that the plaintiff’s entitlement to any Australian pension would be lost: T 85.33-38.

624. Mr Price clarified that the claim of $1.25 million for an amount for the plaintiff to live on (POS [21(b)]) was for the purposes of providing or supplementing income and also covering a form of general contingency fund component: T 57.45-57.9.

625. In any event, it is clear that the types or categories of provision described by Powell J (as his Honour then was) in Luciano v Rosenblum at 69 (accommodation, income and fund), are not necessarily mutually independent: Aroney v Aroney at 6.

626. Mr Price suggested that the figure of $1.25 million was appropriate at least in the context of a life expectancy in the order of about fifteen years: T 58.24-34.

627. He suggested that with a fifteen-year life expectancy, some of the million dollars would even if completely uninvested provide the plaintiff with an annual amount of $66,000 per annum (being drawn down on that capital sum) and provide him with a $250,000 buffer: T 58.38-49.

628. Mr Ellison SC, whilst not necessarily accepting that a particular fund was appropriate, appeared to contemplate that if some form of fund was given a figure of $100,000 or $200,000 may be adequate: T 85.6-13.

629. If the plaintiff required income in the order of $50,000 per annum, on the approach taken by Mr Price (without necessary investment of the funds) an amount of $50,000 per annum for fifteen years totals $750,000. A fund of $250,000 as an additional buffer (T 58.49) totals $1 million.

630. Clearly, there can be no exact precision regarding the size of any fund which might be appropriate for the plaintiff. Obviously, if the plaintiff were given a capital sum which was invested, he might need less than Mr Price has suggested if he was purely living on capital. On the other hand, as the plaintiff ages his particular living expenses might increase and go beyond his current estimates.

DSP contingent liability

631. Mr Ellison SC submitted that there should be no order for provision framed to accommodate a contingent liability in respect of any DSP payback. That being because the plaintiff had not “come up to scratch” in proving and establishing that claim: T 84.34-36.

632. Ultimately, I am not satisfied that provision for the contingent liability ought to be made for the plaintiff.

633. First, I consider that the plaintiff has not discharged his onus of placing before the Court sufficient material to enable the Court to make a proper determination as to the issue of whether the so-called contingent liability might arise and the amount of any such liability.

634. I do not suggest that the plaintiff has deliberately misled the Court but I do consider that across the plaintiff’s evidence in his three affidavits he failed to provide sufficient basic information regarding his claim for provision for a fund to be provided to address the possibility of a contingent liability to Centrelink so as to enable the Court to appropriately assess the likelihood of the contingent liability being realised, if at all.

635. Secondly, I do not consider that I was provided with sufficiently adequate information to make a reasoned decision on the length of any sunset period.

636. I do not consider that tying the sunset period to a potentially longer-term sale of the Bringelly property is necessarily appropriate.

637. My instinct about the matter is that there ought to be a relatively prompt financial separation between the plaintiff and the defendants and other beneficiaries.

638. That is appropriate as generally in estate law the Court expects estates to be administered as reasonably quickly as might be responsibly appropriate as parties entitled to property ought to have that property distributed to them.

639. It is possible that the defendants and the other beneficiaries may wish to have the Bringelly property sold immediately.

640. Even if there was an immediate sale, I have no particular clarity about the amount of money to be set aside to cover a DSP contingent liability. In any event, the notion that the fund might be invested in some way such that it maintains some degree of real growth whilst some (undefined) period elapsed to await an outcome on whether the contingent liability was realised is not really an ideal substitute for the beneficiaries simply having the capital sum to which they are entitled available to them.

Outcome

641. Overall, having addressed the particular terms of s 59(1)(a),(c) and 59(2) Succession Act, and reviewed relevant s 60 matters which I have outlined above including but not limited to the plaintiff’s relationship with the deceased, his contributions, his limited resources, and the size of the estate, I consider that the amount of $2.5 million is an appropriate legacy for the plaintiff in lieu of provision provided for him in clause 4 of the deceased’s final Will.

Conclusion

642. In the above circumstances, I have determined that adequate provision has not been made for the plaintiff for his proper maintenance, education and advancement in life and I have indicated an amount of provision which I consider to be proper to be made for the plaintiff in lieu of the provision given to him in clause 4 of the last Will of the deceased.

643. Mr Price intimated that there will be some practical issues in the plaintiff needing some money to obtain or acquire some form of accommodation.

644. For that reason, having indicated the figure that I consider to be an appropriate amount of provision, I direct the parties to confer and to prepare short minutes of order to give effect to that finding including such if any orders as may be necessary for the payment of some immediate sum to the plaintiff to assist with any immediate transitional arrangements for his accommodation for example if the defendants wish to commence sale of the Bringelly Property.

645. My tentative view is that the appropriate costs order is that the plaintiff’s costs (calculated on the ordinary basis) and the defendants’ costs (calculated on the indemnity basis) be paid or retained out of the estate as the case may be.

646. In the above circumstances, the orders of the Court are:

1. I direct the parties to bring in short minutes of order to give effect to the reasons for judgment in particular in relation to the indication of the appropriate amount of provision for the plaintiff;

2. I stand the matter over to 9:00 AM on 19 June 2023 to enable the parties to provide such short minutes of order and, if need be, to address on the question of costs;

3. If the parties are unable to agree on proposed short minutes of order or costs, they should provide competing versions of such short minutes of order and any short outline of submissions and any affidavits by 4:00 PM on 16 June 2023.

SCHEDULE

Size of estate	Cases
“Relatively large estate”	Russell v Percy [2004] NSWSC 804 at [9] per McLaughlin M ($2.78M)
“Reasonably large estate”	Young v Outtrim [2011] NSWSC 391 at [28] per Hallen AsJ (as his Honour then was) (net estate/notional estate $3.205M); Newman v Newman [2015] NSWSC 1207 at [35] ($3.443M) per Hallen J; Jodell v Woods [2017] NSWSC 143 at [27] per Hallen J (net $1.8M); Cooper v Cooper [2018] NSWSC 851 at [35] per Hallen J (distributable estate after costs $2.175M); Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [136] per Hallen J ($2.17M); Kitteridge v Kitteridge [2022] NSWSC 193 at [77] per Robb J ($2.472M); Brewer v Ney [2023] NSWSC 526 at [38] per Hallen J (net $2.166M).
“Moderately large estate”	O’Donnell v O’Donnell [2022] NSWSC 1742 at [25] per Robb J ($2.058M actual estate - excluding claims regarding notional estate as deceased domiciled outside NSW)
“Large estate” ($5M to $10M)	Mayfield v Lloyd-Williams (2005) 63 NSWLR 1;[2005] NSWCA 189 at [7] ($8.257M); Fisher v Thomson [2006] NSWSC 527 at [2] per Windeyer J ($7.586M); Lumb v McMillan [2007] NSWSC 386 at [4] per McLaughlin AsJ (net $9.163M); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [19], [20] per Ward J (as her Honour then was) (between $7M-$8.48M); West v France [2010] NSWSC 845 at [14] per Hallen AsJ (as his Honour then was) ($10M); Graham v Graham [2011] NSWSC 504 at [19] per Hallen AsJ (as his Honour then was) ($4.877M); McKenzie v Lucas [2011] NSWSC 1012 at [9] per Macready AsJ ($5.808M); McCleary v Metlik Investments Pty Ltd [2015] NSWSC 1043 at [2] ($9.36M) per Darke J
“Large estate” over $14M	Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [50] per Palmer J (net $14M including notional estate); Hoolahan v Scali [2010] NSWSC 1349 at [7] per Macready AsJ ($15.262M); Webster v Strang; Steiner v Strang [2018] NSWSC 495 at [43] per Kunc J ($14.8M - gross distributable estate omitting costs of proceedings)

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Amendments

06 June 2023 - Coversheet amended